Expert Witnesses: Part Three: The Quest For Impartiality;

My thanks to a reader for bringing to my attention a column entitled: "Experts must be impartial" by Mark Bonokoski of Sun Media.

"Susan" whet my appetite to read the entire column with the note she she left on the Blog following an earlier posting on expert witnesses(Expert Witnesses: Part One), which read:

"There's a well-written editorial (dash of black humour) in the Daily Observer today:

"An expert is someone who knows more and more about less and less, until eventually he knows everything about nothing." - Nicholas Murray Butler, President, Columbia University, 1902-1945 Dr.

Charles Smith is one of those Butler-defined experts, all right - an expert witness (supposedly) in forensic pathology who lied, invented, forgot, pretended, withheld, dismissed, neglected, guessed - and, as a result, sent many people to jail for crimes that never happened.

Not to jail for murders they did not do, or for manslaughter cases in which they had no hand, but for murders and manslaughters that never occurred.

"Dr. Smith. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?"

Uh, maybe.

Don't know. Can't say. Perhaps.

Dr. Charles Smith, now described rightfully as "disgraced pathologist Dr. Charles Smith," was so expert at being an expert that he routinely forgot he had no authoritative expertise, and so he gave lectures to colleagues on how to be an expert witness.

And he did this for years and years and years, with his true abilities falling tragically and intellectually short of his pay grade."

So here is the entire column:

"An expert is someone who knows more and more about less and less, until eventually he knows everything about nothing." - Nicholas Murray Butler, President, Columbia University, 1902-1945", the Bonokoski column begins.

"Dr. Charles Smith is one of those Butler-defined experts, all right - an expert witness (supposedly) in forensic pathology who lied, invented, forgot, pretended, withheld, dismissed, neglected, guessed - and, as a result, sent many people to jail for crimes that never happened," it continues;

"Not to jail for murders they did not do, or for manslaughter cases in which they had no hand, but for murders and manslaughters that never occurred.

"Dr. Smith. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?"

Uh, maybe.

Don't know. Can't say. Perhaps.

Dr. Charles Smith, now described rightfully as "disgraced pathologist Dr. Charles Smith," was so expert at being an expert that he routinely forgot he had no authoritative expertise, and so he gave lectures to colleagues on how to be an expert witness.

And he did this for years and years and years, with his true abilities falling tragically and intellectually short of his pay grade.

Toronto lawyer Daniel Brodsky, one of the founders of the Association in Defence of the Wrongfully Convicted, opined in one newspaper that police should consider laying perjury charges against Smith, all as the public inquiry into his shenanigans prepared to wrap up its proceedings before the Goudge commission.

Then, when all is said and done, Mr. Justice Stephen Goudge will sit down and write his report on how Dr. Charles Smith was able to keep himself at the top rung of Ontario's forensic pathology ladder for approximately two decades, when his litany of autopsy misfindings and courtroom hyperbole were regularly getting innocent people charged with the murder of babies, particularly for shaken baby syndrome.

About which Dr. Smith once had this to say in a published article: "Defence counsel love to make mincemeat of witnesses, and some experts become paid mouths, so the challenge is to prove there is such a thing as shaken baby syndrome."

The 'challenge' for Dr. Smith, however, at least in some of his cases, was to 'prove' shaken baby syndrome even when it didn't exist.

The British call this "noble cause corruption."

And he was obviously successful in his embrace of the "noble cause" - so much so that it caused the catalogued and court-documented ruination of more than just a few innocent lives.

Expert testimony, even when the expert is truly an expert, is often a mug's game. In a slide presentation on wrongful convictions delivered to the International Centre for Criminal Law Reform and Criminal Justice Policy Convention in Toronto in July of 2006, Daniel Brodsky noted that the adversary court system is "probably the best tool we have in Canada for detecting over-confidence, self-deception and dishonesty.

"Ironically, though," said Brodsky, "(the adversary system) itself is responsible for one common defect - namely the expert's temptation to overly identify with the cause of his 'side.'"

According to Brodsky, this is exacerbated by the fact that science is becoming more complex; witnesses remain forever fallible; the run-of-the-mill lawyer, while seemingly affordable to his client, lacks the tools to evaluate and challenge; opinion may have a weight and authority that is undeserved (ie: Dr. Smith); the language of medicine and law are seldom the same; and, courts/juries often lack the skills to render a proper decision in complicated trials.

None of this is new, of course, but it is rarely debated outside the closed confines of the legal and academic community.

Then there is the phenomenon of what has been called "junk pathology" and/or "junk science" - something that legal scholars claim is becoming a "scourge" of courtrooms.

Think, for example, of social-science scenarios that, prior to 1980, had never been heard of in the court system, and their impact on both criminal and civil litigation - battered woman syndrome, shaken baby syndrome (see Dr. Charles Smith), post traumatic stress disorder, child sexual abuse accommodation (CSAA), post-partum psychosis, repressed memory syndrome, and hypnotically refreshed testimony, just to name a few of the headliners.

All are relatively new. But is their credence tried and true and immune to manipulation? The answer, of course, is hardly.

According to Brodsy, "junk pathology" and "junk science" have played a role in many wrongful convictions, and not just in the cases in which Dr. Smith was the lead pathologist.

"When junk pathology is introduced to a jury by a so-called expert, the jurors immediately have blinders put on," he said. "And once those blinders have them looking at junk pathology as fact, then the game is over for the defence.

"Using Dr. Smith's blinders, jurors were able to see homicide where no homicide existed. And how dangerous is that?"

From Brodsky's perspective, and from the perspective of the Association in Defence of the Wrongfully Convicted, if Mr. Justice Goudge's eventual report focuses solely on Dr. Smith, then it will be a huge opportunity lost in critiquing the system.

And it will be lost, too, if the Ontario College of Physicians and Surgeons fails to take reasonable steps to ensure that other forensic scientists do not see themselves purely as an integral part of the prosecution's collective team.

"In fact, if those issues are not dealt with, the inquiry will have been a total waste of time," said Brodsky. "Today Dr. Smith; tomorrow who? Dr. Jones?

"We must ask ourselves, are forensic pathologists the equipment of the prosecution, or of justice?

"Certainly, forensic pathologists are thought to be impartial, and therefore making use of scientific means of finding the truth. But the reality is that they work in a prosecutorial milieu.

"Closely tying the forensic scientist to the prosecutorial apparatus may increase the likelihood of junk or scandalous science," he said. "Pathologists may feel that in order to get promoted they need to provide the evidence that makes a conviction," said Brodsky.

"And that, in the end, tends to morph them into what has been termed 'cops in lab coats.'"

Harold Levy...hlevy15@gmail.com;