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Crown withdraws murder charge against Charles Smith victim

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OSHAWA, Ont. - Shortly after Tammy Marquardt was sent to prison in 1995 in the death of her two-year-old son, she had the word "freedom" tattooed on her arm.

But it wasn't until Tuesday that she could truly say she was free.

The Court of Appeal for Ontario quashed Marquardt's second-degree murder conviction earlier this year, calling her a victim of a miscarriage of justice and ordering a new trial. But rather than proceed with a new trial Tuesday, the Crown withdrew the charge because of how much time had passed and the "flawed" evidence of the now notorious former pathologist Charles Smith.

Ontario Superior Court Judge Michael Brown said it's tragic that it took so long to uncover Smith's mistakes and conveyed to her his "deepest regret."

"You're free to go, ma'am," he said.

Marquardt placed her hand on her chest as she appeared to struggle to catch her breath, hugged her lawyer and moments later walked outside the courthouse clutching a picture of her son Kenneth.

"Honestly, I never thought I would see this day," Marquardt said. ''I thought, 'There is no justice. They're going to believe him and they're not going to believe somebody like me.'"

Smith, who was recently stripped of his medical licence for professional misconduct and incompetence, testified in her case that Kenneth was strangled or suffocated.

Other experts have since denounced Smith's findings, concluding Kenneth's cause of death could not be determined, though there is strong evidence the boy was epileptic and could have died from a seizure.

In court, Marquardt wiped away tears and gently rocked back and forth as her lawyer James Lockyer described how Marquardt found Kenneth tangled in his bedsheets, quickly turning white and going as limp as a rag doll.

Marquardt was convicted in 1995 and spent 14 years in prison before being granted bail in 2009. They weren't easy years, Lockyer said. Labelled a baby killer, the diminutive woman was a pariah among her fellow inmates and attempted suicide, Lockyer said.

The judge said he hopes that Marquardt can now move forward with her life, which includes her nine-month-old daughter.

"Nothing I can say to you today will repair the damage that has been caused to you," Brown said. "Nothing I can say will bring back your son Kenneth, for whom you still grieve. I wish my words could do that."

Brown told Marquardt he couldn't imagine what she went through. Outside court, Marquardt tried to put it into words.

"Have somebody rip your heart out and hold it in front of your face and just have them squeeze the life out of it," she said. "That's the only way I can express that kind of a pain. It's torturous."

At the time of her conviction, Marquardt was an impoverished young mother thought to have limited parenting skills and the Crown worked on a theory she strangled her son in a moment of frustration, Lockyer said in court.

"Tammy Marquardt was essentially an easy target," he said. "She was an easy target for Dr. Smith and I fear she became an easy target for the justice system."

Once considered an unassailable expert on child forensic pathology, an inquiry found that errors in Smith's work were responsible, in part, for several people being wrongfully convicted and sent to prison for killing children.

Other reports and reviews have noted his errors and his findings have been lambasted numerous times in court in recent years. In a public reprimand from which Smith was absent, the College of Physicians and Surgeons of Ontario called Smith's actions abhorrent and said he disgraced the profession.

Marquardt was supported in court Tuesday by her fiance, sister, niece, nephew and Romeo Phillion, a fellow victim of a wrongful conviction.

Like Marquardt, the Crown withdrew a second-degree murder charge against Phillion last year after the Appeal Court quashed his 1972 conviction. The judge residing over the case ruled the prosecution withheld a key piece of evidence in Phillion's original murder trial.

The Ontario government announced last year that it would compensate Smith's victims and Lockyer said Marquardt will be seeking some.

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