“WHEN OPHOVEN WAS FIRST CALLED TO REVIEW SMITH'S POST-MORTEM REPORT AND OTHER FORENSIC EVIDENCE, SHE COULD NOT GET IMPORTANT SAMPLES FROM SMITH.
"HE WITHHELD, IN MY OPINION, ALL THE MATERIALS THAT I NEEDED," SHE SAID.
WHEN CRITICAL TISSUE SLIDES WERE FINALLY PRODUCED, OPHOVEN WAS SHOCKED.
"THEY WERE FROM SOMEBODY ELSE," SHE SAID.
SMITH EVENTUALLY PRODUCED THE CORRECT SAMPLES AND ALTHOUGH THE SLIDES WEREN'T CRITICAL TO HER FINAL CONCLUSIONS, OPHOVEN WAS TROUBLED BY THE BEHAVIOUR OF SMITH, WHO HAD APPARENTLY KEPT THE SLIDES AT HIS HOME.
"I'VE NEVER HAD AN EXPERIENCE LIKE THIS," SHE SAID. "I DREW A CONCLUSION THAT [POLICE AND PROSECUTORS] HAD A SERIOUS PROBLEM ON THEIR HANDS." “
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WHEN LAW ENFORCEMENT AUTHORITIES ARE HUNTING THE KILLER OF A CHILD, THEY'RE PERCEIVED TO BE "WORKING FOR GOD," SAID OPHOVEN.
"YOU ARE UNTOUCHABLE UNLESS THERE'S A FORENSIC PATHOLOGIST TO REEL YOU IN AND BRING SOME SCIENCE TO THE TABLE," OPHOVEN SAID. "BUT IF YOU'RE WORKING FOR LAW ENFORCEMENT AND YOU HAVE NO FORENSIC TRAINING, THEN THE CAUSE OF DEATH IS GOING TO BE WHATEVER YOU SAY IT IS, WHETHER IT'S TRUE OR NOT."
DR. JANICE OPHOVEN: FORENSIC PATHOLOGIST WHO ASSISTED THE DEFENCE IN THE JULIE BOWER'S CASE”.
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"IS THIS THE WAY YOU PASS OFF YOUR EVIDENCE - AS A SERIES OF GUESSES?" DEFENSE LAWYER JACK PINKOFSKY ASKED DR. CHARLES SMITH YESTERDAY, DURING A LENGTHY CROSS EXAMINATION.
"THE ESTIMATION OF THE TIME OF DEATH IS REALLY AN EDUCATED GUESSING GAME," SMITH RESPONDED...
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One of this Blog's readers has asked for some background on the Julie Bower's case.
First the status: The Bower's case was not one of the cases subject to the Ontario Chief Coroner's review.
It is expected, however, to come under scrutiny in the second phase of the Inquiry which is about to begin.
First, the basics.
Julie Bowers was charged with the second-degree murder of her 11-month-old son Dustin who she had reported kidnapped from her car in January, 1988.
The next day Bowers, then 26, reported to the police that she had a dream in which she saw Dustin's body - and that she believed she could lead them to it.
Bower's dream led to the discovery of Dustin's body North of Kinkardine, Ontario, on a frigid day, in an area of dense brush.
One of the central factors in the case is that the police presumed Dustin was dead -although he was not immediately examined by a doctor or taken to a hospital.
Bowers was charged with second-degree murder in a prosecution that was widely viewed as a "slam-dunk" because of the bizarre elements of the dream and her ability to lead the police to her son.
But Bowers was subsequently acquitted on March 16, 1990 following a lengthy trial, as a result of a brilliant defense (as usual) by legendary Toronto lawyer Jack Pinkofsky.
The acquittal was extraordinary - given the bizarre elements of the dream and Bower's ability to lead the police to Dustin
The police theory was that Bowers had deliberately drowned her baby backed by evidence by - (guess who!) - who provided a time of death when Bower's could be shown to have exclusive access to her so. (Echoes of the Waudby and Mullins-Johnson cases which were scrutinized by the Goudge Inquiry).
Here is how the forensics played out (as distilled from Toronto Star reports).
At the preliminary hearing in June, 1988, Smith, who performed the autopsy, gave evidence which placed Dustin in snow at the earliest at 5.30 p.m. on Jan. 14.
In a meeting with Pinkofsky and his staff in May 1989, the doctor suggested the time of deposit was 9.30 p.m., he said.
But during the trial, Smith said he had since refined his medical opinion and concluded Dustin could have been abandoned as early as 8.00 a.m. on Jan. 14.
Pinkofsky brought in Dr. Janice Ophoven, a Minnesota U.S.A. forensic pathologist - a real forensic pathologist - who took a very different view;
As my former colleague Toronto Star reporter Maureen Murray wrote in her wonderfully nuanced and detailed coverage of the trial:
"Ophoven, who has testified in more than 20 hypothermia-related cases, said Dustin may simply have been near death when police discovered the toddler shortly before 3 p.m. on Jan.15, 1988.
She said the process of death by exposure to cold results in the body's systems slowly failing, and vital signs are undetectable prior to actual death.
"Fixed and dilated pupils, undetectable heart rate, no breathing, no evidence of blood circulation is also compatible with someone who is profoundly hypothermic, but still alive," Ophoven said.
In hypothermia cases, particularly in children, "re-establishing a normal temperature, rewarming and resuscitation, before deciding absence of life is the case, is important and in my opinion must be done."
Coroner Richard Mann pronounced Dustin dead at the scene about 4 p.m. after failing to detect any vital signs, court has been told. (He died of hypothermia or cold);
The child was then left lying on a blanket near the side of the roadway before being removed about 6 p.m.
Ophoven said Dustin should have been rushed to a hospital.
She said she suspects Dustin was still alive because autopsy results indicate his body showed no significant signs of freezing.
Ophoven examined the autopsy report on Dustin as well as tissue samples taken from his body and statements made by doctors and police who examined or observed the body.
She said Dustin's body was stiff, but not frozen except for signs of frostbite on his left foot. There were no signs his organs were ever frozen except for slight freezing in the passage of his voice box, she said.
The boy's testicles - the most likely area besides the skin to show initial signs of freezing - appeared normal, she said.
The condition of Dustin's body indicates the child was exposed to the cold for 16 to 18 hours, Ophoven testified.
She concluded he was likely left in the snow between 10 p.m. and midnight on Jan. 14, 1988.
It's virtually impossible Dustin was abandoned as early as 1 p.m. on Jan. 14, she said...
Ophoven criticized the procedures used by Dr. Charles Smith, who performed the autopsy, to determine the likely time of death.
She also pointed out what she called omissions in Smith's report.
Smith has testified Dustin may have been exposed to the elements for up to 40 hours prior to the autopsy and could have been abandoned as early as 11.30 a.m. on Jan. 14.
Reporter Murray provided a gripping portrayal of Pinkosky's cross-examination of Smith in a story dated January 24, 1990, which read, in part:
"The doctor who examined Dustin Bowers' body has been grilled for his apparent change in testimony over the length of time the child was abandoned in the snow.
"Is this the way you pass off your evidence - as a series of guesses?" defense lawyer Jack Pinkofsky asked Dr. Charles Smith yesterday, during a lengthy cross examination.
"The estimation of the time of death is really an educated guessing game," Smith responded...
Pinkofsky zeroed in on several areas where the doctor had made revisions in his testimony since the June, 1988, preliminary hearing.
During that hearing, Smith said Dustin was probably exposed to the cold at least 2 1/2 hours after his mother reported him missing.
Smith, a pathologist at the Hospital for Sick Children, performed an autopsy on Dustin the night the body was found.
But Smith's evidence at the trial suggests the baby could have been abandoned as early as 8 a.m. on Jan. 14, five hours before his mother reported him abducted.
Pinkofsky hinted Smith altered his earlier testimony after realizing it could help the mother's defense.
"You have since learned the implications of the opinions you gave under oath on June 28, 1988 . . . It means that the wrong person is sitting before this court," the lawyer said."
Madam Justice Mabel Van Camp warned Pinkofsky it was for the jury to decide whether or not the accused is guilty.
"The figures I have given this court are to the best of my ability today," Smith said.
He told Pinkofsky he hadn't willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Smith told court he has acquired greater knowledge since he began writing a textbook on pediatric forensic pathology.
He considered factors, such as the degree of freezing in Dustin's body and the environment conditions, to help him estimate the time of death and how long the body lay before being discovered, court heard.
At the end of the lively cross examination, Smith told Pinkofsky: "I've enjoyed an extraordinary artistry of cross examination."
Van Camp told the witness the remark was out of line. he trial continues.
Ophoven clearly loathes Smith to this day.
This is evident from a story by reporter Robb Tripp (another astute reporter of the criminal justice system) which appeared in the Kingston Whig under the heading: "Most awful case: Errors known long ago, pathologist says".
"Top officials in Ontario's criminal justice system should have realized 15 years ago that they needed to review thoroughly the work of a senior pathologist, says a respected American forensic expert, "the story begins.
"Dr. Janice Ophoven, a pediatric forensic pathologist in Minnesota and a medical examiner, was an expert witness for the defense at the 1990 trial of Julie Bowers of Kincardine.
"In all my years, this is the most awful case that I've had," said Ophoven, who has worked as a pathologist for 30 years and is a certified forensic expert.
Bowers was acquitted of murdering her 11-month-old son, Dustin, after a sensational 49-day trial.
Ophoven's findings cast doubt on the work of Dr. Charles Smith, who testified for the prosecution after conducting the autopsy on Dustin.
The case appears to be one of the earliest in which Smith's work was publicly discredited.
Earlier this month, an international panel of experts that reviewed 45 of Smith's cases over a decade concluded he erred in at least 20, and a dozen people may have been wrongly convicted because of his mistakes.
One of the cases reviewed was that of Kingston's Louise Reynolds, accused of killing her seven-year-old daughter, Sharon, in 1997.
Smith's conclusions were later discredited and charges against Reynolds were withdrawn after she spent almost two years in custody. The Bowers case was not part of the review of Smith's work, but it will be examined in the second phase of the probe.
"I found the process and [Smith's] opinions to be extremely troublesome," Ophoven told the Whig-Standard in an interview from her office in Woodbury, Minn.
She said his behaviour was erratic and he was un-cooperative.
"If you have a sentinel case that says something is really, really wrong, there's an obligation to verify if this was a single bad day or it was the tip of an iceberg," Ophoven said.
"I would have marked this as a sentinel case."
Jack Pinkofsky, the Toronto lawyer who hired Ophoven to review Smith's work, said he doesn't believe any review of Smith's work was conducted after the Bowers case.
"Unfortunately, nobody in the government did anything about it," Pinkofsky said. "He went on to bigger and better things."
Pinkofsky said he made it clear, informally, to the Crown lawyers that he thought Smith should be investigated.
"The idea that he was incompetent just passed everyone, either through oversight or worse, or they weren't geared in those days to think people in power could do wrong," he said.
Pinkofsky said the Crown considered, but did not file, an appeal of the acquittal, meaning senior officials in the Crown law office must have known about Smith's work was questionable.
"Everybody who knows about the case ... was always amazed that nothing was done about Smith as a result of the Bowers case," he said.
"Had something been done about him at that time, look at what it would have saved in terms of anguish, costs, grief to the justice system."
Brian Farmer, the Crown attorney who prosecuted Bowers, could not be reached for comment.
Ophoven wondered how many years have gone by since judges and others pointed out that his findings didn't make sense.
"Why didn't the justice system ... follow up on that issue?" she said. "The answer is obvious, because there's not only no incentive to do so, but they're in a horrible conflict of interest."
Smith was subsequently given more responsibility for investigating suspicious child deaths.
A year after the Bowers trial, he was named director when the province established a pediatric forensic pathology unit at the Hospital for Sick Children in Toronto.
He went on to perform hundreds of autopsies on children who died under suspicious circumstances, including the Reynolds case in Kingston.
Smith's courtroom testimony was critical to many prosecutions of parents who were accused of abusing or killing their children through the 1990s.
The Bowers case was so riddled with problems, Ophoven said, that it still gives her nightmares.
She concluded that Dustin likely was still alive when his body was found and examined by a local coroner, who wrongly pronounced him dead at the scene.
His body was left in the snow for crime scene analysis for roughly three hours before it was placed in a body bag and transported for autopsy.
"He may have even died in the bag," Ophoven said, repeating the testimony she offered at the trial.
When Ophoven was first called to review Smith's post-mortem report and other forensic evidence, she could not get important samples from Smith.
"He withheld, in my opinion, all the materials that I needed," she said.
When critical tissue slides were finally produced, Ophoven was shocked.
"They were from somebody else," she said.
Smith eventually produced the correct samples and although the slides weren't critical to her final conclusions, Ophoven was troubled by the behaviour of Smith, who had apparently kept the slides at his home.
"I've never had an experience like this," she said. "I drew a conclusion that [police and prosecutors] had a serious problem on their hands."
When Ophoven reviewed Smith's post-mortem report, which concluded Dustin died of hypothermia, she could not find evidence that would substantiate key findings.
There were no signs of serious tissue damage in areas of Dustin's body where it would be expected, given Smith's assertion that the child was severely frozen.
Smith explained, at one time during courtroom proceedings, that he couldn't measure the child's body temperature because he didn't have a thermometer that would go that low.
Smith offered at least three different time frames to explain how long Dustin had been in the snow.
His first opinion was for a short time span, Ophoven said, excluding the mother as the killer.
He changed his opinion twice after that, finally testifying at trial that Dustin was left alone in the snow for 21 to 32 hours, or perhaps longer. This timing meant the mother could be the killer.
"He altered his opinion to fit the prosecution of the case," Ophoven believes.
She said the lack of freezing in the body meant Dustin could not have been alone in the snow for as long as Smith concluded.
Ophoven said Smith has operated for so long in Ontario, committing more mistakes, perhaps because his work usually gave police and prosecutors what they needed: Strong findings of criminal responsibility against parents, babysitters and others.
"So who the hell is going to look into Dr. Smith's scientific acumen if what he gets them is what they're looking for?" she wondered. "It's terrifying."
Bowers claimed her son was abducted from her car after she left him alone briefly to go into a bank. She led police to his body the next day, claiming that she saw the location in a dream.
Bowers was acquitted 17 years ago. Police have not charged anyone else in the case since then.
In another story, under the heading "Reliving the pain of death; How a once-respected pathologist turned victims into suspects," Tripp has Ophoven wondering how Smith could describe himself as a forensic pediatric pathologist.
"Dr. Janice Ophoven, a forensic pathologist and county medical examiner in Minnesota with three decades of experience, wondered what forensic training Smith had when she confronted him 17 years ago," Tripp writes.
"Ophoven appeared as a defence expert in a 1990 murder trial in Kincardine and provided opinions that cast doubt on Smith's findings and his methods.
"I knew that [Smith] didn't have forensic training," said Ophoven, who is an expert on child deaths. "I could tell."
When law enforcement authorities are hunting the killer of a child, they're perceived to be "working for God," said Ophoven.
"You are untouchable unless there's a forensic pathologist to reel you in and bring some science to the table," Ophoven said. "But if you're working for law enforcement and you have no forensic training, then the cause of death is going to be whatever you say it is, whether it's true or not."
Now for the wind-up:
Questions abound:
First, the jury seemed to have no trouble seeing through Dr. Charles Smith - in spite of the bizarre nature of the facts implicating Bowers. Why couldn't the trained police and prosecutors be as perceptive?
Secondly, why didn't Smith's vacillating performance - and demonstration of so little knowledge of forensic pediatric pathology - sound the alarm bells and expose him to scrutiny by his superiors at the Hospital For Sick Children and the Chief Coroner's Office; So many innocent people and their families would have been spared their hellish experiences.
Lastly, Bower's trial was in 1990 - quite some time before Smith was appointed Director of the Ontario Pediatric Forensic Pathology Unit; Why would he be put in this prestigious position of enormous responsibility after demonstrating such pathetic, self-taught knowledge of forensic pathology?
We now know from Smith's own mouth - during his testimony at the Inquiry over the last few days - that in the ‘80’s Smith regarded himself as "an advocate" who was out to win for the prosecution team.
Although Dr. Ophoven desperately needed the tissue samples from Smith in order to fulfill her responsibilities as an expert for the defense it looks like Smith was blocking her all the way - or to put it another way – running interference for the Crown.
This appears to back up Commission Counsel Linda Rothstein’s suggestion denied by Smith that he approached his responsibilities in the criminal justice system as if he were playing a game.
But Julie Bowers was charged with murder – and this “game” could send her to prison for life as her son’s killer.
Ophoven also learned that Smith had kept the vital forensic evidence in this case at his home - which does not seem out of the question of evidence from the Inquiry that he kept a crucial forensic exhibit from the Waudby case at his home.
I get shivers when I think of the implication that Smith - the self-admitted advocate for the Crown and self-perceived member of the prosecution team - kept the materials at his home to make sure the Crown won and Bowers went to prison for the rest of her life.
We also know, by his own admission, that at the time of Dustin Bower’s death in the 1980’s, Smith was utterly ignorant of the most fundamental concepts of forensic pediatric pathology - such as calculating the time of death – as he presumably, according to his sworn testimony in court, is now.
Oh, yes.
As Murray reported, Smith testified that he hadn’t willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Indeed, he had acquired “greater knowledge” since he began writing a text on pediatric pathology.
Has anyone seen the book lately?
Harold Levy…hlevy15@gmail.com;
Is The Age of Progressive Prosecutors Over?
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