Abused boy Randal Dooley's killers seek new trial

The Toronto couple convicted of second-degree murder in the death of seven-year-old Randal Dooley, in what the trial judge called one of the worst cases of child abuse in Canadian history, is asking for a new trial.

The boy died in September 1998 of a brain injury likely caused by repeated shaking, according to testimony given by two experts at the Dooleys' trial in 2002 — Dr. Robin Humphreys and the now discredited Dr. Charles Smith.

An autopsy on Randal, who weighed just 40 pounds at the time of his death, discovered 13 broken ribs, a lacerated liver and a tooth in his stomach. A pathologist testified the boy had been stomped on and kicked.

The boy's father, Tony Dooley and stepmother, Marcia Dooley, were sentenced to life in prison in May 2002.

Marcia Dooley's parole eligibility was set at 18 years and Tony's at 13.

Lawyers presenting new evidence

Marie Henien and Clayton Ruby, lawyers for both the Dooleys, have filed a fresh evidence application, and are expected to present it orally Tuesday.

Neuropathologist Dr. David Ramsay has examined Randal's case and made several conclusions, the document says.

Ramsay concluded the injury may not have been fatal, there is no reliable data on how much force is required to cause that injury, and there are reasons to be skeptical of the shaking conclusion.

Ramsay also said a fall from a bunk bed could have been fatal — an explanation the Dooleys put forward for how Randal died.

"The cumulative effect of these opinions strongly undermines both the conclusion that the principal offender who assaulted Randal had the requisite intent for second-degree murder and that Tony Dooley was the principal offender," the defence's court filings say.

Ruby, Tony Dooley's lawyer, told a panel of judges at the Ontario Court of Appeal on Monday that the trial judge erred by repeatedly using inflammatory language in his comments to jury members instead of encouraging them to be unemotional.

"It's important that ... the judge caution them to be dispassionate," Ruby told CBC News, speaking of the jury members.

"When it came time to do that, he kept on using the repetitive language 'poor pitiful Randal.' And that alliteration had the effect of ... inflaming that jury."

Evidence "strongly suggests" Tony Dooley was not present at the time of the fatal blow, Ruby said. He said he couldn't find any other case in which a person found to have aided and abetted through inaction was convicted without being present at the time of the offence.

"If I am right in that, there should be an acquittal," Ruby said.

"We provide an appeal because it's good for us to have a justice system we can be proud of. It's not for [Tony Dooley]; it's for us," Ruby said, acknowledging public sympathy for the Dooleys was unlikely.

Henein also took issue with statements made by a friend of Marcia Dooley's sister at the trial. The woman testified that the sister told her Marcia Dooley admitted to killing the boy.

But the sister later denied saying that, prompting defence lawyers to ask for a mistrial. They were turned down.

'Cruel and evil stepmother'

During testimony in the trial, the court was told of numerous instances of abuses, including how Marcia Dooley, angry with Randal's inability to keep food down, forced the boy to eat his own vomit.

The presiding judge at the time, Superior Court Justice Eugene Ewaschuk, determined Marcia Dooley inflicted most of the beatings and was the one who murdered him.

During sentencing, Ewaschuk called Marcia Dooley "Randal Dooley's cruel and evil stepmother."

Ewaschuk called Tony Dooley a coward, saying the father chose deliberately to do nothing to prevent his son's death.

Defence lawyers admitted during the trial the couple abused the boy, but said that did not make them murderers.

Randal and his brother, Tego, came from Jamaica to live with their father and Marcia Dooley in Toronto in November 1997. Randal's biological mother, Raquel Burth, said she sent Randal to Canada to give him a chance at a better life.

The court is scheduled to hear arguments on the appeal through Thursday.