PUBLISHER'S NOTE: When I recently began preparing for a 'talk' on wrongful convictions that I was graciously invited to deliver at the University of Toronto's Trinity College, I reviewed several of my Blogs on the Guy Paul Morin Case. Guy Paul, who was ultimately exonerated, had the woeful distinction of being the youngest person ever exonerated in Canadian history. One of these post particularly caught my attention. It referred to Dr. John Penistan, the pathologist in that long-ago case of rape and murder. whose official autopsy report stated that 12-year-old Lynne Harper had died soon after Steven Truscott had been seen giving her a ride on his bike, at a time when he would have been by far the most likely killer. In short he gave the prosecutors the time of Lynne Harper's death, which was necessary to send Steven Truscott, who was ultimately exonerated, to death row, where he faced the death penalty. The one line in this post that particularly caught my attention is one in which The Ontario Court of Appeal ruled: "(The) nature of the changes in his opinion leaves Dr. Penistan's evidence reasonably open to the allegation that his opinion shifted to coincide with the Crown's case against the appellant." This, of course, had me thinking of another Canadian pathologist who came under attack for autopsy reports allegedly designed to help the police lay the criminal charge and win the case, The discredited former Dr. Charles Randal Smith.The role played by Dr. Penistan in the Morin case is beautifully described by Professor James Cooper Morton in an opinion piece, headed, 'How to get just the facts' by James C, Morton, described as, "a prominent litigation lawyer at Steinberg Morton Hope & Israel in Toronto and an adjunct professor and lecturer in evidence and advanced evidence at Osgoode Hall Law School, York University." Professor Morton, a profound observer of the criminal law, (as evidenced by The Ottawa Citizen opinion piece) inspired me greatly.
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PROFESSOR MORTON'S OTTAWA CITIZEN COLUMN (As published by The Ottawa Citizen) ……….(As it appeared in the The Charles Smith Blog: February 8, 2008);
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PUBLISHER'S NOTE: February 6, 2008; Several of our readers have drawn my attention to an opinion piece published in today's Ottawa Citizen; (My thanks to them); It is called "How to get just the facts" - and written by James C. Morton who is described as "a prominent litigation lawyer at Steinberg Morton Hope & Israel in Toronto and an adjunct professor and lecturer in evidence and advanced evidence at Osgoode Hall Law School, York University."
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PASSAGE OF THE DAY: "First, to put things in some perspective, one reason the wrongful convictions associated with Charles Smith have made so many headlines is that such cases are rare in Canada. (Truscott was a rarity, too, but he made headlines for other reasons.) Our adversary system, where teams of prosecution and defence lawyers each put their case as strongly as possible, is meant to ensure that no evidentiary stone goes unturned and that impressive but weak evidence does not lead to false verdicts. Usually that system works. When it does not, though, the human costs can be horrific: (As in the following Smith cases. HL) the Grade 6 student wrongly accused of shaking a 16-month-old to death; (Publication ban; Timmins, Ontario), the mother jailed for two years for stabbing her young daughter to death with scissors when in fact the girl had been mauled by a pit bull. Louise Reynolds; Kingston, Ontario; ; the uncle wrongly convicted of sodomizing and killing his four-year-old niece and only released from prison after 12 years. (Bill Mullins-Johnson) And there will be more; the Charles Smith files are not closed."
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STORY: "Expert witnesses seem a lot less expert these days," Morton's February 6, 2008 article, published by The Ottawa Citizen, begins.
"Last week (during the course of the Goudge Inquiry into many of Smith's cases; HL) we were reminded daily of the miscarriages of justice caused by forensic pathologist Charles Smith -- the many parents and caregivers charged and some found guilty of murdering children, the scores of lives ruined, and families destroyed," it continues.
"And in August, the Ontario Court of Appeal said that one of its main reasons for acquitting Steven Truscott had to do with the testimony of John Penistan, the pathologist in that long-ago case of rape and murder. Dr. Penistan's official autopsy report stated that 12-year-old Lynne Harper had died soon after Steven Truscott had been seen giving her a ride on his bike, at a time when he would have been by far the most likely killer.
But in recent years researchers have found two earlier copies of the same report form, one of them filled out during the autopsy, both placing the girl's time of death much later, when Mr. Truscott absolutely could not have been the killer.
Said the Court: "(The) nature of the changes in his opinion leaves Dr. Penistan's evidence reasonably open to the allegation that his opinion shifted to coincide with the Crown's case against the appellant."
That sentence strikes at the heart of the expert witness problem, and implies an elegantly simple solution.
First, to put things in some perspective, one reason the wrongful convictions associated with Charles Smith have made so many headlines is that such cases are rare in Canada.
(Truscott was a rarity, too, but he made headlines for other reasons.) Our adversary system, where teams of prosecution and defence lawyers each put their case as strongly as possible, is meant to ensure that no evidentiary stone goes unturned and that impressive but weak evidence does not lead to false verdicts.
Usually that system works.
When it does not, though, the human costs can be horrific: the Grade 6 student wrongly accused of shaking a 16-month-old to death; the mother jailed for two years for stabbing her young daughter to death with scissors when in fact the girl had been mauled by a pit bull; the uncle wrongly convicted of sodomizing and killing his four-year-old niece and only released from prison after 12 years.
And there will be more; the Charles Smith files are not closed.
Still, as I say, such cases are rare.
One reason is that Canadian courts are relatively conservative about expert testimony.
We allow only experts with serious credentials to testify, and then only when their expertise is essential to understanding a case.
In Thunder Bay recently, for instance, a judge denied defence counsel permission to call a psychologist regarding false confessions, on the grounds that the psychologist's testimony was something the jury could figure out by itself.
Serious credentials, absolute necessity, those are high bars.
So where does the expert witness system break down? In the words of Watergate's Deep Throat: Follow the money.
Despite their implied objectivity, expert witnesses -- who are, after all, paid for their time and services -- are called to court by either the prosecution or the defence.
Where one side or the other has significantly more money, it will more likely find an expert who will say what it wants.
This is not because the expert will intentionally mislead the court, but both sides have a choice of experts to call, each looks for the experts most likely to favour its position, and the side with the deeper pockets has the wider choice.
The fact that such witnesses are routinely described as "defence" or "prosecution" experts indicates the problem.
The simple solution, it seems to me, is to make the expert witness system work the way it purports to work already, to recognize that expert witnesses are expected to offer impartial, unbiased views, and have the court itself call them in, rather than the parties to a case.
The courts could establish a roster of respected experts and either the Crown or the accused could request that the judge appoint one.
But the judge would choose.
Experts would be required to know their obligations to the court -- to disclose any conflicts of interest, for example, and recuse themselves in such cases.
More importantly, they would have to detach themselves from issues of guilt or innocence.
Pathologists already step over the line, for example, when they state that "this was murder"; that is not their conclusion to draw.)
Ideally, expert witnesses would not talk to either party in a case outside the courtroom, defence or prosecution, including the police.
Certainly they should not know anyone's "theory of the case."
As to who would pay, the fact is that in most criminal proceedings, anyway, the government already pays the experts, either through the attorney general's office or Legal Aid.
All that would change is who hires the expert and who signs the cheque.
In court, technical expertise should not come with a viewpoint.
The courtroom "battle of experts" was never a good idea.
It's time we put it to rest".
A few brief note:
I wish it would be as easy to fix the problems plaguing pediatric forensic pathology in Ontario.
Dr. Michael Pollanen, Ontario's chief forensic pathologist, has testified that the system of pediatric forensic pathology in Ontario is badly broken in many ways ranging from qualification and training to inadequate resources.
It needs sorely an overhaul and a massive infusion of funds - which will most likely be one of the recommendations of Commissioner Goudge.
But that's just a start.
Dr. Pollanen and other witnesses, including the independent experts who participated in the Ontario Chief Coroner's review of many of Dr. Smith's cases, said today's problems also relate to forensic pathology itself - which, on occasion. appears to be more of an art than a science and is rife with controversy.
Another serious problem: All too many players in the Ontario's criminal justice system - including judges, crown attornies, defence lawyers and police officers - lack an adequate technical grasp of forensic evidence and rely overly on the experts who testify before them.
That said, Mr. Morton's insightful article will hopefully spark some vigourous debate."
The entire post can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog.
- SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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