When 18-year-old Shelby Herchak woke up suddenly one night in 2010, she picked up and then dropped her one-month old baby, who died as a result. However, that was just the beginning of Shelby’s nightmare, because the report of forensic pathologist Dr. Evan Matshes determined that the baby had sustained earlier injuries to his head, and Shelby was charged with second-degree murder. She knew that what had happened was an accident and that her son had no earlier head injuries. Nonetheless, she pleaded guilty to manslaughter, convinced that the pathologist would be believed over her. She did not want to face the possibility of the life sentence that would have followed a conviction for second-degree murder. Instead, she served five years for manslaughter in a federal prison.
It turns out that Matshes’ report was incorrect. Because of concerns raised about the quality of his work, in 2012, the Alberta government appointed an external panel to review his work. It found that he had made “unreasonable findings” in 13 of the 14 cases he had been involved with, a number of which had led to criminal charges and wrongful convictions.
Shelby’s was one of these: the panel decided that Matshes had mistaken a natural separation in the newborn baby’s skull for a fracture.
Burying the truth
Adding yet another layer to the injustice, the report containing this finding was never provided to Shelby or her lawyer. The first time she saw it was in 2019, when CBC’s The Fifth Estate showed it to her in the development stages of a program.
Despite the evidence of his poor work, Matshes contends that he is a victim of a personal vendetta:
“I stand by my work. I have devoted my professional life to making sure that the criminal justice system holds those guilty responsible for their crimes and does not prosecute the innocent.”
Shelby would disagree, as would others wrongfully convicted because of Matshes’ evidence.
Not the only one
Ottawa University’s Innocence Compensation Project, which provides financial compensation to some of those who are wrongly convicted, estimates that there are approximately 872 people in this country convicted each year of offences they did not commit. That’s a lot of people. We know some of them by name or notoriety — Steven Truscott, Donald Marshall, Guy Paul Morin, David Milgaard – but we don’t know who most of them are.
Since 1993, Innocence Canada, formerly called the Association in Defence of the Wrongly Convicted, has been identifying, advocating for and working for the exoneration of people convicted of crimes they did not commit. In that time, the organization has assisted 23 innocent people who had served a total of more than 200 years in prison to be cleared of wrongdoing. It is currently working on 81 cases.
Among those assisted by Innocence Canada are people who were wrongly convicted as a result of the work of Dr. Charles Smith. During his time as head of pediatric forensic pathology at Toronto’s Hospital for Sick Children between 1982 and 2003, he was responsible for numerous miscarriages of justice. When Ontario’s Chief Coroner ordered a review of 44 of his cases, substantial problems were found with 20 of them, 13 of which had led to wrongful convictions of family members and babysitters of children who had died.
Smith has been disgraced and struck from the registration list of doctors in Ontario, but his victims continue to pay the price for his actions.
A light in the darkness
Just as here, there are wrongful convictions in the United States, and the ongoing presence of the death penalty in many states makes the need to prevent and overturn those convictions in a timely way even more pressing. The Equal Justice Initiative, under the leadership of its founder Bryan Stevenson, does just that.
Since 1973, 166 people on death row have been exonerated and released from prison, more than 100 of those due to the efforts of the EJI, which identifies race, mental illness and poverty as three of the biggest systemic contributors to wrongful convictions and death penalty sentences.
Noting that “each of us is more than the worst thing we have done,” Stevenson’s work is rooted in his strong belief in mercy. As he says in the Introduction to his book, Just Mercy (which is the basis for the recently-released film of the same name):
“We are all implicated when we allow other people to be mistreated. An absence of compassion can corrupt the decency of a community, a state, a nation. Fear and anger can make us vindictive and abusive, unjust and unfair, until we all suffer from the absence of mercy . . . it’s necessary to recognize that we all need mercy, we all need justice, and – perhaps – we all need some measure of unmerited grace.”
Just mercy: not an unreasonable expectation of our criminal system.