Saturday, May 18, 2013

Brenda Waudby: (Ontario); Her case is rightly featured in Julian Sher's illuminating article published in Walrus Magazine and Salon, entitled: "Trial and error in Canada: Bad forensic evidence and junk science continue to send innocent people to jail."

PUBLISHER'S VIEW: It is a pleasure to make available to the readers of this Blog the following article by Julian Sher a good friend and highly respected journalist, author of "Until you are dead: Steven Truscott's long ride into history," and producer of a phenomenal television documentary on the Brenda Waudby case - a case (and a life) deeply tainted by the former  doctor Charles Smith. Julian refers in the article to  some  doubts Peterborough (Ontario)  Police Service  that the police had  about Smith's opinion about the time at which the fatal injuries were inflicted on Baby Jenna.  In my view, the police should have been hugely concerned about Smith's  conclusions because he came up with so many widely varying times at which the fatal injuries were inflicted.  As Justice Stephen Goudge put it in his public inquiry report: "Jenna had severe injuries to her abdomen.After the autopsy, Dr. Smith told Constable Scott Kirkland,  the forensic identification officer who attended the autopsy, that Jenna had suffered a blow with a blunt object, causing a rupture to her duodenum, pancreas and liver.  There was no  evidence that the injuries had begun to heal, so Dr. Smith opined that they occurred within a few hours of death. (A time which implicated JD, the babysitter). His opinion later changed, however,  (to times that implicated Brenda Waudby) after he viewed the tissues under the microscope. In February 1997, Dr. Smith told the police that all of Jenna's injuries  occurred within 24 hours of her death. And in July, 1997, he advised that Jenna had suffered multiple  rib injuries, likely sustained  five to seven days before her death. Ultimately , the police understood  Dr. Smith's opinion to be that the injuries responsible for Jenna's death could have occurred some 24 hours before death. Jenna had been in the care of her mother, not JD., 24 hours before her death. Thus on September 18, 1997, the police arrested and charged Ms. Waudby with second-degree murder. " Although the police may have had some doubts, as Julian Sher suggests, it was mainly  through the efforts of Brenda Waudby and her criminal lawyer that  reports were obtained from true medical professionals - unlike Smith - which showed that the injuries had been inflicted within hours of Baby Jenna's death  -  and thereby cleared Brenda Waudby and implicated JD.  Without Brenda's own efforts, and the assistance of her lawyer, it is possible that Smith's time of death may have prevailed - and that she may have gone to prison for life as her daughter's killer while JD went free. Of course, we know now from the Goudge Inquiry and Brenda Waudby's complete and utter exoneration  by Superior Court Justice Michelle Fuerst,  that Smith was wrong on all counts: JD inflicted the injuries on Baby Jenna and killed her. Brenda did not inflict any harm at any time to her lovely baby daughter. She was the victim of a terrible crime and deserved to be treated as one. The Waudby case fits into Julian's article as an example of the dangers of "bad forensic evidence," and the impact such tragic  cases have on the Canadian criminal justice system.

Harold Levy: Publisher; The Charles Smith Blog.

POST: "Trial and error in Canada: Bad forensic evidence and junk science continue to send innocent people to jail," by Julian Sher, published by Salon on May 8, 2013.

GIST:  “We’re a clinic that flies by the seat of its pants,” Young tells the students before launching into a sweeping history of wrongful convictions around the world. “Trials aren’t about truth; they are about legal facts.” Then he asks the class, “What do you think are the leading causes of judicial errors? ” Most get it right: faulty eyewitness accounts, notoriously unreliable, are the main reason for wrongful convictions. Then Young reveals that the second leading culprit is bad science and cites the most exhaustive research on the subject. A 2009 study published in the Virginia Law Review examined trial transcripts of 137 accused in the US who had been exonerated by new DNA evidence. In eighty-two of the cases—more than half—so-called forensic experts gave invalid testimony, including errors about shoe prints and hair samples. The situation is as bad, if not worse, in Canada, Young tells me after class. By his count, bad science played a role in fifteen of the twenty-four most recent documented cases of wrongful convictions—more than 60 percent. “That’s a shocking figure,” he says..........Back then, Waudby was a recovering cocaine addict. She had relinquished her kids to child welfare services, but had regained custody weeks prior to Jenna’s death. Charles Smith, the pathologist who testified in the case, was the province’s leading expert. “He was a god in this field,” Waudby recalled. “How do you ever get anybody to listen [to the idea] that he might be wrong? ” Hospital staff had found rectal stretching and vulval tears—as well as a pubic hair—on Jenna and had suspected sexual assault. Smith ignored these findings and determined that the fatal blows to the toddler’s ribs and other parts of her body occurred at least a day before her death, which made Waudby the prime suspect. The police arrested her on charges of murder, and, largely due to Smith’s testimony at a preliminary inquiry, she was committed to stand trial in 1998.
Police and prosecutors consulted other medical experts, who pinpointed the time of the beating at less than six hours before Jenna died, when she was in the babysitter’s care. However, the authorities never fully disclosed these doubts to Waudby; instead, in June 1999 they stayed the murder charge and had her plead guilty to the lesser charge of child abuse. The police later arrested the babysitter for second-degree murder and sexual assault in 2005 after the young man, who cannot be named because he was a minor at the time, confessed to an undercover cop that he had beaten and molested the child. (He pleaded down to manslaughter, and as a juvenile was sentenced to twenty-two months.) Waudby’s battle was far from over. She had been one of the first to sound the alarm about Smith; as far back as 2001, she had written letters to the Ontario government begging it to investigate him, because his “oversights have destroyed many lives.” She found it hard to convince people to care about her case. “I made a lot of phone calls, I wrote a lot of letters, but it was difficult. Smith was way up there, and I was at the lower end. Accused of murdering my child, I was on the other side of that fence, at the very bottom of the scale.” In 2008, after other wrongly accused people and their lawyers complained and journalists began to investigate Smith, a provincial inquiry, led by Judge Stephen Goudge, was called. He found that Smith had erred in his examinations in at least twenty child death cases, twelve of which had resulted in convictions. The Ontario government awarded some of Smith’s victims up to $250,000 in compensation. Waudby used part of the settlement to buy a decent home for her family, and to pay for tuition at a community college, where she is completing studies to become a paralegal. Charles Smith was not the only one at fault, she says. “It was all of the systems that work together to convict.”"

The entire post can be found at:

Dear reader: Look out for future posts on the Charles Smith Blog. We are following the aftermath of the Smith debacle - and the issues relating to bad forensic evidence and junk science in the criminal court - in Canada and elsewhere in the world.


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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 found at:

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

Please send any comments or information on other cases and issues of interest to the readers of this blog to:

Harold Levy: Publisher; The Charles Smith Blog.