Wednesday, October 31, 2007
Bill Mullins-Johnson's First nations community of Batchewana in Sault Ste. Marie, Ontario is understandably confused.
For more than twelve years they were conditioned to believe that 4-year-old Valin Johnson had been sodomized and strangled to death - and they took a collective sigh of relief when Mullins-Johnson was convicted of the crime and sent to prison for life to endure a punishment which he truly deserved.
Now the people of Batchewana have learned that the man they reviled was innocent of all those horrible crimes - and that Valin had neither been sodomized or strangled as the police and the experts had so quickly said in their rush to judgment - but had died a tragic but natural death.
Batchewana is a relatively small community where people tend to know each other and news spreads rapidly.
The Web-page for the Waubetek Business Development Corporation indicates that, "the total population of Batchewana is 2278 and it has a land base of 2241.4 hectares."
The community could be excused for reeling in horror when they read the story on June 29, 1993, in the local paper - the Sault Star - replete with a photograph of Mullins-Johnson under the glaring headline "Girl. 4, asphyxiated; accused kept in jail."
Mullins-Johnson testified at the recent fresh evidence hearing that led to his acquittal by the Ontario Court of Appeal that even he was convinced at the time that Valin had been murdered - but he knew that he was not the killer.
They would later read in the report on Mullins-Johnson's conviction and sentencing on Sept. 22, 1994, that "The jury of six men and six women were told during the 2 1/2 week trial that the child had been the victim of chronic sexual abuse."
"Dr. Patricia Zehr testified that the child showed evidence of getting sodomized over a period of time," the story by reporter Karl Sepkowski continued. "Mullins-Johnson appeared shaken when the verdict was announced."
(The story was considered so newsworthy that it was placed next to an Associated Press- Canadian Press report on Iraq vowing for revenge after eight people were killed by stray missiles.)
The community has, of course, learned that Dr. Charles Smith, Dr. Zehr, and Dr. Robert Rasaiah, the local pathologist got it terribly wrong, when they concluded that Valin had not only been strand led and sodomized, rocked the community and tore a family apart.
They also learned that the experts had also erred when they concluded that Valin had also been a victim of chronic sexual abuse - which in the eyes of the community would have suggested that Valin's bereaved parents were also criminals who had been sexually assaulting their daughter.
That is something else this bewildered community will have to deal with - in addition to the burden of knowing that the man they have shunned as a pariah was himself a victim - a victim of a criminal justice system they were supposed to trust.
Chief Dean Sayers recognizes the challenge facing his community - especially in view of Mullins-Johnson's evidence in the Court of Appeal that he wants to return to the Sault where some people still believe that he is guilty.
Sayers and his council have issued a press release announcing that they are hosting a "community forum" at the Batchewana Learning Centre on Friday, November 2, 2007, at 2:00 p.m. "where an opportunity will be presented to educate the community in regard to the most recent William Mullins-Johnson court case."
"After 12 years of imprisonment, Mr. Mullins-Johnson has been released from his wrongful incarceration.Batchewana First Nation is elated to provide this forum as an opportunity to welcome Mr. Mullins-Johnson back home," the press release continues.
"Legal counsel will be on hand to share with us their insight in regard to the failure of the overall system, and how we, as a collective, have been able to triumph over this travesty of justice."
Chief Sayers told "the Charles Smith Blog" that the Batchewana community, "hasn't really had an opportunity to find out what has happened.
"Not all of the people watch T.V. or read the newspapers," he explained. "All they know is that Mr. Mullins-Johnson went away for a very long time."
"There has been a breach of trust by the criminal justice system - like other breaches of trust we have had to endure - and there has to be some understanding and healing," Sayers added.
"It's hard because we had to pick up the pieces."
"Now we have the opportunity to start fresh."
William-Mullins Johnson addresses the community forum: http://www.sootoday.com/content/news/full_story.asp?StoryNumber=28268
Smith Accused Of "Uncivilized" Conduct For Bringing 11-Year-Old Son to Exhumation Of 11-Month-Old Baby Boy;
MAURICE GAGNON TO CHIEF CORONER DR. JAMES YOUNG;
On June 25, 1997, Dr. Charles Smith brought his 11-year-old son to the exhumation of Maurice Gagnon's 11-month-old grandson Nicholas who had died suddenly about nineteen months earlier after bumping his head while playing under a table.
This behaviour understandably disturbed Gagnon, who filed a complaint against Smith with the College of Physicians and Surgeons of Ontario.
The letter, dated October 5, 1999, reads as follows:
I wish to register a complaint against one Dr. Charles Randal Smith for conduct unbecoming a civilized human being, let alone a member of the medical profession.
Dr. Smith is the Director of the Ontario Pediatric Pathology Unit located at the Hospital for Sick Children in Toronto.
He is also a member of the Pediatric Review Committee of the Office of the Chief Coroner.
My grandson, Nicholas Gagnon, my daughter's only child, died suddenly on November 30, 1995,
On the recommendation of Dr. Smith, and under an order signed by the Attorney General of Ontario, Nicholas was disinterred on June 25, 1997.
We had been assured that the disinterment would occur at daybreak, between 5.30 and 6.30 a.m., to avoid curiosity seekers and to minimize the impact on the family.
However, to accommodate Dr. Smith, the disinterment took place at high noon, in the presence of on-lookers and the child's grieving mother.
Had protocol been followed, my daughter would have been spared this devastation.
In what I can only assume to be unprecedented in the annals of civility, Dr. Smith brought his young son to the grave site to witness the exhumation, no doubt for the boy's entertainment.
Not only did Dr. Smith, the man responsible for the disinterment, trivialize the desecration of our baby's grave, he contemptuously mocked my daughter and the memory of her son, by flaunting his "live" son while cavalierly digging up her "dead" son.
What manner of a man can be so callous, so cruel, so oblivious to the consequences of his actions?
At the very least, my daughter, this family, are deserving of an apology for such an insensitive display by this member of the medical profession...Thank you for your consideration...
The College refused to deal with Gagnon's complaint saying that it did not have jurisdiction over a physician acting under the authority of the Coroner's Act - a legal position later rejected by Ontario's Health Professions Review Board. (See earlier posting:...)
The College did, however, forward the letter to Chief Coroner Dr. James Young, who explained in a letter to Gagnon dated March 9, 1999, (five months after Gagnon forwarded his complaint to the College) that, "Dr. Smith drive to Sudbury on the evening of the 24th of June leaving home after 9.00 p.m."
"His wife was concerned that he may fall asleep at the wheel because he had worked a long day and arranged that his 11-year-old son would accompany him to lessen the possibility of that happening."
Young also explained that the delay in commencement of the exhumation was caused because of the late arrival of Regional Coroner "and had nothing to do with Dr. Smith at all..."
"It is the policy of the Office of the Chief Coroner that only authorized personnel attend a disinterment and it was not appropriate for Dr. Smith's son to be there," Young continued.
"He could have either stayed at the police station or in Dr. Smith's car."
Young went on to indicate that, "Dr. Smith has been appraised of our concerns and is sorry if any of his actions offended your family.
It was certainly not his intention to be insensitive or to offend anyone's feelings.
Dr. (Jim) Cairns (Deputy Chief Coroner) has indicated to me that during a telephone conversation with him that you indicated an apology would resolve this matter.
The office of the Chief Coroner apologizes for any pain or anguish that Dr. Smith's son's presence at the disinterment may have caused your family.
Dr. Smith has expressed his regrets to me and is sorry for any of his actions which contributed to the misunderstanding of the events.
I will ensure that this does not happen again in the future....I hope this letter resolves this issue to your satisfaction...
There is no question that the Chief Coroner gave Mr. Gagnon exactly what he had sought on behalf of his daughter and his family - an apology.
I am, however, puzzled by the reference to a "misunderstanding" as Young clearly acknowledges that Smith's son was present at the exhumation.
And I am deeply concerned with the bizarre incident said about Dr. Smith's judgment and his character.
The exhumation of a child is an extremely personal and distressing matter to the family - especially in the circumstances where Nicholas had been resting for so long.
If anyone should have known this it was Doctor Charles Smith.
And what about Smith's son?
As Dr Young noted, Smith had alternatives: He could have left his son at the police station or in his car;
Surely any father would have to think about what kind of effect the digging up of the remains of a baby in the mournful setting of the cemetary would have on his young son.
I can't understand this incident would not have sent alarm bells about Smith ringing through the corridors of the Chief Coroner's office.
Tuesday, October 30, 2007
REPORTER CHRISTIE BLATCHFORD: GLOBE AND MAIL;
One of the untold stories of the Charles Smith saga is the role that the media played in conveying the image of the brilliant, competent, wise, sensitive and caring Dr. Charles Randal Smith.
A perfect example of this phenomena is a Christie Blatchford story published in the Globe and Mail on April 18, 2002, during the gruesome trial of Tony and Marcia Dooley in connection with the death of their son Randall.
"Another day, when Dr. Charles Smith, a pediatric pathologist who has performed autopsies upon the bodies of hundreds and hundreds of children, was testifying, he could not help but remember his visit, the day Randy was found dead, to the Dooley townhouse and the small second-floor room where the boy slowly died," Blatchford wrote.
"Dr. Smith is a gentle man, and a religious one.
"God loves the little children," he whispered to me on his way out of court. "As a Christian, I wondered, how did the love of God ever penetrate that bedroom?"
Once, on his way to the downtown courthouse from the farm north of the city where he raises beef cattle, Dr. Smith thought of his own baby son, who died years ago of birth defects.
"I remembered how my wife and I willed him to live," he said. "If only I could have transferred some of that here."
And one day, this while Dr. Smith was using a video monitor to display some of the autopsy pictures of Randy's terrible injuries, he came into the courtroom a little early after the lunch break.
Up on his monitor, for just a minute before things resumed, were pictures of a darling baby calf, just born the Saturday before.
"On March 2," Dr. Smith said, making it as important a thing as it was. "At noon."
There on the monitor was Wedgewood Micah, born of Royal Lady, getting his very first bath from his mum, who licked and nuzzled him clean.
Dr. Smith carefully explained to me that when a calf is first born, the mother imprints her voice on him by lowing, with all the other cows gathering around to low too, so the calf learns to distinguish from all the voices the one calling him home."
Something is wrong with this picture.
Smith, an important witness for the Crown, is giving a columnist for a major National newspaper an interview on the very case he is testifying on in court, full of inflammatory content which risks harming the two accused persons before the court.
I have reported many murder cases over the years and cannot recollect a single case where the forensic expert didn't say words to the effect of, "I will be pleased to talk to you, Mr. Levy. After this this trial is over. "
In many trials, the expert declined any comment on the basis that a new trial might be ordered if there was a successful appealed and he or she did not want to do anything that would risk prejudicing the right of the accused person to a fair trial.
Here is another example of the way reporters used to routinely canonize Dr. Charles Randal Smith.
It is a story by my former Toronto Star colleagues Kevin Donovan and Moira Welsh, on the case of Tammy Marquhardt who had been charged with murdering her child.
"Charles Smith, pathologist, cleans up after other people's mistakes, the kind made by children's aid workers and doctors who miss or fail to act on the warning signs of children at risk," the story reads.
"His tools consist of a scalpel and scissors. The dead children he examines, most are just babies, require nothing more.
When he has completed each autopsy there is not much left of the child, just an empty sack really.
In the blinding light of his autopsy room, Ontario's leading pediatric forensic pathologist sees all the missed opportunities that could have saved a life.
And then he gently puts the child's body into a bag, and goes on to the next case."
Donovan and Welsh go on to describe the injury Smith detected by Smith as a “Spiral fracture" noting that "Too often this indicator of child abuse – a type of broken leg or arm - is dismissed as accidental by doctors. And children's aid does not think dirty. "
"Experts like Smith say this fracture of the long bone in the arm or leg typically comes from an abuser violently twisting a small limb," Donovan and Welsh continue. "All fractures in small children should be investigated but spiral fractures are red flags. .."
Something is wrong in this picture too.
As Dr. Michael Pollanen testified in the Ontario Court of Appeal, thinking dirty leads to miscarriages of justice... The forensic pathologist must approach his or her work neutrally as an objective scientist. (See previous posting: "Mullins-Johnson Acquittal Notable Quotes);
In an another story - about Jordan Heicamp, a child deprived of necessities by his mother under the watchful eyes of the Toronto Catholic Children’s Aid Society, Donovan and Welsh wrote:
"The sight of Jordan’s emaciated body sickened Dr. Charles Smith, a hospital pathologist who has seen hundreds of abused and neglected children."
"Smith, who describes himself as a "strong Christian," was so upset when he saw Jordan's body that he did something he never does. He swore "Holy s---," Smith said. His pathology assistant looked up in surprise," they continued.
"Smith's gentle, quiet manner is well-known by police, prosecutors and the coroner's office, who frequently rely on him when investigating child deaths.
Smith has seen every manner of abuse on the autopsy table: a child whose skin has been "degloved" by scalding water; a baby kicked and punched to death; a little girl bludgeoned to death with a hard piece of plastic pipe.
He worked in Nigeria as a young doctor 20 years ago and saw many babies who died of starvation.
"I had seen starvation in northern Nigeria after I finished medical school and this was so awful that, for a moment, I forgot myself."
"For a brief moment my tongue was not under control. This was as bad as it gets. This little wee body with ribs sticking up, just covered by skin. This was worse than anything I ever saw in Africa. For days before this baby died anybody who looked at him would have known he was in trouble.
"For him, (Smith) Jordan is also the one who so obviously fits the child protection definition of "a child at risk. "
Smith oversees much of the forensic pediatric pathology work in the province.
Another pathologist, Dr. Ernest Cutz, did the autopsy, but Smith went in to view the body and, as he so often does, make sure that the child in death receives better care than the child did in life. "
I have talked to reporters who were shocked to learn that the man they had written about so glowingly was now accused of being responsible for more miscarriages of justice than any other person in Canadian history.
To a large extent they were sucked in like the judges, police and prosecutors who allowed their horror of sexual crimes against children to cause them to suspend their usual critical judgment when it came to dealing with Dr. Charles Smith.
But there is more at play here.
Some reporters told me that Smith had an uncanny way of attracting the media: He was accessible, articulate, intense - (read photogenic) - welcomed the cameras in his labs, appeared genuinely sympathetic, provided excellent copy and knew all of the buttons to push in order to get placed above the fold.
The Goudge Inquiry has commissioned a wide variety of research papers to try and explain phenomena connected with Dr. Smith.
It's too bad the Inquiry is not looking into the role the media played in facilitating the rise of Dr. Charles Randal Smith and uncritically selling his image to the public.
Such a project might prove worthwhile.
Other posts in the "Smith and the Media" series:
Part Five: Taking on Charles Smith: A second example of fearless journalism;
Part Four: Fifth Estate probe triggers a plea to Premier Mike Harris for Inquiry into Smith cases;
Part Three: Smith of the North;
Part Two: Smith goes to India;
Previous posting: Pollanen;
SUPERIOR COURT JUSTICE BRUCE NOBLE;
William Mullins-Johnson was the victim of a rush to justice at the autopsy conducted on his 4-year-old niece Valin Johnson and a premature arrest.
The transcript of his trial - which began on Sept. 6, 1994 and ended on Sept. 1994 -indicates that he may have been the victim of another rush to judgment - a jury anxious to return a verdict because they were told by the judge, "There is no room at the Inn." (See earlier posting: Mullins-Johnson: Chronicle of An Inexorable Rush To Judgment (Part One);
Superior Court Justice Bruce Noble allowed the jury to retire to consider their verdict at 12.35 p.m. on September the 21st;
Later that day (at 8.00 p.m), Noble informed Court that he was going to have the jury in "and have a very quiet chat with them," adding, "but I am not going to exhort them in any definitive way. I think I should probably try and encourage them a little bit."
After the jurors were brought into the courtroom, Noble told them: "You have now deliberated for four hours and it seems you are having some modest difficulty in reaching an agreement as to your verdict, and I have asked you to return to the courtroom because I would like to speak to you just very briefly."
"I am sure you all realize it is desirable for you to arrive at a verdict on the count before you because if you fail to do so it Will simply mean that a new trial will beheld, and for these reasons it is important that you agree if you can honestly do that."
Noble reminded them to provide court staff with a list of items they would like to have picked up from their homes, "in the event that you are required to be accommodated overnight."
This humble bloggist cannot understand why a judge would raise with the jurors the prospect that they might be having difficulty in reaching a unanimous verdict after only hours of deliberations on a first-degree murder trial that has been proceeding over the previous two weeks.
I also can't understand why the judge would not have exhorted the jury to deliberate as long as necessary to ensure that they don't convict an innocent man.
It gets worse.
Noble then tells them that he cannot provide them the best accommodation over night because, "there is no room at the Inn," and that the Court will retire at about 9.00 p.m. for the evening.
The jurors returned to Court with their unanimous verdict of first-degree murder two hours and two minutes later. (At 10.02. p.m);
Within the next five minutes, after the jury was polled, Mullins-Johnson was ordered to stand up and heard Noble pronounce the words, "The Criminal Code provides that in respect of a person who has been convicted of first-degree murder that he be sentenced to prison for life without eligibility for parole until he has served twenty-five years of his sentence, and so I sentence you."
Here are the relevant portions from the transcript;
Justice Noble: "In that regard (the possibility of having to stay over night) no doubt all of you have heard the expression "there was no room at the Inn."
It is my standing instruction, having regard for the comfort of jurors, which is my responsibility, that the best available overnight accommodation be reserved for the jurors who are working with me on a case and who require me to be sequestered overnight.
Tonight there is no room at the Inn, either the Holiday Inn or the Quality Inn, and I am personally not satisfied with the accommodation which has been secured for you but the staff have advised that it is the best available, probably the only available.
The Algoma Tour Train visitors have booked and over-booked virtually all of the accommodation in the City, as far as Thessalon, and even North of the City within driving distance, and I know that because of the supper time I was concerned, I personally called over a dozen hotels and motels to check the availability of accommodation.
I hope you are comfortable. I apologize in advance for any personal discomfort you may face..."
Why the indecent haste?
Monday, October 29, 2007
MAURICE GAGNON; COMPLAINT AGAINST DR. CHARLES SMITH TO THE ONTARIO CORONER'S COUNSEL SUBMITTED ON BEHALF OF HIMSELF, HIS DAUGHTER LIANNE, AND HIS GRANDSON NICHOLAS (DECEASED);
One of important duties of a forensic pathologist is to fully document consultations with other specialists such as neuropathologists and anatomic physicists to ensure that decisions as to the cause or time of death are strictly within their expertise.
The Charles Smith Blog has learned, however, that former Ontario Ombudsman Claire Lewis, faulted Smith for failing to provide written reports from specialists he claims he consulted with on two occasions relating to his investigation of the death of 10-month old Nicholas Gagnon who died suddenly on November 30, 1995, in his family home in Sudbury, Ontario, while being cared for by Lianne Thibeault, his mother.
Lewis's report raises serious questions that go to the heart of Dr. Charles Smith's credibility: whether he can be believed when he claimed to have had two consultations with specialists in other fields - or whether he reached an opinion which would likely result in the laying of the most serious criminal charges based on areas beyond his expertise.
(Lewis refers to a letter sent to the Ontario's Deputy Chief Coroner by the lawyer for the Sudbury Children's Aid Society "which expressed concern that (Smith) was left to address the issues in the autopsy without the assistance of the other medical disciplines");
As I reported in the Toronto Star on February 26, 2001, Nicholas stopped breathing after bumping his head under a table and was pronounced dead at hospital.
Although a Sudbury coroner classified the death as sudden and unexplainable -- and somewhat consistent with sudden infant death syndrome -- Smith, after reviewing the initial autopsy report, decided the death was not accidental and had the body exhumed for a second autopsy.
Acting on Smith's opinion, Children's Aid Society officials moved to seize a then-unborn baby daughter from Thibeault.
Thibeault was unable to recover the child for about a month after it was born on June 27, 1998 and her name was not removed from the provincial child abuse registry until last March.
The baby was ultimately returned to her after Dr. Mary Case, an American pathologist reviewed all of the forensic and medical exhibits from Nicholas's autopsy at the request of Dr. David Chiasson, Chief Forensic Pathologist for Ontario, and concluded that, "I would not attribute this death to a head injury (as Smith had incorrectly opined) as there are no findings on which to make such a conclusion."
Case, a professor of pathology at St. Louis University in St. Louis Missouri, also stated in her opinion, dated March 6, 1999, "I would not attribute an asphyxial mechanism to this death anymore than I would a head injury," adding that she would consider both the cause and manner of death to be "undetermined."
After Maurice Gagnon, Thibeault's father, sued the local Children's Aid Society, Justice L. Gauthier said in her ruling, "It is unfortunate that the Society relied upon information which ultimately proved to be unsustainable...The persons who took important roles in the process provided flawed information."
Gagnon was troubled by the fact that although Smith had described himself as a medical doctor with specialization in anatomic pathology his investigation in his daughter's case appeared to be primarily neurological.
Gagnon had sought the medical opinion of Dr. William Halliday, a neuropathologist and professor of neuropathology at the University of Manitoba, who had participated in the investigation of numerous unexpected childhood deaths and had been involved with more than fifty "Shaken-Impact Syndrome" investigations.
Halliday's overall opinion on reviewing the case was that Smith's characterization of Nicholas's death as related to cerebral trauma resulting from non-accidental blunt force injury was "speculative and conjectural."
Halliday swore in an affidavit that he was personally aware that Smith relied on Hospital For Sick Children staff pediatric neuropathologists for matters relating to the nervous system, and like other anatomic pathologists "did very little of his own neuropathology."Smith later rejected the suggestion that he had failed to consult a neuropathologist in an affidavit, saying, "Dr. Halliday notes that it would be ideal for a trained neuropathologist to perform the neuropathologic aspect of a pediatric autopsy, if such a person was available."
"In this case such a procedure was undertaken," Smith continues in his affidavit. "The gross and microscopic neuropathologic observations were made by Dr. Venita Jay and me...Dr. Jay did not issue a written report, but communicated her opinion to me verbally."
Dr. Jay is on record as informing the Ontario College of Physicians and Surgeons of Ontario, in December, 2000, when contacted for her records of the "consultation" that, "I have no recollection of the above case at this time."
Moreover, as Gagnon pointed out, there was no mention of Dr. Jay in Dr. Smith's post-mortem report, and he concluded that if there had ever been a consultation, it would have to have been cursory, such as a chat in a corridor.
Ombudsman Lewis says in his report that, "the Deputy Chief Coroner (Dr. Jim Cairns) has advised my office that he discussed the autopsy report of (Smith) when it was completed and the(Smith) told him that he had this consultation."
"The Deputy Chief Coroner did not know if this was a "hallway" consultation or a written report and he did not question this at the time," Lewis continued. "There was no written report of this consultation."
But Lewis says elsewhere in his report that in late November and early December 1998, "The (Children's Aid Society became aware that the colleagues of the Director of the Ontario Pediatric Forensic Pathology Unit (Smith) for Sick Children, were not providing the information that was supportive of his position."
"The pediatric neuropathologist with whom he said he consulted (Jay) responded to a subpoena explaining that although she may have been involved in a peripheral, incidental way, she had no specific recollection of the case," Lewis continued. "She said she had no information in her possession or control to contribute to the case."
Lewis was clearly troubled by the Smith's failure to document any "consultation" with Dr. Jay - and by a second failure by Smith to document a significant consultation - one Smith said he had with a radiologist during the investigation of Nicholas's death.
"He (Dr. Smith) noted that the original radiographs were reviewed by the Acting Chief and the neuroradiologist, Department of Diagnostic Imaging, HSC (Hospital for Sick Children), who, he said, affirmed the presence of the split skill sutures...," Lewis wrote in his report.
The existence of split sutures would have buttressed Smith's opinion that this was a non-accidental death because they tend to be an indication of brain swelling.
"There is no written report of this consultation," Lewis added. "This is the first of two occasions when there was no written report of a significant consultation."
"This is a matter that concerned me and I will address that later."
Lewis later notes that he was informed by the Chief Coroner's office (The CCO) that, "in a similar case scenario, the first thing the CCO would look for if there is reference to a head injury is a written neuropathological opinion - and that a case conference would be held to assess the case with all the parties involved (including all of the doctors who were consulted).
He suggests that written reports should be the norm whenever someone else's medical advice is relied on to form any significant opinion.
That begs the question whether the consultations actually occurred in the Thibeault case;
Sunday, October 28, 2007
DR. CHARLES SMITH: "I APPRECIATE YOUR PATIENCE, SIR";
JUSTICE BRUCE NOBLE; "THAT'S ALL RIGHT, AND THE JURY AND I ARE VERY THANKFUL FOR YOUR HELP. ALL RIGHT. THANK YOU. YOU MIGHT JUST MAKE YOUR FLIGHT;"
SMITH'S FAILURE TO APPEAR IN COURT FOR HIS TESTIMONY;
William Mullins-Johnson's trial for the first-degree murder of his 4-year-old niece Valin is a classic example of the deference paid to Dr. Charles Smith - often at the expense of the accused.
Smith failed to show up at the Sault Ste. Marie courthouse pursuant to his subpoena on Sept. 13, 1994, to testify as an expert witness for the prosecution.
Any other witness would have been roasted by the Judge for not showing up to testify.
Not Dr. Charles Randal Smith.
"...But he's not available today and there may be a possibility that he's not well, a probability that we might have another day's delay, but I'll speak to you about that," Prosecutor Glen Wasyliniuk told Superior Court Justice Bruce Noble on Sept. 13, 1994;
Wasyliniuk went on to specify that although Smith had been prepared to attend that morning, "He advises that at the Hospital for Sick Children there are three pathologists, one of whom is in Germany. There were two for today, there was a death in the family of one of them, not Dr. Smith's family but, he advises that a pathologist has to be at the hospital and he cannot leave the hospital, there are operations and whatever, and would not be available today and he advises that Thursday was a day that he had schedules for holidays, he will attend here."
Even though Smith had long been subpoenaed to testify and his absence was disrupting a first-degree murder trial, Noble acquiesced, saying:
"It is a matter of utmost importance for the public that in large hospitals such as the service by Dr. Smith, a pathologist, be on hand for critical examinations of tissues during surgery and I quite understand...."
SMITH'S FAILURE TO PREPARE A REPORT;
Wasyliniuk informed Court of another problem: Smith had been asked to examine microscopic slides sent to him by the local pathologist who performed the autopsy (the same slides he is alleged to have misplaced) but had not prepared the requisite formal report which would permit defence counsel to properly prepare for the case. (See earlier posting: Judge Shocked By Smith's Delay In Producing Post-Mortem Report.")
Defence lawyer T.G. O'Hara, cautioned the Court that "Dr. Smith is going to be testifying in an area that I don't know what he's going to say about," and indicated that he would need extra time to consult with his own expert before he cross-examined Smith.
Noble then called in the jurors and told them that he had been advised by the prosecutor that there was a problem is securing the attendance that day of the Crown's next witness, who he described as, "a medical expert pathologist at the Sick Children's Hospital in Toronto."
Noble was presenting Smith - "his name is Dr. Smith" - to the jurors as an expert witness, even though he had not yet conducted an evidentiary hearing to qualify him as an expert.
There is no indication in the trial record that Noble made any inquiry as to whether the prosecution had take any steps to ensure that Smith would bring a report to court.
To the contrary, when Noble informed the jurors that O'Hara needed more time to prepare because he had not been provided a report, he told the jurors, "Members of the jury, there is one small problem here which is no criticism.
Ordinarily professional witnesses provide a report, usually immediately before their court attendance which encapsulates the evidence they are about to give, and in this case Doctor Smith being very busy and under considerable pressure, and probably for other good reasons that do not occur to me at the moment, was not able to provide that report, and that is certainly not a criticism, because it is his evidence that is going to motivate the determination of this matter and that you have heard today and not any report but, because of that Mr. O'Hara has asked for some time to prepare his cross-examination and I have advised him that I would rise early and perhaps extend the noon recess to permit him time so that he could organize and conduct his cross-examination. Hopefully to shorten it."
The pressure imposed on O'Hara by Smith's failure to produce a report may have had serious consequences.
We now know, in hind site, that Smith's evidence that Valin-Johnson had been sodomized and then strangled allowed the jury to convict Mullins-Johnson of first degree murder - to convict him of a crime that never occurred.
Wasilyniuk's direct examination of Smith takes forty-four (44) pages of the court record;
O'Hara's cross-examination took only ten (10) pages: Pages 524 to 534;
THE DEFENCE AGREES SMITH SHOULD BE QUALIFIED AS AN EXPERT;
Prosecutors are required to satisfy the Court that the proposed witness the requisite degree of experience to be qualified as an expert witness.
They usually do this by taking the proposed witness through his or her C.V. in terms of factors such as training, specialized degrees, work experience, research background, books and periodical articles, and expert testimony given in other courts.
But O'Hara spared Wasilyniuk the task of having to prove Smith's qualification to the Court by agreeing that he was qualified.
"Again, Your Honour, for the assistance of my friend I have no difficulty with the Doctor's qualifications as a pathologist or his qualification to to give opinion evidence in that area," he told Court. "I'm sure my friend will want to bring his qualifications to the jury's attention. For the purpose of the record his expertise is admitted."
To be fair, 1n 1994 defence lawyers would not have had any reason to challenge Smith's qualifications as an expert witness - although there was the obligation on behalf of the client to carefully scrutinize the evidence;
He was head of a prestigious forensic pathology unit in one of the world's great children's hospitals, he had both a national and international reputation in his field, and his record was unblemished.
In short, his bubble had not yet burst.
But some serious questions about Smith's qualifications could have been raised at that hearing.
For example, Smith told Court that he had received "a diploma in pathology" in 1980.
A diploma is the basic degree in pathology - and does not indicate in any way that the bearer has an expertise in forensic pathology, with expertise in determining matters such as the cause and time of a child's death.
O'Hara did not ask Smith a single question as to the post-graduate courses available to pathologists who wished to have certificates of expertise in forensic pathology - or press him as to his own knowledge of the area.
YOUR TRAVELLING ARRANGEMENTS, DR SMITH?
During the course of prosecutor Wasilyniuk's cross-examination of Dr. Smith, Justice Noble raised a concern about Smith's travel arrangements.
Court Clerk: "Doctor Smith, please return to the court," the transcript begins.
"The Court; "Doctor Smith, before Mr. Wasyliniuk continues with you, I am concerned about your travelling arrangements, do you have a return ticket for Toronto, sir?
A. Yes. I do.
The Court: What time is it?
A. I think it's 4.00 p.m. this afternoon.
The Court: All right, I will keep this in mind;
A. Yeah, if need be perhaps--
The Court: I think there is a later flight, but we will see--
A. There is, yeah...
It's hard too imagine that this conversation is taking place in a first-degree murder trial where a man, if convicted, can spend the rest of his life in jail.
Surely the message should have been - "Dr. Smith, we regret any inconvenience, but an accused man is at jeopardy, and we will take all the time necessary to ensure that he has a fair trial and that justice is ultimately done.'
THANK YOU, DR. SMITH;As the following section of the transcript shows, after giving his evidence Dr. Smith left the courtroom basking in Justice Nobles's expression of gratitude - on behalf of the Court and the jury.
The Court: Doctor, I believe firmly in the adversarial system so I am not going to interfere with it except to say that I thank you for coming. I know you were busy, I know there were problems --
A. Oh, I appreciate your patience, sir.
The Court: That's all right, and the jury and I are very thankful to you for your help. All right, thank you. You might just make your flight.Thank you."
There is the judge reinforcing the image of Dr. Smith as a neutral and credible witness who is there for the public-minded purpose of helping the jury.The jurors might as well have convicted Mullins-Johnson right then and there.
Saturday, October 27, 2007
WILLIAM MULLINS-JOHNSON'S LAWYERS IN MEMORANDUM TO JUSTICE MINISTER;
During a pre-trial hearing in the Kporwodu and Veno case Justice Brian Trafford heard evidence as to Dr. Charles Smith's competence and objectivity from numerous cases.
Trafford ended up finding six issues surrounding Smith's work which are summarized by William Mullins-Johnson's lawyers in a memorandum filed on their application for ministerial review as follows:
0: His over-interpretation or misinterpretation of findings made during the autopsy;
0: His overstatement or misstatement of findings made by other experts involved in the medical examination of a death;
0: His failure to consult with other experts before expressing an opinion on the cause of death;
0: His failure to review other pertinent information such as lifetime medical records, before expressing his opinion on the cause of death;
0: His failure to conduct tests during the autopsy that should have been done;
0: His failure to properly document all significant aspects of the autopsy or to elaborate on the basis of his opinions;
Mullins-Johnson's lawyers, James Lockyer and David Bayliss, say in the memorandum to the federal justice minister that, "Dr. Smith committed many of the sins including over-interpreting and misinterpreting autopsy findings, and overstating and misstating the fndings of other experts."
"This case (Mullins-Johnson) has all the hallmarks of his modus operandi of finding murder where it does not exist," they continue.
"Whether Doctor Smith's opinions in Mr. Mullins-Johnson's case should be classified as unprofessional, attention-seeking, hyperbolic or just plain wrong is beyond the point - they have contributed to Mr. Mullins-Johnson spending more than twelve years in prison for a crime he did not commit."
(Blogster's note: They might also have added..."for a crime that never occurred.")
One of the reasons that Trafford's indictment of Dr. Smith is so disturbing is that Smith held a position of trust in Ontario's criminal justice system.
Police officers trusted him so highly that they would lay murder charges against parents and babysitters on the basis of his opinion alone - without waiting until all the forensic evidence was in - and without conducting their own independent police investigation; (See previous posting: Interrogation of an innocent man);
Prosecutors not only trusted Smith but built him up as a world class pediatric forensic pathologist when they placed his evidence before the jury.
Judges also got sucked in to the Smith phenomenon - sometimes failing to do all they should have dome to ensure that the proposed expert witness was properly qualified.
But most of all, jurors, reinforced by the adoration bestowed by judges and prosecutors, could be excused for believing that this man was a forensic God who had descended from Mount Olympus to enlighten them.
How could this have happened in a criminal justice system based on the rule of law?
I will leave that for another blog!
Wednesday, October 24, 2007
Sharon's Case: More Forensic Evidence Allegedly Misplaced by Dr. Charles Smith: Skull Cast In The Louise Reynolds Case;
"ONE MUST RECALL THE IMPORTANCE OF DR. SMITH TO THE CASE FOR THE CROWN AND THE PUBLIC CONTROVERSY CONCERNING HIS COMPETENCE AND OBJECTIVITY. RECALL AS WELL ERRORS MADE BY DR. SMITH IN CONNECTION WITH THE REYNOLDS CASE. THE RELIABILITY OF HIS WORK IN THIS CASE (KPORWODU AND REYNOLDS) IS THE FOUNDATION OF THE RELIABILITY OF THE VERDICT. THE RISK OF MISCARRIAGES OF JUSTICE ARISING FROM WRONGFUL CONVICTIONS IS IMPORTANT TO THE COURT IN ITS INTERPRETATION OF THE DUTY TO PRESERVE EVIDENCE."
JUSTICE BRIAN TRAFFORD: ATHENA'S CASE;
A previous POSTING documented how Dr. Charles Smith allegedly misplaced key forensic evidence in three murder cases: Trotta, Mullins-Johnson and Waudby; (See previous postings: Trotta: Another Smith Case Involving Misplaced Evidence; Mullins-Johnson: A Troubling Tale of Missing Forensic Evidence;")
The misplacing of this evidence necessitated two police investigations in search of the missing materials and the dispatching of officials from the Ontario Chief Coroner's office to conduct a search of Smith's Hospital for Sick Children Office.
The disturbing list of misplaced forensic evidence cases centering around Smith must also include impressions of Sharon Reynolds skull - a skull cast - which Smith made during the autopsy.
As I reported in the Toronto Star on April 1, 2005, Reynolds alleges in a lawsuit filed in 2001 that Smith lost a cast he made of her daughter Sharon's skull during an autopsy he conducted shortly after the seven-year-old girl's body was found in the basement of Reynolds's home on June 13, 1997.
Reynolds filed the $7 million lawsuit against Smith, another doctor and Kingston police in 2001. In it, she alleges that "during the course of his work, Dr. Smith made or caused to be made polyvinylsiloxane impressions to Sharon's skull,
which were made at the time of the original autopsy."
"Dr. Smith lost these impressions," the statement of claim continues. "Dr. Smith was negligent in failing to keep these impressions safe and secure for continued use in Reynolds' case, and for the trial."
A statement of claim contains allegations that have not been proven in court.
Smith has replied in a statement of defence he had "no knowledge" relating to these allegations.
Smith tried to have the Reynold's lawsuit thrown out on the basis that witness enjoyed an absolute privilege from being sued - even in circumstances where they can be shown to have lied or been deceitful.
However the Ontario Court of Appeal rejected this argument in a ruling delivered on May 17th, and gave Reynolds and other plaintiff's and potential plaintiff's the green light to proceed with their lawsuits against Smith.
Reynolds was accused of fatally stabbing her seven-year-old daughter, based on the findings of Smith and another pathologist.
Louise Reynolds alleges in her lawsuit that Smith could not produce evidence defence lawyers believed would clear her.
One of the most disturbing allegations in the lawsuit is that as a result of Smith's inability to produce evidence her lawyers believed would clear her, the authorities had to exhume Sharon's body.
One can imagine the horror of having seven-year-old daughter die in the horrific circumstances of this case replete with coroner's and police investigation, autopsy and funeral.
But to have to go through the nightmarish process a second time following an exhumation because a trusted official has apparently misplaced evidence is beyond the pale.
Reynolds charges in her lawsuit that because of concerns she and her lawyer raised over "the state of the forensic evidence," officials in the coroner's office
reviewed the situation and the prosecutor ordered the exhumation of her daughter, and a second autopsy.
If this is correct, officials of the Chief Coroner's office were well aware in 1997 that there were serious questions in relation to the manner in which Dr. Smith was performing his work.
However, Smith continued performing autopsies on a per diem basis for the Ontario Chief Coroner's Office until February 16, 2001 when he agreed to step aside pending a review.
(Chief Coroner James Young later disclosed that the review had been suspended as a result of a lawsuit launched by Louise Reynolds.)
Justice Brian Trafford heard evidence on a motion in the Kporwodu and Veno case that by June, 2001 the coroner’s office had decided that Smith would not be used for any criminal autopsies in the future.
Reynold's charges were withdrawn on Jan. 25, 2001, after the prosecutor told court that Smith had changes his opinion and now believed that the fatal wounds were caused by dog bites - as independent experts had concluded following the second autopsy.
But Reynolds had already endured the agony of being charged with murdering her daughter, had spent two years in pre-trial custody, plus time in a halfway house, and was forced to put another daughter up for adoption before prosecutors withdrew the charge.
Sunday, October 21, 2007
SUPERIOR COURT JUSTICE BRIAN TRAFFORD: KPORWODU AND VENO;
Apart from the rush to judgment by the police, expert witnesses called by both the prosecution and the defence lie at the heart of the miscarriage of justice suffered by William Mullins-Johnson and his family;
As the Court says, in one of the most extraordinary conclusions I have ever read in a judgment, "In short, without the expert evidence there is no case against the appellant and no evidence of a crime. The non-expert evidence, if anything, is inconsistent with guilt and, again, is not indicative of a crime."
That means it was the scientists with their white lab coats and microscopes who came on the scene after Valin Johnson died and therefore had no connection to the facts leading to her death who's evidence wrongfully convicted William Mullins-Johnson - while the evidence of the true flesh and blood witnesses pointed to his innocence.
Something is terribly wrong with that picture.
The perverse role played by the expert evidence called by both the prosecution and the defence in the case is made clear in the reasons for judgment of the Ontario Court of Appeal in the Mullins-Johnson reference released last week.
"A number of experts, including Drs. Rasaiah, Smith and Zehr, testified for the Crown at the trial," Justices Dennis O'Connor, Marc Rosenberg, and Robert Sharpe. (See previous posting: Conduct Of Other Experts Scrutinized By Mullins-Johnson's Lawyers);
"Their unanimous view was that various findings from the examination of Valin’s body and the autopsy showed that she had been sexually assaulted over some period of time. (See previous posting: Extremely Dogmatic Expert Testimony Played Role In Mullins-Johnson Case, Lawyers Say);
Drs. Rasaiah and Smith also testified that Valin had been suffocated by her killer.
The defence called two pathologists, but the evidence of the defence experts was not compelling and in some respects bolstered the Crown case.
The first expert, Dr. Rex Ferris, accepted that Valin had been subjected to chronic sexual abuse but suggested that she had not been sexually abused at the time of her death.
His evidence at trial that the cause of death was unexplained was inconsistent with a report he prepared prior to trial in which he suggested that Valin had been strangled. (See previous posting: Mullins-Johnson: Famed Forensic Pathologist Admits He Erred);
The second expert, Dr. Fred Jaffe, testified that Valin had not been subjected to recent sexual abuse and that the cause of death could not be determined.
His evidence suffered from certain frailties and was not accepted by the jury.
As we have said, the appellant has always maintained his innocence. After the Supreme Court of Canada dismissed his appeal, he contacted the Association in Defence of the Wrongfully Convicted.
AIDWYC took up his case and retained an eminent pathologist, Professor Bernard Knight, to reinvestigate the case.
To do so, Professor Knight needed the various photographs, slides and other materials from the autopsy.
For reasons that are chronicled in the record, there was some delay in locating that material, but the material was finally found and provided to Dr. Pollanen to be passed on to Professor Knight.
Fortunately, Dr. Pollanen first did his own investigation.
He concluded that the various bruises and injuries said to be the result of abuse and murder were no more than the result of normal processes following death or were caused by procedures connected to the post-mortem investigation.
For example, the dilation of the child’s anus that was thought to be so indicative of anal penetration and chronic sexual assault (recall Dr. Zehr and her comment that this was one of the worst cases of child sexual abuse she had seen) is a normal finding in children after death. (See previous posting: Die Was Cast Against William Mullins-Johnson Even Before The Autopsy Began);
The acute injuries to the child’s anus and vagina observed at the autopsy were the result of artefacts related to dissection or tissue preparation.
In other words, the findings said to establish sexual abuse were the result of natural changes to the body after death or of the post-mortem examination process itself.
Similarly, the various bruises to Valin’s chest, neck and head, which were said to show that she had been physically abused during her life and manually suffocated, were the result of post-mortem artefact's related to lividity (the settling of the blood in the body after death).
The multiple bruises described by Dr. Rasaiah were no more than detailed descriptions of lividity marks. They were not the product of a criminal assault.
Dr. Pollanen passed on the slides and other materials to Professor Knight. He agreed with Dr. Pollanen.
In late 2005, Dr. Ferris was given the opportunity to meet with Dr. Pollanen and re-examine the materials.
In a report he provided in January 2006, Dr. Ferris reversed his trial opinion and agreed with the opinion of Dr. Pollanen that Valin had not been sexually assaulted and there was no pathological evidence of homicidal suffocation.
By January 2006, the Chief Coroner’s review of other cases in which Dr. Smith had provided an opinion was already underway.
The Office of the Chief Coroner asked three other leading expert pathologists to independently examine the Valin Johnson materials.
They came to the same conclusions as Drs. Pollanen and Ferris and Professor Knight......"
The Court says later in its decision that, "There is no doubt that the new expert opinions in this case are credible and highly cogent.
They go to the very core of whether there was an offence committed in this case.
The opinions have been provided by some of the leading Canadian and international experts in forensic pathology and pathology"."
This is hugely ironic.
Just a few years ago judges throughout Ontario, if not the country, would have been saying that about Dr. Charles Randal Smith.
The Court explains this conclusion as follows in written reasons for its decision to accept fresh evidence, quash Mullins-Johnson's conviction and enter an acquittal, released Friday.
"At 7:00 a.m. on Sunday, June 27, 1993, Valin’s parents found their daughter lying dead on her bed," says the Court.
"Her body was taken to the Sault Ste. Marie General Hospital for an autopsy to be performed by Dr. Bhubendra Rasaiah. (See earlier postings: "Die Cast Against Mullins-Johnson Even Before Autopsy Began, Lawyer Charges" and "Conduct Of Other Experts Scrutinized by Mullins-Johnson's Lawyers.")
While the autopsy began at 12:55 p.m., the dissection of the body did not begin until 4:50 p.m.
However, well before Dr. Rasaiah began the dissection, he called Dr. Charles Smith of the Hospital for Sick Children in Toronto and described his preliminary observations to him.
At around 2:50 p.m., Dr. Smith gave his opinion that Valin had been subjected to chronic abuse.
Dr. Rasaiah called in Dr. Patricia Zehr to attend the autopsy. (See earlier postings: "Die Cast Against Mullins-Johnson Even Before Autopsy Began, Lawyer Charges" and "Conduct Of Other Experts Scrutinized by Mullins-Johnson's Lawyers.")
Dr. Zehr was not a pathologist but rather a gynaecologist/obstetrician with expertise in child sexual abuse.
She observed the body and declared that this was one of the worst cases of child sexual abuse she had seen.
Events began to unfold very quickly thereafter.
Before the end of the post-mortem, Dr. Rasaiah told the police that he suspected Valin died between 8:00 and 10:00 p.m. the previous evening and that death was due to homicidal asphyxiation.
These initial findings by Drs. Rasaiah, Smith and Zehr set in motion an inexorable rush to judgment that centred on Valin’s uncle, William Mullins-Johnson.
At 6:30 p.m., less than twelve hours after her parents had found Valin’s body, the police arrested Mr. Mullins-Johnson for first degree murder and aggravated sexual assault.
He was charged because he had been home, alone, baby-sitting Valin and her three-year-old brother John between 8:00 and 10:00 p.m. on Saturday, June 26."
Dr. Michael Pollanen, Ontario's Chief Pathologist, told the appeal court that pathologists should withhold their findings as "pending" until the results of forensic test conducted on autopsy exhibits are in - rather than leaping to a premature conclusion which can lead to a wrongful arrest in a homicide investigation.
The Mullins-Johnson case is a classic example of the power that Dr. Charles Smith had amongst his deferential colleagues - the fact that they would call him for an opinion even before the autopsy had begun.
It is also an example of how the police can trigger miscarriage of justices by blindly accept the opinions of experts they hold in awe - like Dr. Charles Smith - rather than conducting a full investigation before laying a criminal charge.
That applies all the more to a charge of first-degree - the most serious offence in the Criminal Code.
Saturday, October 20, 2007
JUSTICE BRIAN TRAFFORD; KPORWODU AND VENO;
This blog has obtained disturbing information that there is yet another case - along with the William Mullins-Johnson and Brenda Waudby cases - in which key forensic exhibits sent to Dr. Charles Smith for analysis have gone missing.
It is the prosecution of Marco Trotta for the second-degree murder of his eight and a half year-old son Paolo.
Mullins-Johnson's lawyers had spent years trying to locate forensic exhibits from Valin Johnson's autopsy that had been sent to Dr. Smith Charles Smith at the Hospital For Sick Children in Toronto;
The disappearance of those exhibits posed dire consequences for Mullins-Johnson; (See earlier posting: Mullins-Johnson: A Troubling Tale of Missing Forensic Exhibits);
Without them he would never be in a position to show that he was innocent;
Without them he was doomed to spend much of his life in prison on his conviction for the first degree murder of his beloved niece Valin Johnson.
The missing forensic exhibits were ultimately found after in May, 2005 after then Ontario Chief Coroner Dr. Barry McLellan sent officials to the Smith's office at the Hospital for Sick Children to search for them.
But Mullins-Johnson's lawyers say that despite their request for information as to how the lost evidence came to be found years later, they have never been told why it was deemed necessary to essentially execute a search of Smith's office by members of Ontario chief coroner's office in order to locate them.
In fairness, it is important to acknowledge that occasionally people - even the most conscientious people - make mistakes.
Or, as the Latin philosopher Seneca noted, "It is human to err."
But that charitable view may not help Dr. Charles Smith, who has been shown to have kept forensic evidence in his personal possession for years in yet another case - the prosecution of Brenda Waudby of Peterborough, Ontario for the second-degree murder of her two and a half year old daughter, Baby Jenna;
The forensic evidence in the Waudby case was a curly, male, dark, pubic type hair taken removed from Jenna's vulva area which may have shown that Brenda Waudby was innocent if Smith had turned it over to the authorities.
Smith held on to this hair for several years after Waudby was charged with second-degree murder in Jenna's death on Sept. 18, 1997;.
The charge was subsequently withdrawn June 15, 1999 after a panel of defence and prosecution experts took issue with Smith's opinion as to the time at which the fatal blows were inflicted on Jenna and the prosecutor told court that, “certain medical evidence has shifted dramatically.”
A young man who was Jenna's baby-sitter on the night she died has since pled guilty to the crime.
Smith failed to perform a standard rape kit examination on Baby Jenna to determine if she had been sexually assaulted that night. (The babysitter was subsequently charged with sexual assault by police - but the charge was withdrawn on his plea to manslaughter as a young offender.)
Smith also failed to inform prosecutors that he had taken the hair - and Peterborough police are on record as saying that Smith failed to pass on that information to them.
Peterborough police are on record as saying that he didn't inform them.
Waudby's lawyer was unaware of the existence of this evidence which possibly pointed ot the killer - and at the very least would have raised a highly reasonable doubt.
Smith has acknowledged to an investigator of the College of Physicians and Surgeons of Ontario that he had the hair with him in court the day he testified for the Crown against Waudby at her preliminary hearing.
That being the case, his sworn testimony for the Crown against Waudby that day is extremely interesting:
A portion of the transcript of Waudby's lawyer's Cross-examination of Smith on Oct. 23, 1998, reads as follows;
"Hauraney: And then he (the emergency room physician) goes on to say "a curly hair around the vulva area"?
Smith: Um -hmm;
Hauraney: Do you see that? (Showing him the emergency room form filled out by the physician;
Hauraney: Would you expect this young girl to have a curly hair on her vulva?
Smith: No, No - I assume that's some pick-up - that's something which has landed there;
Hauraney: I understand in speaking with him (the emergency room physician) and it would be evidence later on...
Smith: Um hmmm.
Hauraney:... but I understand in speaking with him he was satisfied it was consistent with a dark pubic hair?
Smith: You know something I don't know.
Hauraney: No - and I appreciate that...
Smith: Yeah, yeah.
Hauraney: ...But does that - by that added...
Smith: Does that raise alarm bells?
Smith: Yes, sure.
Hauraney: And I take it then, as far as you know, the police didn't bring any public hair to you for examination?
Hauraney: And did they advise you there may have been a pubic hair found?
Smith: I can't. I can't remember.
Smith: I don't know. I'm sorry;"
A Peterborough police officer seized the hair from Smith's office at the Hospital for Sick Children - where it had been kept in a desk drawer.
Although the hair did not test as belonging to the babysitter, the hair was stored in such a shoddy way that one cannot say for sure whether the hair he handed over to the police was the same hair he took from Jenna's vulva area during the autopsy.
If these two disturing cases are not enough, the Charles Smith Blog has learned that Smith may have misplaced key forensic evidence in the Trotta case.
The salient facts of this case are that Paolo Trotta died in hospital on May 29, 1993 at the age of eight and a half months.
Everything was fine in the Trotta household as Marco, his father, woke up in the morning, changed Paolo, given him a bottle, and put him back in his crib.
But Marco Trotta went back to the crib a half hour later and discovered that Paolo was blue.
Frantic attempts to resuscitate Paolo were futile.
The cause of Paolo's death death was certified to be “undetermined” in the nature of a Sudden Infant Death Syndrome (SIDS) finding.
Eleven months later, Paolo’s younger brother, Marco Jr., was admitted to hospital with a broken femur.
Paolo’s death was then re-investigated and his body exhumed by Dr. Smith who conducted a second autopsy at which he observed a skull fracture which he opined could have been inflicted ten minutes before Paolo's death.
A skull fracture had not been noted at the original autopsy.
Smith's opinion proved utterly wrong, when the Trotta case became one of forty-five suspicious child death cases in Ontario involving Smith.
It is somewhat ironic that the review was ordered by former Chief Coroner Dr. Barry McLellan as a result of Smith's misplacing of the forensic exhibits in the Mullins-Johnson case;
As lawyer Michael Lomer notes in a factum filed in the Supreme Court of Canada, "Dr. (Michael) Pollanen (Ontario's chief pathologist) was equally certain that the skull fracture visible at the exhumation was healing, or almost healed."
"He described the features of its healing, and testified that there was no question that the fracture was healed," Lomer told the Court. "It was, he testified, “readily apparent” to the naked eye."
In addition to the erroneous opinion - which sent Trotta to prison for eight years before being released pending his appeal in May, 2007, "The Charles Smith Blog" has learned that Smith lost all of the forensic exhibits sent to him from the original autopsy - including microscopic slides, paraffin blcoks and photographs.
A Police report dated 12 January, 1998, under the heading "Seized Property" indicates that, "On the 17th of June, 1994, nine (9) paraffin blcck tissue samples, Durham Regional Police seized property tag #70335 and nine (9) microscopic slides, Durham Regional Police seized property tag #70336 which had been seized under authority of a Coroner's warrant from the Oshawa General Hospital, were personally turned over to Doctor Charles Smith of the Pathology Department of the Sick Children's Hospital in Toronto""
"Dr. Smith retained the samples in his possession to conduct his examination. At some point after the conclusion of Dr. Smith's examination, the samples were misplaced," the report continues.
"Attempts to locate the samples have proven unsuccessful. I personally have attended at both the Oshawa General Hospital and the Sick Children's Hospital and searched the storage facilities for each location for the missing samples.
The samples were not located. Nor ddoes there appear to be any documentation to suggest that the samples may be anywhere else other than Sick Children's Hospital;
Dr. Smith advised that routinely, samples from other hospitals are returned by mail. He has no express recollection of what he did with these samples when he was finished with them."
(The report was prepared before Trotta's trial began);
Flash forward eight years to 2004 and we have Lawyer Lomer - armed at this point with considerable information about the havoc Smith has caused in numerous criminal cases - desperately attempting to locate the samples so they can be independently tested in connection with Trotta's appeal.
However Lomer, who fought valiantly for William Mullins-Johnson in the Ontario Court of Appeal and the Supreme Court of Canada, and assisted him as a private citizen on his application for a ministerial review, was informed by crown law officers that the exhibits were still missing and that it was not anticipated that they would ever be found.
The exhibits were not located during a search of all exhibits located at the Pediatric Forensic Pathology Unit at The Hospital For Sick Children ordered by former Chief Coroner Dr. Barry McLellan in 2005;
Lomer's dilemma is reflected in leter he sent to the Crown Law Office on March 8, 2004.
"We remain seriously concerned about the missing slides for two reasons," Lomer wrote.
"One: The slide of the strap muscle is the genesis of the opinion of Dr. Smith that it could be showing an injury to the neck. Smith was not at all certain in that opinion but nevertheless he did testify about it;
Two: Dr. Smith ruled out any disease process based in part on those slides."
"At the time he gave his opinion Dr. Smith was considered a competent pathologist. That is no longer the case," Lomer continued.
"In my view I have evidence that establishes serious concerns about both his competence and credibility. ..
I do however see a disturbing pattern with respect to Dr. Smith.
He was the last one to have the slides in this case (absent any evidence ot the contrary).
That is also the case of Mullins-Johnson..."
Lomer summarizes the impact Dr. Charles Smith had on Trotta's right to a just process in a "fresh evidence" document filed in the Supreme Court of Canada.
"The most material testimony at the Applicants’ trial, which was overwhelming expert evidence from a witness who seemed to be as good as you can get in his profession, and who admitted to no doubts of his own, was, to use Dr. Avis’s (0000) word, a “fiction,” Lomer told the Court.
Once the foundation of the evidentiary record at the trial dissolves, the trial itself becomes a miscarriage of justice.
The trial was likely impacted in other ways by Dr. Smith’s testimony.
For example, the Applicants (Trotta and his wife Anisa) did not testify in their own defence. Dr. Smith’s claims put them in a dreadful situation.
They could not account for the recent skull fracture and its associated bruising, the swollen brain, the damage to the dura, and the signs of manual strangulation.
To testify in those circumstances would have been disastrous for them – they would have been lambs for the slaughter in the hands of any effective cross-examiner.
Now it is known that none of these claims have any merit.
Under these circumstances, the Applicants’ decision not to testify could have been very different.
They would only have had to explain the injuries to Paolo during his life.
Because pathology could not explain the death, they would not have had to either."
Justice Maurice Fish asked rhetorically at Trotta's recent Supreme Court of Canada hearing whether repeated botches by an expert witness might indicate something about the reliability of the witness in general. (See previous postings: Trotta: Smith-Related Case Creates Dilemma For Supreme Court; "Trotta: Supreme Court Hearing Set for October 12);
Sadly, this trio of horrific cases in which Smith "misplaced" key forensic evidence (Trotta, Mullins-Johnson and Waudby) are very much in point - and bear some interesting similarities to each other;
In Trotta, prosecutors asked police to conduct an investigation into the location of the misplaced forensic exhibits;
In Waudby, a Peterborough police officer was dispatched to Smith's office at the Hospital For Sick Children where he located and seized the missing hair.
In Mullins-Johnson, officials from the Coroner's office had to be dispatched by the Chief Coroner to Smith's office where they located the missing exhibits.
More cases involving misplaced forensic evidence allegedly misplaced by Smith to follow on future postings of this blog.
Query: Could these three cases involving misplaced forensic evidence have something else in common? The possibility that they all involved evidence that may have helped the defence establish that teh accused persons were innocent - and that Dr. Smith's opinion was wrong?
Lockyer argued on behalf of the Association in Defence of the Wrongly Convicted, that even today here were members of Mullins-Johnson's tiny Sault Ste. Marie community - including family members - who still believed Mullins-Johnson was guilty of a horrific crime - the sodomizing and murder of his 4-year-old niece.
In short only a verdict of factual innocence could help Mullins-Johnson totally clear his name upon his conviction for crimes that never occurred and clear the way for his return to his community.
The Court, composed of justices Dennis O'Connor, Marc Rosenberg and Robert Sharpe responded to the challenge - without opening up a controversial can of worms on the currently hot issue of "factual innocence."
In their seven page written decision released Friday, they stress from the outset that "(while) the death of a child is always tragic...in her uncle, William Mullins-Johnson, was wrongfully convicted of her murder and spent twelve years in prison."
The Court makes utterly clear that, "there is no evidence that Valin Johnson was assaulted and murdered (as Dr. Charles Smith and other experts had opined) and no evidence that Mullins-Johnson was guilty of any crime in relation to her death."
But the Court goes even beyond that clarification to say that in its view," that Mr.ullins-Johnson was arrested, convicted of first-degree and spent twelve years in prison because of flawed pathology evidence is a terrible miscarriage of Justice."
Not just any miscarriage of justice; "A terrible miscarriage of justice."
Crown Counsel Michal Fairburn also brought a spark of humanity into the sombre court of appeal hearing with her profound" and deepest apologies to Mullins-Johnson and his family for what they had had to endure. (See previous posting: "Mullins-Johnson Acquittal: Notable quotes;";
The arrest, prosecution and conviction of William Mullins-Johnson for crimes which never occurred is certainly one of the lowest points in Ontario's, if not Canada's, criminal justice system.
But the willingness of the Court of appeal, which had dismissed Mullins-Johnson's appeal nine years ago, and counsel for the Crown, which is undoubtedly facing a massive lawsuit, to swallow their pride and express such remorse so publicly, tells us that our criminal justice system has at least retained its humanity.
Now that Mullins-Johnson has been freed (he was on bail until the conviction was charged and the acquittal was entered) and exonerated so completely, it is time for Attorney General Michael Bryant to go on to the next step.
Bryant must ensure that Mullins-Johnson is compensated generously for this terrible miscarriage of justice and the massive convulsion it has caused him and his family - without requiring him to fight for years in the courts.
Friday, October 19, 2007
The College had challenged the summons on the basis of statutory provisions requiring patient confidentiality. (See early posting: "Goudge Inquiry Faces Legal Challenge);
But Justice Stephen Goudge ruled that the documents - mainly relating to three complaints to the College against Smith - were relevant to the Commission's mandate. (See earlier posting: Commissioner Directs College To Produce Documents);
A College spokesperson told this Blog earlier today that Goudge's ruling has cleared the way to the production of the documents.
In a related development, Goudge has granted the College standing to participate in the Inquiry through counsel. (If you can't beat them join them!)
Goudge ruled Wednesday on the College's application for standing, that the College's "oversight role" over pathologists comes within the scope of the review that the Commission must undertake - and that the College may be affected by the Commission's recommendations.
More particularly, Goudge noted that the Commission will be probing "how effectively" the three complaints were dealt with by the Commission.
Thursday, October 18, 2007
Mullins-Johnson: Sick Kids' Pediatrician Tells Court She "Deferred" To Charles Smith;
Dr. Marcellina Mian, a pediatrician at the Hospital for Sick Children in Toronto has defended the opinion she co-signed with Dr. Charles Smith which has been discredited by subsequent events in the William Mullins-Johnson case.
In 1993, Mian was a pediatrician and Director of the Suspected Child Abuse and Neglect (SCAN) Program at the Hospital For Sick Children in Toronto - and Smith was Director of Autopsy Pathology and Director of the Ontario Pediatric Forensic Pathology Unit which is located at the hospital.
The joint report, dated August 6, 1993, ends with Dr. Mian's signature above Dr. Smith's, and was an exhibit at the trial which resulted in Mullins-Johnson's conviction for first-degree murder.
The co-authors say in their "Conclusion" that, "This child's (Valin Johnson's) photographs show findings which if confirmed by the post-mortem examination, indicate death by asphyxiation, trauma to the head and injury to the perineum and anus. In the absence of a reasonable explanation by history, they indicate non-accidental trauma, including sexual abuse."
The photographs had been taken during an autopsy conducted on June 27, 1993.
Dr. Michael Pollanen, Ontario's Chief Pathologist, told the Ontario Court of Appeal on Monday September 15, that subsequent testing has shown that 4-year-old Valin was neither sexually assaulted or murdered but died a natural death.
Pollanen explained that the experts had wrongly interpreted pathological changes which occurred in Valin's body after her death.
Dr. Mian was recently cross-examined by Toronto lawyer Andrew Czernik, at the aggravated assault trial of Gregory Johnson.
The transcript reads in part:
q. Well sometimes do you ever find you might give an explanation for what you think may have happened and it turns out to be wrong?
A. Occasionally, yes. Sure.
Q. I say this with a great deal of delicacy. The Mullins-Johnson case, William Mullins-Johnson, you are familiar with that one?
A: You will have to refresh my memory;
Q. It's a long ago case. However it's quite famous because it involves Dr. Charles Smith.
A: Mm, hmm.
Q: Where William Mullins-Johnson was convicted of murder back in I think 1994 because it was alleged that he had sodomized his four year old niece and then murdered her. And it was the sodomy of the four year old niece which elevated it from second degree murder to first degree murder. Does that ring a bell?
A: Yes. I recall it, yes.
Q: And it has been the subject of a great deal of press, hasn't it?
A: I believe so, yes.
Q. And in fact the prevailing view, and you stop me if I am wrong on this, the prevailing view is that there was no sodomy, no murder, and that this man is going to be exonerated; Is that correct?
A: That's my understanding, yes.
Q: But you yourself opined in 1993 that this child had been sodomized, didn't you?
A: No. I believe I opined, if I am recalling the case, that what i saw was of concern but I deferred to the pathologist (Dr. Smith) in terms of any specific findings. So I don't believe I reached a definitive conclusion in the case."...
At the outset of his testimony at the Mullins-Johnson trial, Smith was asked by the prosecutor to describe how he had been brought in to the case.
"It would be, oh help me, about a year ago I believe, Doctor Meehan (Mian) had received some photographs from Dr. Rosaiah, (The pathologist who conducted the autopsy on Valin Johnson) that related to the autopsy on this little girl who we're discussing today," Smith replied.
"Dr. Meehan, Dr. Marcie (Marcellina) Meehan (Mian) is head of a program at the Hospital for Sick Children which deals with child abuse and neglect.
She had examined these photographs, she was quite comfortable in dealing with aspects of those photographs that dealt with possible sexual abuse, but there were aspects of the photographs that dealt with the mechanism of death which of course she is a pediatrician, was uncomfortable discussing, so she brought the photographs to me, and they asked me to help with the interpretation of those.
So we both authored a report together, based simply on the photographic evidence that Dr. Rasaiah had provided to Dr. Meehan (Mian);"
Tuesday, October 16, 2007
Lockyer was making submissions Monday on the the Reference to the Court of Appeal by Federal Justice Minister Rob Nicholson which concluded with the appeal courts quashing of the conviction and entering an acquittal.
Lockyer was referring to the notes prepared by Sergeant Robert Welton, the Investigating officer on the case, which indicate that at 2.50 p.m. that day - about an hour and a half before the autopsy commenced:
"Jim Corelli (a lab technician) advised that Dr.(Robert) Rasaiah (the pathologist who performed the post-mortem examination on Valin had called an expert at Sick Children's and was told that the injuries to the deceased vaginal and rectal area would probably indicate chronic abuse," wrote Welton.
Lockyer told Court that, "Other evidence reveals that the person Dr. Rosaiah called was Dr. Charles Smith at the Hospital For Sick Children at 2.50 p.m.
before the autopsy began."
Smith later concluded - after being sent the autopsy exhibits by Rosaiah - that Valin had been sodomized and then strangled to death. (Conclusions which have been proven by recent testing of the autopsy materials to be utterly wrong; Valin was neither murdered or sexually assaulted; She died a natural death.)
Lockyer also suggested to the court that the die had been cast against Mullins-Johnson by the presence of Dr. Patricia Zehr, a Sault Ste. Marie Obstetrician and Gynaecologist.
Welton's "will say" notes prepared for prosecutors indicate:
"That around 15:00 hours (3:00 p.m.) Doctor Zehr was in attendance in the morgue, as well as Constable Cathy Toni from the Identification Unit. That he (Welton) Doctor Zehr, upon examining the deceased, made the following comments:
-vaginal opening is consistent with penetration;
-anal penetration-gross-worst she's ever seen;
-damage indicates ongoing abuse."
(The Court of Appeal heard testimony that it is not unusual for the anus to become naturally dilated after death);
Welton's notes indicate that, Doctoer Rasaiah began the post-mortem examination at 16:30 hours (4:30 p.m.) - well after the call to the Hospital For Sick Children and Zehr's examination of Valin's body.
Zehr's presence at the autopsy clearly puzzled Justice Marc Rosenberg, who asked Dr. Michael Pollanen (Chief Patholgist of Ontario) at the end of Pollanen's fresh evidence testimony to the Court, "Is it normal to have a non-pathologist attend the autopsy?"
"It is not my practice," Pollanen replied.
Lockyer told Court that Welton's notes tell "almost the full story" behind Mullins-Johnson's conviction of a crime that never occurred and the fourteen years that were torn out of an innocent man's life.
Timing is at the heart of that story - which Lockyer calls "a rush to judgment":
The autopsy concluded at 5.30 p.m.
William Mullins-Johnson was arrested just one hour later at the family home - in the midst of his shock, bewilderment and mourning - on charges of first-degree murder and aggravated sexual assault on Valin.
The police acted before any of the forensic evidence arising from the autopsy was in - in spite of Mullins-Johnson's fervent denials. (See earlier posting: Interrogation of an innocent man);
"judgment was delivered," Lockyer told Court. "There was no stopping of the train once it left the station."
See also earlier postings: "Famed Forensic Pathologist Admits He Erred: and "Conduct Of Other Experts Scrutinized by Mullins-Johnson's Lawyers."
Sunday, October 14, 2007
I do, however, support lawyer James Lockyer's request, for a ban on publication of the identities of seven clients who have standing at the Inquiry - as well as the publication of any information that may tend to identify them.
Lockyer contends a ban does not violate the constitutional right to freedom of expression for three principal reasons: the focus of the Inquiry is "systemic", their actual identities are "irrelevant," and that "subjecting them to further media attention and public scrutiny would result in unnecessary prejudice and suffering for them."
Lockyer sheds some light on the logistics involved in a factum filed with the inquiry. They break down like this:
The Chief Coroner's review of post-1991 suspicious death cases involving Dr. Charles Smith found that twelve people had been convicted of a crime relating to a child's death;
Nine of these cases were within AIDWYC's mandate; (AIDWYC's Web-site indicates that, "The cases AIDWYC adopts are currently limited to murder convictions where the accused is "factually innocent"; that is, where proof exists (through DNA or other means) that the person was not involved in any way with the murder. Due to resource restrictions, AIDWYC is currently only able to handle homicide cases.)
Two of the nine already public AIDWYC cases;
The other seven - those subject to the application for a publication ban - are new and not of public knowledge;
Six of the seven will be seeking an extension of time for their application to the Ontario Court of Appeal;
The seventh has exhausted all avenues of appeal - including an appeal to the Supreme Court of Canada. (AIDWYC will be making an application for a ministerial review).
Lockyer informs the Inquiry in his factum that the four mothers and three fathers he represents have all been convicted of crimes arising out of the death of a child, have all been exposed to vilification in the press, and, "have all had to experience the shame, dishonour and humiliation that inevitably accompany a conviction of this nature."
To make matters even worse, "Some have spent time in prison under extremely adverse conditions due in large part to the stigma and disgrace attached to their purported crimes"..."Each party is genuinely and quite understandingly frightened of further public vilification...should their names be released at this time."
I can accept a publication ban because this is not a criminal trial where failure to disclose identities raises suspicion and lack of confidence in the criminal justice system.
This ban is being raised in the context of a systemic Inquiry in which Commissioner Stephen Goudge is specifically prohibited by his Terms of Reference from making conclusions relating to specific cases in his report.
It is far more important to have the factual basis for the seven cases available to the Inquiry than to cause further hardship to these innocent individuals and take the risk that some may choose to back out rather than prolong their ordeal.
Lockyer's motion for a publication ban will be heard by the Inquiry on Friday, October 19;
Saturday, October 13, 2007
But the Supreme Court is struggling with the issue of whether to allow convictions on lesser and included offences to stand or to send them back for trial before a new jury.
Trotta was released from prison in May on the basis of the fresh evidence after serving nine years behind bars on his 1998 murder conviction.
The dilemma is well captured by Globe and Mail reporter Kirk Makin in report today on Friday's hearing, under the heading, "Bad autopsy shouldn't alter verdict, court told."
"Horrendous abuse that an eight-month-old boy suffered at the hands of his father, Marco Trotta, was so obvious that a botched autopsy conducted on the child should be
overlooked, the Supreme Court of Canada was told Friday" Makins's story begins.
"Ontario prosecutor Lucy Cecchetto conceded that, while disgraced pathologist Charles Smith made significant errors in the case, a jury had ample other evidence to conclude that baby Paolo was killed by his father.
“What is clear is that there was a lifetime of abuse,” Ms. Cecchetto said. “Bruising had been noted. Bite marks had been noted. Almost every person who came into contact with him was concerned.… On all the facts, this was an exceptionally strong case for murder.”
However, lawyers for Mr. Trotta and his wife, Anisa, argued that by misidentifying or fabricating injuries – and then overstating his evidence at the Trotta trial – Dr. Smith irredeemably poisoned the entire proceeding.
“It would be unfair to allow the Crown to take advantage of a trial that was really a miscarriage of justice as a whole,” lawyer James Lockyer said. “Really, we should start again and give them a proper trial on proper evidence on all counts.” ...
Mr. Trotta has appealed his convictions and 15-year sentence for second-degree murder, aggravated assault and assault causing bodily harm.
Ms. Trotta has appealed convictions for criminal negligence causing death and failing to provide her son with the necessities of life.
After several years of building doubts surrounding the accuracy of Dr. Smith's autopsy findings in child deaths, the Ontario government called an inquiry last spring to look into 20 potentially false charges or convictions.
In a handful of these cases, parents of deceased children have already been exonerated in their deaths. The Trotta case represents the flip side – cases where the degree of culpability of the individuals charged is murky. Authorities fear that in many of these cases, the Smith factor could effectively result in something akin to a wrongful acquittal.
Several judges Friday expressed discomfort at having to speculate which of the various convictions registered against the Trottas are validated by other, untainted evidence.
Mr. Lockyer and co-counsel Michael Lomer warned that it would be folly to simply lop off the murder conviction and keep the other convictions intact. They said the jury could not have helped taking Dr. Smith's findings into account each time they considered a charge.
“It has to have a ripple effect,” Mr. Justice Ian Binnie agreed.
Mr. Lockyer said Dr. Smith's “hugely impressive” credentials would inevitably have captivated the jury, and that his florid language and “highly unprofessional, highly prejudicial” conclusions had to have coloured their analysis of all the charges.
Mr. Lockyer and Mr. Lomer said that while there was sufficient evidence of ongoing abuse for a jury to potentially convict their clients of some of the lesser charges, the Supreme Court should not attempt to decide the question.
“We don't dispute that there is evidence to reach that conclusion, but whether it should be reached is another question,” Mr. Lockyer said. “That is the reason to send it back to be retried by a jury – not for this court to essentially put itself in a jury's shoes.”