Part Two: Smith Testifies In Death Penalty Case; The State V. Fuller;

As set out in a story by my erstwhile colleagues Theresa Boyle and Isabel Teotonio in today's Toronto Star: (The story contains fascinating interviews with the lead detective and the trial judge);

"The case in question involved the conviction of Christopher Fuller for the March 21. 2000 aggravated murder and attempted rape of his daughter Randi, who was weeks away from turning 3.

Fuller, 31 at the time, pleaded not guilty. He was given a life sentence.

The coalition (a coalition of lawyers who said they had just learned of the case H.L.) has since been in touch with Fuller's lawyer, who had no knowledge of the problems involving Smith.

During the trial, court heard that Fuller told detectives Randi had choked on a glass of water and held her breath, but later admitted he became enraged after the toddler refused his advances for "some loving." Fuller repeatedly told police he hit Randi twice. However, prosecutors said he also suffocated the toddler by pressing on her chest and covering her mouth.

Fuller also admitted to having raped his daughter in May 1999 and February 2000.

Smith supported a finding that Randi Fuller died from asphyxia. The Inquiry has found problems with Smith's findings of asphyxia as a causes of death.

But the lead police investigator on the case, who was contacted by phone, downplayed the significance of Smith's involvement.

"We had a confession from the suspect," recalled Lieut. John Nethers of Hamilton, Ohio, police, who was a detective at the time.

"I don't think anything Dr. Smith did could have caused any type of wrongful conviction in this case."

Smith was brought in to bolster evidence provided a forensic pathologist with the Butler County Coroner's Office, who conducted the autopsy, Nethers said.

Because Fuller was accused of a capital crime, which can result in the death penalty, the prosecution searched the Web for another expert to strengthen its case, recalled Nethers yesterday. And, it found Smith, who at the time was on staff at the Hospital for Sick Children and on the medical faculty at the University of Toronto.

"He was great in front of the jury," recalled Nethers, who was stunned to learn yesterday that Smith is now the subject of an inquiry,"...when Dr. Smith was on the stand, everybody in the courtroom seemed interested in what he was saying and was paying attention."

Fuller's attorneys in this case could not be reached for comment yesterday. "(Smith) just looked at some of the stuff and came up with a second opinion on the cause of death, which wasn't any different than what we'd already determined," he said. "I don't think anything he did could've swung anything one way or another."

Judge Matthew Crehan, who presided over the case, agreed. "I think the conviction really hinged upon whether the jury believed (Fuller's) confessions," he recalled in a phone interview yesterday, adding he couldn't even remember Smith or his testimony.

"There was a big question as to the validity of the interrogation techniques and the statement itself...the statement was not recorded and was it accurate? Was the confession actually the word of the police as opposed to the words of the defendant?"

The jury eventually believed the confession because it recommended the death penalty.

But Crehan sentenced Fuller to life in prison without parole. Yesterday, he said he made the controversial decision because Fuller had no prior criminal record, had worked to support his family and had served in the military.

In 2002, the Ohio 12th District Court of Appeals upheld the conviction.

Next: Part Three: Smith testifies in death penalty case: Did Smith level with the court?

Harold Levy...hlevy15@gmail.com;