Smith For The Defence: Part Three; Did Judge's Praise of Smith's "Outstanding" Credentials Tip Jury In Favour Of Smith's Evidence?

"DR. SMITH HAS OUTSTANDING CREDENTIALS, AND IT IS HIS OPINION THAT TRISTAN'S INJURIES COULD HAVE POSSIBLY BEEN INFLICTED AS EARLY AS 6:00 P.M. ON SATURDAY THE FIFTH OF JANUARY."

FROM SUPERIOR COURT JUSTICE DAVID CRANE'S CHARGE TO THE JURY: REGINA VS. KUZYK;

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Expert evidence lay at the heart of the prosecution of Shelly Anne Kuzyk for the second-degree murder of her 15-month-old son Tristin;

There was however a clear conflict between the defence and prosecution experts as to the outer limits of the time at which the injuries took place - a central issue in the case.

It is therefore fair to ask whether Dr. Charles Smith's inflated description of his qualifications tipped the jury in favour of the defence.

To this Bloggist it is a given that Dr. Smith's decision to testify for the defence for the first time in his career was a major coup for Kuzyk's lawyer.

As Roger Yachetti told the jury on hearing this from Smith in Court, "I don't know whether to feel honoured or scared."

Indeed, Superior Court Justice David Crane told the jury that part of Kuzyk's defence was that, "That Dr. Smith has outstanding credentials, and it is his opinion that Tristan's injuries could have possibly been inflicted as early as 6:00 p.m. on Saturday the Fifth of January."

But Crane went even further in what, in retrospect, risked appearing to be an endorsement of Dr. Smith, by telling the jury:

"Lastly. in terms of timing of witnesses. Dr. Smith said hem-studied this case for the purposes of providing an opinion.

Dr. Smith has a specialty in Forensic Paediatric Pathology.

He says he investigates sudden and suspicious deaths.

He is the Director of the Sick Children's Hospital.

He performs autopsies of children for the Region of Toronto and elsewhere and there was a discussion of his qualifications, which I expect you will find to
be very extensive..."

These comments are particularly troubling for several reasons.

First and foremost, Justice Crane misstated Smith's qualifications when he described Dr. Smith as "having a specialty in forensic pediatric pathology."

Dr. Charles Smith is not qualified in "forensic pediatric pathology".

His specialty is in "pediatric pathology."

We know from the evidence called at the Goudge Inquiry that pathologists who choose to work in the forensic area - even though they lack formal certification - often refer to themselves as "forensic pathologists."

However Justice Crane went beyond this by using words that suggested Dr. Smith was was a certified specialist in forensic pediatric pathology.

I am not faulting Justice Crane as he did not have the benefit of all we have learned about Dr. Smith and about the world of forensic pathology from the Goudge Inquiry.

Besides, neither prosecutor Kevin McKenna or defence lawyer Yachetti corrected the inadvertent misinformation in the absence of the jury.

Secondly, the judge's apparent endorsement of Dr. Smith's C.V. - which he refers to as "very extensive" - would serve to elevate Dr. Smith's testimony over the evidence given by the battery of experts on the other side.

Lastly, incorrectly referring to Smith as "Director of the Sick children's Hospital" -which, if true, would be a position of considerable stature didn't help.

It's worth noting that the press reflected Dr. Smith's lofty credentials as described in the courtroom, as is evidenced by a Hamilton Spectator report on the trial published on Jan. 29, 1999;

"The defence also called Dr. Charles Smith, a leading specialist
in forensic pediatric pathology," the story said.

"Smith said Tristin died from non-accidental blunt trauma to the head, but disagreed that this happened no more than six hours before the child collapsed.

"There is no absolute science to the timing of injuries,"
Smith maintained.

He said it was possible that Tristin received the lethal head injury 10 or 11 hours before becoming unconscious...."

Dr Charles Smith..."A leading specialist in forensic pediatric pathology."

Here is how the Free Dictionary - an Internet dictionary - defines the word "leading" when used as an adjective:

"LEADING": - greatest in importance or degree or significance or achievement; (as in) "our greatest statesmen"; "the country's leading poet"; "a preeminent archeologist" preeminent superior - of or characteristic of high rank or importance; "a superior ruler."

BLOGGIST'S NOTE: The above analysis is in no way intended to reflect adversely on Shelly Kuzyk's acquittal after she took the witness box and gave her testimony to the jury. It's sole purpose is to shed light on Dr. Smith and the court process as is illustrated by what Dr Smith described as the first case in which he had testified as an expert witness for the defence.

Harold Levy; hlevy15@gmail.com;