"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."
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;
Smith: Yeah.
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?
Hauraney: Yes?
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?
Smith: No.
Hauraney: And did they advise you there may have been a pubic hair found?
Smith: I can't. I can't remember.
Hauraney: Allright;
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;
Consider these:
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?
Harold Levy;
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