"STATE ACTORS HAVE A DUTY TO PRESERVE EVIDENCE, AS A NECESSARY ELEMENT OF THE ACCUSED'S RIGHT TO MAKE FULL ANSWER AND DEFENCE AND THE RIGHT TO A FAIR TRIAL....."
"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.
Harold Levy;
Labor’s 30 pieces of voting silver
2 hours ago
