PUBLISHER'S NOTE: BRIEF RESPITE FOR THIS BLOG; ADELAIDE, HERE I COME!

PUBLISHER’S NOTE:

Dear reader: an explanation is due. I am about to leave for a journey to Australia and New Zealand and do not expect to be filing any posts on this Blog while I am away.

However, while in South Australia, I am going to have the opportunity to spend some time with Bob Moles, Bibi Sangha and some of the other impassioned lawyers, professors and fighters against injustice who have been involved in one of the most notorious cases involving forensic pathology gone wrong on this planet: The fight to free Henry Keogh- the subject of numerous posts on this Blog.

As I previously noted on this site:

“Dr. Moles and his colleagues have launched one of the most thorough, intensive attacks on pathology evidence in a criminal case that I have ever seen - and have come up over the years with cogent new evidence destroying the prosecution's forensic case, which the government stubbornly refuses to examine;

I am both saddened and horrified that a government - the Government of South Australia - could act with such manifest indifference in the face of such an apparent miscarriage of justice.

Dr. Moles writes that, "Despite the very serous allegations which have been made for years now, not one court has been able to look at the merits of the claims made by Mr Keogh. Such a situation could not arise in the UK, Canada, or the USA.”

Bob Moles is the author of “Losing Their Grip: The case of Henry Keogh” - a thoroughly researched and insightful book on the Keogh travesty which left no doubt in my mind that a terrible miscarriage of justice had occurred.

I have been intrigued by the many parallels between the all-too many cases involving the discredited pathologist Dr. Charles Smith - and the Henry Keogh case, where similar allegations have been made against Dr. Colin Manock and other prosecution “experts” connected with the case.

0: Both involve pathologists of huge stature in their specialties. (It was not uncommon for judges to treat Charles Smith as if God had entered the witness box - before the bubble burst and he became a pariah.) In several cases, innocent people pleaded guilty to lesser offences involving the taking of the lives of their children, in order to avoid the almost certain prospect that they would be convicted of murder by an expert witness of such elevated stature.

0: Both involved allegations of incompetence in the performance of their work as pathologists – and huge assaults on the accuracy of the opinions they gave in court. (Smith tended to see things that no other pathologist saw (people believed he saw them because he was Charles Smith), to find murder where none existed, and on several occasions he mistook artifacts from the autopsy as signs of foul play.)

0: Both involved perceptions that the respective pathologists were being shielded by police, prosecutors, the Courts, their professional governing bodies – and their superiors - in order to maintain the flow of convictions, to avoid the inevitable appeals, prevent the lawsuits, and to stem widespread lack of confidence by the public in their justice system.

0: Both raised significant questions about the qualification of expert witnesses, their role, the scope of their testimony - and the extent to which judges should be gatekeepers when expert testimony is involved.

However, there are some palpable differences between the way that Ontario and Australia have responded to the demonstrated injustice caused to individuals – and public confidence in their their respective criminal justice system – when their respective justice systems went so terribly wrong.

After press disclosures of several cases raising serious questions as to Dr. Smith’s competence and professional behaviour, Dr. Barry McLellan, Ontario's Chief Coroner, exercised public responsibility by ordering a review of 45 child autopsies in which Smith had concluded the cause of death was either homicide or criminally suspicious.

The review of Smith’s cases by a team of international experts uncovered mistakes in twenty of the autopsies he performed - twelve of which resulted in serious criminal convictions such as murder, and one finding of no criminal responsibility.

In his response to the Review's disturbing findings, Ontario Premier Dalton McGuinty also exercised public responsibility by setting up an independent public Inquiry - conducted by Ontario Court of Appeal Justice Steven Goudge - into forensic pediatric pathology in the province.

Justice Goudge in October 2008, found that Smith "actively misled" his superiors, "made false and misleading statements" in court and exaggerated his expertise in trials."

Far from an expert in forensic child pathology, "Smith lacked basic knowledge about forensic pathology," wrote Goudge in the inquiry report. "Smith was adamant that his failings were never intentional," Goudge wrote. "I simply cannot accept such a sweeping attempt to escape moral responsibility."

There was a public outcry for change even before Justice Goudge released his report in September, 2009, there was a public outcry for change - and police, prosecutor’s, the Coroner’s office and other institutions who had played a role in the miscarriages of justice involving Charles Smith, announced they had already instituted reforms aimed at preventing future miscarriages of justice.

As Smith’s victims launched their appeals Ontario's judges – the justices saw first hand the horrible damage caused by Smith and the failure of his superiors to reign him in -and became sensitized to the problems inherent in abandoning judicial decision-making to forensic scientists.

Many judges came to realize that they had not done enough to protect the public from so-called “expert witnesses” such as Charles Smith – and from the dangers of untested “scientific evidence.”

This skepticism and insight into the limits and frailties of forensic science is not unique to Ontario. It is at the heart of the recently released report of the National Academy of Sciences in the U.S.A and is found in the report of the British Law Commission, released in April, 2009, in the united Kingdom.

There is even doubt about forensic science in the State if Texas (I know that is hard to believe) - and throughout the United States - where there is awareness that an innocent man named Cameron Todd Willingham was executed on the basis of flawed “expert“ arson testimony.

Sadly, as I pack my bags for this journey, I have the impression that Australia is living in a vacuum far away from the rest of the world in which it holds on to the precepts of another era in which pathologists are Gods, courtroom science is infallible - and the need to make people feel that their criminal judicial system works well is viewed as more important than securing justice for the accused.

My ultimate fear is, now that Dr. Charles Smith has become a pariah in Canada, he is going to show up in Australia where he will be heartily welcomed.

But thanks to Bob Moles (who is currently writing yet another book on wrongful convictions) and his dedicated colleagues) this will not likely come to pass.

(I have read a draft of this book and am pleased to report that it is superb and will likely be required reading for anyone who is dedicated to avoiding wrongful convictions - and expeditiously and effectively remedying them - in many jurisdictions throughout the world.)

Keep me posted on developments which I should highlight upon my return at hlevy15@gmail.com.

Adelaide, here I come!

Harold Levy. Publisher. The Charles Smith Blog.

UP-DATE: CAMERON TODD WILLINGHAM CASE: TEXAS FORENSIC SCIENCE COMMISSION TO REVIEW EXPERT REPORT ON FRIDAY (OCTOBER 2, 2009); THE HUFFINGTON POST;

"THE INNOCENCE PROJECT, A NONPROFIT LEGAL ORGANIZATION THAT INVESTIGATES POSSIBLE WRONGFUL CONVICTIONS, QUESTIONED WILLINGHAM'S GUILT. NOW THE TEXAS FORENSIC SCIENCE COMMISSION WILL REVIEW A REPORT FRIDAY FROM AN EXPERT IT HIRED WHO CONCLUDED THE ORIGINAL ARSON DETERMINATION WAS FAULTY.

THE PROSECUTOR IN THE CASE STILL BELIEVES WILLINGHAM IS GUILTY, BUT ACKNOWLEDGES IT WOULD HAVE BEEN HARD TO WIN A DEATH SENTENCE WITHOUT THE ARSON FINDING.

YET BARRY SCHECK, CO-DIRECTOR OF THE NEW YORK-BASED INNOCENCE PROJECT, SEES IT DIFFERENTLY: "THERE CAN NO LONGER BE ANY DOUBT THAT AN INNOCENT PERSON HAS BEEN EXECUTED.""

REPORTER MICHAEL GRACZYC; THE HUFFINGTON POST;

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

Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

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

"CORSICANA, Texas -- More than five years after Cameron Todd Willingham was executed by the state of Texas for the deaths of his three young daughters in a fire at the family's home, a state panel will review a report concluding that the original determination of arson was faulty," The Huffington Post story, by reporter Michael Graczyc begins, under the heading, "Texas panel reviews ruling that led to execution."

"Willingham was executed in February 2004 -- proclaiming his innocence in the deaths of his three young daughters in a fire at their Corsicana home on Dec. 23, 1991," the story continues.

"An arson finding by investigators was key to his conviction in the circumstantial case.

The Innocence Project, a nonprofit legal organization that investigates possible wrongful convictions, questioned Willingham's guilt. Now the Texas Forensic Science Commission will review a report Friday from an expert it hired who concluded the original arson determination was faulty.

The prosecutor in the case still believes Willingham is guilty, but acknowledges it would have been hard to win a death sentence without the arson finding.

Yet Barry Scheck, co-director of the New York-based Innocence Project, sees it differently: "There can no longer be any doubt that an innocent person has been executed."

Sheck, a Huffington Post blogger, weighed in on Williinham's execution in late August. The New Yorker's David Grann recently wrote a detailed piece that cast doubt on Willingham's conviction and subsequent execution.

In 2007, Scheck's group gave its review of the case to the state commission, which then hired Baltimore-based arson expert Craig Beyler to study. Beyler concluded the arson finding was scientifically unsupported and investigators at the scene had "poor understandings of fire science."
Story continues below

Story continues below

John Jackson, the prosecutor in Navarro County, about 50 miles south of Dallas, says the original fire investigation was "undeniably flawed," based on subsequent reviews, but remains confident Willingham was guilty of killing Amber, 2, and 1-year-old twins Karmon and Kameron.

"What people missed is that even though the arson report may be flawed, it certainly doesn't mean it arrived at a faulty conclusion," Jackson said.

"I'm an easy target," he added, shaking his head over media reports on the case "about how we're all a bunch of bozos."

The nine-member commission, created by the Texas Legislature in 2005, also will hear from others including the State Fire Marshal's Office. The panel will release its own report, probably next year and what happens then is uncertain. This is the commission's first review case; the panel is not empowered to rule on Willingham's guilt or innocence.

The commission's mandate is strictly to determine forensic negligence, panel coordinator Leigh Tomlin said.

Willingham, in an Associated Press interview about two weeks before his execution, said Amber's cries woke him around 10:30 a.m. His wife, Stacy, had left earlier to run errands.

He said he told Amber to get out of the house and approached the twins' room but couldn't get past the flames and smoke. The house had no phone, so he said he ran to a neighbor's home and "screamed to call the fire department."

He did not go back inside.

"The only way for me to get back into the house was to jump back into the flames," he said. "I would not do that."

Amber's body was found in Willingham's room. The twins were in their room.

Willingham listed other possible causes of the fire, including an electrical malfunction, an intruder who wanted them dead, or an oil lantern on a collapsing shelf.

A state fire marshal -- who has since died -- and a local fire investigator ruled it was arson, that a liquid accelerant was ignited and the blaze was set in a way to keep anyone from reaching the children. Prosecutors arrested Willingham two weeks later.

"It's all a farce," Willingham told the AP from death row.

Years later, Innocence Project investigators and now Beyler, based on notes and photos from the scene, agree with him.

Douglas Fogg stands by his conclusions as the former assistant fire chief who helped investigate the deadly blaze.

"The bleeding hearts that are against the death penalty are trying to stir everything up again," he told The Dallas Morning News last month. "They finally got someone who would say what they wanted to hear."

Other prosecution evidence was largely circumstantial: A county jail inmate said Willingham discussed his involvement in the fire and neighbors reported Willingham worried more about his car than the children as the house burned.

Jackson, the Navarro County prosecutor, said the multiple deaths -- not the arson -- made it a capital murder case. But he acknowledged that without an arson determination the capital conviction would have been difficult.

"I'm not sure the evidence would have sustained a conviction from a legal standpoint if we hadn't been able to prove a fire of incendiary arson," he said.

At trial, Willingham's wife, Stacy, testified for him during the punishment phase, denying he ever hurt her. Acquaintances, however, said she told them he'd beaten her several times, even while she was pregnant.

On appeal, courts rejected Willingham's arguments that it was improper to allow hearsay bolstering prosecutors' contentions that the children impeded Willingham's lifestyle. He denied that.

"They were great kids," he said from prison. "They were fantastic kids."

Willingham acknowledged a rocky relationship with his wife, whom he married about two months before the fire and after they'd been living together for almost three years.

"I cheated on her," he told the AP. "I was so full of myself and so dumb."

His venom from the death chamber was aimed at her as she watched his execution.

In the years following his conviction, she became convinced of his guilt, refused his request to testify for him at a clemency hearing, but did agree to his long-standing invitation to see him in prison about 2 1/2 weeks before he was scheduled to die.

"It was hard for me to sit in front of him," she said, describing their meeting to the Corsicana Daily Sun a few days later in 2004 in her most recent public comments. "He basically took my life away from me. He took my kids away from me."

Jackson said jurors who heard the prosecution's case got a more complete picture of Willingham and that the arson questions now raised are "wild speculation."

"I'm pretty ambivalent when it comes to the death penalty," Jackson said. "I guess if it raises the question of the propriety of capital punishment, I think that's a good argument for people to have.

"I'm not losing a whole lot of sleep.""

The story can be found at:

http://www.huffingtonpost.com/2009/09/26/cameron-todd-willingham-t_n_300940.html

Harold Levy...hlevy15@gmail.com;

UP-DATE CHARLES SMITH; COMPLETE JUDGMENT FINDING THAT DISGRACED PATHOLOGIST INTENTIONALLY MISLED COURTS IN ORDER TO SECURE CONVICTIONS FOR THE CROWN;

"I reject the submission that Dr. Smith did not intentionally mislead the Court. The medical evidence provided to the Jury by Dr. Smith was deliberately calculated and directed to secure convictions. That medical evidence was inconsistent with his initial autopsy findings that the cause of death of Paolo Trotta could not be determined. That conclusion veered 180 degrees when Dr. Smith opined in carefully chosen and subsequently proven to be medically-flawed diagnosis, that Paolo Trotta died as a result of a skull fracture and/or was asphyxiated. This diagnosis was misleading, it had no forensic or medical merit, and as Dr. Avis concluded, that diagnosis was not accidental."

Justice A. Sosna; Motion for stay; Regina V. Marco and Anisa Trotta;

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

PUBLISHER'S NOTE: In the following decision, Superior Court Justice Alexander Sosna becomes the first judge to rule that now disgraced pathologist Dr. Charles Smith - who may be responsible for more miscarriages of justice than any other individual in Canadian history - "intentionally mislead" courts in a manner that was "deliberately calculated and directed to secure convictions." The existence of a supposedly neutral Crown expert witness - falsely purporting to be a forensic pathologist - who was committed to obtaining convictions for the state, has to be every civilized criminal justice system's worse nightmare. This Blog is pleased to provide its readers with the entire judgment which was released - subject to a publication ban - on July 2, 2009. The ban is no longer in effect.

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

"This is the ruling on the stay application for abuse of process. The Applicant, Marco Trotta, seeks a stay of proceedings at his retrial on charges of second degree murder, aggravated assault and assault bodily harm.

The Applicant, Anisa Trotta, brings the same application at her retrial on charges of criminal negligence causing death and failure to provide the necessities of life.

The convictions against both Applicants in 1998 involved the death of their child, Paolo Trotta. Paolo Trotta was eight months old when he died in 1995.

Marco Trotta was sentenced to life imprisonment with no parole for 15 years on a conviction for second degree murder and concurrent jail sentences on convictions for aggravated assault and assault bodily harm. Prior to his release on bail, pending retrial, he had spent nine years in custody.

Anisa Trotta was sentenced to five years in custody and had served her entire sentence prior to bail release pending retrial.

Both parties appealed their convictions to the Ontario Court of Appeal and their appeals were dismissed in 2004.

In 2007, the Supreme Court of Canada ordered a new trial based on fresh medical evidence, which successfully impugned the medical evidence given by Dr. Charles Smith and the evidence of Dr. David Chan, both of whom testified on behalf of the Crown. Both testified as to the medical causation leading to the death of the young child.

Approximately one year after the Supreme Court of Canada ordered a new trial, the Province of Ontario, by order-in-council, established the Goudge Inquiry. Its mandate was to review the systemic problems in the practice and oversight of pediatric forensic pathology in the Province of Ontario and to make recommendations in order to restore public confidence. The catalyst for that inquiry was Dr. Charles Smith.

It was determined by the Goudge Commission that Dr. Charles Smith in a number of trials, had testified and had reached “factual conclusions that were not reasonably supported by the materials available”.

One of those cases included the prosecution of Marco and Anisa Trotta.

Both Applicants submit that given the evidence of Dr. Charles Smith in the Trotta case, and his subsequent history of failures in evidence that he provided in other prosecutions, in light of the failure of other state actors, namely, the Office of the Attorney General, the Coroner’s Office and the College of Physicians and Surgeons, all of whom are associated with the Province of Ontario, it would be an abuse of process to proceed with a new trial as ordered by the Supreme Court of Canada.

Specifically, both parties submit that a retrial amounts to an unfair and oppressive treatment of them and disentitles the Crown to continue the prosecution.

Anisa Trotta also submits that given the dated history of this prosecution, she is unable to make full answer in defence to the charges she is facing. She submits that her present memory has become frail regarding the events alleged.

In the alternative, Marco Trotta submits that if the charges are not stayed, that the Court exercise its discretion to reduce the charge from one of second degree murder to one of manslaughter since the medical evidence the Crown intends to lead at the retrial cannot establish the medical cause of death of Paolo Trotta.

Both Applicants further submit that if the charges are not stayed, that the Court prohibit the Crown from introducing the evidence of Dr. David Chan as the Supreme Court of Canada has found his evidence at the first trial to be unreliable.

Lastly, Anisa Trotta submits that if the stay is not granted, the Crown application to read into evidence the testimony of Dr. Edward Glazier, not be permitted.

Legal Tests to be Applied

The Supreme Court of Canada in R. v. Ryan has set out the test to be met in an abuse of process application seeking a stay of proceedings. Only in the clearest of cases will a stay of proceedings be granted if the following criteria are met:

1) The prejudice caused by the abuse will not be manifested or perpetuated through the trial proceedings or by its outcome. In this context, a small residual category of abusive action exists which may not affect trial fairness, but would still undermine the fundamental justice of the system. In this limited residual category, a stay of proceedings is only appropriate when the abuse is likely to continue or to be carried forward. Only in exceptional cases will past conduct be so egregious that proceeding with a new trial would be offensive.

2) No other remedy is reasonably capable of removing that prejudice.

3) When the Court is uncertain whether the ground submitted are sufficient to warrant a stay, a third criteria is considered. The interest that would be served by granting a stay of proceedings are to be balanced against the interest that society has in having a final decision on the merits.

A stay of proceedings is a prospective rather than a retroactive remedy.

In this application, counsel agree that the onus lies on the Applicants, on the balance of probabilities, for the Court to order a stay.

The Applicants’ Submission

Both Applicants submit that Dr. Charles Smith and Dr. David Chan, in 1998, provided false and misleading evidence as to the medical cause of death of Paolo Trotta. This evidence was pivotal in the Jury finding both Applicants guilty. At the time of providing his evidence, Dr. Chan was considered to be a leader, if not the foremost expert in investigations of suspicious child deaths.

Over the years, after the Trotta trial, Dr. Smith’s reputation began to erode and was publicly questioned due to flawed medical advice and evidence he provided in a number of subsequent pediatric death investigations and full prosecutions. Even though public concerns began to grow over Dr. Smith’s competence, he continued to testify before the courts on behalf of the Attorney General in pediatric death cases, and continued to receive the unflinching support of his superiors at the Office of the Chief Coroner. Criticism of Dr. Smith escalated. In 2008, the Province of Ontario established the Goudge Inquiry to review systemic problems in pediatric forensic pathology in Ontario. Dr. Smith was the catalyst for this inquiry.

The Applicants submit that from the date of convictions in 1998 to 2007, when the Supreme Court of Canada ordered a new trial, the Office of the Attorney General obstructed efforts to have Dr. Smith’s findings reviewed. As a result, the Applicants remained in custody until granted bail by the Supreme Court when a new trial was ordered.

The Applicants submit that given this history, the discredited medical evidence provided at trial assumes greater and more significant prejudice, not only to the Applicants, but to the entire administration of justice. On this basis, the Applicants submit that the Court exercise its discretion in favour of a stay of proceedings.

Testimony of Dr. Smith at the Trotta Trial

Prior to trial, Dr. Smith provided a report concluding that the cause of death of Paolo Trotta could not be determined. At trial, he abandoned this disgnosis and opined that after exhumation of the body, he observed a skull fracture, which was missed by Dr. Chan in the original autopsy. This skull fracture took on significant importance in Dr. Smith’s evidence. He testified that the skull fracture occurred within ten minutes and at a maximum of two days prior to Paolo’s death. He then linked observations of forehead bruising to evidence of a swollen brain within the skull, the weight of the brain being 30 to 37 percent above normal. Dr. Smith testified that these three factors were consistent with evidence of an impact to the head of the child, culminating in the skull fracture. He then provided the Jury with two opinions as to the cause of death. He stated that the child possibly died of a head injury, which was presumably non-accidental. Secondly, he opined that the child died of an asphyxial event. The asphyxia could have been caused by the head injury, or as a result of neck compression or smothering of the child.

He outlined to the Jury the means by which an infant could die by asphyxia. This included manual strangulation, or placing a film or dry cleaning bag over the face of the child, smothering the child with a pillow, rolling the child on his face while in bed, or pinching the nose and mouth to stop the flow of oxygen. There was no physical and forensic evidence to support these theories.

The Crown embraced the evidence of Dr. Smith as to his diagnosis, with reference both as to the cause of death, and the means by which death occurred. The Crown urged the Jury to accept this medical evidence. The Jury accepted this argument and convicted Marco Trotta of second degree murder, assault bodily harm and aggravated assault. Anisa Trotta was convicted of criminal negligence and failing to provide the necessities of life to their child, Paolo Trotta.

On October 13, 2005, at the request of the Coroner’s Office, Dr. Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario, prepared a report on Paolo Trotta’s death. By that date, significant press and public concerns had grown as to questionable medical evidence that Dr. Smith had provided in other prosecutions of child pediatric deaths.

In his report, Dr. Pollanen rejected the finding that the skull fracture observed after Paolo Trotta’s body was exumed was recent. Dr. Pollanen found this diagnosis to be erroneous and flawed. The skull fracture was not recent but well healed. Contrary to Dr. Smith’s findings, this skull fracture had not occurred with ten minutes or to at a maximum within two days of death.

At the request of the Applicants, a second opinion was provided by Dr. Simon Avis, the Chief Medical Examiner for the Province of Newfoundland and Labrador. Dr. Avis also concluded that the skull fracture found by Dr. Smith was not recent, but “a remote fracture showing unquestionable evidence of healing”. Dismmissing the significance of this fracture, as found by Dr. Smith, Dr. Avis stated, “To examine Paolo Trotta’s skull to see the fracture and to opine that the fracture is from ten minutes to utmost two days old, simply boggles my mind. I am at a loss why an acute fracture was even a consideration in determining the cause of death in this case.”

Both Dr.’s Pollanen and Avis dismissed Dr. Smith’s findings that Paolo Trotta died because of a head injury or asphyxiation. Dr. Avis found Smith’s diagnosis of manual strangulation to be irresponsible. He opined that evidence of petechial hemorrhages in the thymus and lungs of the infant were not consistent with manual strangulation as found by Dr. Smith. Dr. Avis concluded, “There is no evidence in fact – he can’t have said it accidentally.”

Dr. Pollanen not only rejected Smith’s diagnosis as to the cause of death, he also was highly critical of Dr. Smith’s florid and graphic language in describing to the Jury how a child could be asphyxiated. He viewed this evidence to be inappropriate and pejorative, particularly in the use of the term “coup de grace” to describe the final act of smothering the child, leading to his death.

In 2007, the Supreme Court of Canada discredited the evidence of Dr. Smith and ordered a new trial. The fresh evidence provided by Dr.’s Pollanen and Avis was central in this determination.

Findings of the Goudge Commission

The Applicants submit that the discredited medical evidence of Dr. Smith in the Trotta case takes on greater significance when examined in the context of the findings made by the Goudge Commission.

In the Goudge Commission Report, Dr. Smith’s rise and fall as a leading expert in pediatric pathology was detailed. Over two decades commencing in 1981, Dr. Smith’s reputation as a leader in pediatric pathology grew and received recognition not only in medical but also legal circles. Having worked with the Hospital for Sick Children in Toronto in 1992, Dr. Smith was appointed Director of the newly established Ontario Forensic Pathology Unit at Sick Children’s Hospital. As noted by Justice Goudge, Dr. Smith, “...eventually came to dominate pediatric forensic pathology in Ontario. His experience seemed unequalled, and his manner broached no disagreement. He was widely seen as the expert to go to for the most difficult criminally suspicious pediatric deaths. In many of these cases, his views of the cause of death were the critical opinion, and figured prominently in the outcome.”

Before and after the Trotta case, the police and Crown placed significant reliance on Dr. Smith’s medical findings to initiate investigations of suspicious pedicatric infant deaths, and thereafter to commence prosecutions of those investigations. In a number of those cases, Dr. Smith’s medical opinion was found to be suspect and unreliable. As a result, homicide charges that were laid were withdrawn.

Trial evidence provided by Dr. Smith in pediatric death cases also drew public criticism and concern. It was not only the flawed evidence in the Trotta case, but also questionable evidence provided by Dr. Smith in a number of other pediatric death prosecutions that led to the formation of the Goudge Commission. Its mandate, as noted, was to review and report on the systemic problems in pediatric forensic pathology in Ontario. However, Dr. Smith again, as noted, was the chief catalyst for that review.

The failings of Dr. Smith were laid bare in the findings of the Goudge Commission. Although this Court is not bound by these findings, they are of assistance in assessing the merits of the Applicants’ Stay Application.

Amongst other things, Justice Goudge concluded that:

Dr. Smith violated a cardinal rule of scientific expertise especially when it is engaged by the justice system. The expert must be aware of the limits of his or her expertise, stay within them, and not exaggerate them to the Court. Dr. Smith did not observe this fundamental rule. Dr. Smith failed to understand that his role as an expert was not to support the Crown. The evidence also showed that, rather than acknowledging the limits of his expertise, Dr. Smith sometimes misled the Court by overstating his knowledge in a particular area. Dr. Smith sometimes failed to provide a balanced view of the evidence. He presented his opinion in a dogmatic and certain manner when the evidence was far from certain. There are instances where Dr. Smith offered opinions that were speculative, unsubstantiated, and not based on pathology findings. Dr. Smith did not always testify with the candor required of an expert witness. In some cases, he made false and misleading statements to the Court.

The Crown, in opposing the stay application, acknowledges that Dr. Smith made errors in his expert opinion in the Trotta case. The Crown concedes that Dr. Smith was demonstrably wrong with respect to his diagnosis of the cause of death. The Crown admits that Dr. Smith had gone beyond his expertise and engaged in speculative conclusions. The Crown concedes that Dr. Smith failed to make correct findings of fact. However, the Crown argues there is no evidence to suggest that Dr. Smith fabricated his evidence and committed perjury. At most, Dr. Smith was negligent, even grossly negligent, in his findings, but his errors were not a calculated fabrication.

Failed Oversight of Dr. Smith

In the late 1990’s, although Dr. Smith’s reputation publicly unravelled, he continued to perform autopsies. The concerns and criticisms from both the press and the public were ignored by those responsible for the oversight of his work. This oversight was the responsibility of Dr. Michael Young, Chief Coroner and Dr. David Cairns, Deputy Chief of the Ontario Coroner’s Office. As a physician, Dr. Smith was also overseen by the Ontario College of Physicians and Surgeons.

The findings of the Goudge Commission determined that the oversight of Dr. Smith from both bodies, failed. Both supervising bodies were more concerned with protecting their institutional reputations, than heeding and correcting Dr. Smith’s work.

A disciplinary hearing was held before the College of Physicians and Surgeons, reviewing alleged flawed medical opinion that Dr. Smith had provided in an investigation of a suspicious child death in 1995. Dr. Smith determined that the child had died of a blunt head injury. He advised CAS he was 99 percent sure that the child’s death was non-accidental, being caused by the mother.

Dr. Smith’s diagnosis was reviewed and subsequently disputed by two expert pathologists. Ultimately, the Crown over a two-year period determined that there was no reasonable prospect of conviction and no charges were laid.

The family of the suspect subsequently retained a further opinion from a noted pathologist who opined that Dr. Smith’s conclusion about the suspected death exceeded the boundaries of scientific and forensic evidence.

As a result, a complaint was launched by the family to the College of Physicians and Surgeons.

After four years, the hearing concluded by verbally cautioning Dr. Smith, but not calling for any further investigations, sanctions or prohibitions.

The College explained their actions to the Goudge Commission by submitting that had they received complaints about Dr. Smith from the Hospital for Sick Children and the Coroner’s Office, in addition to the private complaint being reviewed, a shorter and differently focused investigation may have been possible. However, since they received no complaints from the Coroner’s Office or the Hospital for Sick Children, a more expedited review was not available.

Further, the Goudge Commission found that the Ontario Coroner’s Office provided the Crown and Defence with misleading information regarding their review of Dr. Smith’s questionable practice in other pediatric death prosecutions. In October 2001, Dr. James Cairns, in correspondence to the Crown which was forwarded to defence counsel, made the following three representations:

1) Twenty of Dr. Smith’s cases had been reviewed;

2) There was no suggestion that Dr. Smith was incompetent or negligent in those cases; and

3) Dr. Smith was competent to conduct autopsies and was returned to the Autopsy Roster in June 2001.

As found by Justice Goudge, none of these representations were correct.

Subsequently, in July 2002, Dr. Cairns reported to the Crown that he had personally reviewed the Trotta file and determined there was a complete consistency between Dr. Smith’s opinion and that of other medical experts. He saw no contradictions and had no concern about the autopsy report or medical findings. In his opinion, nothing would be served by doing anything further or seeking any other opinions. The Goudge Commission found this report to be misleading. Dr. Cairns’ opinion was of little value since he later admitted he was not a pathologist and thus, not qualified to render any opinion as to Dr. Smith’s competence in pathology.

With the Trotta appeal pending before the Ontario Court of Appeal, the Defence in 2002 requested a further updated report from Dr. Cairns to consider the merits of an application for the introduction of fresh medical evidence. On September 27, 2002, Dr. Cairns provided his report. In a one-page report he concluded, “I have no concerns regarding the opinion by Dr. Smith and see no reason whatsoever for our office or the Crown Attorney to hire another expert.” In response to the Crown on October 2002, the Defence advised that, “I have received the brief opinion of Dr. Cairns. We will not be tendering fresh evidence unless something comes up that postdates this letter.”

As public and private concerns over Dr. Smith’s practices escalated, Dr. Young, the Chief Coroner for the Province of Ontario steadfastly supported Dr. Smith. As found by the Goudge Commission, this support was misguided. The purpose of this support was not to protect the public, but to protect the reputation of the Ontario Coroner’s Office:

As the end neared, Dr. Young was more concerned with the possibility of the adverse publicity that Dr. Smith might bring to OCCO than about the possible impact of Dr. Smith’s shortcomings on OCCO’s responsibility for high-quality death investigations. He gave no thought as to whether the office might have played a role in past wrongful convictions as a result of Dr. Smith’s work. Finally, as the last act played out, Dr. Young continued to defend the indefensible in the name of saving the reputation of the OCCO. In the end, as Chief Coroner, Dr. Young, must bear the ultimate responsibility for the failure of oversight. When he finally did act it was to protect the reputation of his office and not out of concern that individuals in the public interest may have already been harmed. Sadly, the defacto oversight of Dr. Smith that resulted was far too little, far too late.

Conduct of the Attorney General’s Department

The Applicants further submit that their ability to investigate and appeal the findings of Dr. Smith were thwarted and obstructed by the Office of the Attorney General. The Applicant, Marco Trotta, submits that these efforts culminated in Crown Counsel misleading the Supreme Court of Canada in 2007 in her submissions during the fresh evidence appeal.

The Crown vehemently denies any misconduct by the Attorney General’s Office. The Crown submits that these allegations are without foundation and manifestly spurious. The Crown argues that throughout the trial, and thereafter during the appeal periods, the Crown acted in good faith, unaware of Dr. Smith’s deficiencies until fresh medical evidence was provided by Dr.’s Pollanen and Avis. Contrary to the submissions of both Applicants, the Crown submits that it had no knowledge of the earlier concerns, criticisms and negative findings made by Mr. Justice Dunn with reference to expert medical evidence provided by Dr. Smith in the prosecution of R. v. M.S. in 1991.

In 1985, M.S., a 13-year-old was charged with manslaughter involving the death of an infant she was babysitting. The central issue in that case was the cause of the death alleged to be a violent shaking of the child.

During the course of the police investigation, Dr. Smith provided the authorities his opinion that the infant died at the hands of the babysitter when the child was violently shaken. That diagnosis was pivotal to laying the charge of manslaughter and central during the trial. At trial, Dr. Smith testified that the cause of death was a violent shaking of the infant. This diagnosis was challenged by several defence medical experts, and ultimately rejected by the trial Justice.

In acquitting the young person, Justice Dunn did not find that the M.S. case was one of conflicting expert evidence, that given the burden of proof he determined had to be resolved in favour of the Defence. Rather Justice Dunn made highly critical findings as to the credibility and reliability of Dr. Smith’s trial evidence.

Years later, Justice Goudge in his findings observed that the M.S. decision was “a harbinger of things to come” and “prophetic”, concluding “most of the weaknesses that Justice Dunn identified in Dr. Smith’s forensic pathology, reappeared in Dr. Smith’s work in criminally suspicious cases over the next decade.”

In January 1992 after the acquittal of M.S., representatives from the Hospital for Sick Children, Dr. Smith, and Crown counsel involved in the M.S. prosecution met to discuss Justice Dunn’s Reasons for Judgment. The meeting ended with all parties concluding that Justice Dunn acquitted M.S. because he did not understand the shaken baby syndrome as diagnosed by Dr. Smith. As a result, no further steps were taken to investigate, correct, and if necessary oversee the practices of Dr. Smith.

The Applicants submit that the Attorney General’s Department should have become aware, should have known, or should have at a minimum investigated and heeded the concerns raised by Justice Dunn. Yet, no further action was taken.

In the alternative, the Applicants submit that given the importance of Justice Dunn’s decision as early as 1992, the Attorney General’s Office should have disclosed this judgment to the defence bar. Having failed to do so, the defence at trial was prejudiced to be able to make full answer and defence to the charges.

I find the Applicants’ submission on these two issues to be of marginal, if any weight. In retrospect, given Dr. Smith’s discredited evidence in other prosecutions after both the M.S. decision and the Trotta case, the M.S. decision in 1992 takes on “prophetic” importance as found by Justice Goudge. However, in 1992 Dr. Smith was still cloaked with his esteemed and virtually bullet-proof reputation as an expert pathologist. Opinions of other experts who testified in the M.S. case were then disregarded. They may have raised a reasonable doubt, but raised no concern given Dr. Smith’s then unblemished reputation.

I further agree that the Crown has no obligation to conduct legal research for an accused party. The judgment of Mr. Justice Dunn was in the public forum. It was a released judgment and available for counsel to access. In any event, although in the public forum, there is no evidence to conclude that the trial Crowns in the Trotta case were aware of the Ruling of Justice Dunn and its criticisms.

Therefore, the 2009 Supreme Court of Canada decision of R. v. McNeil, (2009), S.C.C. (3), obligating the Crown to inform the Defence of potentially relevant evidence pertaining to credibility or reliability of witnesses, has no applicability to the relief sought in this matter.

Furthermore, the submission of Marco Trotta that an adverse inference may be drawn that the Appellate Crown obstructed the Defendant’s efforts for appeal before the Ontario Court of Appeal, is also rejected. Equally, the submission that the Appellate Crown misled the Supreme Court of Canada in her submissions, is rejected.

Prior to the Court of Appeal hearing in 2004, the Appellate Crown refused the Applicants’ production application for the release of Coroner’s and prosecution files involving Dr. Smith. This opposition was made on the basis of relevance, privacy, and confidentiality of third parties. This position was arguable and not without merit.

Before the Supreme Court of Canada, the Appellate Crown responded to an inquiry from the Court submitting that Dr. Smith’s trial evidence did not touch on any medical diagnosis regarding previous injuries to the infant child. Having reviewed and considered Crown Counsel’s submissions to the Supreme Court, I conclude the statements of the Appellate Crown not to be misrepresentations, but amount to no more than misstatements which had little or no bearing on the final decision rendered by the Supreme Court.

Finding of the Court Re: Stay Application

Dr. Smith was the catalyst for the Goudge Inquiry. He was also the catalyst who provided critical medical evidence that led to the convictions of both Applicants. Lastly, he was the catalyst whose evidence the Supreme Court discredited in ordering a new trial.

As previously noted, the Crown submits that although Dr. Smith was clearly wrong in his evidence, he did not lie or intentionally mislead the Court in the Trotta trial. Therefore, any flaws in Dr. Smith’s evidence do not demonstrate that his errors constitute “the clearest of cases” where the integrity of the judicial system would be irreparably prejudiced or where prejudice arises to the accused if a stay of proceedings is not granted.

I reject the submission that Dr. Smith did not intentionally mislead the Court. The medical evidence provided to the Jury by Dr. Smith was deliberately calculated and directed to secure convictions. That medical evidence was inconsistent with his initial autopsy findings that the cause of death of Paolo Trotta could not be determined. That conclusion veered 180 degrees when Dr. Smith opined in carefully chosen and subsequently proven to be medically-flawed diagnosis, that Paolo Trotta died as a result of a skull fracture and/or was asphyxiated. This diagnosis was misleading, it had no forensic or medical merit, and as Dr. Avis concluded, that diagnosis was not accidental.

The Applicants were convicted because both the Crown and the Jury erroneously relied on Dr. Smith’s then esteemed reputation and misguided diagnosis. This diagnosis was subsequently discredited by Dr.’s Pollanen and Avis.

Dr. Smith’s discredited conduct and evidence cannot be viewed in the isolated prism of the Trotta case, as submitted by the Crown. Similar discredited and flawed medical findings were made by Dr. Smith, both before and after the Trotta case as in the M.S. decision and subsequently in a number of other pediatric death prosecutions, some of which have been determined to be unlawful convictions. Tragically, Dr. Smith’s flawed evidence in all of these cases mirrors his discredited evidence in the Trotta case. Therefore, contrary to the Crown’s position, Dr. Smith’s evidence in the Trotta case was not an anomaly, but consistent with his history of securing convictions in suspicious pediatric deaths, notwithstanding medical evidence to the contrary.

As public and press concerns escalated over the practices of Dr. Smith, the Ontario Coroner’s Office sheltered and protected him. It did so for the sake of preserving the institutional reputation of its organisation at the cost of keeping the public in the dark, while permitting Dr. Smith to conduct autopsies and provide evidence before the courts. The cost of this protection was the loss of public confidence both in the Coroner’s Office and the administration of justice.

The totality of these circumstances has a bearing in determining whether the stay of proceedings is granted or not. As observed in R. v. Conway:

Abuse of process acknowledges that the courts must have the respect and support of the community in order that the administration of justice properly fulfill its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interests in the effective prosecution of criminal cases, then the administration of justice is best served by staying of proceedings.

However, the same Court continued:

It must always be remembered that the stay of proceeding is only appropriate ‘in the clearest of cases’ where the prejudice to the accused’s right to make full answer in defence cannot be remedied, or where irreparable injustice would be caused to the integrity of the judicial system if the prosecution was continued.

Regarding the issue of prejudice to the accused’s right to make full answer and defence, the Crown submits that at the retrial, it will not call Dr. Smith as a witness, or make any reference to him in evidence. The Crown will make available the evidence of both Dr.’s Pollanen and Avis who will testify, unlike Dr. Smith, that the medical cause of death of Paolo Trotta cannot be determined. The Crown submits that by focusing the prosecution in this fashion, any prejudice to the Applicants will either be negated or greatly minimised. The Crown submits that this “remedy is reasonably capable of removing prejudice” and a stay is not required.

I agree with the Crown’s proposition on this point.

Regarding the second question, even if trial fairness is not affected, would the continuation of the prosecution still cause irreparable prejudice to the integrity of the justice system. As already noted, it is necessary to determine this question on the entire history of Dr. Smith’s findings, in addition to the flawed medical diagnosis provided by him in the Trotta prosecution.

As previously noted, the stay of proceedings is a prospective rather than retroactive remedy. In Canada (Minister of Citizenship and Immigration) v. Tobias, 118 C.C.C. (3d) 442, S.C.C. at paragraph 91 the Court observed:

A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that if left alone will continue. The mere fact that the state has treated an individual shabbily is not enough to warrant a stay of proceedings. It must appear that the state misconduct is likely to continue or the carrying forward of the prosecution will offend society’s sense of justice. There may be exceptional cases in which past misconduct is so egregious that the mere fact of going forward in light of it will be offensive. But such cases should be relatively rare.

The Supreme Court of Canada has already discredited the evidence of Dr. Smith in the Trotta trial. The Goudge Commission further discredited evidence Dr. Smith provided in other pediatric death prosecutions. Dr. Smith’s conduct in the Trotta case was not an anomaly, it was not an isolated incident. In this context the state through the evidence of Dr. Smith has mistreated the Applicants.

However, the Crown submits that in a retrial that mistreatment will not be perpetuated since it does not intend to call Dr. Smith to testify. In lieu of Dr. Smith, the Crown intends to make available the balanced evidence of Dr.’s Pollanen and Avis for the Jury to consider.

Although this court is greatly disturbed by the stain that Dr. Smith and his superiors have left on the administration of justice, this past conduct is not so egregious that “irreparable injustice would be caused to the integrity of the judicial system if the prosecution was continued”.

It must be kept in mind that although this abuse of process application is largely focused on Dr. Smith, the retrial is not about Dr. Smith, but about the deceased, eight-month-old Paolo Trotta.

At a retrial even absent medical evidence of causation of death, the Crown still has an evidentiary basis to proceed with the prosecution.

Dr. Pollanen aptly set out the distinction between the lack of medical evidence as to cause of death, and the legal test to be applied in these circumstances:

On this basis the best cause of death of Paolo Trotta is unascertained. My definition of the cause of death as unascertained is that there is not emperical/medical evidence that allows a pathologist to decide on a definitive cause of death. Logically this implies that both natural and unnatural causes of death are possible based on the emperical facts evidence. This applies to the death of Paolo Trotta. Whatever inferences can or should be made about an unlawful killing in the Trotta case does not flow directly from the unascertained cause of death. However, the fact the death occurred after chronic child abuse may be relevant in making a judgment about an unlawful killing. Of course making a judgment about an unlawful killing is not the duty or responsibility of the pathologist; that duty rests solely with the trier of fact.

A stay of proceedings is truly a drastic remedy. A stay of proceedings is tantamount to an acquittal in that it effectively brings the criminal proceedings to a final conclusion in favour of the accused because of state misconduct both in the past and anticipated to continue in the future. As already found, past misconduct will not be revisited in the retrial. Further, the evidence presently available even absent proof of medical causation of death still provides a basis on which to continue the prosecution.

It is incumbent on the court to consider the compelling public interest in having allegations of criminal conduct determined on their merits. All criminal allegations are serious, particularly so when they involve the death of an infant child.

Having considered all of the submissions, and giving full measure of the gravity of Dr. Smith’s flawed and misguided conduct, I am satisfied that the community sense of fair play and justice would not be offended by ordering a new trial. Accordingly, the Applicant’s application to stay of the proceedings for abuse of process is dismissed.

The interests of the community and the administration of justice are not undermined by having a jury properly instructed be given the task to consider the evidence and decide the case.

Application to Reduce the Charge to Second Degree Murder

Marco Trotta submits that the Court exercise its discretion in this stay of proceedings application, to reduce the pending charge of second degree murder to manslaughter. The Applicant argues that the charge of manslaughter is the appropriate offence to put to the Jury since the Crown concedes that it cannot prove the medical cause of death of Paolo Trotta.

On the basis of R. v. Nette, (20020, 158 C.C.C. (3d) 486 at paragraph 77 S.C.C., I dismiss the Applicants argument:

The Crown is not required to establish the medical cause of death in a homicide case although it almost inevitably does so. Nor is the Crown required to demonstrate that a specific act or event caused the death, although the Crown usually attempts to do so. The Crown must prove that the death was caused by an unlawful act and that the accused is responsible for that act.

Mr. Justice Doherty cited this principle in dismissing the Applicant’s relief to quash the homicide related counts as being unreasonable. He found in paragraph 31 of his judgment:

There was cogent, if not overwhelming evidence that P.T. was a battered child and that M.T. was his abuser. On the evidence, the jury could find that the physical abuse escalated during P.T.’s life and continued until very shortly before P.T.’s death. On the totality of this evidence, a reasonable jury could conclude that the pattern of abuse of P.T. by M.T. culminated in P.T.’s death at the hands of M.T. This finding was available even if the jury could not decide the exact nature of the final assault.

In 2007, the Supreme Court of Canada in ordering a new trial came to the same conclusion, in dismissing the Applicant’s argument that they be acquitted on the counts of murder and criminal negligence causing death. The Court stated in paragraph seven:

We are satisfied that acquittals would at this stage be inappropriate, since we are not prepared to say that there remains no evidence upon which a properly instructed jury, acted reasonably, could find the Appellants guilty to homicide related offences of which they were convicted at trial.

Application to Prohibit Dr. Chan from Testifying at the Retrial

The Applicants submit that the Court exercise its discretion to prohibit the Crown from calling Dr. Chan at the retrial because the Supreme Court of Canada found his evidence to be unreliable.

The trial transcript confirms serious flaws in the autopsy performed by Dr. Chan, since he failed to preserve evidence that may rule out both natural and unnatural causes of death. Both Dr.’s Pollanen and Avis have concluded that the original autopsy was not performed properly, even given the standards of the time.

After completing the autopsy, Dr. Chan concluded that Paolo Trotta died as a result of SIDS, Sudden Infant Death Syndrome. No criminal charges were laid at that time against the Trottas.

Subsequently, after the body was exumed and re-examined by Dr. Smith, Dr. Chan abandoned his original diagnosis and acceded to the diagnosis made by Dr. Smith. As events later proved, Dr. Smith’s diagnosis was seriously flawed.

Having abandoned his original diagnosis of SIDS, Dr. Chan testified that Paolo Trotta died as a result of a head injury or asphixia. To the extent that his autopsy findings contradicted this evidence, Dr. Chan was openly critical of his own autopsy and unquestionably deferred to the findings made by Dr. Smith.

Given Dr. Chan’s errors and contradictions, the Supreme Court of Canada found him to be an unreliable witness. Anisa Trotta submits that it would be unfair to permit him to testify. She submits that if Dr. Chan were permitted to testify, she would be forced to discredit him by using the evidence of Dr. Smith. To put her in the position of adducing the evidence of Dr. Smith to discredit Dr. Chan would be improper since no jury for any purpose should ever hear the opinions of Dr. Smith.

In R. v. Buric, 28 O.R. (3d) 737, the trial justice found that a Crown witness was tainted. He determined that the admission of that tainted testimony would render the trial unfair. Rather than grant a stay of proceedings, the trial justice ordered that the tainted witness be prevented from giving evidence at trial. The accused was acquitted, and the Crown appealed.

The Court of Appeal found:

The admission of evidence, which may be unreliable, does not per se render a trial unfair. It is for the jury to assess the quality of the evidence. The trial judge erred in concluding that the tainting was a question of admissibility of evidence rather than its weight.

The nature and extent of any cross-examination of Dr. Chan is within the discretion and control of the defence. Reference to Dr. Smith, although an unhappy choice to make in cross-examination, is for the defence to assess and make. It is then open for the jury to assess the credibility or lack thereof of the witness being cross-examined.

In the Buric decision, the Court of Appeal found that the exclusion of the evidence of the tainted witness would have the same practical effect as a stay of proceedings. In the present matter, the absence of Dr. Chan’s testimony would terminate the prosecution of all charges. This result would have the same practical effect as a stay of proceedings, which the Court has already declined.

Anisa Trotta’s Application for Stay Because of Loss of Memory

Anisa Trotta submits that a stay of proceedings be granted because she is unable to make full answer and defence to the charges she is facing. The Applicant submits that 16 years have passed since the death of her child. Over that time her memory has faded as to events that had occurred. Although she chose not to testify at the first trial, that decision was made in light of the nature and strength of the case that as presented.

Other witnesses who did choose to testify presently have the ability to review their trial evidence. The Applicant submits she has been deprived of that choice.

The Court recognises that a delay of 16 years may affect and erode memory. However, other than the general submission, there has been no affidavit or viva voce evidence introduced to support the argument proposed.

Should the Applicant choose to testify at her retrial, as with every other witness, the weight of her evidence would be assessed by a jury. A less than perfect memory after 16 years is a factor the jury may consider to be either favourable or contrary to the credibility of the Applicant. That determination is best made by the trier of fact.

Accordingly, Anisa Trotta’s application on this argument is also dismissed.

Lastly, Anisa Trotta’s submission that the Crown not be permitted to read into evidence the testimony of Dr. Edward Glazier at the retrial is more appropriately to be determined by the trial justice.

For all the aforementioned reasons, the Applicant’s relief on all grounds as sought is dismissed"

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM CASE: BRAVO TO THE DIOCESE OF TENNESSEE; A POWERFUL MESSAGE; WHERE ARE THE OTHER CHURCHES, SYNAGOGUES AND MOSQUES?

"AS THE CHURCH HAS LONG TAUGHT, THE DEATH PENALTY IS NOT THE PROPER RESPONSE TO CRIME AND VIOLENCE. SOCIETY HAS BOTH THE RIGHT AND DUTY TO PROTECT ITS CITIZENS, BUT MODERN SOCIETY HAS THE CAPACITY TO DO SO WITHOUT RESORTING TO THE EXECUTION OF CRIMINALS.

PERHAPS THE GOOD THAT MIGHT COME FROM THE TRAGIC DEATH OF THREE YOUNG GIRLS IN A HOUSE FIRE AND THE EGREGIOUS ACTIONS OF THE STATE IN THE EXECUTION OF THEIR FATHER MIGHT OPEN THE EYES OF OUR NATION TO THE FAILED SYSTEM THAT HAS VERY LIKELY EXECUTED AN INNOCENT MAN."

GUEST COMMENTARY: DIOCESE OF TENNESSEE;

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

Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besiighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

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

While following developments in the Cameron Todd Willingham case over the past few months I have been shocked by the silence over the execution of an innocent man by America's churches, synagogues and mosques.

Why are they not railing over the execution of an innocent man and the death penalty system that unjustly took his life.

So I was pleased to see the following "guest commentary" by the Diocese of Tennessee - published by the Catholic News Service - which ran Wednesday under the heading, "Innocent man’s execution shows shame of death penalty."

"The death penalty may have finally crossed a shameful line that, if there is any sense of reason or justice in American society, should bring the practice to a swift and final end," the commentary begins.

"The state of Texas, despite all of the safeguards that proponents of the death penalty claim would prevent this from happening, may have executed an innocent man," it continues.

"A story in the Sept. 7 issue of The New Yorker details the case of Cameron Todd Willingham who was executed on Feb. 17, 2004, by lethal injection in the Texas death house at the state prison in Huntsville. Texas has made the most prolific use of the death penalty since its re–establishment in 1977.

Willingham was convicted of murdering his three young children after they died in a house fire on Dec. 23, 1991, in Corsicana, Texas. The unemployed auto mechanic had been at home watching the children while his wife was shopping for Christmas presents for their three daughters. He told investigators that his 2–year–old daughter woke him from a nap saying that the house was on fire, but his attempts to rescue the children failed.

Investigators determined that the fire was arson, although there was a history of the children tampering with a space heater used to warm part of the small house where the family lived in a rundown, failed oil town.

However, later reviews of the case by arson and forensics experts determined that investigators used a combination of junk science and folklore to reach their flawed conclusion of arson.

Willingham quickly became the prime suspect, and like most poor defendants, had weak legal representation. As his case worked its way through the process, he steadfastly professed his innocence, to the point of rejecting a plea bargain that would have spared him the death penalty. But based on essentially unchallenged “scientific” evidence, he went to his death.

All of the safeguards failed.

In an interview before his execution, Willingham told The Associated Press he was innocent. “The most distressing thing is the state of Texas will kill an innocent man and doesn’t care they’re making a mistake,” he said.

In a U.S. Supreme Court case decided this summer, Chief Justice John Roberts wrote in his opinion that “a criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man.” Which raises a question: can a trial be fair if an innocent person is convicted?

That there are wrongly convicted inmates on death row is nothing new. Well over 100 people on the nation’s death rows have been shown to be completely innocent of the crimes for which they were convicted through scientific reviews of their cases. How many others, without access to the technology and resources that could prove their innocence have been walked to their death in a prison execution chamber? How many have died unjustly, all in the name of justice?

We are not so naive to believe that everyone on death row is innocent. Prisons across the country are filled with guilty people paying their debt to society. But we shouldn’t strip someone of their dignity when they enter prison, like it’s an old T–shirt. The dignity God gives every person follows them every step of their life. As Catholics, we pray the guilty will repent and be redeemed. And we must demand that the innocent receive justice.

As the church has long taught, the death penalty is not the proper response to crime and violence. Society has both the right and duty to protect its citizens, but modern society has the capacity to do so without resorting to the execution of criminals.

Perhaps the good that might come from the tragic death of three young girls in a house fire and the egregious actions of the state in the execution of their father might open the eyes of our nation to the failed system that has very likely executed an innocent man."

The "guest commentary" can be found at:

http://www.thefloridacatholic.org/oped/2009_oped/2009_editorial_archive/20090923_editorial.php

Harold Levy...hlevy15@gmail.com;

UP-DATE: CHARLES SMITH; JUDGE FINDS DISGRACED PATHOLOGIST INTENTIONALLY MISLED COURT TO HELP SECURE CONVICTIONS; TROTTA CASE; TORONTO SUN REPORTS;

"THIS IS THE FIRST TIME A SUPERIOR COURT JUDGE HAS DECLARED THAT CHARLES SMITH INTENTIONALLY MISLED THE COURT TO HELP SECURE CONVICTIONS," SAID DEFENCE LAWYER PAULA ROCHMAN, WHO REPRESENTED ANISA TROTTA, WHO HAD HER CHARGES IN THE DEATH OF HER SON STAYED EARLIER THIS MONTH.

HER HUSBAND, MARCO TROTTA, WAS FOUND GUILTY OF MANSLAUGHTER AND ASSAULT CAUSING BODILY HARM IN THE MAY 1993 DEATH OF THE EIGHT-MONTH-OLD BABY.

"THE GOUDGE INQUIRY FOUND THAT MISTAKES WERE MADE BUT DIDN'T MAKE THE FINDING THESE MISTAKES WERE MADE INTENTIONALLY," ROCHMAN SAID.

REPORTER SAM PAZZANO; THE TORONTO SUN;

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

"THE (SUPREME COURT OF CANADA) TROTTA DECISION FALLS CLOSELY ON THE HEELS OF THE ONTARIO COURT OF APPEAL DECISION ACQUITTING WILLIAM MULLINS-JOHNSON IN THE FIRST-DEGREE MURDER OF HIS 4-YEAR-OLD NIECE VALIN JOHNSON - WHICH WE NOW KNOW TO BE AN ALLEGED CRIME THAT NEVER OCCURRED.

SO NOW BOTH THE SUPREME COURT OF CANADA AND THE ONTARIO COURT OF APPEAL HAVE CLOSELY EXAMINED DR. SMITH'S WORK IN TWO CASES WHERE HE WAS THE CENTRAL CROWN WITNESS AND FOUND THAT THE EMPEROR WAS WEARING NO CLOTHES."

THE CHARLES SMITH BLOG; DECEMBER 08, 2007;

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

The Toronto Sun reports that a Superior Court Judge has ruled that Dr. Charles Smith intentionally misled the court to get homicide convictions against the parents of abused child Paolo Trotta.

The story could not be published at an earlier time because of a publication ban.

This is said to be the first time a court has ruled that Smith's "mistakes" were intentionaL.

"Disgraced pathologist Dr. Charles Smith intentionally misled the court to get homicide convictions against the parents of abused child Paolo Trotta, a judge ruled in a motion that had been covered by a publication ban," the story by reporter Sam Pazzano, which ran earlier today under the heading, "Pathologist won convictions despite 'medical evidence to the contrary,' began.

""This is the first time a Superior Court judge has declared that Charles Smith intentionally misled the court to help secure convictions," said defence lawyer Paula Rochman, who represented Anisa Trotta, who had her charges in the death of her son stayed earlier this month," the story continued.

Her husband, Marco Trotta, was found guilty of manslaughter and assault causing bodily harm in the May 1993 death of the eight-month-old baby.

""The Goudge inquiry found that mistakes were made but didn't make the finding these mistakes were made intentionally," Rochman said.

BAN LIFTED

The publication ban on Justice Alexander Sosna's pre-trial finding against Smith was lifted after the father was found guilty.

The father, now 40, was convicted of second-degree murder in 1998 but those convictions were quashed by the Supreme Court of Canada.

It ordered new trials for both Trottas, because of the flawed testimony of Smith.

Marco was sentenced to time served (nine years) plus a year probation while his 36-year-old wife served three years out of a five-year sentence for criminal negligence.

The couple live in Peel region.

"Dr. Smith's discredited conduct and evidence cannot be viewed in the isolated prism of the Trotta case," stated Sosna in a judgment obtained by the Sun.

"Similar discredited and flawed medical findings were made by Dr. Smith, both before and after the Trotta case ... and subsequently in a number of pediatric death prosecutions, some of which have been determined to be unlawful convictions.

"Tragically, Dr. Smith's flawed evidence in all these cases mirrors his discredited evidence in the Trotta case.

"Therefore, contrary to the Crown's position, Dr. Smith's evidence in the Trotta case was not an anomaly, but consistent with the history of securing convictions in suspicious pediatric deaths, notwithstanding medical evidence to the contrary."

Two forensic pathologists, Dr. Michael Pollanen and Dr. Simon Avis, chief medical examiner for Newfoundland, dismissed Smith's findings in the Trotta case.

HEAD INJURY

Smith found that Paolo died because of a head injury or asphyxiation and Avis "found his diagnosis of manual strangulation to be irresponsible," Sosna stated.

"To examine Paolo Trotta's skull to see the fracture and to opine that the fracture is from 10 minutes to utmost two days old, simply boggles my mind," Avis testified.

"I am at a loss why an acute fracture was even a consideration in determining the cause of death in this case."

Pollanen found that the cause of Paolo's death was "unascertained."

Paolo's litany of injuries confirmed he "was an abused and battered child," said Crown attorney Paul Murray at Trotta's sentencing three weeks ago."

"During his short 81/2 months of life, Paolo Trotta suffered more injuries than most people suffer in their lifetime," he said."

http://www.torontosun.com/news/torontoandgta/2009/09/25/11108061-sun.html

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

THE CHARELES SMITH BLOG: December 8, 2007;

"ESSENTIALLY THE FRESH EVIDENCE ...DISCREDITS THE EVIDENCE GIVEN AT TRIAL BY DOCTOR CHARLES SMITH."

SUPREME COURT OF CANADA JUSTICE MORRIS FISH;

The Supreme Court of Canada has recognized the havoc caused by Dr. Charles Smith on Canada's criminal justice system.

(The Globe and Mail got it right in an editorial following release of the results of the Chief Coroner's review when it described Dr. Smith as an "earthquake" that struck our justice system over and over again.)

This was the first time that the Supreme Court has delivered a judgment on a case in which Dr. Smith was the issue.

"Essentially the fresh evidence - mainly the expert opinions of Dr. Michael Pollanen and Dr. Simon Avis - discredits the evidence given at trial by Dr. Charles Smith, an expert called by the Crown," Justice Morris Fish wrote for the unanimous court. "And the evidence of a second Crown witness at trial, Dr. David Chan, has been rendered unreliable as a result..."

(The Supreme Court of Canada's description of the once-renowned Crown expert's evidence as "discredited" is akin to a general's epaulettes being pulled off in disgrace by the Commander-in-chief);

"We think it neither safe nor sound to conclude that the verdicts on any charges would necessarily have been the same but for Dr. Smith's successfully impugned evidence."

(Justice Fish explains that the Court cannot provide any more details than necessary about the fresh evidence because it directed a new trial on all counts);

The Trotta decision falls closely on the heels of the Ontario Court of Appeal decision acquitting William Mullins-Johnson in the first-degree murder of his 4-year-old niece Valin Johnson - which we now know to be an alleged crime that never occurred. (See earlier posting: Mullins-Johnson acquittal: Notable quotes);

So now both the Supreme Court of Canada and the Ontario Court of Appeal have closely examined Dr. Smith's work in two cases where he was the central crown witness and found that the Emperor was wearing no clothes.

(For an account of key forensic evidence misplaced by Dr. Smith in the Trotta case, see previous posting (October);Trotta: Another Smith case involving misplaced evidence.)

The toll in the just these two cases:

Mullins-Johnson served more than twelve years of his first-degree sentence before being released from custody pending his application for a ministerial review;

Marco Trotta had served nine years of a life sentence with no chance of parole for fifteen years as his son's killer.

Anisa Trotta had completed serving her five year term for negligent homicide and failure to provide the necessaries of life;

And that's just the cost in terms of years.

All because of the once celebrated Dr. Charles Randal Smith.

Globe and Mail reporter Kirk Makin got it right yesterday in a report published on the Globe's Web-site shortly after the judgment was released:

"Thursday's ruling was a major victory for lawyers James Lockyer and Michael Lomer," wrote Makin.

"They had tried to persuade the court that, by misidentifying or fabricating injuries – and then overstating his evidence at the Trotta trial – Dr. Smith had poisoned the entire proceeding."

"The Supreme Court of Canada has now encapsulated what has become more and more clear in recent years - that Dr. Smith's mistakes have discredited him," Mr. Lomer said in an interview (with Makin).

For Dr. Smith, the light at the end of the tunnel is the train."

The ball is now in the prosecutor's court as they digest the Supreme Court decision as the determine what, if any of the charges, they will bring to trial - now that their prime witness (whose evidence was declared by the Supreme Court to be inter-twined with all of the charges) has been discredited by the Nation's highest court.

Stay tune for developments."

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM CASE: SUPERB "REQUIRED: READING LIST CURTESY OF A REAL GRITTY BLOG: IT'S CALLED: "GRITS FOR BREAKFAST."

"IT'S EASY TO SEE WHY DEATH PENALTY OPPONENTS HAVE LATCHED ONTO THE WILLINGHAM CASE. AT THE AGITATOR, RADLEY BALKO ASKS THIS "QUESTION FOR SUPPORTERS OF CAPITAL PUNISHMENT: DOES WILLINGHAM’S CASE MAKE YOU RETHINK YOUR POSITION? IF NOT, HOW MANY MORE CASES OF AN EXECUTED INNOCENT PERSON WOULD IT TAKE TO MAKE YOU CHANGE YOUR MIND?" THAT'S A POWERFUL ARGUMENT. SOME WILL FIND IT PERSUASIVE. NOT ENOUGH TO ABOLISH THE DEATH PENALTY, I'D VENTURE, BUT PERHAPS ENOUGH TO FURTHER RESTRICT IT. I THINK THE ASPECT OF THE CASE THAT MAY HELP MORE PEOPLE, THOUGH, IS TO DEBUNK FOREVER THE PROPAGANDISTIC WIVES' TALES UPON WHICH ALL ARSON "FORENSICS" WAS BASED BEFORE THE MID-'90S."

GRITS FOR BREAKFAST: CAMERON TODD WILLINGHAM: REQUIRED READING;

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

Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besiighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

-------------------------------------------------------------------------------
I love "Grits for Breakfast," a quirky blog published out of Houston, Texas, which, in its own words, "looks at the Texas criminal justice system, with a little politics and whatever else suits the author's fancy thrown in."

"All opinions are my own. The facts belong to everybody," says publisher Scott Henson, "a former journalist turned opposition researcher/political consultant, public policy researcher and blogger."

"Welcome to Texas justice," Grits for Breakfast warns the reader. "You might beat the rap, but you won't beat the ride."

"I thought it'd be useful to round up some commentary on the Willingham case, which has drawn a huge amount of interest," Henson's September 09 post, headed "Cameron Todd Willingham: Required Reading."

"The recent flurry of attention began thanks to a new report from an expert commissioned by the Texas Forensic Science Commission and an extensive article in the New Yorker by David Grann, which vetted the arson testimony and other evidence in the case," the post continues.

"The prosecutor, now a judge, offered a retort in the Corsicana Sun. Gann responded to the prosecutor's column here. Gann also points out several writers who have already responded to the prosecutor's op-ed.

The Sun published another rebuttal story titled "No Doubts" that even quoted Willingham's trial attorney proclaiming his guilt. By contrast, they didn't speak to Willingham's Waco-based appellate attorney, Walter Reaves, who always believed Willingham was innocent and feels vindicated by the new forensic report and the New Yorker piece, he says on his blog.

The Texas Moratorium Network is taking the high road, offering up a post titled "'Total idiots' in Corsicana strike back at scientific reports that Todd Willingham fire was not arson." A blogger at The Seventh Sense sees the former prosecutor's column as evidence of "the poor quality of the judiciary in Texas."

It's easy to see why death penalty opponents have latched onto the Willingham case. At the Agitator, Radley Balko asks this "question for supporters of capital punishment: Does Willingham’s case make you rethink your position? If not, how many more cases of an executed innocent person would it take to make you change your mind?" That's a powerful argument. Some will find it persuasive. Not enough to abolish the death penalty, I'd venture, but perhaps enough to further restrict it. I think the aspect of the case that may help more people, though, is to debunk forever the propagandistic wives' tales upon which all arson "forensics" was based before the mid-'90s.

Doug Berman wondered why the usual pro-death penalty writers have been silent regarding these new developments, but Kent Scheidegger at Crime and Consequences said the Willingham news was not the kind of major event that demanded immediate comment. (I'll betcha that wouldn't be the case if the investigator came back and determined the fire was arson!)

Kent's opinion was not shared by Barry Scheck writing at the Huffington Post, who offered up a column titled "Innocent but Executed." Defense attorney Mark Bennett out of Houston ponders the "criminal liability for judicial murders in Texas" as the law might apply to Willingham's case. Bob Herbert chimed in to emphasize how unreliable was the jailhouse snitch in the case. Change.org says Willingham was convicted because he was poor. Digby says there are some things the law is incompetent to do. The Agonist says justice was torched in Texas. Tom Head at his About.com Civil Liberties blog says this is the second innocent man executed in Texas. Defense attorney Paul Kennedy says:

The [New Yorker] article also makes me wonder how much longer we will have to put up with pseudo-scientific evidence such as bite mark analysis, handwriting analysis, tire tread analysis and all the other expert testimony that is "more art than science." When will our judiciary finally understand that criminal trial work is not merely an academic exercise? How many times will we have to hear the Court of Criminal Appeals state that factual innocence alone is insufficient to overturn a conviction?

In addition, Stand Down Texas has been pretty good about rounding up routine coverage. I'm sure there's much more out there I haven't seen. If you've read other interesting discussions of the Willingham case, leave a link in the comments.

MORE: A reader points me to this piece by Dahlia Lithwick at Slate. See also commentary from Dave Mann at The Contrarian, who points to this NPR coverage. From the Snitching Blog, see "Of Experts and Snitches.""

The post can be found at:

http://gritsforbreakfast.blogspot.com/2009/09/cameron-todd-willingham-required.html

Harold Levy...hlevy15@gmail.com

UP-DATE: DOG-SCENT "EVIDENCE", MORE ON INNOCENCE PROJECT OF TEXAS REPORT; LINK TO ACTUAL REPORT PROVIDED BY "GRITS FOR BREAKFAST."

"PIKETT ASSERTS OUTLANDISH SUCCESS RATES FOR HIS DOGS, CLAIMING ONE OF THEM HAD ONLY MADE ONE ERROR IN 2,831 LINEUPS. "ACCORDING TO THE RESEARCH DONE BY THE DUTCH POLICE AND OTHER EXPERTS IN THE FIELD, THIS IS ABSURD. EVEN USING RIGOROUS TRAINING METHODS, EXPERTS BELIEVE THAT THE BEST DOGS WORKED IN PERFECTLY CONTROLLED CONDITIONS CAN ONLY BE RIGHT APPROXIMATELY 85% OF THE TIME."

ACCORDING TO THE REPORT, "PIKETT HAS ALSO CLAIMED THAT HIS DOGS CAN IDENTIFY SCENTS MORE THAN A DECADE OLD AND THAT THEY CAN FOLLOW SCENTS LEFT BY CARS - CLAIMS WHICH HAVE BEEN CRITICIZED BY EXPERTS IN THIS FIELD.""

GRITS FOR BREAKFAST;

-------------------------------------------------------------------------------
Background: This Blog has been delving into the havoc caused by the late John Preston and his magical dog who could purportedly trace scents across water. The focus now turns to Deputy Keith Pikett, another so-called dog-scent "specialist", a canine officer with the Fort Bend County Sheriff's Office, just southwest of Houston. Time Magazine has reported on two apparent miscarriages of Justice involving Pikett; The first case studied involves Calvin Lee Miller, who was charged with robbery and sexual assault after Pikett's bloodhounds alerted police to a scent on sheets that Pikett said matched a scent swipe from Miller's cheek. DNA evidence later cleared Miller, but only after he served 62 days in jail. In a second case, former Victoria County Sheriff's Department Captain Michael Buchanek was named as a "person of interest" in a murder case after Pikett's bloodhounds sped 5.5 miles from a crime scene, tracking a scent to Buchanek's home. Another man later confessed to the murder.

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

"Grits for Breakfast," is a quirky blog published out of Houston, Texas, which, by its own admission, "looks at the Texas criminal justice system, with a little politics and whatever else suits the author's fancy thrown in."

"All opinions are my own. The facts belong to everybody," says publisher Scott Henson, "a former journalist turned opposition researcher/political consultant, public policy researcher and blogger."

"Welcome to Texas justice," Grits for Breakfast warns the reader. "You might beat the rap, but you won't beat the ride."

A Grits for Breakfast post on September 22, 2009, gives readers the opportunity to download the entire recently released Innocence Project of Texas report into the miscarriages of justice and wrongful murder convictions caused by dog-scent "evidence" - and sheds some light on the report's contents.


"Yesterday the Innocence Project of Texas released its report criticizing "scent lineups" used by Fort Bend County Sheriff's Deputy Keith Pikett, who as regular readers know has seen his dogs' identification of suspects debunked in several recent, high-profile cases, including two capital murders," the post begins, under the heading, "Texas Innocence Project report discredits unscientific dog 'scent lineups".

"See a copy here (pdf) and initial coverage from the Houston Chronicle and the Victoria Advocate," it continues.

"The brief report, written by IPOT legal director Jeff Blackburn, is well worth a full read but I thought I'd point out a few highlights.

One new fact-bite in the report concerns the use of scent lineups in communist Cuba, where "secret police have amassed thousands of bottles of scents taken from anti-Castro slogans painted on walls and other such 'crime scenes' and are using them as 'proof' against dissidents." A footnote pointed out this recent Miami Herald story on the use of scent lineups in Cuba, where we get a glimpse of the totalitarian origins of this bizarre practice:

(T)he use of 'criminal odorology' started in the Soviet Union in the 1960s, was developed by the former East Germany and in 1972 was established around Communist-ruled Europe.

After East Germany collapsed in 1989, West German investigators found a warehouse packed with tens of thousands of sealed jars containing bits of cloth impregnated with the odors of criminals and dissidents -- used to identify or track them.

(See an academic paper in Spanish on the use of scent lineups in Cuba.)

But the meat of the report related to Deputy Keith Pikett, who along with his wife undertook training pet bloodhounds as police dogs in the early '90s "on their own without using any known or established program."

The most extensive scientific testing of "scent lineup" methods has occurred in the Netherlands says IPOT, citing this 2002 New York Times story. They use elaborate methodologies which include controls that Deputy Pikett has not adopted.

When he gets into the courtroom, Pikett has sometimes misrepresented his credentials. In one of his first big cases he "testified that he had a Bachelor of Science in Chemistry degree from Syracuse University and a Master's degree in Chemistry from the University of Houston. This was a lie: Pikett has never received degrees from either institution." In the case where appellate courts formally affirmed his status as an expert witness, he also misrepresented himself as having a masters degree in Chemistry. Defense attorneys in that case did not challenge his testimony.

Pikett asserts outlandish success rates for his dogs, claiming one of them had only made one error in 2,831 lineups. "According to the research done by the Dutch police and other experts in the field, this is absurd. Even using rigorous training methods, experts believe that the best dogs worked in perfectly controlled conditions can only be right approximately 85% of the time."

According to the report, "Pikett has also claimed that his dogs can identify scents more than a decade old and that they can follow scents left by cars - claims which have been criticized by experts in this field."

The report quotes police dog experts from the around the country (including from the National Police Bloodhound Association) and from the UK harshly criticizing Pikett's methods. One called him an "unprofessional charlatan." Another concluded Pikett had "intentionally misspoke concerning the capabilities and expertise of his scent discriminating bloodhounds in given situations."

Finally, the report calls on police agencies and prosecutors to immediately stop using scent lineups by Deputy Pikett, and for the Attorney General to "conduct a full and complete investigation into every case in which scent lineups have been used, and to aid in the release of any person convicted on such testimony."

The recommendation about the AG vetting these old cases is particularly salient. Who knows how many false convictions have been obtained using this type of garbage evidence?"


You can access this article at:

http://gritsforbreakfast.blogspot.com/2009/09/texas-innocence-project-report.html

Harold Levy...hlevy15@gmail.com;