Sunday, September 27, 2009



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

Adelaide, here I come!

Harold Levy. Publisher. The Charles Smith Blog.