Woman implicated by Ontario pathologist's flawed evidence hopes for closure
Disgraced pathologist Charles Smith made mistakes in 20 death investigations in which people were criminally charged, convicted or otherwise implicated in the deaths of children.
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Photographs of young Kasandra are cherished by the Shepherd family, but you won’t find any on display in their Brampton home.
The images of the toddler come out just twice a year, a private indulgence reserved for Kasandra’s birthday in mid-December, then Christmas, when the 3-year-old known as KC looks out from an ornament hung on the tree.
Come January the photos are once again tucked away, where they can’t prompt painful questions from those who don’t know the family’s tragedy — one that was only beginning on the spring day in 1991 when Kasandra died.
Nearly 25 years after she was convicted of manslaughter in the death of her stepdaughter, Maria Shepherd hopes the injustice that resulted from that tragedy will finally be undone inside Ontario’s Court of Appeal this week.
“I’m hoping and I’m praying,” Shepherd said in an emotional recent interview, “that the truth will be out and we will be free.”
Shepherd was 21, pregnant and facing serious jail time when her lawyer told her she stood little chance against the “best of the best” — Dr. Charles Smith, the forensic child pathologist implicating her in Kasandra’s death.
Under enormous pressure, Shepherd pleaded guilty to manslaughter, a calculated move made to limit the impact on her children, but which came at the expense of the truth.
She did not know that nearly two decades later, an unprecedented review of Smith’s work would reveal the pathologist made egregious errors in 20 child death cases, including Kasandra’s.
In 2009, the Ontario Court of Appeal allowed Shepherd, now 46, to appeal her conviction and ask the court for an acquittal. Court documents filed earlier this month show the Attorney General agrees the conviction should be quashed “in the interest of justice.”
The evidence from Smith “was fundamentally flawed,” writes Howard Leibovich, counsel for the Attorney General of Ontario. New evidence from forensic experts establishes Kasandra may have died of natural causes, and that her death should have been classified as “undetermined.”
One expert called Smith’s theory that Shepherd killed Kasandra with a blow to the head so hard it left an impression from her watch “complete nonsense.” Another called it “pseudoscience.”
It’s expected Shepherd will become the latest of Smith’s victims to be exonerated at her hearing Monday.
“I hope that the world can now know,” Shepherd wrote in an affidavit to court, “that I did not assault or abuse Kasandra and did not cause her death.”
The wristwatch theory
Ashley Shepherd called 911 on Tuesday, April 9, 1991.
“I need someone here please right away,” the young father told the dispatcher, describing his 3-year-old daughter as “frozen.”
“Wh-, wh-, what do you mean ‘she’s frozen,’ sir?” the dispatcher asked, according to court filings.
“She’s just laying stiff on the floor,” Ashley replied. “… Her heartbeat’s goin’ too fast.”
Kasandra was born on Dec. 15, 1987, to Ashley Shepherd and his then common-law partner, Amanda Hislop. The couple broke up six months after Kasandra was born, and Ashley began dating Maria, a young woman originally from the Philippines. She also had a child, Jordan, from a previous relationship. The couple married in August 1989.
A custody dispute erupted over Kasandra, but Ashley and Maria had her in the months before her death. The toddler lived in the couple’s Brampton home alongside Jordan, as the Shepherds had two more children of their own (Maria later became pregnant with her and Ashley’s third child).
In the final months of her life, Kasandra had increasingly serious health problems, and Shepherd began taking her to near weekly appointments. The family doctor believed a blood disorder could be causing her exhaustion, weight loss and frequent vomiting.
In February, 1991, Kasandra was admitted to hospital, where doctors performed a number of tests, with results indicating she might have epilepsy or a disease. Showing signs of improvement after a month in hospital, Kasandra was discharged in March.
But weeks later, she became gravely ill. She began vomiting continuously and going in and out of consciousness. Soon after Ashley’s 911 call, Kasandra was rushed to a hospital in Peel Region, then transferred to the Hospital for Sick Children.
She was in a deep coma; her brain was swelling. Two days later, Kasandra was removed from life support.
The following day, Smith — one of the most respected pathologists in the country at the time — conducted Kasandra’s autopsy. He quickly homed in on what would become his key piece of evidence: a doughnut-shaped bruise deep in the tissue beneath Kasandra’s skull.
Smith attributed the injury to a blow to the head, which caused fatal swelling. Kasandra, he concluded, was the victim of homicide. He asked police to find an object that was similarly shaped to the bruise.
Investigators came back with Shepherd’s wristwatch. Smith then held the watch over a photograph of the bruise and said it was “a very nice fit.”
“The watch measurements aligned with the marks on the victim’s head. No question,” an unknown police officer wrote in his or her notes three weeks after Kasandra’s death, paraphrasing Smith. “Reasonable that a backhanded blow could cause this injury.”
As police continued their investigation, Shepherd was told that there was medical evidence suggesting Kasandra had been hit on the back of the head with an object, sometime between 4 p.m. and 9 p.m. on April 9.
In an interview, Shepherd told a detective that sometime in the afternoon on April 9, she did hit Kasandra on the back of the head with a sweeping motion, as she attempted to tend to her younger daughter, Natasha, who had fallen out of her bed. But it was passing contact, and Shepherd said she never struck her in a way that would cause injury.
Shepherd was charged with manslaughter, then released on bail with the condition that her children live with their grandmother.
To Thomas Wiley, Shepherd’s lawyer, Smith’s opinion was “seemingly unassailable,” the lawyer wrote in his affidavit.
After Wiley consulted with another forensic pathologist who felt the watch theory had merit, Wiley told Shepherd she was likely to be convicted, calling Smith “a force to be reckoned with.”
Shepherd knew that if the matter went to trial, her family would have to testify, an ordeal she did not want to force upon them. She was also told her sentence could be years longer if she was found guilty after a trial, and she might have to serve it at the Kingston Penitentiary for Women, hours away from her children.
She pleaded guilty, and was sentenced to two years less a day at Milton’s Vanier Centre for Women.
“I was one small person in a sea of authority, and I was one person against someone who was looked at as a god-like figure in the medical field,” Shepherd said.
“I would never have pled guilty if I knew then what I know now about Dr. Smith and Kasandra’s death.”
Smith’s evidence “complete nonsense”
Shepherd had long been out of jail, reunited with her family, and was attempting to lead a normal life when Dr. Smith’s world began crumbling around him.
In 2005, complaints about his work lead to a review of his cases and a public inquiry, ultimately identifying 20 cases where Smith had made fundamental errors. Kasandra’s case was among them.
Reviewing Shepherd’s conviction for Ontario’s coroner’s office, forensic pathologist Dr. Helen Whitwell tore Smith’s work apart, calling his technique of overlaying Shepherd’s watch on the photo of the bruise “complete nonsense.”
Whitwell criticized Smith’s claim that he could identify a window within a few hours of when Kasandra was struck in the head, saying it is not possible to narrow it down so precisely. Whitwell added that the pathologist’s testimony at Shepherd’s preliminary hearing was neither balanced nor reasonable.
“Difficult case,” Whitwell wrote in an assessment on Dec. 7, 2006. “Dr. Smith showed a lack of forensic knowledge relating in particular to the bruise over the back of the head and its causation.”
Importantly, Whitwell noted that Smith did not explore the possibility that epilepsy, or seizures, were the cause of death — a possibility also raised by other forensic medical experts who were consulted on Shepherd’s case.
One forensic pathologist gave the opinion that Kasandra could have developed a “rapidly progressive neurological disorder that started with vomiting and seizures and ended with in coma and brain death.” In all, Shepherd’s appeal sought out the opinion of five forensic experts, all of whom discounted Smith’s watch theory.
None could conclusively determine Kasandra’s cause of death. In the eyes of the law, that means there is no reasonable prospect of conviction.
For Shepherd, an acquittal would be hugely significant. She has maintained that she did not cause Kasandra’s death, but without an official ruling, “there’s still an element of doubt, regardless of what I say.”
But like so many of Smith’s victims, Shepherd will never get her life back. The damage is done.
“It has undoubtedly destroyed our lives forever, in many, many ways,” Shepherd says.
Shepherd’s lawyer, James Lockyer, declined to speak about the case prior to the hearing Monday.
If she is acquitted, Shepherd plans to visit Kasandra’s grave in Mississauga with Ashley, her husband of 26 years, and her children, now adults. “This time we’re going to join hands and be there together, with some closure,” she says.
Then Shepherd will go home and hang Kasandra’s photo prominently on the wall.
A TIMELINE OF THE CASE
April 11, 1991: Kasandra Shepherd, 3, dies in hospital, two days after she began repeatedly vomiting and losing consciousness.
April 24, 1991: After Dr. Charles Smith conducts an autopsy and concludes the cause of death was cranio-cerebral trauma as a result of abuse, Kasandra’s step-mother, 21-year-old Maria Shepherd, is charged with manslaughter.
October 1992: Shepherd first pleads not guilty to manslaughter, then changes her plea to guilty after her lawyer warns her that forensic pathologist Dr. Smith is “the best of the best.” She is sentenced to two years less a day in jail.
March 18, 1992: Kasandra’s family doctor is arrested and charged with obstructing justice for telling police that bruises on Kasandra could have been the result of a blood disorder. The case was thrown out before trial.
June 21, 1993: Shepherd is granted parole, and immediately begins proceedings to regain custody of her children (she was awarded full custody in 1995). Soon after her release, she begins working as a paralegal.
November 1997: A coroner’s inquest into Kasandra’s death calls for a massive overhaul of Ontario’s child protection system. The jury made 73 recommendations aimed at preventing and detecting child abuse to avoid future deaths.
November 2005: After mounting criticism of Smith’s work, Ontario’s Chief coroner takes the unprecedented step of calling for the review of more than 40 of his child death cases.
April, 2007: The review finds that Smith had made questionable findings in 20 cases dating back to 1991. Twelve of those cases resulted in criminal convictions. His errors included bungling autopsies, misdiagnosing causes of death and overselling his expertise.
December 2007: An inquiry led by Ontario Court of Appeal Judge Stephen Goudge, examining pediatric forensic pathology, begins in Toronto.
October 2008: Goudge releases an in-depth report, making 169 recommendations “necessary to restore and enhance public confidence in pediatric forensic pathology.” He found Smith was “arrogant” despite lacking basic knowledge about forensic pathology, provided erroneous opinions and made false and misleading statements in court.
May 2009: Ontario Court of Appeal allows Shepherd to appeal her conviction.
Febr. 2, 2011: Ontario’s College of Physicians and Surgeons strips Smith of his licence to practise medicine in Ontario, finding he was incompetent and had committed professional misconduct. The move was more symbolic than practical, since Smith had allowed his licence to expire.
February 2016: The Attorney General of Ontario recommends in court documents that Shepherd’s guilty plea and conviction should be struck and an acquittal entered, calling Smith’s evidence “fundamentally flawed.”