UPDATE: KEVIN COOPER; SUPREME COURT DENIES APPEAL; THE KEVIN COOPER DEFENCE COMMITTEE; SUPPORTERS EXPRESS ANGER AND DISAPPOINTMENT;

"THE QUESTIONS THAT COOPER ASKED THE UNITED STATES SUPREME COURT TO DECIDE ARE IMPORTANT: IS AN INNOCENT PERSON ELIGIBLE FOR EXECUTION? WHEN A DISTRICT COURT HAS BEEN ORDERED TO HOLD A HEARING ON THE EVIDENCE OF INNOCENCE, WHAT PROCESS IS REQUIRED TO ENSURE A FULL AND FAIR HEARING? SINCE COURTS HAVE USED VARIOUS THRESHOLDS OF INNOCENCE CLAIMS TO AWARD OR DENY RELIEF, WHAT STANDARD OF INNOCENCE APPLIES?

ACTIVISTS EXPRESSED ANGER AND DISAPPOINTMENT IN THE COURT’S RULING. CRYSTAL BYBEE, OF THE CAMPAIGN TO END THE DEATH PENALTY, SAID MONDAY, “THE FACT IS THAT KEVIN COOPER IS AN INNOCENT MAN. SHOCKING MISCONDUCT BY POLICE AND PROSECUTORS HAS CHARACTERIZED THIS CASE FROM THE BEGINNING.”"

PRESS RELEASE: KEVIN COOPER DEFENCE COMMITTEE;

"ELISABETH A. SEMEL, DIRECTOR OF THE DEATH PENALTY CLINIC AT BERKELEY, WHICH TRAINS LAWYERS TO DEFEND PEOPLE FACING THE DEATH PENALTY, SAID MANY JURISTS HAD BEEN SHAKEN BY THE RISE OF EXONERATIONS DUE TO DNA EVIDENCE. “I THINK IT’S BEEN SHATTERING TO JUDGES WHO HAD A FAIR AMOUNT OF CONFIDENCE IN THE SYSTEM,” SHE SAID."

REPORTER JOHN SCHWARTZ; NEW YORK TIMES; (FROM PREVIOUS POST);

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Background: Wikipedia; Kevin Cooper is a Death Row inmate in California's San Quentin Prison. He was convicted of the 1983 hatchet and knife murder of three members of Chino Hills family Ryen and their young houseguest, Christopher Hughes. Cooper, a repeat criminal who escaped from a nearby prison two days before the killings, claims he is innocent and that sheriff's investigators framed him for crimes committed by three white men. Cooper was hiding in an abandoned building near the crime scene at the time of the murders. He fled to Mexico after the murders, only to return to California and be arrested after woman accused him of sexually assaulting her at knife-point. He was scheduled to be executed on February 10, 2004, but his execution was postponed only hours before it was to take place in order to allow for DNA testing. This rare postponement followed an activist campaign led by various groups in the Bay Area and around the country, such as the Campaign to End the Death Penalty, the ACLU, Death Penalty Focus, and The Mobilization to Free Mumia Abu-Jamal. In 2001, Cooper became the first death row inmate in California to get post-conviction DNA testing of evidence. The results of those DNA tests failed to exonerate him of the 1983 murders and indicated that hairs found on three of the victims were likely their own, which undermines Cooper's theory that other people committed the murder.[1] The testing also establishes that there is strong evidence that Cooper is the donor of the DNA extracted from the following items of evidence: 1. A bloodstain found inside the Ryens' home; 2. The saliva on a hand rolled cigarette butt found inside the Ryen station wagon; 3. The saliva on a manufactured cigarette butt found inside the Ryen station wagon; 4. A bloodstain located on a tee shirt that was found beside a road some distance from the Ryen home. There is strong evidence that one of the victims, Doug Ryen, was the donor of another bloodstain found on the same tee shirt. Cooper is also consistent with being the donor of two additional blood smears and a possible donor of blood spatter on the same tee shirt.[2][3] Since his imprisonment, Cooper, who is African American, has become active in writing letters from prison decrying the judicial establishment as racist, for his absolvement, and against the death penalty in general.[4] Cooper has filed multiple appeals and applications for a writ of habeas corpus. To date, all have been denied. On December 4, 2007, the Ninth Circuit Court of Appeals denied Cooper's third federal petition for a writ of habeas corpus. The ninth circuit panel concluded: "As the district court, and all state courts, have repeatedly found, evidence of Cooper’s guilt was overwhelming. The tests that he asked for to show his innocence “once and for all” show nothing of the sort." On May 11, 2009, an en banc panel of the Ninth Circuit Court of Appeals filed an order denying Cooper's request for an en banc rehearing of the December 4, 2007 decision denying his request for relief. Four judges (Fletcher, Wardlaw, Fisher, and Reinhardt) filed dissents, indicating that they disagreed with the decision. Judge Fletcher's dissent in particular is highly critical of the majority decision. A total of eleven judges joined the dissents (fourteen votes were required to grant the request for a rehearing). Judge Rymer filed a concurrence. The U.S. Supreme Court has refused to consider an appeal.

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"The United States Supreme Court announced Monday morning that they will uphold the Ninth Circuit Court of Appeals decision to deny the appeal of California death row prisoner Kevin Cooper," today's release begins, under the heading "Supreme Court Denies Kevin Cooper’s Appeal."

"The decision by the Ninth Circuit Court was bitterly divided, and one of the many dissenting justices, Judge W. Fletcher, wrote, “The State of California may be about to execute an innocent man," it continues.

"The dissenting justices wrote over 100 pages to detail the evidence pointing away from Kevin Cooper as the perpetrator of the 1983 murders for which he was convicted, and pointing to other probable guilty parties. The dissent also detailed how the state district court “impeded and obstructed Cooper’s attorneys at every turn.”

Cooper and his supporters hoped that the Supreme Court would agree to hear his case based on the issues of his actual innocence and based on the constitutional violations in his case. The Innocence Network, California Attorneys for Criminal Justice and the California Public Defenders Association filed amicus curiae, or "friend of the court," briefs, on behalf of Cooper's innocence. The case has a long history of police and prosecutorial misconduct, evidence tampering, and numerous constitutional violations including multiple Brady violations (the prosecution withholding exculpatory evidence from the defense.)

The questions that Cooper asked the United States Supreme Court to decide are important: Is an innocent person eligible for execution? When a district court has been ordered to hold a hearing on the evidence of innocence, what process is required to ensure a full and fair hearing? Since courts have used various thresholds of innocence claims to award or deny relief, what standard of innocence applies?

Activists expressed anger and disappointment in the Court’s ruling. Crystal Bybee, of the Campaign to End the Death Penalty, said Monday, “The fact is that Kevin Cooper is an innocent man. Shocking misconduct by police and prosecutors has characterized this case from the beginning.”

Bybee further stated that the Kevin Cooper Defense Committee, a coalition of Cooper’s supporters, will continue to fight on Cooper’s behalf to prove his innocence: “Kevin Cooper has been denied justice again and again. Is California about to do what Texas did in the Cameron Todd Willingham case – execute an innocent man? We won’t let that happen.”"

More information about the Kevin Cooper is available at http://www.savekevincooper.org


Harold Levy...hlevy15@gmail.com;

EXPERT EVIDENCE (3): A "REGULAR READER" WADES IN ON WHAT CANADA'S CIVIL JUSTICE SYSTEM CAN LEARN FROM THE CHARLES SMITH DEBACLE;

"HOWEVER I DO KNOW THAT HIRED GUNS, POSING AS IMPARTIAL MEDICOLEGAL EXPERTS, PROLIFERATE THE CIVIL JUSTICE SYSTEM - AND NOBODY SEEMS TO CARE. TRUE, PEOPLE DON'T GO TO JAIL AS A CONSEQUENCE OF THE BOGUS "EXPERT" OPINIONS OF HIRED GUNS IN THE CIVIL JUSTICE SYSTEM. BUT ALL TOO OFTEN THEIR PARTISAN TESTIMONY LEADS (NOT TO WRONGFUL CONVICTIONS) BUT TO WRONGFUL DECISIONS. SOMETIMES THE CONSEQUENCES OF WRONGFUL DECISIONS CAN BE AS BAD AS BEING SENT TO JAIL (EG. DENIED MEDICAL TREATMENT AND LEFT TO SURVIVE ON WELFARE DESPITE AN MVA RELATED BRAIN INJURY)."

FROM A REGULAR READER;

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PUBLISHER'S NOTE; I am pleased to reproduce the following letter from "a regular reader" which this Blog received yesterday in connection with the post entitled: "Expert Evidence (2); Hired guns; Lessons the civil justice system can learn from the Smith debacle."

"I know the Charles Smith Blog is primarily interested in wrongful convictions in the criminal context," the letter begins.

"Hired guns the likes of Dr. Smith are a problem - but I'm not sure how many "hired guns" inhabit the Canadian criminal justice system - though I suspect Smith wasn't/isn't the only one," it continues.

"However I do know that hired guns, posing as impartial medicolegal experts, proliferate the civil justice system - and nobody seems to care. True, people don't go to jail as a consequence of the bogus "expert" opinions of hired guns in the civil justice system. But all too often their partisan testimony leads (not to wrongful convictions) but to wrongful decisions. Sometimes the consequences of wrongful decisions can be as bad as being sent to jail (eg. denied medical treatment and left to survive on welfare despite an mva related brain injury).

Here's the question: is there a recipricol relationship between hired guns in the criminal system and hired guns in the civil system? By that I mean - does the cavalier approach to the problem of hired guns in the Ontario civil justice system contribute to the lack of concern in the criminal system.?

For example - the College of Physicians and Surgeon's of Ontario's lack of action re Smith might have been born out of its long indifference to the hired guns who sell expert opinions in the civil system. I can't believe that the College did nothing about Smith for so long but now that he is long gone and no longer a member the College is all fired up to hold a disciplinary hearing - sorry but too little too late.

It is passing strange that even judges don't seem to care much about the hired gun issue. They won't allow the opinions of previous judges on the reliability of witnesses to be considered in subsequent cases - thus ensuring the hired guns are never confronted with their bias.

And lastly - the auto insurance trade journal article posted yesterday on this Blog is good in the sense that it is critical of hired guns. But it ignores the fact that it is the insured (the policy holders) who need to be protected from hired guns. Were one to search auto insurance casualty cases and read the judicial discourse - the sad fact is that it is the insurers (not the plaintiff lawyers) who keep hiring the same bunch of hired guns on whom they rely for pro-insurer (partisan) "expert" medicolegal opinions/testimony that allow insurers to blow legitimate claimants off their caseloads via wrongful decisions issued by judges who don't seem to have the heart to rid the system of its hired guns."

Best wishes; "A regular reader";

Harold Levy...hlevy15@gmail.com;

EXPERT EVIDENCE? (2); " HIRED GUNS": LESSONS THE CIVIL JUSTICE SYSTEM CAN LEARN FROM THE SMITH DEBACLE;

"'WHY IS IT THAT SOME EXPERT WITNESSES DO MORE THAN SEEK THE TRUTH AND GO BEYOND MERELY ASSISTING THE TRIER OF FACT, WHICH IS THE LEGAL FOUNDATION FOR THEIR ROLE AS AN EXPERT WITNESS, AND CROSS THE LINE, BECOMING A TRUE HIRED GUN OR ADVOCATE? ONE OBSERVES THE OBVIOUS ECONOMIC ELEMENT AND MAY ASSUME THAT THE EXPERT WITNESS MERELY DOES IT FOR PROFIT. BUT THAT WOULD NOT EXPLAIN WHY THERE ARE A RAFT OF CASES THAT HAVE COME TO LIGHT IN THE PAST FEW YEARS INVOLVING STATE EXPERTS (PATHOLOGISTS, CORONERS, ETC.) WHOSE TESTIMONY CONVICTED PEOPLE OF HEINOUS CRIMES. OF RECENT NOTE ARE THE CASES INVOLVING TORONTO PATHOLOGIST DR. CHARLES SMITH, INCLUDING THE CASE OF AN ONTARIO WOMAN CHARGED WITH STABBING HER SEVEN-YEAR-OLD DAUGHTER TO DEATH, BASED ON DR. SMITH'S EVIDENCE."

RON KOERTH; GIFFEN KOERTH FORENSIC ENGINEERING AND SCIENCE;

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PUBLISHER'S NOTE: I admire the candid approach taken to the subject of expert witnesses by Ron Koerth, is a founding partner at Giffin Koerth Forensic Engineering and Science, based in Toronto, Ontario, who asks, "Why is it that some expert witnesses do more than seek the truth and go beyond merely assisting the trier of fact, which is the legal foundation for their role as an expert witness, and cross the line, becoming a true hired gun or advocate?"

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Koerth raises this issue in an article he wrote called, "Expert Witnesses - Hired Guns or Truth Seekers" where he states that, "An expert should not care which side hires them, because the truth is still the truth

"Anyone who is a fan of spaghetti westerns will instantly know a hired gun is someone who was paid by the wealthy, evil rancher to gun down anyone who stood in his way," the article began.

"These days, in the context of expert witnesses, a hired gun does not use a deadly weapon, instead his or her weapon of choice is a pen and the tongue." it continued.

'Why is it that some expert witnesses do more than seek the truth and go beyond merely assisting the trier of fact, which is the legal foundation for their role as an expert witness, and cross the line, becoming a true hired gun or advocate? One observes the obvious economic element and may assume that the expert witness merely does it for profit. But that would not explain why there are a raft of cases that have come to light in the past few years involving state experts (pathologists, coroners, etc.) whose testimony convicted people of heinous crimes. Of recent note are the cases involving Toronto pathologist Dr. Charles Smith, including the case of an Ontario woman charged with stabbing her seven-year-old daughter to death, based on Dr. Smith's evidence. After spending two years in pre-trial custody, the woman was released after another pathologist determined the wounds on the child were likely caused by a pit bull, which is what the woman had asserted all along. Similar cases involving experts of the state providing faulty testimony can be found across the globe. Are these recently publicized cases simply evidence of incompetence, of the human capacity to make mistakes? Or do these cases hint at a bigger problem?

Consult Each Other

In our role as forensic engineers, clients regularly call us to determine the root cause in a particular loss. It could be a fire, a motor vehicle accident, a slip and fall injury, a building collapse or any number of peculiar circumstances. Experts are supposed to be independent, but it can be assumed that they are not truly independent since often only one side in a potential multi-party dispute has hired the expert. However, does that automatically make the expert a hired gun? No, it does not, and for a number of reasons. In a firm that does not support the hired gun mentality, the experts within that firm consult one another on cases in order to bounce ideas off another less involved party. This gives the expert some confidence that if more than one person comes up with the same conclusions, they are likely on the right track. Further, no person at such a firm should be afraid to challenge the opinion of another. If a junior engineer disagrees with a senior partner, the matter should be discussed and debated until it is resolved. In addition, they should not distinguish between plaintiff and defence: an expert should not care which side hires them, because the truth is still the truth. Most insurers appreciate this last point--there is no better way to be able to remain objective and truly see both sides, unless you have actually seen the case from both sides. This can be problematic for someone employed by the state, for example, because a private individual would never employ them, thus they would never see the "other side." This is why state experts must be governed by a rigid set of checks and balances.

Know When the Case is Bad

A truth seeker is not always able to help their client in the manner that a hired gun can. A truth seeker does, however, help a client that has a bad case by making that client fully aware that they do, in fact, have a bad case. This can avoid hundreds of thousands of dollars of legal expense for the client in a losing case. So why is it then that some lawyers and adjusters still hire the firm that they know will say things in a certain way? In our experience, in cases where we have come up against these hired guns it appeared that their client was optimistic of a settlement, which would have a much better outcome if they had a strong report. In some cases the other expert's report was so strong as to be almost ludicrous. Case in point: one of our engineers recently testified in a slip and fall case for the defendant. A man slipped and fell on a tiled floor, which both experts agreed had excellent slip resistance. The plaintiff expert therefore concluded that the man must have slipped and fell because of some contaminant on the floor. Ice cubes were found on the floor close to the plaintiff's head, but these were reportedly brought to the plaintiff after the man fell. The plaintiff's expert, in his report, made absolutely no mention of the fact that the man was found to be intoxicated. At trial, the plaintiff's expert stated that, due to the type of injuries sustained by the plaintiff when he fell, alcohol could not have played a part in the incident. The jury saw the complete absurdity of that argument (they, like most of us, probably have felt the effects of alcohol at some point in their life) and returned a verdict that was 100% in favour of the defendant and ordered that the plaintiff pay costs. I believe that the opinions expressed by the plaintiff's expert in this case was affected partially by economic interests (if plaintiff wins, plaintiff's expert gets more work in the future, etc.) and partially by the lack of a competing, objective voice. No one at the plaintiff's expert firm stood up and said, "your theory has some problems." Further, my suspicion is that the plaintiff expert never thought that the case would go to trial!

Testimony Based on Accepted Science

Fortunately, the current climate in the court system is leaning away from simply accepting expert witness testimony at face value. Daubert and other cases from the United States dictate that the findings of an expert witness must be based on accepted science. Many of those cases where the expert gave the client a strong report, which was primarily based on the expert's opinion, will end up costing the client in the long run. The good old days where the suave and articulate hired gun could win the day on the strength of his or her presentation are slipping away. The expert must now be both articulate and technically correct.

Hired Guns Need Not Apply

So what should the insurance industry do to protect itself? Obviously, make sure that the expert is technically qualified. Can the expert communicate effectively? Inquire as to the nature of their expert's clients: do they only do defence work or will they accept plaintiff work? How is the expert company structured? Is it a sole proprietorship or one that embraces the opinions of all of its employees and supports internal peer review of its findings? Do some research on past cases that the expert has been involved in--go online or ask around the industry; most people know which experts have the tendency to cross the line. Has the expert ever been disciplined by their professional organization or disqualified from testifying in any legal proceeding? Most importantly, be very careful of the expert that seems too willing to give you good answers--play devils advocate and ask about some of the weaknesses you yourself have identified in your case. Finally, be very wary of the expert that is unwilling to admit a mistake--we all make them.

Harold Levy...hlevy15@gmail.com;

EXPERT EVIDENCE? (1); DOES FAULTY FORENSIC ALSO CONTAMINATE THE CIVIL LITIGATION PROCESS? TORONTO SUN COLUMNIST ALAN SHANOFF ARGUES THAT IT DOES;

"WITH ORGANIZATIONS SUCH AS ASSOCIATION IN DEFENCE OF THE WRONGFULLY CONVICTED AND THE INNOCENCE PROJECT, AND WITH THE GOUDGE INQUIRY INTO THE WRONGDOING OF PATHOLOGIST DR. CHARLES SMITH, LIGHT HAS BEEN SHED ON THE MANY WRONGFUL CONVICTIONS THAT BRING DISCREDIT TO OUR CRIMINAL JUSTICE SYSTEM.".......

"BUT WE CAN TAKE STEPS TO IMPROVE THE QUALITY OF CIVIL JUSTICE RESULTS SO AS TO REDUCE THE INCIDENCE OF WRONGFUL CIVIL JUSTICE LITIGATION. SINCE EXPERT WITNESS TESTIMONY IS A COMMON FACTOR IN MANY WRONGFUL CRIMINAL CONVICTIONS IT SEEMS LOGICAL THAT EXPERT WITNESS TESTIMONY IS LIKELY A LARGE CONTRIBUTOR TO WRONGFUL CIVIL LITIGATION RESULTS. SO, A GOOD START WOULD INVOLVE A MASSIVE CHANGE TO PROCEDURES INVOLVING EXPERT WITNESSES.

WE MUST ELIMINATE THE HIRED-GUN MENTALITY OF EXPERT WITNESSES. JUDGES MUST BECOME BETTER GATE-KEEPERS OF EXPERT WITNESSES. LAWYERS MUST BE BETTER TRAINED TO CROSS-EXAMINE EXPERTS. EXPERTS MUST BE CONFINED TO GIVE TESTIMONY ONLY WITHIN THEIR SPHERE OF EXPERTISE."

ALAN SHANOFF: THE TORONTO SUN.

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"Kyle Unger has joined a long list of the wrongfully convicted, now vindicated," Alan Shanoff's column began, under the heading "Cracking down on 'expert' witnesses is a civil saver."

"A Manitoba judge acquitted Unger last month after hearing DNA evidence could not link a hair found at the murder scene to Unger," the November 1, 2009 column continued.

"Indeed there was no forensic evidence to link Unger to the murder.

The case also involved a falsely induced confession through use of a scheme known as the "Mr. Big" technique. This is an odious scam where a suspect is drawn into lucrative criminal activity and then encouraged to confess to a murder or other serious crime to satisfy his boss that he is trustworthy.

With organizations such as Association In Defence of the Wrongfully Convicted and the Innocence Project, and with the Goudge Inquiry into the wrongdoing of pathologist Dr. Charles Smith, light has been shed on the many wrongful convictions that bring discredit to our criminal justice system.

Much of the discredit is due to false or overzealous expert testimony.

But let's not kid ourselves. If there have been many miscarriages of justice in the criminal justice system due to overzealous expert testimony, what makes anybody think there haven't been even more miscarriages of justice in the civil justice system? After all, the standard of proof in the civil justice system is much lower than the beyond a reasonable doubt standard of proof used in the criminal justice system.

Logic tells me there must be many more miscarriages of justice in the civil justice system.

So what are we doing about it? It is facile to say we have an appellate court system to prevent civil miscarriages of justice. Most of the famous wrongful convictions were unsuccessfully appealed to the way to the Supreme Court of Canada.

Maybe we shouldn't care about wrongful civil justice results. After all, nobody ends up in jail due to mistakes in civil cases. But make no mistake, lives can be ruined by wrongful civil justice results. A wrongful finding of liability can lead to bankruptcy, ruined marriages, ruined retirement and severe psychological harm.

Conversely, a wrongful dismissal of a civil action can lead to catastrophically injured people living out their lives in relative poverty or with a substantial diminishment of the quality of their lives.

FINALITY AND CERTAINTY

I have no magic answer to this vexing problem. We must have some finality and certainty to civil justice disputes. We can't expect people to live with the uncertainty of a lawsuit hanging over their heads indefinitely. Barring fraud, we should not allow a civil judgement to be attacked after conclusion of the appeal process.

But we can take steps to improve the quality of civil justice results so as to reduce the incidence of wrongful civil justice litigation. Since expert witness testimony is a common factor in many wrongful criminal convictions it seems logical that expert witness testimony is likely a large contributor to wrongful civil litigation results. So, a good start would involve a massive change to procedures involving expert witnesses.

We must eliminate the hired-gun mentality of expert witnesses. Judges must become better gate-keepers of expert witnesses. Lawyers must be better trained to cross-examine experts. Experts must be confined to give testimony only within their sphere of expertise.

All previous adverse comments, judicial findings and disciplinary proceedings concerning the expert must be disclosed to the court. The fees paid to the expert must be disclosed along with all communications and documents exchanged between the expert and the side that hired him. A list of all previous cases in which the expert has testified or provided an expert report should be disclosed.

Bluntly put, we must make it as easy as possible to discredit expert witnesses and bar them from becoming advocates.

By curbing false and overzealous expert testimony we will go a long way towards curbing wrongful civil justice awards."

The column can be found at:

http://www.torontosun.com/comment/columnists/alan_shanoff/2009/11/01/11594611-sun.html

Harold Levy...hlevy15@gmail.com

CAMERON TODD WILLINGHAM CASE: STAR-TELEGRAM STANDS UP FOR INDEPENDENCE OF MEMBERS OF TEXAS FORENSIC SCIENCE COMMISSION;

"PROVIDING CONSISTENT AND ACCURATE INFORMATION IS AN ADMIRABLE GOAL. BUT ALL NINE MEMBERS OF THE TEXAS FORENSIC SCIENCE COMMISSION ARE APPOINTED INDEPENDENTLY. THEY ARE NOT SUBORDINATE TO THE CHAIRMAN, WHO IS NOT GIVEN ANY SPECIFIC POWERS IN THE LAW CREATING THE COMMISSION.

AS PUBLIC OFFICIALS, PANEL MEMBERS SHOULD BE FREE TO TALK TO THE MEDIA OR PUBLIC AS THEY CHOOSE, AS LONG AS THEY DON’T UNDERCUT THE COMMISSION’S RESPONSIBILITIES."

EDITORIAL: STAR-TELEGRAM;

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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." Two days before the Forensic Science Commission was to question Beyler in a public forum, the governor replaced its chairman and two other members whose terms were up. That forced the commission to delay the hearing so new members could read up on the case, and no new date has been set. Perry has since replaced a third member of the commission.

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"What is it John Bradley doesn’t want the public to know about the work of the Texas Forensic Science Commission?," the Star-Telegram editorial begins, under the heading "Chairman of Texas forensic science panel oversteps his authority."

"Gov. Rick Perry appointed Bradley, the Williamson County district attorney, to head the commission in September in a hasty shake-up of the panel’s membership that left lingering suspicions about the governor’s motives," the editorial continues.

"Bradley then proceeded to suggest in a public hearing that the commission might need to operate in secret on occasion. This Editorial Board cautioned against that idea on Nov. 14.

Now it sounds as though Bradley could be subtly trying to muzzle other panel members.

What he — and the governor — should realize is that this agency isn’t going to revert to obscurity, and trying to exercise dictatorial control over information is only going to draw negative attention and undermine public confidence.

The Legislature created the commission in 2005 to investigate complaints that state agencies were negligent or committed misconduct in handling forensic evidence, such as DNA analysis or toxicology, in criminal cases.

The nine-member panel gained notice when it hired a Baltimore fire expert who wrote a report questioning the arson determination that led to the capital conviction and 2004 execution of Cameron Todd Willingham.

Perry caused a stir by installing Bradley and two other new members shortly before a planned hearing on that report.

Star-Telegram reporter Dave Montgomery wrote Saturday that commission staff coordinator Leigh Tomlin had asked members for all correspondence about the Willingham case in order to comply with an open records request.

But her Oct. 30 message went further, instructing that commission policy is to "delete all commission correspondence" and saying "if you feel there is something that needs to be saved, forward it to my office."

Bradley told Montgomery that the idea was to centralize data to make it easier to comply with media inquiries.

But any direction to delete public records — which e-mails by members of a public board are — looks problematic, whatever the purpose.

It would be easier to take Bradley at his word if members hadn’t received other e-mails telling them Bradley would handle all media inquiries and statements about the commission.

Providing consistent and accurate information is an admirable goal. But all nine members of the Texas Forensic Science Commission are appointed independently. They are not subordinate to the chairman, who is not given any specific powers in the law creating the commission.

As public officials, panel members should be free to talk to the media or public as they choose, as long as they don’t undercut the commission’s responsibilities.

Each member should be focused on conducting credible, independent investigations with as much transparency as possible.

No one should use the agency as a tool for aggregating power, steering outcomes, stifling dissent or shielding from public scrutiny the work done on behalf of Texans."

Wikipedia tells us that: "The Fort Worth Star-Telegram is a major U.S. daily newspaper serving Fort Worth and the western half of the North Texas area known as the Metroplex. Its area of domination is checked by its main rival, The Dallas Morning News, which is published from the eastern half of the Metroplex. It is owned by The McClatchy Company."

The editorial can be found at:

http://www.star-telegram.com/242/story/1792469.html

Harold Levy///hlevy15@gmail.com;

MELENDEZ-DIAZ: IN THE CONTEXT OF THE CONSERVATIVE RE-EXAMINATION OF U.S. CRIME POLICY; COMMON GROUND BETWEEN LEFT AND RIGHT; NEW YORK TIMES ANALYSIS;

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"THE ROOTS OF THE CONSERVATIVE RE-EXAMINATION OF CRIME POLICY MIGHT ALSO BE FOUND IN THE JURISPRUDENCE OF JUSTICES ANTONIN SCALIA AND CLARENCE THOMAS. THE TWO JUSTICES, JOINED BY LIBERAL COLLEAGUES, HAVE SAID THE ORIGINAL MEANING OF THE CONSTITUTION REQUIRED THEM TO RULE AGAINST THE GOVERNMENT IN, AMONG OTHER AREAS, THE RIGHTS OF CRIMINAL DEFENDANTS TO CONFRONT WITNESSES.

“SCALIA AND THOMAS ARE VANGUARDS OF AN UNDERSTANDING BY THE MODERN RIGHT THAT ITS DISTRUST OF GOVERNMENT EXTENDS ALL THE WAY TO THE CRIMINAL JUSTICE SYSTEM,” SAID DOUGLAS A. BERMAN, A LAW PROFESSOR AT OHIO STATE UNIVERSITY.

THE COURT WILL HEAR ANOTHER CONFRONTATION CLAUSE CASE, BRISCOE V. VIRGINIA, IN JANUARY. IT IS A SEQUEL TO A DECISION IN JUNE THAT PROSECUTORS MAY NOT USE CRIME LAB REPORTS WITHOUT LIVE TESTIMONY FROM THE ANALYSTS WHO PREPARED THEM."

ADAM LIPTAK; NEW YORK TIMES;

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BACKKGROUND: It' not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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"WASHINGTON — In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption," the New York Times story by Adam Liptak begins.

"Civil liberties groups and associations of defense lawyers have lined up on the side of the accused," the story, published on November 23, 2009, under the heading "Right and Left Join to Take on U.S. Over Criminal Justice" continues.

"But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”

Such so-called overcriminalization is at the heart of the conservative critique of crime policy. The U.S. Chamber of Commerce made the point in a recent friend-of-the-court brief about a federal law often used to prosecute corporate executives and politicians. The law, which makes it a crime for officials to defraud their employers of “honest services,” is, the brief said, both “unintelligible” and “used to target a staggeringly broad swath of behavior.”

The Supreme Court will hear three cases concerning the honest-services law this term, indicating an exceptional interest in the topic.

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.

“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.

The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.

The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

“Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.

“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”"

Wikipedia tells us that: Adam Liptak (born September 2, 1960 in Stamford, Connecticut) is an American journalist, lawyer and instructor in journalism[1]. He is currently the national legal correspondent for The New York Times. In July 2008, Liptak was assigned to take over coverage of the U.S. Supreme Court following the retirement of Linda Greenhouse who had covered the high court for nearly 30 years. Liptak has also written articles for Rolling Stone, the New York Observer, Business Week and other publications. He is a graduate of Yale and Yale Law School and has served in the general counsel's office of The New York Times.

The story can be found at:

http://www.nytimes.com/2009/11/24/us/24crime.html?_r=1&hp

Harold Levy...hlevy15@gmail.com;

UP-DATE: BITE-MARK EVIDENCE; DOUGLAS PRADE CASE; FORMER PROSECUTOR INSISTS "WE GOT THE RIGHT MAN."

"FORMER ASSISTANT SUMMIT COUNTY PROSECUTOR MIKE CARROLL, NOW IN RETIREMENT, WAS CO-COUNSEL IN PRADE'S TRIAL. ''WE GOT THE RIGHT MAN, AND WE DIDN'T SCREW IT UP,'' HE SAID.

''THE EVIDENCE IS SO COMPELLING, AND IT'S NOT BASED ON DNA. WHEN YOU LOOK AT THE WIRETAPPING HE DID . . . AND ALL THE THINGS HE TOLD PEOPLE ABOUT HOW MUCH HE HATED HER, THAT'S PRETTY GOOD EVIDENCE IN TOTAL. THE VERDICT CAME BACK IN TWO OR THREE HOURS AFTER A LENGTHY TRIAL, SO THERE WASN'T MUCH ISSUE WITH THE JURORS.''"

REPORTER ED MEYER: BEACON JOURNAL;

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BACKGROUND: Douglas Prade, a former Akron police captain, was convicted of killing his ex-wife, Dr. Margo Prade, in 1997. He is seeking tests of a bite mark on her lab coat and scrapings from her fingernails which he insists will exonerate him.

Summit County prosecutors said DNA tests conducted before Prade's trial on items including the lab coat did not match Prade. However, they said other evidence of his guilt is overwhelming, including testimony from witnesses and experts who examined bite marks on the victim and said they matched Prade.

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"LONDON, OHIO: He still has the bearing of a police commander and the charismatic voice of a seasoned public speaker, despite spending the past 11 years in a state penitentiary," Ed Meyer's story in the Beacon Journal begins, under the heading, "Can DNA tests free ex-Akron captain?"

"It is only when Douglas Prade begins talking about the woman who has believed in him for all those years — his sister, Caralynn Prade, a legal secretary from Pearland, Texas — that his voice begins to crack and tears fill his eyes," the story continues.

"''She has done everything for me in this case . . . everything . . . and it's just amazing,'' he said, barely able to get out the words during an interview at Madison Correctional Institution.

Douglas Evans Prade, now 63, said his sister has never wavered in her belief that he was wrongfully convicted of the murder of his ex-wife, Dr. Margo Prade, on the morning before Thanksgiving in 1997.

Next month, the case will be running on a more powerful level than brother-sister emotions.

It is scheduled for oral arguments before the Ohio Supreme Court on Prade's claim that the newest DNA testing methods used in the analysis of bite-mark evidence might reveal the killer's identity.

Prosecutors tied Prade to the bite mark in his 1998 trial primarily with the testimony of Dr. Thomas Marshall, a retired Akron dentist. Using photographs of the bite mark and comparing those to dental impressions of Prade's teeth, Marshall testified that the bite mark was Prade's.

He told the jury: ''Every mark lined up with every'' one of Prade's lower-front teeth.

Marshall's testimony, however, had nothing to do with the science of testing the bite mark for the killer's DNA.

The high court — with the exception of Justice Maureen O'Connor, who was Summit County prosecutor at the time of Prade's trial — will hear arguments Dec. 16.

''My prayer is — which I believe I have said and whispered every day, as it always has been since the start of this case — that the truth be brought to light,'' Caralynn Prade wrote in an e-mail response to questions from the Beacon Journal.

The appeal has two heavyweight legal organizations defending Prade, who was an Akron police captain with 29 years of service before the murder.

Barry Scheck's Innocence Network in New York City submitted a lengthy argument stating that the latest DNA technology should be used to test the bite mark for the killer's DNA. An attorney from the Jones Day law firm of Cleveland will argue that point to the justices in Columbus.

As authorities on wrongful convictions, Scheck and partner Peter Neufeld are members of the New York State Commission on Forensic Science and are regularly consulted in high-profile cases by officials at the state, local and federal levels.

Their pro bono efforts as defense counsel in post-conviction DNA testing cases have ''to date, exonerated over 200 innocent persons,'' according to the brief filed in Prade's case.

More than half of the 200 exonerations involved errors in forensic testing of evidence, including bite-mark analysis, the brief states.

Violent death

In broad daylight, Margo Prade, 41, an Akron doctor with a thriving family practice, was found by her medical assistant slumped behind the wheel of her van in her office parking lot on Wooster Avenue at 10:25 a.m.

Bleeding was extensive from six gunshot wounds, the autopsy revealed.

The police investigation determined there was a struggle inside the van before the shooting.

Evidence of the struggle was a bite mark on Margo Prade's left inner arm and buttons torn from her lab coat.

Douglas Prade, after a lengthy trial, was convicted in September 1998 of all charges in his indictment: aggravated murder, six counts of wiretapping and one count of possession of criminal tools.

Moments before Common Pleas Judge Mary Spicer, now retired, sentenced him to life in prison without the possibility of parole for 26 years, Prade turned his back to the bench and addressed the spectators in the packed courtroom.

''I didn't do this,'' he said flatly. ''I am an innocent convicted person. God, myself, Margo and the person who killed Margo all know I'm innocent.''

As he did that day, Prade spoke calmly and to the point in his hourlong prison interview for this article.

Security video

Never wavering from his statements made more than a decade ago, he said, once again, that he did not kill his ex-wife and that the police investigators and prosecutors ''screwed up'' by pressing the case against him.

Prade said, again, that he was in the workout room at his Copley Township condominium complex when his ex-wife was shot.

Trial testimony established that there were security cameras at an auto dealership next to the murder scene. The cameras, equipped with videotape that was used and reused, showed a shadowy figure walking to Dr. Prade's van and entering it at 9:10 a.m.

A minute and a half later, the figure left he van, returned to a light-colored car and left the medical office parking lot.

Police never identified the person in the video and never found the light-colored car.

Prade said the early work of his sister, Caralynn, eventually led to a frame-by-frame analysis — called photogrammetry — of the shadowy figure by former NASA aerospace engineer and Ph.D. Charles S. Palm.

Palm's analysis focused on the position of the shadowy figure at the passenger door, Prade said, and showed the suspect was between 5-foot-6 and 5-foot-9.

''And I'm 6-foot-3,'' Prade said.

That video, along with the DNA bite-mark evidence that his defense hopes to find, Prade said, will prove his innocence.

''I'm not stupid. I'm not going to ask them to look for DNA if my DNA is there, or to look with more technical equipment at this video if that's going to show me in the video, which I know it's not,'' Prade said. ''I've been asking for this for 11 years.''

But why should anyone believe him when the jury, in one of Akron's most notorious and widely publicized murder cases, convicted him of all charges?

''Twenty-nine years I spent working a job where my integrity meant something, and I've never been known as a liar. That's the beginning,'' Prade said.

''And No. 2, I wouldn't be asking for DNA testing if they were going to find my DNA. It just doesn't make sense for me to do that.''

Prade said his sister also made early contacts with the Ohio Innocence Project in Cincinnati, which, in turn, was instrumental in bringing in Jones Day and Scheck's Innocence Network.

New DNA technology

Despite the availability of DNA testing at the time of the murder, the defense brief emphasizes that those tests were unable to provide any evidence ''as to [the] killer's identity.''

Dr. Prade's killer, the brief explains, ''bit her forearm with enough force to leave a mark on her skin through two layers of clothing — her lab coat and blouse.''

''However, according to the state's DNA expert, it was impossible to isolate and identify any DNA left by the perpetrator using the then-available DNA forensic technology, because the bite area was covered with Dr. Prade's blood,'' the brief states.

Jones Day attorney David Booth Alden, who will argue Prade's case before the high court, said the newest technology can identify the tiniest amount of male DNA, even when it is mixed with large amounts of female DNA, as was the case with the lab coat.

''Where the state's case was built around this being a bite mark by the killer,'' Alden said, ''if you were to find and identify male DNA in the bite mark that was not [Doug Prade's], or even better, identifies someone else's DNA, that's a game changer.

''I think that's the kind of thing that would reverse convictions, and it has. Your own county had the same thing happen with Clarence Elkins. I mean, Clarence Elkins was [arrested] in the same year as Doug Prade.''

Elkins, now 46, spent nearly eight years in prison, wrongly convicted of the 1998 murder of his mother-in-law.

New DNA evidence in his case, which came to light through the investigative efforts of his former wife, Melissa Elkins, vindicated him and pointed to another man.

The killer, Earl Gene Mann, pleaded guilty in August 2008 and was sentenced to life in prison.

Alden called Summit County's opposition to new DNA testing in Prade's case ''insane.''

''I mean, why?'' he asked. ''They've already spent more money opposing [our] motion than they would have by doing the testing.''

'Classic murder case'

Mary Ann Kovach, chief legal counsel for Summit County Prosecutor Sherri Bevan Walsh, said if new DNA tests ''would definitely tell us who did it, we'd be the first people to agree to have the testing done.''

Kovach said prosecution experts have indicated that DNA from saliva — the evidence that the defense is looking for in the bite mark — cannot be separated from other DNA in this case.

Kovach also said that the most compelling evidence leading to Prade's conviction, in the first place, had nothing to do with DNA.

And that, she said, was the reasoning cited in February, when Akron's 9th District Court of Appeals denied Prade's request for new DNA testing.

According to the unanimous opinion by the three-judge panel, Prade was convicted largely on the basis of evidence unrelated to DNA.

In making that point, Kovach stressed Prade's convictions on six counts of wiretapping and the number of shots fired by the killer inside the van.

The Prades were divorced in April 1997 after 18 years of marriage. The couple had two daughters together.

Prosecutors at the trial hammered away at the theory that Prade was electronically stalking his ex-wife and killed her because he had lost control over her.

''I think that's what the jury went on, clearly,'' Kovach said.

She called it a classic murder case involving domestic violence.

''He was very possessive of her, and he had to know, through the wiretapping that he was doing, that she had a new relationship and she was about to announce her engagement to a lawyer in Columbus that she was seeing,'' Kovach said.

''I think in Prade's mind, their relationship hadn't ended. Usually, when there are multiple shots like this, it's an indication of anger, resentment, frustration, lack of control — all of the signs of a stalker or a person involved in domestic violence exerting dominance . . . over the victim.''

Former Assistant Summit County Prosecutor Mike Carroll, now in retirement, was co-counsel in Prade's trial. ''We got the right man, and we didn't screw it up,'' he said.

''The evidence is so compelling, and it's not based on DNA. When you look at the wiretapping he did . . . and all the things he told people about how much he hated her, that's pretty good evidence in total. The verdict came back in two or three hours after a lengthy trial, so there wasn't much issue with the jurors.''

Evidence piles up

Attorneys from both sides at Prade's trial called 52 witnesses in 12 days of testimony and offered 243 pieces of evidence in a case ''based almost solely on circumstantial evidence that was so compelling, jurors needed only four hours to return a guilty verdict,'' the Beacon Journal's 1998 story stated.

Caralynn Prade, however, said she sat through the entire trial and cannot understand why Summit County has so strongly resisted new DNA testing for all these years.

''Why not let somebody test the DNA? Why not? There has to be DNA in a bite mark,'' she said.

She also disputed the prosecution theory that her brother lost control when he realized he was about to lose his ex-wife and their two daughters to another man.

''I undoubtedly, without a smidgen of doubt, believe in Douglas' innocence. He would not have been capable of hurting his daughters' mother,'' she said.

Prade's two daughters, now in their 20s — one is a nurse in St. Louis, the other an aspiring singer in Los Angeles — exchange letters with him frequently, he said.

They were the focus of his last words in his prison interview before corrections officials led him back to his compound.

Prade said he has challenged the system for new DNA testing for so long ''because I need to get this baggage out of their lives.''

''I don't want my kids to go through the rest of their lives thinking I killed their mother,'' he said.

''And Margo, she deserves better. She deserves justice, because they screwed it up.''"

The story can be found at:

http://www.ohio.com/news/70755092.html?mobile=true

Harold Levy...hlevy15@gmail.com;

OSGOODE HALL PRESENTS ANOTHER IMPORTANT CONFERENCE: "GOOD SCIENCE, BAD EVIDENCE? NEW PERSPECTIVE ON RELIABILITY OF EVIDENCE IN CRIMINAL PROCEEDINGS."

Last May, the Osgoode Hall Law School at York University presented an excellent conference on "expert forensic evidence in criminal proceedings: avoiding wrongful convictions," which offered considerable grist for the Charles Smith Blog.

Not content to bask in the success of that conference, Osgoode Hall is presenting on Saturday, December 5, 2009, a conference called "Good science, bad evidence? New perspectives on the reliability of evidence in criminal proceedings" which looks equally promising - especially with the participation of Elizabeth Loftus, one of my heroes.

This conference will entertain numerous topics of interest to the readers of this Blog, including: perception, judgment and decision-making - the power of suggestion in expert forensic opinion; earwitness identification and recall; manufactured memories; the confidence of witnesses; the use of syndromes, profiles and indicators; and, "false confesssions, "Mr. Big" and the Reid technique of interrogation.

More information on the conference can be found at:

http://www.osgoodepd.ca/cle/2009_criminal_proceedings/index.html

Harold Levy...hlevy15@gmail.com;

SHERRY SHERRET: JUSTICE GOUDGE'S FINDINGS; PART TWELVE; JOSHUA'S CASE;

PUBLISHER'S NOTE: In view of the Attorney General of Ontario's decision to support Sherry Sherret's acquittal at an up-coming hearing set for December 7, 2009, I am re-running several previous posts which provide insight into "Joshua's Case."

The post being re-published today ran on Thursday, November 13, 2008, under the heading, "Justice Goudge's findings: Part Twelve; Joshua's Case."

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BACKGROUND: An overview of Joshua's case prepared by Commission staff indicates that:
Joshua was born in Belleville, Ontario on September 23, 1995 to Sherry Lee-Ann Sherret and Peter. Joshua had an older half-brother born on July 4, 1994 to Sherry and another partner. Sherry, Peter, Joshua and Joshua's bother all resided together in Trenton, Ontario. Joshua died on January 23, 1996, at the age of four months in Trenton, Ontario.
At the time of Joshua's death Sherry was 20 years old. On March 27, 1996, sherry was charged with first-degree murder in Joshua's death. After a preliminary inquiry she was committed to stand trial on that charge. However, that committal was subsequently quashed and she was ordered to stand trial on a charge of second-degree murder instead.
On January 4, 1999, a new indictment charging infanticide was placed before the Ontario Court of Justice (General Division). Sherry entered a plea of not guilty. However, the Crown then read into the record certain agreed facts. The defence called no evidence in response to the facts read in and did not dispute them. As a result sherry was convicted of infanticide. On June 2, 1999, she was sentenced to a one-year custodial term followed by two years of probation. Just prior to the laying of the criminal charge, on March 7, 1996, Joshua's brother was apprehended by the Northumberland Children's Aid Society and placed in foster care. He was ultimately adopted by his foster family. In September, 2005, Sherry had another child, a daughter. The Children's Aid Society obtained a Supervision Order in October, 2006, in relation to this child. On April 11, 2007, that order was terminated.

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The post ran as follows:

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

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

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

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

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

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Failure to disregard irrelevant and prejudicial information;

"It is equally clear that the pathologist must disregard irrelevant and prejudicial information," says Justice Goudge. "Good science demands no less."

In Joshua's case, Justice Goudge faults Dr. Smith for recording in the final autopsy report that Joshua's mother was married, but did not officially live with her husband so she could continue to collect welfare.

"None of this information is at all relevant to pathology," he says..."None of the information set out above should have been included in a final autopsy report because it leaves the impression that it somehow played a part in Dr. Smith's thinking."

Preserving autopsy records:

Justice Goudge was extremely troubled by Dr. Smith's loss of exhibits in criminal case.

This is also true of Joshua's case, where he finds that Smith was asked to provide for the defence the microscopic slides and X-Rays relating to the case before the preliminary hearing.

"D. Smith failed to deliver the material requested," he says.

"In fact he lost the slides for some time, although he eventually found them.

The X-Rays, however, were lost and never found."

Misinterpreting artifact's:

Justice Goudge reports that Dr. Smith also misinterpreted artifact's in Joshua's case - Just as he had in Valin's case and Nicholas' case.

In Joshua's case, for example, Dr. Smith performed the post-mortem examination and found a microscopic hemorrhage in the connective tissues of Joshua's neck.

Dr. Smith concluded that the cause of death was asphyxia,and testified at the preliminary hearing in the case that the hemorrhage was a "worrying" finding, suggesting that Joshua was suffocated.

"That diagnosis was wrong" says Justice Goudge.

"The experts who examined the microscopic slides determined that the hemorrhage was likely caused during dissection at the autopsy.

It likely was a post-mortem artifact and was therefore unrelated to Joshua's cause of death."

Delay:

Charles Smith got caught in a lie relating to delay in the context of Joshua's case;

In March 1996, he told a police officer that he had completed his final post-mortem report, was waiting for it to be typed, but was typing the report himself at home at night because he had no administrative assistant and was the only pathologist on schedule for the next few days.

"This was untrue," says Goudge.

"Dr. Smith had access to an administrative assistant, and the 1996 schedule for pathologists showed that Dr. Smith was not the only pathologist on rotation for the few days following his conversation Sergeant MacLellan,

Despite this, when Sergeant MacLellan advised that he needed the report by the following Tuesday because court proceedings were scheduled for Wednesday, Dr. Smith responded that he did not think the report would be ready y then."

Ongoing communication with the police;

Justice Goudge heard evidence that at a meeting with police on February 8, 1996, Dr. Smith, when asked, said that he believed Sherry Sherret had killed Joshua.

"He said that mothers who kill their babies share certain characteristics," said Goudge.

"For example, they usually talk about it ahead of time, or they might be involved in relationship fights or custody battles, as a result of which they may be trying to get back at the baby's father."

But Justice Goudge concluded that Smith's remarks about the characteristics of mothers who kill their children were also inappropriate, since they were beyond his expertise.

"To say that he believed that Ms. Sherret killed her son on the basis of "hallmark characteristics" was inappropriate," said Goudge.

"He had no expertise to say so."

The speculating expert:

Justice Goudge ruled that Dr. Smith should not have offered opinions that were "speculative, unsubstantiated, and not based on the pathology findings" as he did in his evidence at the preliminary hearing in Joshua's case when he said he was "highly suspicious" that Joshua had been suffocated - even though there was no pathological evidence to support the opinion."

"I find it hard to accept Dr. Smith's explanation that he did not know that he ought not speculate," said Goudge. Pathologists provide pathology opinions. I do not see how pathologists can believe that, when there is no pathology evidence, it is open to them to speculate on what could have happened."

This humble Bloggist is quite confident that Dr. Smith was well aware that he should not give speculative evidence in court.

Whether it was based on pathological evidence or not, it certainly was an excellent way to make sure the accused parent or caregiver was convicted.

The expert and casual language;

Dr. Smith's propensity from time to time to use language that was loose and unscientific shone through in Joshua's case where he testified that, if he were a "betting man" he would say that Joshua's death was non-accidental.

It sounds like another sure-fire trick to get a conviction to me - and reinforces my belief that one has to stretch and contrive in order to convict an Innocent person.

What else would you expect from a supposedly neutral person who saw himself as a member of the prosecution team?

Cooperating with other experts:

Justice Goudge notes that court proceedings had to be postponed because Smith did to requests to locate and forward autopsy materials from Joshua's case to another pathologist for review.

This was typical of Smith.

The last thing he would ever have wanted was to have his work reviewed by another set of eyes (a truly expert set of eyes) - especially someone hired by the defence who may not have bought into his mystique.

Indeed, virtually all of his delays, could be interpreted as efforts to avoid countability - rather than the lack of training that he claimed."

Harold Levy...hlevy15@gmail.com;

JOSHUA'S CASE; PART FOUR: NOTABLE QUOTES FROM EXTERNAL REVIEWER'S REPORT;

PUBLISHER'S NOTE: In view of the Attorney General of Ontario's decision to support Sherry Sherret's acquittal at an up-coming hearing set for December 7, 2009, I am re-running a four part series on "Joshua's Case."

Part Two ran on Wednesday November 21, 2007, under the heading "Goudge Inquiry; Joshua's Case: Part four: Notable Quotes From External Reviewer's Report;"

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BACKGROUND: An overview of Joshua's case prepared by Commission staff indicates that:
Joshua was born in Belleville, Ontario on September 23, 1995 to Sherry Lee-Ann Sherret and Peter. Joshua had an older half-brother born on July 4, 1994 to Sherry and another partner. Sherry, Peter, Joshua and Joshua's bother all resided together in Trenton, Ontario. Joshua died on January 23, 1996, at the age of four months in Trenton,Ontario.
At the time of Joshua's death Sherry was 20 years old. On March 27, 1996, sherry was charged with first-degree murder in Joshua's death. After a preliminary inquiry she was committed to stand trial on that charge. However, that committal was subsequently quashed and she was ordered to stand trial on a charge of second-degree murder instead.
On January 4, 1999, a new indictment charging infanticide was placed before the Ontario Court of Justice (General Division). Sherry entered a plea of not guilty. However, the Crown then read into the record certain agreed facts. The defence called no evidence in response to the facts read in and did not dispute them. As a result sherry was convicted of infanticide. On June 2, 1999, she was sentenced to a one-year custodial term followed by two years of probation. Just prior to the laying of the criminal charge, on March 7, 1996, Joshua's brother was apprehended by the Northumberland Children's Aid Society and placed in foster care. He was ultimately adopted by his foster family. In September, 2005, Sherry had another child, a daughter. The Children's Aid Society obtained a Supervision Order in October, 2006, in relation to this child. On April 11, 2007, that order was terminated.

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The post ran as follows:

"Dr. Jack Crane reviewed Joshua's case:

Here are some notable quotes from his "Expanded Report;"

On Dr. Smith's finding of "asphyxia":

"The autopsy report prepared by Dr. Smith was quite detailed but is lacking any form of discussion or conclusion as to how the diagnosis of asphyxia, as the cause of death, was determined...Furthermore, a diagnosis of asphyxia is vague and non-specific and should properly be provided in the context of the mechanism by which it was produced, e.g.compression of neck.""

On Dr. Smith's interpretation of the significance of certain petechia haemorrhages:

"The finding of petechial haemorrhages (pinhead=sized) spots of bleeding on the surfaces of the internal organs is a common finding in all types of infant deaths and is of no significance whatsoever."

On Dr. Smith's testimony:

"It is my view that parts of Dr. Smith's testimony to the court were misleading. Whilst he does concede that he cannot be sure of the cause of death he uses, what I consider to be inappropriate language, terms such as "If I was a betting man, I would bet that it was. (Reference to death being non-accidental);.

He also commented "I am certainly suspicious of that". (Referring to suffocation);

Also in his testimony he makes reference to neck haemorrhage as being worrying and would increase the likelihood of a non-accidental etiology whereas in my opinion this was no more than an artefactual finding. (Inflicted on the body during the autopsy. H.L.);

On the so-called skull fracture Dr. Smith discovered after completing his post-mortem report;

"There is, in my opinion, no evidence of any fracture.""

Harold Levy...hlevy15@gmail.com;

JOSHUA'S CASE; PART THREE; AFTERMATH OF A FLAWED OPINION;

PUBLISHER'S NOTE: In view of the Attorney General of Ontario's decision to support Sherry Sherret's acquittal at an up-coming hearing set for December 7, 2009, I am re-running a four part series on "Joshua's Case."

Part Two ran on Tuesday, November 29, 2007, under the heading "Goudge Inquiry; Joshua's Case: Part Three: Aftermath of a flawed opinion."

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BACKGROUND: An overview of Joshua's case prepared by Commission staff indicates that:
Joshua was born in Belleville, Ontario on September 23, 1995 to Sherry Lee-Ann Sherret and Peter. Joshua had an older half-brother born on July 4, 1994 to Sherry and another partner. Sherry, Peter, Joshua and Joshua's bother all resided together in Trenton, Ontario. Joshua died on January 23, 1996, at the age of four months in Trenton,Ontario.
At the time of Joshua's death Sherry was 20 years old. On March 27, 1996, sherry was charged with first-degree murder in Joshua's death. After a preliminary inquiry she was committed to stand trial on that charge. However, that committal was subsequently quashed and she was ordered to stand trial on a charge of second-degree murder instead.
On January 4, 1999, a new indictment charging infanticide was placed before the Ontario Court of Justice (General Division). Sherry entered a plea of not guilty. However, the Crown then read into the record certain agreed facts. The defence called no evidence in response to the facts read in and did not dispute them. As a result sherry was convicted of infanticide. On June 2, 1999, she was sentenced to a one-year custodial term followed by two years of probation. Just prior to the laying of the criminal charge, on March 7, 1996, Joshua's brother was apprehended by the Northumberland Children's Aid Society and placed in foster care. He was ultimately adopted by his foster family. In September, 2005, Sherry had another child, a daughter. The Children's Aid Society obtained a Supervision Order in October, 2006, in relation to this child. On April 11, 2007, that order was terminated.

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The post ran as follows:

"SOME CASES COME BACK TO HAUNT YOU AND THIS IS ONE OF THEM;"

LAWYER BRUCE HILLIER;

"On January 4, 1999, something happened that should never happen in Canada's criminal justice system.

Sherry Sherret not guilty to infanticide but was found guilty based on the evidence from Dr Charles Smith.

Dr. Smith's opinion was at the heart of the Agreed Statement of Facts read into the court record;

The Agreed Statement reads:

"Dr. Charles Smith performed an autopsy on the baby at the Toronto Hospital for Sick Children.

He determined the cause of death to be asphyxia.

He ruled out mould or disease as a cause of death.

Pinpoint hemorrhages in the tissue of the eyelids, sometimes present in non-accidental asphyxia were not found in the case.

Dr. Smith was highly suspicion that the death as non-accidental, but there were no overt signs of violence upon which to make a conclusive finding."

"A microscopic skull fracture was discovered months after the original post mortem," the Agreed Statement of Facts continued.

"It was not initially visible to the pathologist."

Dr. Smith testified at the preliminary hearing that this skull fracture could have been caused on either an accidental or non-accidental basis and was not the cause of death.'

One can only imagine what Sherret felt when she heard Justice Byers utter the fallowing words before sentencing her to one year in jail followed by two years probation.

"To this day, I do not understand why she did it," he began.

"There is no doubt that looking after Joshua was very stressful for her; and it would seem that there were warning signs that were there to be seen

But at the end of the day only she knows what she did, and shy she did it.

And she is not telling." denies her guilt and shows no remorse," Byers continued.

"Her support system in the community - her family, her friends - reinforce that position.

Joshua did not die because his mother was suffering from some sort of post-partem depression.

His death, perhaps, is connected the fact that Sherry suffers from what the doctors have called a mixed personality disorder.

Or perhaps not.

No doubt, though, her attitude towards this tragedy is connected to that diagnosis."

We are now aware that Dr. Smith's opinion was terribly flawed.

There was no ashphyxia.

There was no skull fracture.

There was just an innocent grieving mother who had lost her son due to a natural but unexplained death; (One possibility is that Joshua accidentally suffocated during his sleep.)

I sometimes wonder how judges feel on learning that they have passed sentence on an innocent person - and the words they have said on passing sentence are seen in a different light.

In fairness, the judge usually has no information on the case except that which is provided by the parties at the particular time.

The one year prison term -sentencing was left in the hands of the judge - was not the only punishment meted on Ms. Sherret in the aftermath of Dr. Charles Randal Smith's flawed opinion.

Byers also placed her on probation for two years, saying:

"You are not to be in a parental position towards infant children; and,

"If you get pregnant, you must immediately report that to a probation officer."

We learn from an Overview Report on the case prepared by Commission staff that Sherret had a third child in September, 2005 - and that on the basis of her conviction for infanticide the local Children's Aid Society applied for an order removing her from the family home in order to prevent her from living with her new child.

The Report includes a letter "To whom it may concern" drafted by Bruce Hillier, Sherret's lawyer, to assist her with the family court proceedings;

"Faced with the prospect of a conviction and all that flows from that, I vigorously represented Ms. Sherret and at the 11th hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide, the basis at the time, Sherry was suffering from post-partem depression," Hillier wrote;

"The compromise between the Crown and the defence was seen as a way out for both sides - the Crown fearing they couldn't get a conviction of any kind and the defence fearing that a conviction for murder, while not justified, would result in a lengthy period of incarceration."

Sherret then turned to the Association In Defence of the Wrongly Accused for assistance.

Lawyer James Lockyer wrote former Chief Coroner Dr. Barry McLellan, that a review by his office of Joshua's death "acquires huge importance" because Sherret, having lost one child to adoption, now faced loss of her daughter.

"Ms. Sherret has two other children," Lockyer wrote.

"Her first born...was taken away from her at the age of eighteen months after her arrest in March 196 for Josh's murder.


(He) was subsequently put up for adoption, and now lives with his adoptive parents in Cobourg;

Ms. Sherret has written contact with him every year at Christmas and his birthday,

(He) is now 12 years old.

Her third born...is now five-months old.

Ms. Sherret, (the child's father and (the child) herself live together at their home in Belleville.

By Court order, Ms. Sherret has not been allowed to be alone at any time with her daughter since her birth;"

Lockyer stressed that a review was imperative because, "if Joshua died of natural causes, as AIDWYC believes he likely did, (and the Chief Coroner's review confirmed: HL) Ms. Sherret may be about to become the victim of a third miscarriage of justice."

"(Her daughter) will become one too."

Finally, on April 5, 2007, the Children's Aid Society applied in Court for an order terminating the existing supervision order.

A child protection worked candidly noted in an affidavit filed with the Court that, "Following the completion of the parenting Capacity Assessment, it was noted that (Sherry's) denial of any wrongdoing was concerning and further, made it impossible to treat her."

(See previous posting: Mullins-Johnson: Dilemma of the innocent;)

"However, it is now believed that (Sherry) may not have done anything wrong.

AIDWYC is now pursuing quashing of the infanticide conviction and an acquittal for Ms. Sherret in the Ontario Court of Appeal;

Lawyer Hillier cogently summed up this case in his letter "to whom it may concern" referred to above.

"Some cases come back to haunt you and this is one of them," he said."

Harold Levy...hlevy15@gmail.com;

"JOSHUA'S CASE: PART TWO: YET ANOTHER DISTURBING TALE OF IMPORTANT FORENSIC EXHIBITS LOST BY DR. CHARLES RANDAL SMITH;

PUBLISHER'S NOTE: In view of the Attorney General of Ontario's decision to support Sherry Sherret's acquittal at an up-coming hearing set for December 7, 2009, I am re-running a four part series on "Joshua's Case."

Part Two ran on Monday, November 19, 2007, under the heading "Goudge Inquiry; Joshua's Case: Part Two: "Yet Another Disturbing Tale of Important Forensic Exhibits Lost By Dr. Charles Randal Smith;"

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BACKGROUND: An overview of Joshua's case prepared by Commission staff indicates that:
Joshua was born in Belleville, Ontario on September 23, 1995 to Sherry Lee-Ann Sherret and Peter. Joshua had an older half-brother born on July 4, 1994 to Sherry and another partner. Sherry, Peter, Joshua and Joshua's bother all resided together in Trenton, Ontario. Joshua died on January 23, 1996, at the age of four months in Trenton,Ontario.
At the time of Joshua's death Sherry was 20 years old. On March 27, 1996, sherry was charged with first-degree murder in Joshua's death. After a preliminary inquiry she was committed to stand trial on that charge. However, that committal was subsequently quashed and she was ordered to stand trial on a charge of second-degree murder instead.
On January 4, 1999, a new indictment charging infanticide was placed before the Ontario Court of Justice (General Division). Sherry entered a plea of not guilty. However, the Crown then read into the record certain agreed facts. The defence called no evidence in response to the facts read in and did not dispute them. As a result sherry was convicted of infanticide. On June 2, 1999, she was sentenced to a one-year custodial term followed by two years of probation. Just prior to the laying of the criminal charge, on March 7, 1996, Joshua's brother was apprehended by the Northumberland Children's Aid Society and placed in foster care. He was ultimately adopted by his foster family. In September, 2005, Sherry had another child, a daughter. The Children's Aid Society obtained a Supervision Order in October, 2006, in relation to this child. On April 11, 2007, that order was terminated.

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The post ran as follows:

"AFTER THE EXPERIENCE IN THE JOSHUA CASE, I WOULD HAVE EXPECTED DR. SMITH TO BE MORE CAREFUL WITH EVIDENCE IN HOMICIDE CASES."

PROSECUTOR SHEILA WALSH;

Earlier postings on this Blog demonstrated how Dr. Smith had violated his responsibility to preserve forensic evidence in four murder cases;

0: Misplacing all of the forensic exhibits in the Trotta case - so that they were unavailable for trial and appeals; (See previous posting: Trotta: Another Smith Case Involving Misplaced Evidence;

0: Retaining without submitting for analysis a dark, curly, male pubic-type hair indicating that Baby Jenna may have been sexually assaulted in the Brenda Waudby case; (Discussed in Trotta posting referred to above);

0: Misplacing the only evidence that could be used to prove that William Mullins-Johnson did not kill his four-year-old niece. (See previous posting: Mullins-Johnson:: Evidence allegedly misplaced;)

As if this disgraceful, unprofessional conduct was not enough yet another loss of key forensic exhibits has been revealed in the "Overview Report" of Joshua's case; (See previous posting: Goudge Inquiry: Joshua's case; Part One: How Smith caused havoc by failing to deliver a crucial forensic report);

The loss of exhibits in the Joshua case is described by Sheila Walsh - the Crown Attorney who prosecuted Sherry Sherret (Joshua's mother) for first-degree murder - in a letter to Ed Bradley, who was prosecuting Louise Reynolds at the time.

Walsh, now deceased, explains to Bradley that the mother's defence lawyer was pressing for the microscopic slides from the autopsy because Smith had come up with damning information against his client - the discovery of a skull fracture - after signing his autopsy report.

"The defence retained their own pathologist and obtained an order for the release of the autopsy slides, on certain conditions, to the defence expert for a second opinion," Walsh wrote.

"We worked out a plan to have the slides delivered.

The slides did not get delivered.

Again, Dr. Smith ignored my slides and letters;

Finally, I found out that he had lost the slides;

They remained lost for a period of time, but they were eventually found they had not been found, our case would likely have been at an end.

Some x-rays were also lost and were never found. I don't know if this was Dr. Smith's fault or if it was someone else's;

Given what happened in this case, (being forced to offer a plea to infanticide because of the deficiencies in Dr. Smith's work H.L.) I was very surprised that Dr. Smith then lost important evidence in the (Sharon) case;

After the experience in the (Joshua) case, I would have expected Dr. Smith to be more careful with evidence in homicide cases;"

We know, however, that no one ever stepped up to the plate to protect the public by containing Dr. Smith when loss after loss occurred;

0: Prosecutors kept on calling him to testify against other unfortunate accused persons;

0: The chief coroner's office allowed him to continue running his one-man show - without any apparent interference or accountability, and,

0: There are no indications that the Hospital for Sick Children ever took him to task for the shoddy way in which he was heading the Pediatric Forensic Pathology Unit which had been entrusted to the hospital by the Ontario government;

We are now aware that the Hospital failed to set up a system for tracking, cataloguing and protecting forensic exhibits sent to the Pediatric Forensic Pathology Unit (created in 1981) for consultation purposes by coroners and pathologists elsewhere in the province until December, 2004.

That's around the time that Dr. Barry McLellan, the former chief coroner, began to probe the missing Mullins-Johnson exhibits.

Documents filed at the Inquiry indicate that McLellan's investigators - assisted by hospital staff - spent days cleaning up Dr. Smith's office before ultimately locating the missing evidence on top of Dr. Smith's desk.

(The small, dark, curly, male pubic hair that Dr. Smith retained in his possession for years in the Waudby case - without informing police or prosecutors or submitting it for forensic testing - had been kept in one of Dr. Smith's desk drawers.)

The disorder in Dr. Smith's office must have been apparent for years to all who entered it or worked there - yet Dr. Smith's Superior's in the Hospital administration apparently did nothing about it.

Nor can the famed hospital claim ignorance: There were too many media reports of controversies over Smith's handling of exhibits, going back to the Reynold's case, over the years.

On May 31, 2005, after the Star reported that the missing Mullins-Johnson exhibits had been found in an envelope on top of Dr. Smith's desk during a review of exhibits launched in April ran a revealing interview with Hospital for Sick Children spokesperson Helen Simeon.

Simeon said Smith agreed to go on an administrative leave pending a review by an “outside” pathologist after it became public that the materials in the Mullins-Johnson case were missing.

She said Smith was allowed to return after the reviewer reported that Smith was doing a satisfactory job.

The Hospital would not name the reviewer or release the report;

I wonder if that internal report will surface at the inquiry!

Given the importance of preservation and continuity of evidence - especially in an era where DNA analysis and other sophisticated scientific processes may help clear or incriminate individuals decades later - the Hospital clearly let the public down and has much to account for at the Goudge Inquiry;

Dr. Smith was a member of the pathology department - and that department was headed by chiefs of pathology over the years who in turn were supposed to be responsible to the top levels of the hospital hierarchy.

If the public is to regain confidence in the delivery of pediatric forensic service in the province it is crucial for the Inquiry to probe why Dr. Smith's superiors at the Hospital for Sick Children failed to reign him in."

Harold Levy...hlevy15@gmail.com;

SHERRY SHERRET: FOUR PART SERIES; PART ONE: HOW DR. CHARLES SMITH CAUSED HAVOC BY FAILING TO DELIVER A CRUCIAL FORENSIC REPORT;

PUBLISHER'S NOTE: In view of the Attorney General of Ontario's decision to support Sherry Sherret's acquittal at an up-coming hearing set for December 7, 2009, I am re-running a four part series on "Joshua's Case."

Part One ran on Monday, November 19, 2007, under the heading "Goudge Inquiry; The Joshua Case: Part One; How Smith Caused Havoc By Failing To Deliver A Crucial Forensic Report;"

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BACKGROUND: An overview of Joshua's case prepared by Commission staff indicates that:
Joshua was born in Belleville, Ontario on September 23, 1995 to Sherry Lee-Ann Sherret and Peter. Joshua had an older half-brother born on July 4, 1994 to Sherry and another partner. Sherry, Peter, Joshua and Joshua's bother all resided together in Trenton, Ontario. Joshua died on January 23, 1996, at the age of four months in Trenton,Ontario.
At the time of Joshua's death Sherry was 20 years old. On March 27, 1996, sherry was charged with first-degree murder in Joshua's death. After a preliminary inquiry she was committed to stand trial on that charge. However, that committal was subsequently quashed and she was ordered to stand trial on a charge of second-degree murder instead.
On January 4, 1999, a new indictment charging infanticide was placed before the Ontario Court of Justice (General Division). Sherry entered a plea of not guilty. However, the Crown then read into the record certain agreed facts. The defence called no evidence in response to the facts read in and did not dispute them. As a result sherry was convicted of infanticide. On June 2, 1999, she was sentenced to a one-year custodial term followed by two years of probation. Just prior to the laying of the criminal charge, on March 7, 1996, Joshua's brother was apprehended by the Northumberland Children's Aid Society and placed in foster care. He was ultimately adopted by his foster family. In September, 2005, Sherry had another child, a daughter. The Children's Aid Society obtained a Supervision Order in October, 2006, in relation to this child. On April 11, 2007, that order was terminated.

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"DR. SMITH IS VERY QUICK TO CONDEMN OTHER PATHOLOGISTS WHO MISS THINGS DURING THE POST MORTEM;"

PROSECUTOR SHEILA WALSH; IN A LETTER TO A COLLEAGUE PROSECUTING SHARON'S MOTHER;

"The "Joshua" case involves a woman charged with first degree murder after Dr. Charles Smith came up with a diagnosis of "Asphyxia" in his autopsy report - and later informed the prosecutor, (Ms. Sheila Walsh), that he had detected a "skull fracture."

This Blog detailed the havoc caused in the Kporwodu and Veno case when Dr. Smith failed to produce urgently required forensic reports to anxious police and prosecutors. (See previous posting: (Kporwodu and Veno: Judge "shocked" by Smith's delay in producing post-mortem report.")

Now we learn - from a letter included in the "Overview Report" prepared for the Inquiry by Commission staff - that Smith's failure to provide an essential report caused similar havoc in Joshua's case.

The letter is from prosecutor Walsh to a colleague named Ed Bradley who was prosecuting Sharon's mother at the time.

"Dr. Smith initially prepared an autopsy report which said there was no injury to the baby's skull," Walsh said in her letter.

"He then later called to say that upon re=examination of the autopsy slides, he discovered a skull fracture.

Again, I requested a written report concerning this fracture, and again he would not provide it.

(We were not depending on Dr. Smith to prove the cause of death, but rather to rule out certain things.)

The presence of the skull fracture was, of course, extremely important to the case,

Again, I never did get a report about this.

Dr. Smith is very quick to condemn other pathologists who miss things during the post mortem.

Of course, this opened the door for the defence to say he could have missed other things.

Walsh eventually agreed to allow Sherry Sherret, (Joshua's mother) to plead guilty to infanticide. (More about that plea in a future posting);

She tells Bradley that, "while there were a number of considerations that went into that decision (to agree to the plea), one significant one was my experience with Dr. Smith."

This horror story gets even worse - when we learn from the external examiners reviewing Dr. Smith's work that Dr. Smith's opinion was terribly flawed;

In short:

No evidence to support a diagnosis of asphyxia;

No evidence to support Dr. Smith's observation of a skull fracture;

No definitive cause of death revealed by the autopsy findings;

Nothing but a possibility, suggested by the position in which Joshua's body was found, that he had accidentally suffocated while sleeping;"

NEXT POST: Part Two: Goudge inquiry: Joshua's case; Yet another example of Dr. Charles Randal Smith losing important forensic exhibits in a murder case;

Harold Levy...hlevy15@gmail.com;