Marco Trotta get bail thanks to a disgraced pathologist who gave evidence against him.

TORONTO -- After almost a decade behind bars for killing his baby, Marco Trotta got bail yesterday thanks to a disgraced pathologist whose testimony helped convict him.

That's the double tragedy of discredited Dr. Charles Smith -- his alleged incompetence not only convicted the innocent, but may release the guilty.

Trotta's case is one of 13 convictions dating back to 1991 in which a panel of five experts found errors in Smith's evidence. After the shock findings were made public, the Ontario government agreed to hold an inquiry into Smith's work. They also agreed not to contest Trotta's bail as he awaits his October appeal before the Supreme Court of Canada.

After the posting of $100,000 surety, Trotta is set to be freed into the arms of his wife, Anisa, herself convicted of criminal negligence causing death and failure to provide life's necessities for eight-month-old Paolo. Her conviction also is being appealed.

"I'll have champagne waiting," Anisa Trotta said after a judge granted bail.

Lawyer Michael Lomer said Trotta, 38, has suffered and is anxious to be reunited with his wife. "He's very pleased to go home." Part of Trotta's bail conditions are he live with Anisa and not contact their surviving children, Marco Jr., 13, and Francesco, 12, in the custody of his in-laws.

These years of separation have been "torture," his wife said. "I've been blessed with a lot of strong friends who have helped us through this," said Anisa, paroled after one year of her five-year sentence. "They have been few and far between but I do have some."

Her family has not been among them -- it was her mother's testimony that helped seal the case against her husband. When Paolo died in May 1993, the original pathologist attributed his death to sudden infant death syndrome (SIDS). But a year later, the Trottas' latest baby was brought to the emergency room with a broken leg and bruises covering his body. Suspecting the baby's thigh had been twisted until it broke, doctors called police and Paolo's death was reopened.

His body was exhumed and Smith, Ontario's top pediatric pathologist, was called to conduct a second post-mortem. He testified he found evidence of a broken arm and three skull fractures -- one of which was recent and could have caused his death. The parents were arrested in 1996.

But Trotta's lawyer says Smith was mistaken: there was no fresh skull fracture, only the healed one. That error will no doubt be the basis of his appeal.

Even so, Trotta hardly appears to be a poster child for the wrongly convicted. During the trial, witnesses testified his son was battered and bitten, and siphoned what little nutrition he could from watered-down milk or formula. The star prosecution witness was the baby's maternal grandmother who said she was alarmed by bruises on Paolo's body.

She became more concerned when he was taken to Oshawa General Hospital in January 1993 with a fractured skull. Trotta claimed Paolo had fallen off a table while left alone in his baby carrier. The children's aid found nothing awry.

Not so, say neighbours, who testified to the baby's non-stop crying and shouts from his father to "shut the . . . kid up." Even more damaging was a home video of the Trottas' trip to Florida just two weeks before he died. Spectators were in tears watching the baby, covered in black and blue bruises, screeching in pain when his father appears to bite his nose.

Described as an arrogant sadist who used the family's money to buy pink windshield wipers instead of baby formula, Trotta was convicted of second-degree murder and sentenced to life with no chance at parole for 15 years.

But now a discredited pathologist has given him hope.