"As an appeal administrator for a half-dozen cases in which parents pleaded guilty to baby killings rather than try to counter evidence from pathologist Dr. Charles Smith, which later turned out to be erroneous, Judge Rosenberg noted that many spent mere weeks or months in jail instead of life.
“In how many other similar cases are we holding a hammer over the defendant?” he asked.""
JUSTICE REPORTER KIRK MAKIN: THE GLOBE AND MAIL.
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PUBLISHER'S NOTE: One of the ugliest aspects of the Charles Smith era was the fact that innocent people charged with murdering their children pleaded guilty to lesser offences in connection with the children they loved and grieved for after their lawyers told them that they would almost certainly convicted and sent to a penitentiary for life because of the involvement in the case of the man who was then the renowned Dr. Charles Randal Smith. (Since disgraced, declared incompetent and thrown out of the medical profession); These coerced pleas caused untold misery and tarnished Ontario's criminal justice system. They are a powerful argument against putting so-called experts such as pathologists on pedestals in the courtroom - and giving them a power far beyond the rendering of opinion evidence for the assistance of the court. (They are also a reminder of the need for prosecutors to carefully assess the qualifications, neutrality and ability of "experts" they call - and the need for defence lawyers to vigourously scrutinize their expertise and qualifications.)
HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG;
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BACKGROUND: The Goudge inquiry focused largely on the flawed work of Charles 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. (He has since been thrown out of the medical profession in Ontario);
The 1,000-page report by Justice Stephen Goudge slammed 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 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, 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 Smith's failings misrepresenting his expertise, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, misstating evidence, chronic tardiness, maligning genuine experts in his testimony, 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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"A top jurist has condemned plea bargaining as a form of coercion that tempts an intolerable number of innocent people into pleading guilty to avoid a harsh sentence," the Globe and Mail story by Justice Reporter Kirk Makin published earlier today under the heading, "Top jurist urges review of ‘coercive’ plea bargaining system," begins.
"Mr. Justice Marc Rosenberg of the Ontario Court of Appeal urged a thorough review of plea bargaining – a system that has become so entrenched in the past three decades that 90 per cent of criminal cases result in a guilty plea," the story continues.
"Judge Rosenberg told a weekend legal conference that plea bargaining is the result of “a big lie”: the legal system’s claim that defendants will not get a harsher penalty if they insist on a full trial and are convicted than they would if they plead guilty. In reality, he said, those convicted after a trial almost certainly get more punitive sentences than those who accept a plea offer.
“The system has become coercive and abusive,” said Judge Rosenberg, regarded by many to be the finest criminal law mind in the country. “I’m not sure how we came to a place where a coercive way is a legitimate way of doing practice. The inducement to plead guilty is too extreme. The inducement is leading to coercion.”
Many plea deals occur when a defendant is denied bail and faces lengthy pretrial custody. Others are nailed down mere hours before a trial is to proceed. In most plea agreements, a defendant pleads guilty in return for the Crown dropping some charges or agreeing to recommend a reduced punishment.
Judge Rosenberg expressed skepticism of the most common rationale for plea bargaining – that it is essential to prevent the court system collapsing under the weight of too many people seeking full trials.
“I don’t believe that,” he said. “There is no evidence the system would collapse if you did away with it.” He noted that one U.S. jurisdiction – New Orleans – banned plea bargaining several years ago, yet many people continued to plead guilty and there was no sharp increase in trials.
Simon Fraser University criminologist Bryan Kinney said in an interview that in provinces such as Ontario, police tend to lay charges without them being screened by Crown prosecutors, so it is not unusual to see excess charges laid that can later be bartered away to obtain a guilty plea.
“This would probably be used more against chronic offenders and people who are in constant contact with the police,” he said. “I’m sure this power is misused in the street culture where two sides are, day in and day out, going hammer and tongs against one another.”
In a province like British Columbia, however, the Crown winnows excess charges before they can be laid. Nonetheless, Prof. Kinney said that tempting deals are still routinely offered and accepted.
“Would the system crumble if it weren’t in place?” he said. “The problem with removing the plea process is we would have to do a substantial retooling of how we put cases through the system. I think the courts system would become backlogged quite quickly.”
Judge Rosenberg – a top Toronto defence lawyer before he was appointed assistant deputy minister in the Ontario Ministry of the Attorney-General – said that plea bargaining has largely neutered trial judges.
“One of the things I hear over and over again from them is: ‘What am I doing in the courtroom, when 90 per cent of it has already happened and I’m just expected to apply a rubber stamp?’” he said.
Judge Rosenberg also questioned the conventional wisdom that a guilty plea is an expression of remorse and that it helps society by sparing victims the need to testify. “Is that true?” he asked. “Do we know that victims don’t actually want to testify?”
As an appeal administrator for a half-dozen cases in which parents pleaded guilty to baby killings rather than try to counter evidence from pathologist Dr. Charles Smith, which later turned out to be erroneous, Judge Rosenberg noted that many spent mere weeks or months in jail instead of life.
“In how many other similar cases are we holding a hammer over the defendant?” he asked.
Judge Rosenberg also cited the case of Anthony Hanemaayer, who was convicted in 1989 of breaking into a Scarborough home and attempting to rape a 15-year-old girl. Mr. Hanemaayer pleaded guilty and spent two years less a day in jail, instead of the six- to 10-year term he would have faced on conviction. He was later exonerated.
“What principled basis was there for this huge discount that made it acceptable for Mr. Hanemaayer to plead guilty and get two years for an offence everyone else thought would result in a six-year sentence?” Judge Rosenberg asked."
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The story can be found at:
https://mail.google.com/mail/?shva=1#inbox/12e95d3416ed927b
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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://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com
