COUNTDOWN: 4 DAYS TO GO: "STARTLING REVELATIONS"; PART NINE;

During the course of the Goudge Inquiry, I was shocked to learn from the evidence of Dr. Michael Pollanen that Dr. Charles Smith's erroneous views on so-called baby-shaking deaths and head-injury cases were widely shared by other pathologists.

This raises the disturbing possibility that dozens that numerous other individuals may have been wrongfully charged and convicted of killing children due to the imperfect, but convincing, pathology of the day.

Others may have been wrongfully charged and convicted because of popular theories of the day - such as Munchausen's Syndrome By Proxy - which have now come under severe attack.

If this is the case, there is a real possibility that Ontario's criminal justice system has further been tainted by the failings of pathology - and Justice Goudge could perform an important service by drawing this to the attention of the government and calling for a review.

I discussed this important issue in a post which ran on Saturday, May 10, 2008, under the heading: "Part One: "Shaken Baby" And "Head Injury" Cases Cry Out For Review; AIDWYC and Mullins-Johnson Closing Submissions;"

The post was headed by the following quotes:

"DR. SMITH WAS NOT THE ONLY PATHOLOGIST IN ONTARIO WHO MADE DIAGNOSES OF SHAKEN BABY SYNDROME.

DR. POLLANEN NOTED IN HIS JANUARY, 2007 MEMORANDUM THAT “MANY OF DR. SMITH’S VIEWS ON SHAKEN BABY SYNDROME WERE SIMILAR TO A PREVAILING VIEW IN THIS CONTROVERSIAL AREA OF FORENSIC PATHOLOGY AT THE TIME HE GAVE TESTIMONY ON THE ISSUE”.

INEVITABLY, MANY OTHER PATHOLOGISTS, WORKING FROM THE SAME ASSUMPTIONS, DREW SIMILAR CONCLUSIONS."

CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;

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"The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations," the post began.

"For this reason, I wil be devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig," it contineud;

"Today's focus is on a section in which the two parties point out the now proverbial elephant that has been made its presence known throughout the inquiry: the “Shaken Baby” and Head Injury Cases not just in Canada but elsewhere in the world - which Resulted in Criminal Convictions.

"Miscarriages of justice have surely occurred in cases other than those involving Dr. Smith where the diagnosis or cause of death was attributed to shaken baby syndrome or head injury," this section begins;

"According to Dr. Pollanen, “apropos of the results of the Smith and the Goldsmith reviews, there is a reasonable basis to believe that problems could exist with other fatal infant head injury cases, including cases certified as Shaken Baby Syndrome" it continues.

"As Dr. Pollanen and others have made clear throughout this inquiry, infant head injury cases are viewed very differently today than in the past, due to advances in research and scientific understanding.

In the United Kingdom, the Court of Appeal’s authoritative and detailed judgment, R. v. Harris and Others, summarized the state of the science now and the implications for criminal prosecutions based on earlier opinions

Following the release of that decision, the Right Honourable Lord Goldsmith ordered a review of all cases in England in which a parent had been convicted of killing a child under 2.

A total of 297 cases were reviewed, and 28 were found to raise concerns; a further three cases that were still before the courts were immediately withdrawn by the prosecution.

Of those. three cases of “shaken baby syndrome” were reviewed by Lord Goldsmith, resulting in ten that were determined to require further investigation. Of those, three were recommended for referral to the Criminal Cases Review Commission.

Ultimately, a total of 39 cases were referred either to the Criminal Cases Review Commission or the Court of Appeal.

There is no reason to imagine that Ontario is now, or has ever been, immune to this disturbing pattern of scientific and judicial error.

Indeed, it appears that pathologists here have been applying the same diagnostic criteria as their British counterparts in cases raising the same issues; it would be difficult to explain how they had avoided the same tragic errors in an appreciable number of cases.

The expert evidence heard at the Inquiry made it apparent that there is no assurance we have not replicated those mistakes in some cases, and, indeed, gave every reason to believe we have.

These errors are not the result only of “rogue” pathologists such as Dr. Smith – they are a predictable product of incomplete scientific knowledge and a judicial climate ill-equipped to recognize them.

Dr. Smith was not the only pathologist in Ontario who made diagnoses of shaken baby syndrome.

Dr. Pollanen noted in his January, 2007 memorandum that “many of Dr. Smith’s views on Shaken Baby Syndrome were similar to a prevailing view in this controversial area of forensic pathology at the time he gave testimony on the issue”.

Inevitably, many other pathologists, working from the same assumptions, drew similar conclusions.

Several witnesses throughout the inquiry, including several pathologists, were of the view that a review similar to the Goldsmith review is necessary in Ontario to restore public confidence in the system9. In the words of Dr. Lucas:

… with the vision of hindsight and our current state of knowledge applying current day approaches, standards, and expectations for how the conclusion would be drawn in these cases to those cases in – in retrospect… conclusions of the pathologist my be different, and as a consequence the conclusions in the criminal justice system may in fact be different.

To assure the people of Ontario that no one else has been convicted of a crime that did not occur, a similar review must be carried out here.

Further, the Commissioner should go so far as to suggest that a review should be conducted of cases in which infant head injury and shaken baby syndrome have resulted in criminal convictions (albeit in a manner that does not exceed his limited territorial mandate), as was done in the Goldsmith Review.

The system has, as Dr. Lauwers testified, a “moral and ethical” obligation to examine each case to make sure “there isn’t some family that’s come to some significant harm as a result of information which has changed over a period of time”".

The two parties make the following recommendations:

0: Further reviews of the continuing validity of expert pathology opinions that contributed to a criminal prosecution beyond the review of Dr. Smith's cases which has been completed.

0: Based on the evidence heard at this Inquiry, the Commissioner should recommend that the Province of Ontario undertake an immediate review of all “shaken baby” and fatal pediatric head injury cases which have resulted in criminal convictions in the province.

That message should resound not only in Ontario, but in all other Canadian provinces, and wherever else in the world prevailing notions of pathology - now proven wrong - led to the prosecution and conviction of innocent people, some who may still be behind bars

This injustice cries out to be fixed.

Harold Levy...hlevy15@gmail.com'