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.Harold Levy;
