"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;