Judge reopens 16-year-old case into death of man's son

KIRK MAKIN

From Wednesday's Globe and Mail

May 28, 2008 at 4:56 AM EDT

A Toronto man's chances of being exonerated in the 1992 death of his five-week-old baby appeared to soar yesterday, after an Ontario Court of Appeal judge reopened the 16-year-old case and offered him some hopeful words.

Mr. Justice Marc Rosenberg said he found it "very understandable" that Dinesh Kumar accepted a plea bargain from the Crown in 1993, which resulted in him getting a 90-day sentence for criminal negligence causing death.

Judge Rosenberg said the plea offer was "exceedingly lenient," considering Mr. Kumar faced a term of life imprisonment if convicted for the murder of his child, Gaurov.

"It is manifestly in the interests of justice that an extension of time be granted in these unusual circumstances, notwithstanding the long passage of time," Judge Rosenberg said.

In his application, Mr. Kumar contends that he was effectively forced to plead guilty, rather than face trial testimony from the country's leading forensic pathologist - Charles Smith.

The now-discredited Dr. Smith was to testify for the Crown that Gaurov was a victim of shaken baby syndrome - a popular diagnosis at the time - which is now in serious question in the forensic pathology community.

Referring to the controversy, Judge Rosenberg said yesterday: "New evidence has now come to light casting serious doubt on the validity of the findings of Dr. Smith."

In another significant move yesterday, Crown counsel Gillian Roberts told the court she did not oppose reopening Mr. Kumar's appeal - a concession that indicates the Crown sees merit in his appeal.

After the brief hearing, Mr. Kumar - who was accompanied by his wife, Veena, his son, Saurob, and several relatives - expressed delight at the outcome. "This is a great day now," he said in an interview. "I am happy. It is a very good thing for us."

Defence counsel James Lockyer said he will file Mr. Kumar's appeal immediately. "I think that the way Justice Rosenberg spoke was very encouraging," he said. "The next step is to sit down with the Crown and sort out where we go from here."

Mr. Lockyer said he is hoping the Crown will simply agree to Mr. Kumar being exonerated, without both sides having to go to the trouble and expense of seeking expert opinions from forensic pathologists abroad.

Five weeks after his birth, Gaurov screamed in his sleep one night. Mr. Kumar told police that he rushed over to the child's crib to find him gasping and looking bluish. Doctors determined later that night that Gaurov was brain-dead. A day later, on March 20, 1992, he was removed from life support.

The real cause of Gaurov's death might never be determined. In a brief to the court, Mr. Lockyer and co-counsel Alison Craig stated that Dr. Smith should have realized that shaken baby syndrome was not even a legitimate diagnosis at the time, since one of three indicators that must be present for such a diagnosis - retinal hemorrhages - was absent.