TORONTO — The judge presiding over the notorious trial of the parents of Randal Dooley failed his duty to ensure the jury considered the evidence objectively, the Ontario Court of Appeal heard Monday.
“This was a tragic and highly emotional case,” said Clayton Ruby, the lawyer for Edward (Tony) Dooley, as the four-day appeal hearing began. “The trial judge committed the error he was required to correct,” said Mr. Ruby, who suggested Justice Eugene Ewaschuk used “inflammatory” language in his final instructions to the jury.
“He elevated the emotions of the jury,” said Mr. Ruby, noting that the victim was referred to as “poor pitiful Randal” more than 15 times by Judge Ewaschuk during his final instructions.
Tony Dooley and Marcia Dooley were each convicted of second-degree murder by a jury in April 2002, after a widely publicized trial that revealed the tragic and abusive life of Randal. They have been in prison since their convictions and were not present at the appeal hearing, which is customary.
Seven-year-old Randal died in September, 1998 at the home in the Scarborough section of Toronto he shared with his brother, his father and stepmother.
An autopsy revealed that Randal had 13 fractured ribs, a lacerated liver and four brain injuries. There were numerous signs of ongoing physical abuse suffered by the boy, who weighed only 42 pounds at the time of his death. “There were too many scars on Randal’s body to count,” noted the Crown in its written arguments filed with the Court of Appeal, which take several pages to list all of the boy’s injuries.
Tony Dooley was sentenced to life in prison with no chance of parole for 13 years. Marcia Dooley received life in prison with no parole for at least 18 years. Judge Ewaschuk found that she inflicted the blow that killed her stepson.
Randal died of a brain hemmorhage several hours after a beating that the medical evidence suggested was a combination of shaking and blunt force impact to the head. The jury heard testimony that Tony Dooley was not home when the fatal beating was inflicted.
In statements to police after their arrest, the couple blamed each other for the abuse of the boy. The jury heard evidence that Marcia Dooley would beat Randal on a regular basis. Tony Dooley admitted only to beating his son once, with a belt about a month before his death.
Mr. Ruby suggested his client is guilty of manslaughter because of his duty as a parent to protect his son, but not murder.
“The distinction between murder and manslaughter was key,” said Mr. Ruby, who told the three-judge panel that Judge Ewaschuk did not provide proper guidance for the jury in an area of the law that may be difficult for a lay person to understand.
In finding Tony Dooley guilty of murder the jury was required to conclude that he left his home that day so that his wife would inflict the beating that caused the death of Randal.
“If he had acted and the authorities were contacted, this incident would not have transpired,” noted Justice Janet Simmons during the hearing Monday. “The fact that he did not fulfill his legal duty [as a parent] has aspects of criminality,” the judge said.
Mr. Ruby responded that the failure to act is not sufficient to meet the legal requirement for murder, as someone who intentionally aids the “principal” in a homicide. “The jury was never told how to determine when inaction is aiding,” said Mr. Ruby. “This was key.”
The Crown is scheduled to begin its oral arguments on Wednesday. In its written arguments, it responded that Tony Dooley knew that his inaction “facilitated” the death of his son. “When Randal was killed, the parent who did not commit the fatal assault knew full well that the other parent would continue to assault Randal and would inevitably kill him,” wrote Crown attorneys Jamie Klukach, Leslie Paine and Holly Loubert.
Marie Henein, who represents Marcia Dooley, is expected to begin her legal arguments Tuesday.
The Court of Appeal is likely to reserve its decision after oral arguments conclude.
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