Mullins-Johnson: "Giving Expert Evidence A Bad Name"

"MOREOVER, EXPERT EVIDENCE CAN EASILY OVERWHELM A JURY WITH ITS AURA OF INFALLIBILITY, PARTICULARLY IN AN AREA AS COMPLEX TO A LAY PERSON AS PEDIATRIC PATHOLOGY. MANY KNOWN CASES OF WRONGFUL CONVICTION HAVE BEEN BASED, IN WHOLE OR IN PART, UPON INCORRECT EXPERT OPINION. THE JURY'S ASSESSMENT OF THE COMPETENCE AND OBJECTIVITY OF DR. SMITH AS A FORENSIC PEDIATRIC PATHOLOGIST, AT LARGE AND IN THE AUTOPSY IN THIS CASE, IS CENTRAL TO THE DETERMINATION OF WHETHER OR NOT THE CROWN HAS PROVEN BEYOND A REASONABLE DOUBT THE GUILT OF EITHER, OR BOTH, OF THE DEFENDANTS;"

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.

Harold Levy;