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 Malique Broomfield Fitz-Charles, then 2, had cocaine in his system as doctors fought for his life in August 2005. (Supplied photo) |
She’s been vilified as an evil mom who nearly killed her toddler by feeding him cocaine.
But Tamara Broomfield, 27, claims she was wrongly convicted thanks to her suspended Legal Aid lawyer who did a lousy job of defending her and now she wants out on bail while awaiting her appeal.
Last month, Broomfield was sentenced to seven years in prison for the prolonged abuse of her then two-year-old son Malique that included breaking his ribs, not seeking medical help for his fractured arm and giving him cocaine over a 14-month period that left him with permanent brain damage.
While she serves her sentence at the Vanier Centre for Women, less 14 months credit for pretrial custody, prominent defence attorney James Lockyer was at the Ontario Court of Appeal asking Justice Karen Weiler to release the Scarborough mom on bail pending her appeal on the grounds her “below standard” legal representation amounted to a miscarriage of justice.
Lockyer accused lawyer Terry Kirichenko of telling “falsehoods,” withholding the fact he was being suspended by the Law Society of Upper Canada, taking $1,000 from her even though he was on a Legal Aid certificate and not mounting a vigorous defence.
“A reasonably well informed member of the public would be shocked at the conduct of (her) trial counsel,” Lockyer told the court.
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Three days before her trial started, Kirichenko was before a disciplinary hearing where he admitted failing to keep proper accounts. Handed a 30-day suspension, it was postponed until Feb. 23, 2009, so he could represent Broomfield at her trial.
According to Lockyer, he never told his client or the court of his pending disciplinary action and even lied about why he wasn’t in lawyers’ robes during the reading of her verdict April 1 after his suspension had gone into effect.
Broomfield contends Kirichenko “cut corners” on her case because his disciplinary action was looming and he wanted to finish the trial quickly before he was suspended from practising.
Lockyer said the lawyer didn’t challenge the credibility of the Crown’s two key witnesses, even after his client uncovered evidence herself online. Kirichenko also failed to call his own expert witness — found again by Broomfield — to dispute the Crown’s “novel” scientific evidence of cocaine found in Malique’s hair follicles by the Motherisk lab at Hospital for Sick Children.
Broomfield now maintains she wanted to testify at her judge-alone trial, but was never prepared by her lawyer. She also contends she was so stymied in arranging a meeting before her trial started, she offered Kirichenko $1,000 in cash as a way of finally getting to see him about the case.
The lawyer agreed he accepted money, but said it was a $300 Christmas gift, and insisted she never wanted to testify.
Broomfield only learned of Kirichenko’s suspension after a new lawyer began researching her appeal. Her bid to have a mistrial declared as a result was turned down by Ontario Superior Court Justice Tamarin Dunnet on March 26, who said her lawyer’s “unacceptable conduct” wouldn’t have changed her guilty verdict.
That was the reasoning adopted by the Crown as well in arguing Broomfield’s grounds for appeal are “weak” and granting her bail now would offend the public interest.
Now seven and living with his father, Malique has “permanent and irreversible brain damage and will be dependent on others for the rest of his life,” prosecutor Andrew Cappell told the court. “It’s not a murder, but on a scale of serious offences, it was not far off. It was horrific.”
While he agreed Kirichenko should have told Broomfield about his impending suspension, he denied that would have changed the trial’s outcome. As for accepting cash from a client while being paid by Legal Aid, “obviously it’s extremely improper” if true, Cappell said, but again, it didn’t lead to a miscarriage of justice in the case.
Justice Weiler has reserved her decision, so for now, the Scarborough mother has a glimmer of hope.
As for her son, he remains imprisoned by his disabilities forever.
Read Mandel Wednesday through Saturday. michele.mandel@sunmedia.ca or 416-947-2231