Ron Dalton's Wise Words;

"BY NIGHTFALL, DALTON WAS CHARGED WITH SECOND-DEGREE MURDER, BASED ON THE FINDINGS OF A LOCAL PATHOLOGIST WHO PERFORMED AN AUTOPSY. HE WAS NOT ALLOWED TO ATTEND HIS WIFE'S FUNERAL.

IN THOSE DAYS, THE CROWN WAS NOT LEGALLY REQUIRED TO DISCLOSE ALL RELEVANT EVIDENCE TO THE DEFENCE. CLOSE TO HIS TRIAL, DALTON LEARNED THAT THE PATHOLOGIST, WHO HAD NO FORMAL TRAINING IN FORENSIC PATHOLOGY, CONCLUDED BRENDA DALTON HAD DIED FROM MANUAL STRANGULATION.

HE EVEN WENT SO FAR AS TO SAY HER KILLER HAD USED HIS RIGHT HAND. FOR EVIDENCE, HE POINTED TO THE INTERNAL SCRATCHES ON HER THROAT.

"HE THOUGHT HE WAS QUINCY, BASICALLY," DALTON SAID. HOWEVER, THERE WERE NO OTHER SIGNS OF INJURY CONSISTENT WITH STRANGULATION, SUCH AS EXTERNAL NECK BRUISING, FRACTURED CARTILAGE OR HEMORRHAGING IN THE EYES.

THE CROWN WOULDN'T SPEND THE MONEY TO GET A SECOND EXPERT OPINION, DALTON SAID.

AT HIS TRIAL, THE JURY PREFERRED THE TESTIMONY OF THEIR LOCAL DOCTOR OVER THE DEFENCE EXPERT, A FORENSIC PATHOLOGIST FROM PHILADELPHIA WHO HAD PERFORMED THOUSANDS OF AUTOPSIES, INCLUDING HUNDREDS INVOLVING DEATH BY STRANGULATION."

TORONTO STAR:

Newfoundlander Ron Dalton's views on expert witnesses like Dr. Charles Smith are worth considering.

They were published recently in the Ottawa citizen - and I will be repeating them in a moment for the benefit of our readers.

But first, it will be useful to read this familiar sounding account of how Dalton came to spend years in penitentiary for a murder that never happened.

It is written by Tracey Tyler, my former colleague at the Toronto Star.

The story appeared under the heading "High price to pay for justice" on Nov. 6, 2007.

A sub-heading read, "His biggest loss was time with his kids."

"Ron Dalton was a bank manager, but he was naive. He innocently believed that since he didn't kill his wife, he couldn't possibly be found guilty of murder," the story began.

"But Dalton was convicted — a mistake that stole 12 years from his life and led to two trials, an appeal, a lawsuit and a recent public inquiry into his case, as well as into two other wrongful convictions in Newfoundland," it continued.

"It's been a $20 million make-work project for lawyers," he said in an interview over the weekend in Toronto, where he spoke to members of the Criminal Lawyers' Association at their annual conference.

That high cost of injustice was largely due to the prosecution's refusal to admit to a possible weakness in its case, he said.

A Crown culture that insists on winning at all costs and stubbornly refuses to concede error was one of the biggest barriers to overturning his conviction, said Dalton, who was 32 when his wife died. Another was finding lawyers who were prepared to dedicate time to helping him, especially when he ran out of money.

Since he was charged, one organization in particular, the Association in Defence of the Wrongly Convicted, has gone to bat for victims of miscarriages of justice. The Innocence Project at York University has also entered the field.

But Canada should not be depending on volunteer groups to investigate and expose miscarriages of justice, Dalton said. It needs a publicly funded review body operating at arm's-length from government, similar to one in place in Britain, he said.

Defence lawyers at the conference had a rare opportunity to hear Dalton's story in chilling detail, a story not well-known outside Newfoundland.

It began on Aug. 15, 1988, the longest day of his life. Dalton, a bank manger in Gander, had stopped at the RCMP detachment to pick up tickets for the policemen's ball and made restaurant reservations to celebrate his upcoming 11th wedding anniversary.

When he arrived home, his three children were asleep upstairs. He joined his wife Brenda, who was on a loveseat watching the news and eating a bowl of cereal.

She began to choke. Dalton patted her on the back, but it didn't help. Her face turned "beet red." He went to the kitchen to get a glass of water, returning to find her unconscious.

"I ran my finger through her mouth and the top of her throat to see if anything was there," he said. "I blew a few breaths into her and her chest would rise."

Dalton called an ambulance and Brenda was rushed to hospital. An inexperienced resident was in charge of the emergency room and botched the resuscitation by sliding a breathing tube into her stomach instead of her lungs. The inside of her throat was inevitably scratched. She did not survive.

Dalton stayed up all night with the neighbours, "wondering how I was going to explain to a 6-year-old and a 9-year-old that their mother is dead." His youngest was 18 months old.

"I waited until the sun broke to do that. I went into my oldest son's bedroom, sat down on the edge of his bed and tearfully told him." The two of them later knelt by his daughter's bed and told her.

By nightfall, Dalton was charged with second-degree murder, based on the findings of a local pathologist who performed an autopsy. He was not allowed to attend his wife's funeral.

In those days, the Crown was not legally required to disclose all relevant evidence to the defence. Close to his trial, Dalton learned that the pathologist, who had no formal training in forensic pathology, concluded Brenda Dalton had died from manual strangulation.

He even went so far as to say her killer had used his right hand. For evidence, he pointed to the internal scratches on her throat.

"He thought he was Quincy, basically," Dalton said. However, there were no other signs of injury consistent with strangulation, such as external neck bruising, fractured cartilage or hemorrhaging in the eyes.

The Crown wouldn't spend the money to get a second expert opinion, Dalton said.

At his trial, the jury preferred the testimony of their local doctor over the defence expert, a forensic pathologist from Philadelphia who had performed thousands of autopsies, including hundreds involving death by strangulation.

Dalton spent two years languishing in a 5-by-7 ft. cell in Renous penitentiary in New Brunswick, waiting for a trial transcript to be typed so he could proceed with his appeal. His trial lawyer strung him along for another two years after that. Four years into his sentence, Dalton learned he hadn't done any work on the case.

Dalton found another lawyer, but the Newfoundland legal aid system took a year before deciding to fund the case. For the next two years, Dalton waited. His lawyer sent him letters regularly, updating him on the "progress" of the case.

"I was sitting in a little steel cage up in northern New Brunswick, maximum security, trying to hang onto this little box of correspondence, hoping the next tear gassing or flood doesn't take that down."

But once again, Dalton had been fed a story. Seven years into his sentence, he filed his own handwritten legal brief with the Newfoundland Court of Appeal.

"The catalyst for actually getting it to court was my filing a half-assed factum," he said. "I was on my third chief justice by the time we actually got it going. One had already retired and another had died."

Through sheer luck, a junior lawyer from Dalton's second lawyer's firm put him in touch with St. John's lawyer Jerome Kennedy, now a prominent advocate for the wrongly convicted. Kennedy pushed Dalton's case, winning him a retrial. That lasted nine months, ending with his acquittal in 2000.

New medical evidence overwhelmingly concluded that Dalton had been charged with a crime that never occurred. Brenda Dalton had choked on cereal and the marks on the inside of her throat were caused by attempts to save her life.

Earlier this year, in his report from a public inquiry into Dalton's case and the wrongful murder convictions of Newfoundlanders Gregory Parsons and Randy Druken, commissioner Antonio Lamer, a former chief justice of the Supreme Court of Canada, said the cases were largely the result of a dysfunctional Crown culture that was overzealous and blindly accepted police theories.

One day after the report was released in June, Dalton received a letter of apology from Newfoundland's chief justice, Clyde Wells. He's still waiting for one from the government.

Knowing his family was on the outside of the prison walls was how he survived his ordeal because it gave him a focus, he said.

"My daughter had just graduated from kindergarten when her mother died. When I was acquitted, she was about to graduate high school. For me, it was always the measure of how much time had been lost."

With this background, Dalton's comments in the Ottawa Citizen, under the heading "Unmasking the expert: Musings on the Goudge Inquiry" are all the more meaningful;

"As someone who suffered the unsubstantiated opinion of a self-proclaimed “expert” in forensic pathology in another province I am struck by the abundance of repetitious medical jargon and technical verbal camouflage found throughout the opinions of Dr. Charles Smith" wrote Dalton;

"Sadly it is the very same language found throughout the opinion and testimony which sent me to prison.

It is also, in many instances, the exact same words used to wrongly convict others in other jurisdictions in this country and elsewhere.

At first blush one is tempted to receive the august findings of experts with a certain degree of awe and respect and, to our collective dismay, the utterances of such individuals have historically been imbued with a veneer of authority.

As we are painfully witnessing at the Goudge inquiry that veneer is sometimes merely a thin cosmetic coating deflecting our intelligence away from the fact the emperor has no clothes.

Dr. Smith is but one extreme example of a problem long overlooked by our criminal justice system and the self-governing medical bodies which are supposed to be providing the necessary checks and balances on unbridled medical authority.

In hindsight even Dr. Smith now concedes his lack of training, inexperience, and gross over interpretation.

While hardly forgivable it is flawed human nature for an unrestrained overactive ego to run amok, unfortunately, with tragic consequences for those of us directly affected.

The larger issue is our societal failure to establish adequate training for those we entrust with the almost limitless influence we accord experts in the criminal justice system.

Likewise the demonstrated inability of the self-governing medical bodies to protect societal interests reflects a fundamental structural weakness in our overall social system.

The individual failings of Dr. Smith and others of his ilk bring home in vivid detail the horrible consequences of wrongful convictions and expose an unhealthy systemic inertia when faced with correcting such wrongs.

In the recently much publicized cases of Steven Truscott and William Mullins-Johnson we see the unwarranted arrogance of Dr. Smith mirrored on the legal side of the equation.

In each of those blatant wrongful convictions the Crown stubbornly resisted efforts to achieve long-overdue justice in the face of overwhelming evidence of innocence.

Here again the self governing legal profession appears to value a rigid adherence to finality of the criminal legal process over the inherent right to freedom we all theoretically enjoy.

Given the disastrous consequences of an unrestrained Dr. Smith style expert opinion, the lack of medical or judicial oversight currently in place and the intransigent Crown culture in respect to correcting its own mistakes the system needs to be changed.

Commissioner Goudge will undoubtedly address some of those issues regarding his review of the Dr. Smith debacle but we must demand further systemic change in light of the broader lessons.

In particular Canada should have an independent body with the authority to review claims of wrongful conviction and address the permanent damages such horrible systemic mistakes do to individuals as well as to our collective confidence in the integrity of our justice system."

hlevy15@gmail.com