"Evidence that might help the mother of five establish her innocence is missing. The evidence is autopsy photographs of Rajesh’s skull, which have not been seen since 1984, when pathologist Charles Smith testified about them at Ms. Chaudhary’s trial.
In the intervening years, Dr. Smith has been discredited; his conclusions in a slew of serious cases thrown into doubt. However, Ms. Chaudhary’s dream of using the photographs to help overturn her conviction is fading.
“Imagine yourself with just one little thing holding you in prison for the rest of your life,” she said. “Wouldn’t you think that a little more care would be taken to preserve evidence that could prove someone’s innocence – especially with a murder conviction?”"
JUSTICE REPORTER KIRK MAKIN: THE GLOBE AND MAIL;
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Background: The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers.
The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation.
The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges.
William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes.
In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling.
The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, mistating evidence, chronic tardiness, and the catastrophic misinterpretation of findings.
The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."
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"Twenty-six years into a life prison term for murdering a Toronto schoolboy, Amina Chaudhary begins every day with the same ritual. She reads Sikh holy texts, and, weeping, prays for her release," the story by Globe and Mail reporter Kirk Makin published on November 5, 2010 under the heading, "Convicted woman's case at heart of debate over evidence," begins.
"It has done little good. Ms. Chaudhary has failed repeatedly in her attempts to appeal her first-degree murder conviction, obtain early parole or win exoneration," the story continues.
"Her latest move has brought her to the centre of a hotly contested court battle over the preservation of evidence in murder cases.
Ms. Chaudhary has also hinted that after 26 years of silence, she may identify those she believes murdered eight-year-old Rajesh Gupta on Feb. 3, 1982.
“I pray 24 hours a day,” the 46-year-old woman sobbed during an interview at Ontario’s Grand Valley penitentiary for women. “I was so young and naive when this mess started. I was so sheltered, so stupid. Now, life has passed me by. God only gives as much as a person can handle. How much can one person take?”
Evidence that might help the mother of five establish her innocence is missing. The evidence is autopsy photographs of Rajesh’s skull, which have not been seen since 1984, when pathologist Charles Smith testified about them at Ms. Chaudhary’s trial.
In the intervening years, Dr. Smith has been discredited; his conclusions in a slew of serious cases thrown into doubt. However, Ms. Chaudhary’s dream of using the photographs to help overturn her conviction is fading.
“Imagine yourself with just one little thing holding you in prison for the rest of your life,” she said. “Wouldn’t you think that a little more care would be taken to preserve evidence that could prove someone’s innocence – especially with a murder conviction?”
Lawyers for a chapter of the Innocence Project at York University’s Osgoode Hall Law School are seeking a broad judicial order next month that would compel the Crown to retain all murder exhibits unless an inmate has approved their destruction.
The application does not seek to exonerate Ms. Chaudhary but uses her case as an illustration of why the retention of evidence is vital.
The lawyer spearheading the application, York law professor Alan Young, argued in a legal brief that police and the Crown have always treated trial evidence as a possession they can either archive or dispose of once a trial is over.
He said that the Innocence Project has had to abandon seven cases in the past 13 years simply because potentially significant evidence could not be found.
“In wrongful conviction work, you have to go beneath the surface because there was obviously enough evidence at the trial to convict,” Prof. Young said in an interview. “I have found it enormously frustrating to be given the runaround over the past 15 years.
“In the digital era, I find it astonishing that there is so much confusion over storage of items and people don’t know where exhibits are.”
The issue arose again recently with public calls for the destruction of evidence in the case of serial killer Russell Williams. This illustrates the dangers of loose evidence retention rules, Prof. Young said.
“The automatic destruction of evidence because a crime is considered heinous reminds me of primitive societies which routinely destroyed murder weapons and other tools of crime for fear that the taint of criminality would spread throughout the community,” he said.
“The decision whether to destroy evidence should not depend on how heinous an offence may be,” Prof. Young added. “Evidence should only be destroyed when it is clear that the convicted offender will not be challenging his conviction or asserting innocence. Though I understand the impulse to destroy, it is naive to believe that the horrific memories of Williams’s crime will be erased once the evidence is incinerated.”
The Innocence Project is proposing that evidence be destroyed if a defendant states that he had no interest in it being retained. A formal court order would be made to reflect that.
In a responding brief, Crown counsel Robert Charney and Elaine Atkinson described the application as ill-defined, impractical and costly.
“It would cover every conceivable piece of material or evidence used in respect of an investigation, however ephemeral, transitory, impermanent, perishable or dangerous,” they said.
Authorities and Rajesh’s family members fought hard to keep Ms. Chaudhary behind bars until she was paroled in 2005. They portray her as an unrepentant, irresponsible woman who showed the bad judgment to choose a convicted killer – Anees Chaudhary – as her second husband.
Last November, the National Parole Board revoked Ms. Chaudhary’s parole because she had concealed income and assets, and had supplied deceitful explanations when challenged.
Ms. Chaudhary’s supporters hold her up as a model prisoner who obtained two university degrees and has shown extraordinary devotion to her children.
On the morning of his death, Rajesh disappeared while walking to school. His body was found in a parking lot several hours later. He had been strangled and sustained head injuries suggestive of an attempt to subdue him.
The police soon became convinced that Ms. Chaudhary – whose name was Sarabjit Minhas at the time – had killed Rajesh to get revenge against his uncle, her Hindu lover, Vijay Gupta, who was off in India at the time being wed in a union his parents had arranged without his knowledge.
In conversations with his lover that Vijay Gupta secretly recorded for police, Ms. Chaudhary repeatedly denied killing Rajesh - but cryptically suggested that she knew who had.
In an attempt to appease her family, Ms. Chaudhary had herself recently agreed to an arranged marriage with an older man she disliked. At her trial, Ms. Chaudhary’s defence lawyer, Ken Murray, presented the jury with an unfocused theory that pointed a tentative finger at her first husband.
In interviews with The Globe and Mail that stretch back to her early years in prison, Ms. Chaudhary has consistently asserted her innocence. She did so again in 1999 at a jury review of her case held under the Criminal Code’s “faint hope” clause.
In an affidavit prepared by the Innocence Project for a hearing this month, Ms. Chaudhary hinted for the first time that she might name two men who may have murdered Rajesh.
“Since the deceased’s murder, I have had reason to believe that family members of mine were in fact responsible,” her affidavit asserts.
The affidavit also states that two witnesses surfaced recently, one of whom claims that he heard a cousin of Ms. Chaudhary drunkenly admit that she was serving time for a crime he committed.
Ms. Chaudhary said that she kept silent in the past because she was afraid of her family and because she felt that she would be acquitted and the whole affair would blow over. She said that before her trial, she was so certain of being acquitted that she rejected a plea-bargain offer from the Crown that would have resulted in an 18-month sentence as an accessory to murder.
“The police have always put pressure on me to testify against the individuals who did it,” Ms. Chaudhary said in the interview. “I was young and didn’t know the justice system. Nobody, including my lawyer, thought they could get a first-degree murder conviction with such a lack of evidence.”
Prof. Young remarked that the plea offer was “very strange. It means they believed there were other perpetrators.”
Mr. Chaudhary’s fear of her family was not without foundation. In 1980, she survived a vicious machete attack at the hands of her brother. He later said her relationship with Mr. Gupta had been unacceptable and humiliating to her family. He was sentenced to five years in prison.
Ms. Chaudhary maintains that her arm, lacerated in the attack, was so weak that she could not possibly have dragged the unconscious Rajesh to her car. “I had a hard time dressing myself,” she said. “I just had one hand. It was really, really bad.”
Prof. Young said that Dr. Smith’s autopsy photographs could prove whether the assailant’s blow had the power to knock Rajesh unconscious.
As a convicted child-killer, Ms. Chaudhary has dwelt on the bottom rung of the prison subculture and lived in constant danger.
Since children cannot be raised in prison, she has watched as her offspring – who now range in age from 12 to 28 – were either seized by child-welfare authorities or put in foster homes. In addition, Ms. Chaudhary’s two youngest children are severely autistic. Her middle child has Asberger’s Syndrome.
Ms. Chaudhary’s life appeared to be turning around in 2006, when she was given conditional release by the National Parole Board. She and Mr. Chaudhary purchased a home in Kingston, Ont., and Ms. Chaudhary became the primary caregiver to their two youngest children.
But parole officers arrived without warning at her home to revoke her parole on Nov. 17, 2009. They accused Ms. Chaudhary of concealing income and assets, and deceiving them about how the couple financed their home.
At a National Parole Board hearing last May, her revocation was made permanent. The board expressed frustration with Ms. Chaudhary over her opaque financial dealings, her acquisition of a number of credit cards and her failure to mention previously that her marriage was on the rocks.
Ms. Chaudhary has not seen her children since.
Prof. Young said that revocations are very difficult to overturn and Ms. Chaudhary is not helped by her distrust of authority – a trait commonly seen in long-term prisoners.
“She is clearly not a danger to the community and she did very well out there,” Prof. Young added. “But she is going to have to change that part of her personality. If you don’t know her, you can take her evasiveness as sort of a consciousness of guilt; that she is hiding something.”
However, Ms. Chaudhary said that it is hardly surprising that someone who has gone through the experiences she has is wary and secretive: “I didn’t do anything,” she said. “I am so cursed with bad luck.”"
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The story can be found at:
http://www.theglobeandmail.com/news/national/convicted-womans-case-at-heart-of-debate-over-evidence/article1788025/
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com
