PUBLISHER' NOTE: "The Toronto Star story by Legal Affairs Reporter Jacques Gallant, succinctly reports, "In a rare move, Ontario’s top court has ordered a third trial in the same first-degree murder case, lambasting the Crown’s key evidence: an expert witness whose testimony about gang members with teardrop tattoos contained “inaccuracies” and even “falsehoods.” The Jennings case puts the focus on expert witnesses who claim to have an expertise in gangs and their members. The type of evidence has become more and more common as jurisdictions make membership in a gang a crime punishable by substantial sentences. As Gallant reports: "In a decision released Friday, the Ontario Court of Appeal largely sided with Abbey’s lawyers and found Totten’s evidence “unreliable,” that he “misrepresented” the sample size of gang members in some of his studies, and that statistics he provided on the stand about gang members with teardrop tattoos are nowhere to be found in his studies. The court also stated there is a “legitimate concern that Totten’s interview summaries are fabrications” in two of his studies, which contain the same quotes from three participants. Totten had denied in a different court case that he used the same gang members in more than one study. “I have concluded that the fresh evidence shows Totten’s opinion evidence on the meaning of a teardrop tattoo to be too unreliable to be heard by a jury. If the trial judge had known about the fresh evidence he would have ruled Totten’s evidence inadmissible,” Court of Appeal Justice John Laskin wrote for a unanimous three-judge panel. “And the absence of Totten’s evidence would reasonably be expected to have affected the jury’s verdict. I would admit the fresh evidence, allow Abbey’s appeal, overturn his conviction and order a new trial.”Abbey has been in prison since his conviction at his second trial in 2011. He will be applying for release pending a retrial, his lawyers told the Star on Friday. “We are gratified that the court found, as we had argued, that this Crown witness’s evidence was unreliable and dangerous,” said David E. Harris and Ravin Pillay in an emailed statement. “This is another example of how expert evidence can mislead a jury and contribute to an unsafe conviction.”..........The Court of Appeal had harsh words for the position of the Crown in the appeal, given the fact that the “fresh evidence” — the issues with Totten’s research — was brought to the forefront under cross-examination by Crown attorney Mary Misener (now a judge) in a separate case, R v. Gager, where that time it was the defence trying to have Totten admitted as an expert. The cross-examination took place during a hearing known as a voir dire, to determine if Totten should be qualified as an expert witness for the trial. “Totten was the Crown’s witness, a key witness for the Crown (at the Abbey trial). Yet in Gager the Crown sought to impeach Totten’s credibility and the reliability of his evidence on several matters that were relevant to his opinion in this trial,” Laskin wrote. “And then on this appeal the Crown made no attempt to contest the deficiencies, inaccuracies, and even falsehoods in Totten’s trial testimony, as demonstrated by the fresh evidence. “The Crown is not an ordinary litigant. Its role is not to obtain a conviction, but to try to ensure a fair process and a just result. The Crown has impeached Totten, its own key witness, albeit in another proceeding, and yet by its silence in this proceeding must be taken not to have challenged the many serious problems in Totten’s trial testimony shown by the fresh evidence.”
The entire story can be found at:
The entire Ontario Court of Appeal decision - with publication ban - can be found at the link below;
http://www.ontariocourts.ca/decisions/2017/2017ONCA0640.htm
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
