JUSTICE GOUDGE'S FINDINGS; PART THREE; JENNA'S CASE (1): SMITH;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;

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

An overview of Jenna's case prepared by Goudge Inquiry staff tells us that:

Jenna was born in Peterborough, Ontario on April 21, 1995 to Randy and Brenda Waudby. Jenna died on January 22, 1997, at the age of 21-months in Peterborough; Mrs. Waudby was charged with second-degree murder on Sept. 18 1997. The criminal proceeding concluded on June 15, 1999, when the charge was withdrawn.
The local Children's Aid Society apprehended Ms. Waudby's older child, Justine, on the day of Jenna's death and placed her in temporary foster care. She remained in foster care until January 27, 1997, when she moved in with Tom and Kim Waudby, her maternal aunt and uncle. She remained there until March 27, 1997, at which time she was again placed in foster care. She was ordered returned to Ms. Waudby's care on May 2, 1997, pursuant to an Order of Justice A.P.Ingram and remained in her care until Sept. 18, 1997, the day of Ms. Waudby's arrest. She was later re-apprehended on the date of Ms. Waudby's arrest. The Children's Aid Society also apprehended a second child, M.W. born after Jenna's death, and placed him with his father. On July 23, 1999, subsequent to the withdrawal of Ms. Waudby's murder charge, Justine was ordered returned to her mother's care. That same day, access was also granted to M.W. who would continue to reside with his father. The Children's Aid Society appealed the decision. On August 13, 1999, the appeal was dismissed. On Dec. 28, 2006, the youth who was babysitting Jenna the night she died was charged with second-degree murder. On December 14, 2006, J.D. pleaded guilty to manslaughter. The criminal proceeding concluded on March 1, 2007, when he was sentenced as a youth to 22 months incarceration followed by 11 months of community supervision;

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

Dr. Smith's responses to the College of Physicians and Surgeons investigation:

Justice Goudge ruled that as in Amber's and Nicholas' cases, Dr. Smith's responses to the investigation "lacked candour;"

He cited specific "false and misleading statements to the College, as well as to Deputy Chief Coroner Dr. Jim Cairns, including his allegations:

0: That he had performed an adequate sexual assault examination;

0: That he had collected a hair from Jenna's body and offered it to the forensic identification officer, who refused it, and,

0: That he had kept the hair anyway and that he had brought the rejected item with him to the preliminary hearing in October, 1998;

"No matter how preposterous and contradictory these explanations now sound, in the early 2000's they worked," said Goudge. "The College believed him - and even commended him for seizing and retaining the hair despite the police officers alleged rejection of it."

Justice Goudge noted that Smith's decision to seize the hair but not submit it for analysis "directly affected the forensic significance of the evidence."

Smith's damaging evidence on the time Jenna sustained her injuries:

As well, he noted that Smith's extremely confusing evidence on many points left the clear (but erroneous) impression that Jenna's injuries occurred approximately 24 or 28 hours before her death, which gave her exclusive access to Jenna at the time the blows were inflicted, and resulted in her committal to trial on the charge of second-degree murder.

Interaction between forensic pathology and the criminal justice system;

Justice Goudge singled out for censure one of the worst aspect of Smith's misconduct in Jenna's case: the fact that his flawed opinion steered the place away from J.D, the babysitter - the real killer.

"It is equally tragic, however, if flawed pathology steers the criminal justice system away from the true perpetrator, as happened in Jenna's case, Goudge said.

"In that case, the erroneous pathology failed to focus the criminal investigation on Jenna's babysitter.

Instead, Brenda Waudby, Jenna's mother, became the focus of the investigation.

As a result, the babysitter, who was the one responsible for Jenna's death escaped detection for many years."

(Although Smith's flawed flawed work undoubtedly influenced the police investigation, the Peterborough force cannot be let off the hook. Brenda Waudby's lawyer pointed out serious flaws in the police investigation - including the evidence collection process - that got in the way of making an early arrest of J.D.)

Obtaining relevant information:

Justice Goudge rejected Smith's explanation that nothing in the information he received from the coroner and the police pointed to the possibility of a sexual assault.

"Dr. Smith was wrong," reported Goudge.

"The evidence shows that, before the post-mortem examination Dr. Smith was given a copy of the post-mortem examination, Dr. Smith was given a copy of the hospital emergency record, which contained an emergency physician's observation that there were numerous areas of bruising, possible rectal stretching and and tears in the vulva, and that a hair had been found in Jenna's genital region.

Although the police and coroner certainly should have highlighted that information for him, Dr. Smith was responsible for carefully reviewing all the information provided to him.

That information suggested that Jenna might have been sexually assaulted...

"In my view, in light of the evidence suggesting a sexual assault, Dr. Smith's failure to conduct a detailed sexual assault examination, including the taking of genital swabs and the dissection and sampling of appropriate tissues was inexcusable."

Here is where a true dilemma arises: Since Dr. Smith was overly prone to find sexual abuse in his cases - even when it didn't exist - why didn't he act on the mentions of sexual abuse in the hospital records and the glaring signs of sexual abuse on Jenna's body?

The answer may lie in the section of the Goudge Report headed: Disregarding irrelevant and prejudicial information;

Justice Goudge heard evidence that around the time of the autopsy, Dr.Smith was given information that Jenna's mother had left home several hours before Jenna's death, that she was expected to return home within the hour, but that she actually returned much later. (Smith later told an assessor for the College of Physicians and Surgeons "that the real issue in the case was that Jenna's mother had not returned home until eight or nine hours later."

"Dr. Smith should not have considered this aspect of the history in his analysis of the case,much less elevated its status to the real issue of the case," Goudge concluded.

"It allows the impression that Dr. Smith's opinion was reached in part because of his view that the mother was irresponsible."

This conclusion gives me shivers.

That Smith may have decided to have Brenda Waudby charged with murder because he found her irresponsible - rather that focus sing on evidence which indicated that the teen-age babysitter may have sexually assaulted and murdered this two and a half year old baby girl (and could strike out and sexually assault and murder again and again), is horrible beyond belief.

Especially the once revered and oh, so righteous Dr. Charles Randal Smith.

Recording the pathologist's actions:;

Jenna's case was one of several in which Dr.Smith was found to have failed to properly document the samples he took and the exhibits he collected during the autopsy - particularly his collection of a hair from Jenna's genital region without making any record that he had done so.

"This omission left the police and the defence not knowing whether there was a hair, and, if so what happened to it," said Goudge ruled, adding that "in my view, Dr. Smith ought to have known of the importance of recording properly the samples and exhibits he collected."

"It is just common sense."

In this Blogster's humble opinion that is exactly the point.

Dr. Smith knew exactly what he was doing.

He deliberately retained the hair and hid it from all others in order to serve his own twisted agenda of convicting Brenda Waudby.

Preserving autopsy records:

Justice Goudge notes that in Jenna's case, Dr. Smith's work was troubling because he "failed to take proper care of the notes he made before and during the autopsy."

"During and after his involvement in the initial criminal proceedings, he indicated on at least three occasions that he had no such notes, including at the preliminary hearing in October, 1998," Goudge wrote.

"However, in October 2004, his counsel provided seven pages of Dr. Smith's handwritten notes to the Chief Coroner's Office.

At the inquiry, Dr. Smith testified that he could not recall how the notes were discovered."

Handling of exhibits for testing: PP142 to 144;

Justice Goudge rejected all of Dr. Smith's claims about the above-noted hair - the police weren't interested in the hair; he believed it was merely a contaminant left behind during resuscitation efforts; the attending officer refused to take it; it was a trunk hair - not a pubic hair; whatever it was would have been altered or displaced by the end of the resuscitation process; there was no need to submit it for analysis anyway because there were no other findings to make him believe that Jenna had been sexually assaulted.

Lie, lie, lies and more lies.

"Dr. Smith first offered his tortured explanation when Dr. Cairns confronted him about it. Dr. Cairns found it simply not credible." wrote Goudge," as he pronounced Dr. Smith's conduct in the seizure and collection of exhibits as "inexcusable."

"I agree."

Failure to record consultations with other experts;

Reading between the lines, Justice Goudge does not believe Dr. Smith's claim that he consulted Dr. Dirk Huyer of the Hospital for Sick Children Suspected Child Abuse and Neglect (SCAN) Team during the autopsy performed on Jenna in January 1997, to consider if there was sexual abuse.

(Not surprisingly, Smith claimed that Dr. Huyer backed him up!)

"Dr. Smith did not document the consultation in his report, and when asked about the case, Dr, Huyer had no specific recollection of being involved," said Goudge;

The inadequately prepared expert:

If all the above was not enough, Justice Goudge calls Smith's lack of preparation for Brenda Waudby's preliminary hearing, "perhaps the worst example of poor preparation," in light of his erroneous evidence to the Court that he did not have any notes in the case.

Justice Goudge points out that this had a very serious consequence for Waudby: Her defence lawyer was at a significant disadvantage because he never had an opportunity to review Smith's notes before cross-examining him.

Justice Goudge didn't buy Smith's attempt to explain his lack of preparation on the basis that he didn't know any better, that he did not know he was expected to review all of the materials relating to a case before testifying in court about it, or that he was expected to bring his file with him to court.

"By the date of this preliminary hearing, however, Dr. Smith was an experienced expert witness and surely knew that at preliminary hearings and trials he had to be able to give detailed evidence on the pathology findings and that this could have significant consequences," he ruled.

"He surely knew that proper presentation was essential if he was to do this part of the job properly and serve the criminal justice system."

In the view of this humble Blogster, Dr. Smith also knew was that the best way to protect his opinion and help the prosecutor win the case was to make scanty notes and do as much as possible to blunt any challenge from the defence.

Harold Levy...hlevy15@gmail.com;