Twice convicted of killing his baby, father now wants name cleared

TORONTO - A man twice convicted of battering his baby boy to death turns to Ontario's highest court Wednesday in hopes of having his name cleared on the grounds that his first conviction was based on evidence from disgraced forensic pathologist, Dr. Charles Smith.

Marco Trotta claims his second trial in 2009 — held after the Supreme Court of Canada quashed his murder conviction — should not have been allowed to proceed because of egregious state misconduct.

The Crown, however, is adamant a judge was right to reject a stay of proceedings, and let Trotta stand trial again for the death of eight-month-old Paolo.

"This case cried out for a verdict on the merits," the Crown argues in its factum to the Ontario Court of Appeal.

"Paolo's short life was full of abuse and neglect. He suffered more injuries than most people would expect to suffer in a normal lifetime."

Baby Paolo was found dead at home in Oshawa, Ont., in May 1993. His death was initially ruled a case of Sudden Infant Death Syndrome.

Suspicions were aroused when month-old Marco Jr., born to the Trottas almost a year later, was taken to hospital with a fractured thigh. Paolo's body was exhumed, and Smith — considered the country's foremost forensic pediatric pathologist — did a second autopsy.

Based on Smith's findings, Trotta was convicted of second-degree murder at trial in 1998 and given a life sentence.

In the ensuing decade, Smith's shoddy forensics came to light. A public inquiry revealed his opinions had ruined lives, and his courtroom evidence had led to wrongful convictions.

In 2007, the Supreme Court of Canada ordered a new trial based on fresh evidence about Smith's work. The high court refused to enter an acquittal because it found evidence on which a jury could have convicted Trotta.

Among the evidence: Paolo had three separate skull fractures and a broken upper arm.

Before the second trial, Trotta pressed for a stay. Smith's perjury at the first trial had indelibly stained the prosecution, and the state's misconduct was so egregious that going ahead would damage the justice system, he argued.

The judge refused, saying Smith would not be a witness and public interest demanded a hearing.

In September 2009, with the defence conceding that evidence supported a finding he had killed Paolo, Trotta was convicted of manslaughter. He was sentenced to the nine years he had already served.

Trotta now argues the judge's rejection of a stay was misguided.

"The present case is within the category of exceptional cases, where past state misconduct is of such gravity as to demand a stay of proceedings," Trotta's lawyer argues in his factum.

"The miscarriage of justice suffered by the appellant is not an isolated case but one of many. It is not the product of overzealous police officers but senior state officials, a situation that is fairly described as institutional corruption."

The Crown asserts that staying the proceedings would compound the damage Smith did to the justice system, and raise public fears of a guilty person escaping prosecution because of him.

As the trial judge noted, the case was not about Smith but about an horrifically abused infant, the Crown says.

The judge at the manslaughter trial called Trotta's actions toward his baby "unspeakable."

"A video taken during a two week vacation shortly before his death shows a sad little boy with a succession of bruises, and captures the appellant assaulting him by biting his nose to the point that the child screams," the Crown factum states.