"DR. HELEN, A FORENSIC PATHOLOGIST FOR ENGLAND'S HOME OFFICE, WHO REVIEWED THE CASE FOR ONTARIO'S CORONER, SAID SMITH'S "OVERLAY" TECHNIQUE WAS "COMPLETE NONSENSE."
IT'S A METHOD THAT CAN ONLY BE USED WHEN ONE IS ATTEMPTING TO DETERMINE THE SOURCE OF AN EXTERNAL INJURY — SUCH AS A MARK THAT MIGHT HAVE BEEN LEFT BY THE SOLE OF A SHOE — AND IS MEANINGLESS WHEN IT COMES TO INTERNAL BRUISING.
DR. MICHAEL POLLANEN, ONTARIO'S CHIEF FORENSIC PATHOLOGIST, CALLED SMITH'S WOUND-WEAPON MATCHING ANALYSIS "PSEUDOSCIENTIFIC" AND "OUTSIDE THE MAINSTREAM" OF FORENSIC PATHOLOGY."
REPORTER TRACEY TYLER: THE TORONTO STAR; PHOTO: RENE JOHNSTON/TORONTO STAR: MARIA SHEPHERD, DAUGHTER CHELSEA AND SON JORDAN (REAR) OUTSIDE ONTARIO COURT OF APPEAL AT OSGOODE HALL MAY 12, 2009;
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Yet another mother has been granted leave to appeal a conviction many years ago that rested on the flawed testimony of Dr. Charles Smith;
Some observers have quipped that Ontario's highest court could devote an entire court-room to appeals launched by Dr. Smith's victims;
"Nearly 20 years after she was imprisoned on the basis of "complete nonsense" from a disgraced pathologist, the Ontario Court of Appeal has taken the unusual step of allowing a mother of four from Brampton to appeal her manslaughter conviction," Legal Affairs Reporter Tracey Tyler's story begins, under the heading: "Mother cpnvicted on Charles Smith's testimony appeals;"
""This has not been a journey that I would wish on anyone," Maria Shepherd, 39, said today as she struggled with her emotions outside a courtroom at Osgoode Hall," the story continues.
"Her two eldest children, Jordan, 23, and Natasha, 19, accompanied their mother to court.
In 1992, under what she described today as "extreme" pressure, Shepherd pleaded guilty to manslaughter in connection with the death of her stepdaughter Kasandra, 3.
In an affidavit filed with the court, Shepherd said her own defence lawyer described the Crown's star witness, Dr. Charles Smith, as a force to be reckoned with. If convicted at the end of a trial, she was likely to be sent to a Kingston women's prison for between three and five years.
But if she pleaded guilty, she was likely to receive a sentence of two years less a day in a Brampton reformatory, near her parents' home. Her plea would be taken as a sign of remorse, bettering her chances for parole after a few months and being reunited with her children.
Three of her children had been placed in the custody of her mother and Shepherd, who was pregnant at the time, was worried the fourth would be seized by Children's Aid.
"I needed to do what I had to do to protect myself and my family," said Shephard, who manages a retail clothing store. "Being separated from my children is probably the worst thing I could imagine at the time."
In fact, it took three years of family court battles before they were reunited.
Meanwhile, in 2005, Ontario's chief coroner ordered a review of 45 suspicious autopsies performed by Smith. Kasandra's case was one of 20 in which Smith was found to have made serious and fundamental errors.
Smith said a doughnut-shaped bruise deep in the tissue beneath the child's skull resulted in fatal brain swelling. He asked police to find an object similar in size and shape to the bruise. They came back with Shepherd's wristwatch.
Smith held the watch over a photograph of the bruise and pronounced it "a very nice fit."
Shepherd had admitted to pushing Kasandra out of the way with a sweeping motion as she attempted to rescue another daughter who had fallen out of her bed in April, 1991.
But it amounted to minor physical contact and not the blow described by Smith, the appeal court has been told.
Dr. Helen, a forensic pathologist for England's Home Office, who reviewed the case for Ontario's coroner, said Smith's "overlay" technique was "complete nonsense."
It's a method that can only be used when one is attempting to determine the source of an external injury — such as a mark that might have been left by the sole of a shoe — and is meaningless when it comes to internal bruising.
Dr. Michael Pollanen, Ontario's chief forensic pathologist, called Smith's wound-weapon matching analysis "pseudoscientific" and "outside the mainstream" of forensic pathology.
It is unclear if Kasandra had a fatal head injury at all but there is evidence to suggest she may have died of natural causes such as epilepsy, Pollanen said in a report prepared for the Goudge inquiry into flaws in the province's pediatric forensic pathology system. She had been sick and losing weight in the months preceding her death and had a history of seizures.
Whitwell also said epilepsy should have been explored as a cause of death, adding the bruising could have also been caused by a fall.
Their opinions are expected to be filed as fresh evidence in Shepherd's appeal, which could be heard late this year, but is more likely to be heard in 2010."
Harold Levy...hlevy15@gmail.com;
