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;