QUOTE OF THE DAY: “Vulnerable children need to be protected. But that protective role must not be confused with the role of an expert witness testifying in court. In my view, Dr. Pollanen blurred those roles."
SUPERIOR COURT JUSTICE ANNE MOLLOY;
-------------------------------------------------------------
STORY: "Ontario chief pathologist slammed by judge for offering ‘incorrect’ opinions in court," by reporter Alyshah Hasham, published by The Toronto Star on April 14, 2017.
SUB-HEADING: "A
Toronto judge released a blistering ruling this week slamming the chief
pathologist for offering opinions that were “not appropriate, not
within his knowledge and expertise, and incorrect.”
PHOTO CAPTION: "Dr. Michael
Pollanen, Ontario's chief forensic pathologist, allowed his personal
belief that a 2-year-old's death was a case of abuse to cloud his duty
to provide objective, even-handed scientific evidence to the court, a
judge ruled."
GIST: "Dr.
Michael Pollanen was appointed the province’s chief pathologist in
2006, as it became clear the dangerously flawed expert testimony of Dr.
Charles Smith had led to serious miscarriages of justice. In the 11 years since, he has led a forensic pathology overhaul to make sure the same mistakes don’t happen again. This
irony was noted by the Toronto judge who released a blistering ruling
this week slamming Pollanen for falling into the same traps that led to
wrongful convictions he helped overturn. Despite
being unprepared, “he offered expert opinions on matters that were not
appropriate, not within his knowledge and expertise, and incorrect,”
Superior Court Justice Anne Molloy wrote. The case involved a man who was accused of the second-degree murder of his girlfriend’s 2-year-old son, Nicholas Cruz. It
is agreed the toddler died after blunt force trauma to his stomach
caused his intestines to rupture. Doctors also found new and old bruises
on the toddler’s body. The accused, Joel France, has since pleaded guilty to manslaughter but has not yet been sentenced. (Nicholas’s mother, Marleny Cruz, pleaded guilty to manslaughter in January and is serving a six-year sentence.) Molloy
has not yet ruled on whether France deliberately hit or punched Cruz in
the stomach, or whether the trauma was caused by an accidental fall. However,
in a ruling on what evidence a jury would have been allowed to hear had
the case gone to trial, she found that Pollanen allowed his personal
belief that this was a case of abuse to cloud his duty to provide
objective, even-handed scientific evidence to the court. “Vulnerable
children need to be protected. But that protective role must not be
confused with the role of an expert witness testifying in court. In my
view, Dr. Pollanen blurred those roles,” she said. Molloy
noted in the ruling that she does not question Pollanen’s expertise or
integrity, and said she believes his bias to be unconscious. “It
is a compelling illustration of how easy it is to fall into these
errors and how cautious lawyers and judges must be in evaluating such
evidence.” Pollanen is “seen as a champion
of wrongful convictions and did excellent work in the past in uncovering
problems with forensic science,” said Alan Young, a professor at
Osgoode Hall who runs the Innocence Project there. He was not involved
in the case. Pollanen could not be reached for comment for this article. The
decision is a reminder for the courts not to be blinded by impressive
credentials or convincing delivery of expert evidence, says criminal
defence lawyer Daniel Brown, who was not involved in the case. As
the Smith cases and the Motherisk laboratory scandal have shown, courts
need to be extremely careful with scientific evidence, he says —
especially in cases that involve children, where it may be more
difficult to maintain objectivity. (A Star investigation exposed
questions about the reliability of Motherisk’s hair tests in late 2014,
after an Appeal Court decision cast doubt on the use of the results in a
2009 criminal case involving a Toronto mother. An independent
commission found the lab’s tests from 2005 to 2015 were “inadequate” and
“unreliable” for use in child custody and court proceedings.) Pollanen fell into several major pitfalls laid out by the landmark Goudge inquiry sparked by Smith’s work, Molloy found. Among
them was confirmation bias — reaching a conclusion and working backward
to find evidence to support it, and professional credibility bias —
being unwilling to change an opinion once stated. At
the preliminary hearing, Pollanen testified it was not possible that
the injuries to Cruz were caused by a short fall onto an object. When
cross-examined during a pretrial motion, he grudgingly admitted that was
incorrect and acknowledged he should have said he did not know the
answer because he had not looked at the literature, Molloy said. “What
concerns me about this is the willingness of Dr. Pollanen to take an
extreme and rigid position, while knowing he had not done any research
to back it up,” she wrote. She found Pollanen to be “disingenuous” and
“evasive” about the amount of time he spent on researching the
possibility of the injuries being caused by an accident. He
also repeatedly said the injuries required “significant force,” failing
to mention it was possible for a minor degree of force to cause the
same injury — which Molloy found to be either misleading or the result
of a troubling lack of research. Molloy
found that Pollanen was overreaching when he suggested that the injuries
were more likely caused by an assault rather than by accident because
of the other injuries on Cruz’s body, and that it is statistically
likelier to be an assault. She found that such evidence would be highly
prejudicial to a jury. It was
“discomforting” that it took intensive research and a skilled
cross-examination from defence lawyer Nathan Gorham to expose the
critical and concerning weaknesses in Pollanen’s opinions, Molloy wrote."
The entire story can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. 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: http://www.thestar.com/topic/