The first appeal, filed by William Mullins-Johnson, was curtly dismissed by the Court in a two-sentence decision on May 26, 1998.
Mullins-Johnson had to spend another another seven and a half-years behind bars on his conviction for first-degree murder before being freed from custody on bail pending consideration of his application for a ministerial review on September 21, 2005, after a prosecutor told Court that Mullins-Johnson was the victim of an apparent miscarriage of justice.
He had been already behind bars for more than for more than twelve years in the death of his beloved four-year-old niece who, as a result of Dr. Charles Smith's erroneous opinion opinion - later proven wrong by forensic testing - that his beloved niece Valin had been sexually assaulted and then strangled.
Defence Lawyer Michael Lomer had won a powerful dissenting judgment from Justice Steven Borins in the Ontario Court of Appeal which was highly critical of Smith's work on the case - but ran into an apparent wall of indifference from the Nation's highest court.The second appeal involving Dr. Charles Smith is being brought by Marco and Anisa Trotta;
The synopsis of their appeal published on the Supreme Court of Canada site reads:
"In 1993, 8-month old Paulo Trotta died. Dr. Smith, a forensic pathologist, performed an autopsy and testified for the Crown. Based in part on Dr. Smith's testimony, Paulo's father was convicted of second degree murder, aggravated assault and assault causing bodily harm and his mother was convicted of criminal negligence causing death and failure to provide the necessaries of life. She was acquitted of manslaughter. After conviction, Dr. Smith began to come under criticism in the media and other cases. The Office of the Chief Coroner reviewed some of his past work. The Trottas appealed from their convictions and applied for disclosure of documents produced in the Chief Coroner's review. Their application for disclosure was denied and the Trottas' appeal from their convictions was dismissed. At issue is whether their request for disclosure was properly denied and issues arising from the charge to the jury."
The importance of "disclosure" in the case is powerfully set out in the Trotta's factum for the Supreme Court hearing.
"As a practical matter, if appellate (or trial) counsel had become fully aware of issues surrounding Dr. Smith’s credentials and competence/incompetence, they would have been able to undermine the accuracy and reliability of Dr. Smith’s opinions at trial, or on a fresh evidence application on appeal," the factum reads in part.
"It may be that counsel would have been in a position to be able to go so far as to attack Dr. Smith’s truthfulness.
It may also be that counsel would have undertaken a further review of Dr. Smith’s opinions in the death of Paolo Trotta.
Thus, it is now known, since the Court of Appeal’s decision in the case, that Paolo’s skull was kept after the exhumation and not re-buried, and that an examination of it reveals that it had an obviously healed fracture, not a fracture that could have occurred within “ten minutes, fifteen minutes, half an hour” of death as Dr. Smith testified.
If defence counsel or appellate counsel had known the true breadth of Dr. Smith’s failings, they might have realized the need to investigate such a seemingly fundamental and unchallengeable finding as whether a skull fracture was “recent” or not.
If Dr. Smith were to have been proven incompetent by the unproduced materials, the appeal court would likely have inferred that the defence would have consulted other experts on the myriad of opinions expressed by Dr. Smith during his trial testimony.
As well, it is apparent that Dr. (David) Chan, who conducted the original autopsy, was paying remarkable deference in his trial testimony to Dr. Smith’s opinions by acknowledging extraordinary incompetence on his own part.
Thus, as an example, Dr. Chan testified that he must have overlooked many features associated with brain edema:
Q ...first of all you didn’t notice any stretching or tenseness in the dura, and secondly, when you penetrated the dura with an incision there was no bulging of the brain through that incision?
A. I did not pay attention to that part.
Q. Okay. And the gyri, Your Honour, G-Y-R-I, the doctor has indicated he saw no sign of them being pale or flattened, correct?
A. I did – I did not pay attention to that.
In essence, Dr. Chan fell on his sword in his trial testimony. It may be that revelations about Dr. Smith’s competence or lack thereof could have caused Dr. Chan to maintain his original autopsy findings. (That Paolo's death was attributable to SIDS (Sudden Infant Death Syndrome);
A separate "fresh evidence document" filed with the Supreme Court sets out the dramatic revelations which flowed from the Ontario Chief Coroner's review.
"Dr. Chan, who conducted the original autopsy, observed “mild bruising” near Paolo’s left temple, “non-specific” petechial haemorrhages in the lungs and thymus, and noted that “no skull fracture is seen at autopsy," the document states.
He certified the cause of death as “no anatomical cause found”.
Eleven months later, Dr. Smith did the second autopsy after Paolo’s body was exhumed.
He made a number of findings suggestive of homicide, including what he reported as a recent skull fracture.
In his testimony, he listed probable causes of death which were exclusively homicidal in nature, despite having reported the cause of death as “Undetermined” in his July 20, 1994 Post Mortem Report.
Two pathologists, both highly regarded and in senior positions, one the Chief Pathologist for the Province of Ontario (Dr. Michael Pollanen H.L.), and the other the Chief Medical Examiner for the Province of Newfoundland and Labrador (Dr. Simon Avis), now challenge virtually all of Dr. Smith’s findings indicative of homicide, decisively refute the claim that Paolo’s skull fracture was “recent”, and certify the cause of Paolo’s death as “undetermined” or “unascertained”.
The fresh evidence document cites several paragraphs from an affidavit sworn by Dr. Avis which expresses bafflement at Smith's opinion in the case.
I am at a loss as to why an acute fracture was even a consideration in determining the cause of death in this case, and am particularly concerned as to how Dr. Smith, who had an opportunity to examine the skull, could opine in his testimony before the jury that the skull fracture was anywhere from minutes to a couple of days old...
To examine Paolo Trotta’s skull, to see the fracture and to opine that that fracture is from minutes to, at most, two days old, simply boggles my mind. I cannot see how anyone, particularly anyone with the status that Dr. Smith enjoyed at that time, could possibly reach that conclusion. It escapes me. I think if a panel of lay people were given that skull, they would find it just as difficult as me to understand how that conclusion was reached.
As I say, the day I came up here to examine the skull, I was very concerned when I left the Coroner’s Office. Even though I examined the skull inside, outside, up side, back side, I came out of that office thinking I must have missed something.
I can’t possibly believe that anyone with any knowledge of pediatrics, pediatric autopsies, of pathology of medicine, could reach the conclusion that that was a fracture that, at most, was two days and probably only two to three minutes or two to ten minutes."
I still to this day stand in wonder."
Harold Levy;
