FROM LETTER BY MICHAEL LOMER TO THEN DEPUTY-CHIEF CORONER DR. JAMES CAIRNS; APRIL 3, 2001;
"I am concerned that this is another of those cases where Dr. Smith's opinion is at odds with what is generally accepted by pathologists practicing in this area. If that is so, then a miscarriage of justice of the most serious sort may well have occurred. As well, if Dr. Smith's opinion was overreaching then the potential number of suspects would increase to include the child's mother.
I read in the Star that there is going to be a review of the professional conduct of Dr. Smith by your office. If that is to be the case, and I have no reason to disbelieve what I read in the newspaper, I am alerting you to this case. It is my view that this is another case of Dr. Smith's that ought to be looked at in the interests of justice.
I have no instructions to request anything on behalf of Mr. Mullins-Johnson and I do not purport to act for him. Simply put, I am writing as a private citizen concerned about a case that I was extremely familiar with. Any materials I have I would be happy to turn over to you."
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FROM TRANSCRIPT OF GOUDGE INQUIRY HEARING: 29 NOVEMBER, 2007;
MR. PHIL CAMPBELL: Mr. Lomer would say
16 that he never got a reply to this letter. Do you have
17 any information to the contrary?
18 DR. JAMES CAIRNS: I have no information
19 to the contrary.........
MR. PHIL CAMPBELL: It may be an obvious
11 question, Dr. Cairns, but wouldn't -- wouldn't it be
12 logical to treat a letter coming from a respected
13 criminal lawyer, who has had substantive contact with
14 your case, and is now personally concerned rather then re
15 -- retained to be concerned, to treat that as a matter
16 triggering greater concern than a -- a lawyer's letter?
17 DR. JAMES CAIRNS: The concern it
18 triggered was a look at the file and no evidence in the
19 file that he (Dr. Charles Smith) was there.
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FROM RELATED STORY BY GLOBE AND MAIL JUSTICE REPORTER KIRK MAKIN FOUND BELOW (FOLLOWING THE TRANSCRIPT); NOVEMBER 29, 2007;
"In other evidence yesterday, Mr. Justice Stephen Goudge heard that William Mullins-Johnson - an Ontario man who spent 12 years behind bars for the sex slaying of his four-year-old niece - could have been freed years earlier had Dr. Cairns not waived aside a plea from a concerned lawyer.
(Mr. Mullins-Johnson was exonerated last September by the Ontario Court of Appeal.)
The unusual plea came in an April 3, 2001, letter from Mr. Mullins-Johnson's former lawyer - Michael Lomer - at a time when Dr. Smith's work was coming into disrepute. Mr. Lomer said that, although he no longer represented Mr. Mullins-Johnson, the conviction had long troubled him - particularly since it was based largely on autopsy conclusions from Dr. Smith."
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PUBLISHER'S NOTE: It is with great sadness that I note that Michael Lomer - whose name many will know from the Goudge Inquiry into numerous cases involving Dr. Charles Smith - has passed away. I knew Michael through the Criminal Lawyers Association, the Association in Defence of the Wrongly convicted, and of, course, his outstanding representation of Marco Trotta in the courts and at the Goudge Inquiry. Indeed when I first began looking into the William Mullins-Johnson case back in 2004, as a reporter for the Toronto Star, Michael, who had represented Mr. Mullins-Johnson on both his appeal to the Ontario Court of Appeal and to the Supreme Court of Canada, invited me to discuss the case at his office. I sensed almost immediately is that Michael had a profound belief that Bill Mullins-Johnson was innocent. I also sensed that Michael was personally horrified that Bill's appeals had been dismissed by both the top court in Ontario and the top court in the land - and that he was still behind bars serving a first degree murder sentence for the murder of Valin Johnson, his beloved 4-year-old niece. (Who, it turned out had been neither murdered or sexual assaulted as Smith had attested - but had died a tragic natural death.) As our conversation proceeded Michael showed me a letter he had written as a private citizen to then Deputy Chief Coroner Dr. James Cairns, desperately pleading with Cairns from the bottom of his heart to review the Mullins-Johnson case. It was the first time in my decades in journalism that I had ever seen a lawyer attempt to stay involved in a case as a citizen after the appeal process had been exhausted in a personal bid to remedy a miscarriage of justice. Sadly, as the above transcript portion points out, Michael's plea was ignored - like so many alarm bells over the years. Indeed, the Chief Coroner's office did not even give him the courtesy of a reply. I am publishing herein, in its entirety, Exhibit 115716 to the Goudge Inquiry - Michael Lomer's letter to Dr. Cairns - as a testament to a very fine lawyer and a wonderful human being, as all of the above attests. (It is followed by lawyer Phil Campbell's cross-examination of Dr. Cairns on the letter - also in its entirety - and a related Globe and Mail story by Justice Reporter Kirk Makin);
HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG; (
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LETTER FROM MICHAEL LOMER TO THEN DEPUTY CHIEF CORONER DR. JAMES CAIRNS; APRIL 3, 2001;
April 3, 2001;
Dear Sir.
RE: William Mullins=Johnson
I am writing you with respect to Mr. Mullins-Johnson who was convicted of first degree murder some time ago. I was counsel with respect to his appeal to the Court of Appeal for Ontarop and his subsequent appeal to the Supreme Court of Canada. I did not do his trial. Dr. Charles Smith was the pathologist. I am no longer Mr. Mullins-Johnson's lawyer and have not been since the hearing in the Supreme Court of Canada a couple of years ago. However, it is a case that has always caused me a nagging doubt with respect to his guilt.
I am writing this letter by memory but there were three main issues of interest to pathology at the trial and they were:
1. Cause of death;
2. Cause of death;
3, Whether the deceased child had been sexually assaulted at or about the time of death.
There were four pathologists involved in the case and it was only Dr. Smith who testified that the child was sexually assaulted at or around the time of death. Dr. Smith was the only one of the four who saw the microscopic artifact that was the basis for his conclusion that the child died during the course of a sexual assault. As you are no doubt aware the law is that a jury can accept or reject the evidence given by any expert witness. The jury clearly accepted the evidence of Dr. Smith and rejected the evidence of the two pathologists called by the defence. Otherwise the jury could not have convicted Mr. Mullins-Johnson of first degree murder. One of the defence pathologists was Dr. Ferris. I am concerned that this is another of hose cases where Dr. Smith's opinion is at odds with what is generally accepted by pathologists practicing in this area. If that is so, then a miscarriage of justice of the most serious sort may well have occurred. As well, if Dr. Smith's opinion was overreaching then the potential number of suspects would increase to include the child's mother.
I read in the Star that there is going to be a review of the professional conduct of Dr. Smith by your office. If that is to be the case, and I have no reason to disbelieve what I read in the newspaper, I am alerting you to this case. It is my view that this is another case of Dr. Smith's that ought to be looked at in the interests of justice.
I have no instructions to request anything on behalf of Mr. Mullins-Johnson and I do not purport to act for him. Simply put, I am writing as a private citizen concerned about a case that I was extremely familiar with. Any materials I have I would be happy to turn over to you.
Yours very truly.
Michael Lomer;
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GOUDGE INQUIRY: TRANSCRIPT; NOVEMBER 29, 2007
17 CONTINUED BY MR. PHIL CAMPBELL:
18 MR. PHIL CAMPBELL: Okay. This is
19 115716; a letter from Mr. Lomer to -- to you personally.
20 Have you seen this document any time recently, because
21 I'd sooner just summarize it, than read it?
22 DR. JAMES CAIRNS: Oh, no, I -- I -- I
23 have seen it recently, yes.
24 MR. PHIL CAMPBELL: It's a letter dated
25 April 3rd, 2001, and it is in it's substance a request by
93
1 Mr. Lomer as former counsel for Billy Mullins-Johnson, to
2 have his case reopened because of what he understands to
3 be the external review that your office has just visibly
4 promised will be conducted in relation to Dr. Smith,
5 correct?
6 DR. JAMES CAIRNS: Correct.
7 MR. PHIL CAMPBELL: And he says:
8 "This is a case that -- "
9 As he puts it.
10 " -- has always caused me nagging
11 doubt."
12 With respect to his guilt, even though he
13 writing now as a private citizen, correct?
14 DR. JAMES CAIRNS: Correct.
15 MR. PHIL CAMPBELL: Mr. Lomer would say
16 that he never got a reply to this letter. Do you have
17 any information to the contrary?
18 DR. JAMES CAIRNS: I have no information
19 to the contrary.
20 MR. PHIL CAMPBELL: As Dr. Smith's
21 reliability and reputation plunged between 2001 and 2002,
22 was any consideration, at that time, to revisiting his
23 old cases. You've talked about concern regarding his
24 current cases.
25 DR. JAMES CAIRNS: No consideration was
94
1 given to reviewing his old cases.
2 MR. PHIL CAMPBELL: And not generally and
3 not in response to Mr. Lomer's specific concerns about
4 one (1) case.
5 DR. JAMES CAIRNS: I will indicate that
6 this letter appears to be coming from a private citizen,
7 so it -- it -- the letter itself is a bit ambiguous. But
8 there is on this letter a -- a notation from my executive
9 officer, Jeff Mainland, which pulls up the date of death
10 of the deceased.
11 And to the -- at that time, when that was
12 pulled up, we could find no reference to Dr. Smith being
13 involved with that case at all.
14 MR. PHIL CAMPBELL: No reference to Dr.
15 Smith being involved with Valin's case?
16 DR. JAMES CAIRNS: Because he had been
17 hired by the Crown attorney, in that case, and,
18 therefore, there was nothing in our records to indicate
19 that. There was no report done by -- there was no
20 written report to the best of our ability to find --
21 there was no written report done by Dr. Smith for that
22 case.
23 Even though in a memo in 1997 -- and I
24 can't bring it forward, it -- it is a letter where Dr.
25 Smith wrote to me saying that he was continuing to get
95
1 requests for consultations. Now, that he got a request
2 for consultation, what's should he do; just reply to the
3 coroner or the pathologist or should he copy it to the
4 investigating coroner, the regional coroner, and the
5 chief coroner's office. And since he was spending some
6 time -- considerable time doing this, would it be
7 appropriate for him to bill our office for doing that
8 service.
9 And I wrote back indicating that if you're
10 doing a consultation, please send a copy of that
11 consultation to our office, and we will accommodate a
12 reasonable remuneration on that. Now, I do not -- cannot
13 -- first of all, I know he did not write a consultation
14 because we could not find a consultation even after the
15 trial.
16 So there would have been -- and there was
17 no consultation in our file, and from a review of our
18 file, it appeared he had nothing to do with the case.
19 MR. PHIL CAMPBELL: So was the inference
20 that you drew from that scrutiny of your records, that
21 Mr. Lomer had simply had some spurious false memory about
22 his involvement with this man serving a sentence for
23 first degree murder, and you dismissed the concerns in
24 that letter in light of what was then known about Dr.
25 Smith because you couldn't turn up a -- a document?
96
1 DR. JAMES CAIRNS: This letter we
2 considered to be from a private citizen. We weren't sure
3 exactly where he was going with it, but the answer to
4 your question is, we couldn't find any reference to Dr.
5 Smith and tha -- that was it.
6 MR. PHIL CAMPBELL: And was review, at
7 that time, purely internal?
8 DR. JAMES CAIRNS: The review, at that
9 time, was purely a look at the file for that deceased
10 individual.
11 MR. PHIL CAMPBELL: You didn't think
12 maybe you'd call a Crown attorney or a police office to
13 see if Dr. Smith had touched the case?
14 DR. JAMES CAIRNS: I -- I've just
15 answered that. The only thing that was done was the
16 review of the file.
17 MR. PHIL CAMPBELL: And would that be
18 another thing in retrospect to regret about your office's
19 handling of Dr. Smith's cases?
20 DR. JAMES CAIRNS: In retrospect,
21 hopefully, if somebody is doing a consultation they will
22 be sending a copy of it to our -- to our file. And the -
23 - the letter -- and I'll leave it up to the Commissioner,
24 the -- the letter, although it was coming from a lawyer,
25 it wasn't the typical lawyer letter.
97
1 Well, I'm just a private individual and,
2 I'm bringing to you this attention, so, we did not pay as
3 much attention to that letter as we would have had it
4 been written, shall we say, as a very formal letter. But
5 even then that's not to -- that's not -- that's not to
6 blame Mr. Lomer.
7 The -- all that was done was we looked,
8 couldn't find it in the file and thought, this case has
9 nothing to do with him.
10 MR. PHIL CAMPBELL: It may be an obvious
11 question, Dr. Cairns, but wouldn't -- wouldn't it be
12 logical to treat a letter coming from a respected
13 criminal lawyer, who has had substantive contact with
14 your case, and is now personally concerned rather then re
15 -- retained to be concerned, to treat that as a matter
16 triggering greater concern than a -- a lawyer's letter?
17 DR. JAMES CAIRNS: The concern it
18 triggered was a look at the file and no evidence in the
19 file that he was there. In fact, the irony is, when I
20 eventually went to talk to Dr. Smith, and I think we
21 heard this evidence, when we were looking for the slides,
22 initially Dr. Smith said he had absolutely nothing to do
23 with the file.
24 Now it was only on prompting by bringing
25 in his secretary, because we're saying, Look -- now at
98
1 that time, I did have evidence that he was involved in
2 the file, because I'd read the transcript.
3 So I said, Come on, what do you mean you
4 have no recollection of this, I have a transcript. No, I
5 don't remember any of it. And it took the intervention
6 of his secretary to indicate.
7 Even though, sadly, in preparing for this
8 Inquiry, I realized that in the intervening before the
9 Crown Law Criminal requested us to try and get that, that
10 there had been umpteen letters to him saying, We need
11 these.
12 So how with those umpteen letters sent to
13 him, he could sit there that day and say, I don't even
14 remember, is mind boggling."
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RELATED GLOBE AND MAIL STORY: KIRK MAKIN; NOVEMBER 29, 2007; UNDER THE HEADING, "DISCUSS REOPENING 10 OF SMITH'S CASES, DEPUTY CHIEF CORONER SAYS;
"Ontario should actively consider reopening 10 cases involving dead children in which their parents were convicted based on evidence from disgraced pathologist Charles Smith, the province's deputy chief coroner said yesterday.
"If I were sitting here as chief coroner today, I would indicate that I would be willing to initiate a meeting with senior officials of the Attorney-General regarding any of the cases where we know there is grave concern about the validity of a conviction," James Cairns told the Goudge commission.
His admission came after considerable prodding from Phil Campbell - a lawyer representing eight of the parents - who attacked Dr. Cairns for not taking pro-active steps to correct the doubtful convictions.
The 10 cases are among a group of 20 where a review by international experts uncovered serious errors made during autopsies by Dr. Smith, precipitating the Goudge inquiry. All have completed their sentences but continue to suffer the stigma of a criminal conviction. The other 10 defendants were acquitted or have already been exonerated.
The inquiry has heard that unless the Crown agrees to reopen their convictions, the parents will be stuck with enormous legal bills and years of litigation.
"I feel that our office should support in the best way it can these cases," Dr. Cairns said. "I would personally have no problem meeting with senior officials of the Attorney-General's ministry to discuss this."
In other evidence yesterday, Mr. Justice Stephen Goudge heard that William Mullins-Johnson - an Ontario man who spent 12 years behind bars for the sex slaying of his four-year-old niece - could have been freed years earlier had Dr. Cairns not waived aside a plea from a concerned lawyer.
(Mr. Mullins-Johnson was exonerated last September by the Ontario Court of Appeal.)
The unusual plea came in an April 3, 2001, letter from Mr. Mullins-Johnson's former lawyer - Michael Lomer - at a time when Dr. Smith's work was coming into disrepute. Mr. Lomer said that, although he no longer represented Mr. Mullins-Johnson, the conviction had long troubled him - particularly since it was based largely on autopsy conclusions from Dr. Smith.
"I am alerting you to this case," Mr. Lomer wrote, offering whatever aid or documents Dr. Cairns might need. "It is my view that this is another case of Dr. Smith's that ought to be looked at in the interests of justice."
Dr. Cairns said yesterday that he conducted a quick search of his file on the Mullins-Johnson case after receiving the letter, but could find no reference to Dr. Smith having worked on the case. He promptly dropped the matter.
"So, you concluded that Mr. Lomer had some spurious false memory about having been involved in the case?" Mr. Campbell asked sharply. "Wouldn't it be logical for a letter from a respected criminal lawyer to be treated with greater concern?"
Mr. Campbell said that a simple phone call to Mr. Lomer, Dr. Smith or others who were connected with the case would have instantly revealed Dr. Smith's role, and started the ball rolling toward Mr. Mullins-Johnson's exoneration much earlier.
Dr. Cairns cast blame on Dr. Smith for not notifying his office that he was acting for the Crown in the case. "Although the letter [from Mr. Lomer] is from a lawyer, it was written as from a private citizen," he added. "We did not pay as much attention to it as we would a formal letter from a lawyer."
Dr. Cairns also testified that:
It took him a half-hour to coax a senior Crown official, Kenneth Campbell, to seriously consider a report from Ontario chief forensic pathologist Michael Pollanen, stating that Dr. Smith had erred in the Mullins-Johnson case. Dr. Cairns said he admonished Mr. Campbell not to belittle Dr. Pollanen and dismiss him as "a young whippersnapper."
The negativity surrounding the Smith scandal has already caused several people he knows to turn away from a field already starved for practitioners.
Late yesterday, Peter Wardle, a lawyer representing five families who are suing Dr. Smith, accused Dr. Cairns of helping build Dr. Smith into a towering figure, then concealing his collapsing credibility.
"I suggest that one of the factors in play throughout this entire period was that you and [chief coroner James] Young were determined that if Dr. Smith was going down, the Office of the Chief Coroner was not going down with him," Mr. Wardle said.
"I do not accept that," Dr. Cairns said.
"If he had feet of clay, that would be highly embarrassing for your office," Mr. Wardle persisted.
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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://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
