"DR. WHITWELL NOTED THAT DR. SMITH’S ASSESSMENT OF KASANDRA’S INJURIES DID NOT REASONABLY MATCH THE PHOTOGRAPHS OR HISTOLOGY IN THE CASE, AND THAT HIS TESTIMONY FROM THE APPLICANT’S PRELIMINARY HEARING WAS NEITHER REASONABLE NOR BALANCED. SHE ALSO EMPHASIZED THAT THE “POSSIBILITY OF EPILEPSY WAS NOT FULLY EXPLORED”"
AFFIDAVIT OF LAWYER ALISON CRAIG: FILED IN ONTARIO COURT OF APPEAL;
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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections:
Today: The Goudge Inquiry and Discoveries about Dr. Smith:
"In November, 2005, the Chief Coroner of Ontario announced that a review would be conducted by an international group of forensic pathologists of forty-five criminally suspicious pediatric autopsies in which Dr. Smith had either conducted the autopsy or provided a consulting opinion. The results of the review were announced in April, 2007, and revealed a consensus that Dr. Smith had made serious and fundamental errors in twenty of the files that had been reviewed, including the case of Kasandra Shepherd.
In early 2007, the Applicant was contacted by counsel for the Association in Defence of the Wrongly Convicted (AIDWYC) and advised of these developments. She was both relieved and excited at the opportunity to have her case revisited, and at the prospect of finally getting some answers about what had happened to Kasandra. After a personal meeting with Commissioner Goudge, she authorized counsel to assist her in re-examining her manslaughter conviction.
Since then, a number of documents have been retrieved from the Applicant’s trial counsel (including the entire Crown Brief), from the Respondent, from the Chief Coroner’s office and through the Goudge Inquiry. A helpful overview of the case was prepared by Commission Counsel at the Goudge Inquiry in the form of an Overview Report. Most recently, in April, 2009, the Applicant obtained a transcript of the facts read in on her guilty plea on October 22, 1992.
The Opinion of Dr. Whitwell:
Dr. Helen Whitwell, a forensic pathologist for the Home Office in England, and the former head of the Department of Forensic Pathology at the University of Sheffield, was retained by the Office of the Chief Coroner to review Kasandra Shepherd’s case. She examined an extensive body of materials including Dr. Smith’s post-mortem report and supporting documentation, police reports, photographs, histological slides, x-rays, records from the Children’s Aid Society, and transcripts of Dr. Smith’s evidence at the Applicant’s preliminary hearing. In the short form Autopsy Report Review Form dated December 7, 2006, which she completed for the Office of the Chief Coroner, Dr. Whitwell noted that Dr. Smith’s assessment of Kasandra’s injuries did not reasonably match the photographs or histology in the case, and that his testimony from the Applicant’s preliminary hearing was neither reasonable nor balanced. She also emphasized that the “possibility of epilepsy was not fully explored”. The Review Form concluded:
Difficult case – there is evidence of impact injury to the back of the head with smaller areas elsewhere, some of which may be old. The overlay impression with the watch is complete nonsense for a sub-scalp bruise. Unreliable in the extreme. Discussion in testimony re: shaking – again in vogue during this era. [emphasis added].
For the Goudge Inquiry, Dr. Whitwell produced a more detailed Medico Legal Report outlining her opinions on Kasandra’s case. In it, she was critical of Dr. Smith’s use of overlays to give significance to the “donut-shaped” scalp contusion:
[Dr. Smith’s] report incorporates a diagram of what is described as a doughnut-shaped area of contusion. The written description is a super-elliptical-shaped area of hemorrhage with a pale central core. Overlays of the post-mortem photographs were done with a lady’s wristwatch over the internal scalp bruise.
This overlay is not appropriate as it is scientifically incorrect and misleading. The bruise may or may not represent an area of impact where the object is projecting. Such a scalp bruise may also [be] see n where there is an impact with a flat surface such as in a fall. In any event overlays should only be used in external injuries , for example where there is a question that a mark may be caused by a shoe. The thick hair and scalp tissues alter the appearance on the internal aspect to make such a technique meaningless.[emphasis added].
Dr. Whitwell also assessed Dr. Smith’s testimony from the Applicant’s preliminary hearing, and criticized several of his key conclusions:
This, from the material available, is the first time that Dr. Smith’s opinion in relation to the case is given… he goes on to describe in detail the sub scalp bruise identified in the post-mortem report. It appears when Dr. Smith found the bruise at post-mortem examination he indicated to the police to go and search for objects which in his view may have caused such a bruise. The police apparently did this and showed him a lady’s wristwatch. This is shown in the overlay photographs.
He then continues in his testament to indicate that the shape of the watch is consistent with the shape of the injury. This is incorrect. It is also misleading to use the term “consistent with”.
He then continued to give evidence that the subdural hemorrhage was located in the occipital part of the brain in the same region as the point of impact, and indicates that whatever caused the soft tissue hemorrhage caused a subdural hemorrhage. This is of concern as following impact subdural haematoma may occur at any area of the brain and the location cannot be taken to necessarily correlate with a point of impact.
Further testimony is given as to the degree of force necessary to produce such an injury and any type of incident which may cause such an injury. This includes testimony indicating that accidental falls around the home do not cause death. This is incorrect although other clinicians at that time may have given a similar opinion.
Dr. Smith also indicates in his testimony that the point of impact at the back of the head almost certainly precludes an accidental fall. This is incorrect as the back of the head is a common point of impact in a fall, whether accidental or not.[emphasis added].
Dr. Whitwell concluded her report with the following assessment of Dr. Smith’s work and his opinion on the case:
Dr. Smith showed a lack of forensic knowledge relating in particular to the bruise over the back of the head and its causation . He does not concede in testimony to the possibility of an accidental fall causing the injury. The overlay was totally inappropriate and misleading.
Also of concern is the linking of the location of the subdural bleeding with an impact site. Following impact subdural hemorrhage may occur over any area of the brain and the location cannot be taken to necessarily correlate with an impact site.
Dr. Smith did not consider the potential for underlying disease (epilepsy) to be the main neuropathological cause of death.
…
The diagram of a doughnut-shape bruise contained within the report was inappropriate and misleading.[emphasis added].
Testimony at the Goudge Inquiry:
a) Dr. Whitwell’s Testimony;
Commission Counsel asked Dr. Whitwell for her opinion as to the cause of death in Kasandra’s case. She responded:
A. Well, again, that’s – that’s difficult. I would summarize the findings as evidence of recent impact to the head. I would indicate that there’s evidence of old brain damage of brain injury, brain hemorrhages and then discuss the issue of the – the epilepsy. And possibly – from the pathology, that’s – that’s as far as you can take it.
Q. If you were asked to opine in a post-mortem report as to the cause of death in this case, what would you say?
A. Well, again, that’s – that is difficult. In fairness, it could relate to an acute head injury. It could relate to status epilepticus. There are two options, you can either give an unascertained or you can’t come to a conclusion, or you can go through a list of possibilities and then attempt to come to a conclusion.
Commissioner Goudge asked Dr. Whitwell some questions of his own:
Q. If you did that, how – just unpack it a little bit. How would you do it if you used that option as opposed to the unascertained option?
A. Well, what one would do would be to comment on all the features of the case.
Q. Right.
A. And then, for example, if it was the opinion that it was the acute head injury or there was sufficient evidence of an acute head injury to cause death then at the end say, this, in my opinion, is the most likely cause of death. And likewise with the – with the epilepsy.
Q. Okay. What is your view?
A. My view is that this is a difficult case and I think there are potentially two – there’s a number of options. That firstly, there’s evidence of old – old brain damage, that in itself can give rise to epilepsy. You’ve also got evidence of a recent head injury. Whether or not that has had a major contribution to death, I think, is unclear.
Q. So there are the two possible causes, in your view –
A. Yes.
Dr. Whitwell addressed Dr. Smith’s assertion that the bruise underlying Kasandra’s scalp could only have been caused by a blow from an object, rather than from a fall or similar mechanism:
Q. Can you tell whether this is an impact injury as a result of a child being struck by an object as opposed to the child’s head striking an object?
A. No, I can’t.
Later in her testimony, Dr. Whitwell was asked again about the issue. She reiterated:
I don’t think one can come to that conclusion. It – it’s an impact. It could have occurred in a number of ways.
In regards to Dr. Smith’s opinion that the similarly located subdural hemorrhage and bruise to the scalp were evidence of a direct application of force to that area, Dr. Whitwell explained:
I don’t think that you can link the location of the subdural hemorrhage with an impact point. It generally takes place over any area of the brain and so the location of the impact doesn’t necessarily have any bearing on it… the bleeding doesn’t correlate with the impact site.
Dr. Whitwell elaborated on her concern about Dr. Smith’s use of overlays and his conclusions about the source of the bruising on Kasandra’s scalp:
A. … in my opinion, it was inappropriate. The bruise noted was in the deep tissues of the scalp. Overlays of objects, such as footwear, can be useful in correlating where it’s – external injuries, where – where you have a patterned object.
But in this case, all one can say here is that there has been an impact of some sort and you cannot use an overlay in this situation because of the location of the bruise. There is hair, and then the scalp, and then the bruise is deep, so it’s an inappropriate method.
Q. Because the bruise is deep.
A. Because the bruise is deep. They – an overlay – if – if you see something externally, which is a patterned injury, for example a shoe print or something, then in those circumstances that would be appropriate because you’d have a direct – almost direct contact. But where you’ve got separation by the hair, the scalp tissues, it – its simply not appropriate.
Q. It does not tell you anything?
A. It doesn’t tell you – it doesn’t tell you anything. And in – in fact, to suggest an object has caused that deep bruise is misleading; a particular object… that is an incorrect and misleading statement. You just can’t make that deduction.[emphasis added].
In response to a question by Commission Counsel, Dr. Whitwell testified that she was not aware of any literature or studies which would support the use of overlays in similar circumstances. Dr. Pekka Sauko, one of the other four external reviewing pathologists, testified as a second panelist with Dr. Whitwell. He “fully agree[d]” with Dr. Whitwell’s opinions in this regard.
In Dr. Whitwell’s opinion, it could not be assumed that the brain damage which led to Kasandra’s death was necessarily a result of trauma. A question by Commission Counsel as to whether Kasandra suffered from any medical conditions that could have caused her death led to the following exchange:
A. My understanding from the – the history was that prior to admission, she appeared to have a number of fits, and this raises the question as to whether or not her condition on admission was related to fits as a primary pathology.
. . .
Q. Can the pathology alone in this case tell us whether or not this was a case that – where this – where the child died as a result of a – an inflicted head injury or died as a result of an epileptic fit?
A. No, the pathology of the epilepsy – brain damage – can’t tell you if it was primary or secondary.
Dr. Whitwell considered there was a potential that an underlying disease of epilepsy was the neuropathological cause of Kasandra’s death.
Dr. Whitwell’s overall view of the pathology in Kasandra’s case was captured in her view that in the United Kingdom, standing by itself, it would not likely have supported the laying of a charge. She said:
A. I mean, one could say well, you know, a number of scenarios, or two (2) scenarios are possible. It’s rather, then different from the issue of what happens in the Court scenario, because in – in England and Wales, would this actually have got to Court in the first place. Do you see what I mean?
Q. And the answer would be no because of an insufficient certainty about cause of death, is that what you imply?
A. Probably it wouldn’t.
. . .
Q, And for the that reason that I suggest; that it is an insufficient certainty from the pathology about the cause of death?
A. Correct.
. . .
Q. But you say, I take it, viewing it in today’s context, the better way to view the pathology is that there are two (2) possible causes, both of them possible; neither of them sufficiently probable to give you a diagnosis of cause of death… is that a fair summation of your professional view today?
A. Yes, it is.
Later, in her testimony, Dr. Whitwell agreed that labeling Kasandra’s death as a homicide would be “a most questionable judgment”. Dr. Whitwell, who had frequently been consulted in post-conviction cases in the United Kingdom by the Criminal Cases Review Commission (and the Crown Prosecution Service and defence counsel) believed it “highly likely” Kasandra’s case would have been referred by the Commission to the Court of Appeal for rehearing if its facts had come before them.
b) Dr. Pollanen’s Testimony:
Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario, also reviewed the Applicant’s case. In a report prepared for the Inquiry, Dr. Pollanen summarized his concerns regarding Dr. Smith’s testimony and his own views about the cause of Kasandra’s death:
At the preliminary inquiry, Dr. Smith essentially testified that an impact from a lady’s wristwatch was the cause of the fatal head injury. This statement was based on a pseudoscientific wound-weapon matching analysis. This evidence was unreliable and outside the mainstream of forensic pathology.
It is unclear if Kasandra had a fatal head injury at all. Many of the findings that are recorded in the autopsy report are difficult to support upon review of the autopsy photographs. It is clear that there are scalp bruises, but unclear if these injuries are related to death.
There is evidence to suggest that Kasandra may have died from status epilepticus caused by a natural disease and that her death was not related to acute head injury.
A second opinion review of this case is required to determine if this death is unnatural or natural.[emphasis added].
In his testimony at the Inquiry, Dr. Pollanen described Dr. Smith’s use of the wristwatch-wound overlay as “by any interpretation… just not proper”.""
Harold Levy...hlevy15@gmail.com;
