AFTERMATH: PART NINETEEN; CRITICAL COMMENT; IS IT POSSIBLE TO GET A FAIR TRIAL IN CANADA? DE SOUZA COLUMN; NATIONAL POST;

"WHAT WE FEAR MOST IN THE CRIMINAL JUSTICE SYSTEM IS THE DIRTY COP, OR THE DIRTY CROWN ATTORNEY.

BUT FAR WORSE IS A SYSTEM IN WHICH THE COPS AND CROWNS THINK DIRTY, ASSUMING THE GUILT OF THE SUSPECT AND THEN MASSAGING, MANIPULATING OR FABRICATING THE EVIDENCE TO FIT THAT PREDETERMINED CONCLUSION.

THAT IS WHAT DR. SMITH DID, AND FOR 20 YEARS ONTARIO'S POLICE AND PROSECUTORS WERE HAPPY FOR HIS HELP."

FATHER RAYMOND J. DE SOUZA: NATIONAL POST;

--------------------------------------------------------------------------------------------------------------------------------------------------------------------------

From the outset of the Goudge Inquiry, Father Raymond De Souza has demonstrated remarkable insight into Dr. Charles Smith's devastating impact on Canada's criminal justice system and the lives of so many innocent people in his columns for the National Post.

De Souza continues to offer us these insights in a column which ran on October 8, following release of the Goudge Report under the heading "Who examines the medical examiners?, and posed the question,"Is it possible to get a fair trial in Canada?"

"Justice Stephen Goudge did not permit himself to put the question so dramatically in his report into pediatric forensic pathology in Ontario," De Souza begins.

"He found the work of the lead pathologist, Dr. Charles Smith, to be spectacularly incompetent, and the oversight of his superiors to be wilfully negligent," he continues.

"The upshot was that for over 20 years, innocent people were falsely accused and convicted of assaulting and killing children.

That these false charges were sometimes brought against grieving parents makes the malfeasance of the Ontario Coroner's Office particularly grotesque.

It would be hard to imagine a more profound abuse of state power: innocent people sent to jail, reputations destroyed, families sundered, children traumatized and guilty parties going free.

The old Latin question comes to mind: Quis custodiet ipsos custodes? Who guards the guards? Who polices the police? Who prosecutes the prosecutors? Who examines the medical examiners?

The answer is: No one.

That's why the possibility of a fair trial depends upon the state using its fearsome prosecutorial and police powers with restraint and in service of the truth.

The reality is that too often those powers are unleashed in the service of securing convictions, truth be damned.

In Canada we have long watched the parade of the wrongfully convicted, and so are no longer surprised when our governments put innocent people in jail.

But at what point does the accumulated evidence lead one to conclude that the system is so corrupted that it is no longer reasonable to expect a fair trial? The Goudge report puts us in that territory.

The terms of reference for Justice Goudge were narrowly drawn, asking him only to investigate the conduct of the coroner's office.

But his findings highlight a much deeper problem -- the very attitudes which dominate prosecutors' offices and police forces.

"Dr. Smith failed to understand that his role as an expert witness was not to support the Crown," Goudge reports. "At the inquiry, he was candid on this point ... He acknowledged that, when he first began his career in the 1980s, he believe that his role was to act as an advocate for the Crown and to 'make a case look good.'"


Where would he get that idea?

In two decades of helping police and prosecutors put together fraudulent cases, was he never told that he should tell the truth rather than co-operate in the railroading of innocent people?

Dr. Smith operated in an environment in which the presumption of innocence simply did not apply.

That it went on for so long reveals this was no mere incompetence or occasional overzealous prosecution; the criminal justice system in Ontario was systematically unjust.

Justice Goudge summarizes the attitude of Dr. Smith's superiors: "Dr. Young and Dr. Cairns both shared with Dr. Smith the same commitment to the 'think dirty' approach -- that is, approaching every sudden and expected child death with a high index of suspicion-- to uncovering child abuse."

What we fear most in the criminal justice system is the dirty cop, or the dirty Crown attorney.

But far worse is a system in which the cops and Crowns think dirty, assuming the guilt of the suspect and then massaging, manipulating or fabricating the evidence to fit that predetermined conclusion.

That is what Dr. Smith did, and for 20 years Ontario's police and prosecutors were happy for his help.

The sheer weight of evidence in the Goudge report shows that it was not just that a blind eye was turned; no, with a wink and nudge Dr. Smith was actually encouraged to "make a case look good."

Canadians ought to be more enraged then they are, and the consequences for Dr. Smith and his enablers ought to be uncompromisingly severe.

They have compromised our fundamental liberties and put our right to a fair trial in doubt."

-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------

Several other columns inspired by evidence called at the Goudge Inquiry bear repeating - including: Part Eight; Critical Comment: Father Raymond J. De Souza; "Holding The Justice System To A Higher Standard" which ran in this Blog on Friday, April 25, 2008, as follows:


"GIVEN THE ALARMING FREQUENCY OF WRONGFUL CONVICTIONS -- THE GOUDGE INQUIRY INTO SEVERAL SUCH CASES INVOLVING DISGRACED PATHOLOGIST CHARLES SMITH WRAPPED UP LAST MONTH -- PERHAPS THERE SHOULD BE A STANDING OFFICE CHARGED WITH EXONERATING THE WRONGFULLY CONVICTED ON A PERMANENT BASIS;"

FATHER RAYMOND DE SOUZA; NATIONAL POST;

--------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Father Raymond De Souza is rapidly becoming one of the most articulate and impassioned critics of Canada's criminal justice system through his columns published in the National Post;

Father De Souza's philosophy is well reflected in the title to a recent column called, "Holding the justice system to a higher standard," published on Thursday April, 24, on the recent acquittal of Robert Baltovich following a pursuit for justice that lasted almost two decades.

(Father De Souza is the author of an earlier column published on March 31, 2008, under the heading, "Dr. Smith And The Price Of Justice," which I have included below for those who have not yet had the opportunity to read it.

"The Premier of Ontario opened the door to a public inquiry into the wrongful conviction of Robert Baltovich yesterday," the column begins. (The Baltovich case is summarized in the Wikipedia entry which I have included in this post);

"Given the alarming frequency of wrongful convictions -- the Goudge Inquiry into several such cases involving disgraced pathologist Charles Smith wrapped up last month -- perhaps there should be a standing office charged with exonerating the wrongfully convicted on a permanent basis," it continues;

It has now become clear that in Canada it is not rare for police, prosecutors and, in the Baltovich case at least, the trial judge, to rush to injustice, honouring in no real sense the presumption of innocence.

Along with a seemingly endless parade of wrongful convictions, the Baltovich case -- which meandered through the courts for 18 years with nothing other than circumstantial evidence to back it up -- puts us dangerously close to a damaging erosion of public confidence.

As the malfeasance of our police and prosecutors becomes more widely-known, reasonable citizens will begin to doubt whether they can trust any convictions procured by a system that apparently cares for successful prosecutions more than truth or justice.

Today the Supreme Court of Canada is hearing arguments in the Grant case -- the case began when a young black man was stopped by Toronto police some years ago because he appeared "fidgety" and was found to be carrying a loaded handgun.

Many experts expect the outcome will loosen the prohibitions on improperly gathered evidence being admitted at trial. Leaving aside the merits of the Grant case, it is not a propitious time to entrust Canada's police or prosecutors with greater latitude. As inquiries are springing up into miscarriages of justice, it would seem better to hold the criminal justice system to a higher standard. It is the accused who in a just system are entitled to the benefit of the doubt, not the state.

I have returned to this theme several times in the past year, which would be a bore except that our courts are freeing the wrongfully convicted even more often than I write about abuse of prosecutorial power. Yet my thinking on this was sharpened last week in the most unusual of circumstances -- covering the papal visit in Washington and New York.

Not than any of us were arrested, but living a week under the security protocols of the United States Secret Service gives one a taste of what the safety and security state does with unchecked power. Not surprisingly, it abuses it.

The Secret Service stands out because, with unlimited budgets in its favour and a peculiar American enthusiasm for ostentatious displays of security cheering it on, no incursion into our liberties was thought too much.

If the Secret Service had its way -- which it did last week -- we would all be in a never-ending airport security lineup: much inconvenience, ever greater invasions of privacy and very little actual security.

We were told repeatedly that the papal visit was conducted at the highest level of security the Secret Service provides, save for a presidential inauguration.

Many people seemed perversely proud of this -- that the visit of the Pope provoked a curtailing of liberties second only to those used to mark great patriotic festivals.

Despite all journalists being screened by the Secret Service weeks ago, for every event we were required to show up four to eight hours in advance, be made to wait in various places while the whole dog-sniffing, metal-detecting routine ensued.

Then it was on to a special bus and into a holding pen on the other end to pass a few more hours, sometimes being forbidden to look out the windows, or interview members of the general public a few feet away.

Much like their colleagues in airport security, the Secret Service were not particularly competent, as even after hours of sequestering we were frequently taken into non-secure areas to mingle with the general public, rendering the whole operation useless.

As far as it went, it was a perfect image of the security state: Plenty of power to invade and curtail the liberties of free citizens, ostentatious displays of force, a widespread suspicion that we were up to no good and, in the end, shockingly poor competence in discharging the duties for which it is given extraordinary powers in the first place.

A week under the thumb of the Secret Service is instructive, and really only inconvenient. The criminal justice system, as it is pleased to call itself, offers far more than inconvenience.

And 18 years is altogether different from one week."

(A concise Wikipedia entry for those readers who are not familiar with the Baltovich case which will be referred to in up-coming posts:

Robert Baltovich (born July 17, 1965) is a Canadian man who was wrongly convicted in 1992 of the murder of his girlfriend, Elizabeth Bain in Scarborough, Ontario, Canada. He spent eight years in prison and nearly another decade trying to clear his name, before being found not guilty in a retrial on April 22, 2008.

Elizabeth Bain murder;

In 1990 Baltovich graduated with a degree in psychology from the University of Toronto at Scarborough. Here he also met and developed a relationship with Elizabeth Bain, a fellow student.

Bain disappeared on June 19, 1990, telling her mother she was going to "check the tennis schedule" on campus. On June 22, her car was found with a large bloodstain in the back seat. Her body was never found.

First trial and conviction;

On November 19, 1990, Baltovich was arrested and charged with first-degree murder. His case continued in the courts for several years, during which he consistently maintained his innocence. His lawyers suggested that the so-called "Scarborough rapist", the name by which the infamous Canadian serial killer Paul Bernardo was then known, might be responsible for the murder.

On March 31, 1992, he was convicted of second-degree murder. His lawyers appealed and on March 31, 2000, Baltovich was released on bail, pending the outcome of his appeal. In September 2004 his appeal was finally processed and his case gained national attention again when his lawyers alleged that he had been wrongfully convicted and that Bernardo was guilty of Bain's murder. They allege that circumstantial evidence suggests links to Bernardo, and that this evidence could not have been available during Baltovich's original trial as the identity of the Scarborough rapist was then unknown.

Appeal, retrial and acquittal;

On December 2, 2004, the Ontario Court of Appeal set aside the conviction, delivering what news reports called "a scathing attack" [1] on the conduct of the original trial judge. This fell short of the acquittal that Baltovich's counsel had argued for. On July 15, 2005, Ontario's Ministry of the Attorney-General announced that Baltovich would face a new trial on charges of second-degree murder, at an unspecified date, and remain free on bail in the meantime...

On March 31, 2008, jury selection began in the second-degree murder trial. The trial, slated to begin in Toronto on April 14, 2008, was delayed, with the Crown (prosecution) giving no reason. When the trial resumed, the Crown declined to call any of the more than 50 witnesses they had planned, citing "recent developments, including the cumulative effect of the pre-trial evidentiary rulings rendered to date in this case, other evidentiary issues, and changes to case law".[2] With no Crown case, the judge directed the jury to make a finding of not guilty on April 22, 2008.

Crown seeks plea bargain;

It is widely reported that the crown had sought an agreement in which if Robert Baltovich revealed the location of Elizabeth Bain's body, he would receive a one day sentance. On the basis of his innocence and lack of knowledge of this event, this plea bargain was rejected.)

--------------------------------------------------------------------------------------------------------------------------------------------------------------------------

I also admired Father De Souza's insight in a column which ran under the heading: Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice; which ran in this Blog on March 31, 2008, as follows;

"GOD HELP THE FALSELY ACCUSED; THEIR INNOCENCE IS NO MATCH FOR A CORRUPT SYSTEM;"

FATHER RAYMOND J. DE SOUZA;

In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"

Father De Souza has an interesting background.

A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.

Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.

"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.

"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.

"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.

The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.

Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.

It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.

Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.

Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.

A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.

The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.

Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.

Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.

Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.

Remember the Klemko controversy last summer?

Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.

His offence?

He has testified for defendants as an outside consultant in various cases.

The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.

The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.

The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.

So we have coroners who think they should say what the Crown prosecutors want.

Cops who are told not to contradict what the Crowns want. Crowns who want convictions.

The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.

Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.

God help the falsely accused; their innocence is no match for a corrupt system.

Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.

It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.

Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.

It will be terribly costly -- but less costly than imprisoning the innocent.

Less costly than accusing innocent parents of murdering their own children.

Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.

Less costly than having a justice system unworthy of the name.

Harold Levy...hlevy15@gmail.com;