PUBLISHER'S NOTE: Almost two decades after my first story on Charles Smith, the infamous former doctor is still in the news (in a very bizarre way) as the following columns by Hamilton Spectator scribe Susan Clairmont indicate. Amazingly, three Smith victims are still before the Ontario Court of Appeal in their quest for exoneration. Much more news to come. Much more grist for our mill. Stay tuned!
Harold Levy: Publisher: The Charles Smith Blog.
-----------------------------------------------------------
PART ONE:
COMMENTARY: "Clairmont: What if disgraced doctor caused wrongful acquittal in 1999 murder case?" by columnist Susan Clairmont, published by The Hamilton Spectator on July 20, 2017.
GIST: "It is well known that the bogus evidence of disgraced pediatric
pathologist Charles Smith led to people being wrongfully convicted of
killing children. But what if he also caused a killer to be wrongfully acquitted? The troubling question is raised now as Shelly
Kuzyk, 45, faces an aggravated assault charge after an infant she was
babysitting was brought to McMaster Children's Hospital with multiple
broken bones. In a Hamilton courtroom 18 years ago, a jury found Kuzyk not
guilty of second-degree murder in the death of another child in her
care, 15-month-old Tristin Tooke. During that trial Smith was called as a
powerful expert witness by the defence and his testimony may have been
the key to the jury's decision to find Kuzyk not guilty. Though the 1999 trial was carefully covered by media at the time,
what was never reported was that Smith's testimony was so shockingly
out of whack with what the Crown's medical experts testified to that the
discrepancy prompted the Hamilton police to write a letter to the
regional coroner. The police asked that "this matter be reviewed with the intent to
reduce the opportunity for experts from the same office providing
wildly conflicting opinions about the timing of injuries during criminal
investigations." The police never received a response to that letter, says Staff Sgt. Steve Hrab. Hrab was the homicide detective in charge of investigating
Tristan's 1997 homicide. He arrested Kuzyk for murder. His name is on
the letter sent to the coroner's office. By fluke, he is now in charge
of the current aggravated assault case against Kuzyk. All the doctors who testified at the murder trial, including
Smith, agreed Kuzyk's version of events was impossible. She claimed
Tristan received his fatal head injuries by rolling off a waterbed onto a
carpeted floor. But the issue at stake was the timing of Tristin's fatal injuries. Dr. Chitra Rao, a world renowned expert in forensic pediatric
pathology, did the autopsy. She told the trial the boy sustained his
injuries in a four- to six-hour period when Kuzyk was known to be alone
with the child. Doctors who tried to save Tristan's life agreed with
that time frame. Smith, however, expanded the window of opportunity by several
more hours, opening up the possibility Kuzyk's ex-fiancé had caused the
injuries during a brief visit with the child. The ex-fiancé was never charged and denied hurting the baby boy. It was, that jury heard, the first time Smith had ever testified
on behalf of the defence. He was lauded as the ultimate expert in his
field by defence lawyer Roger Yachetti (who told The Spec this week he
has no concerns with his client's acquittal), by Justice David Crane and
by himself. "You will forgive me for boasting," Smith said at one point. "I
do more pediatric forensic work than anyone else in the country." The problem is, he did it very, very badly. Smith's fall from grace is one of the biggest medical and legal scandals in Canadian history. His career began unravelling in about 2003 (four years after
Hamilton police raised concerns) when peers uncovered serious and
prolific flaws in his work. Eventually, at least a dozen people would have their child murder
convictions overturned, the Ontario government would financially
compensate the wrongfully convicted and their families, Smith would be
stripped of his medical licence and a massive public inquiry would
examine Smith's failures and the state of forensic pathology in Canada. (The inquiry revealed Smith had no special training in forensics, unlike Hamilton's Rao who did.) The College of Physicians and Surgeons said Smith's opinions were
"either contrary to, or not supported by the evidence," were
"misleading" and that he acted "as an advocate" rather than offering
unbiased opinions. Soon after the not-guilty verdict and years before the Smith
scandal, the Crown began an appeal of Kuzyk's acquittal on the murder
charge, but then abandoned the process, saying there were no solid
grounds. Lawyer Asgar Manek, who is representing Kuzyk on her current charge, says his client's legal history "should rest in peace." "It's not relevant for this trial," he says, adding he is leaning toward a jury trial. While the Crown would legally be able to argue that "similar fact
evidence" should be presented to the jury if Kuzyk had been convicted
on the previous murder charge, that cannot be done when there is an
acquittal. Any attempt to introduce evidence about the murder charge at a
new trial could cause a mistrial, Manek says. An appeal must be done on the basis of an error in law occurring,
and in 1999 the Ministry of the Attorney General said there were no
appealable errors. In hindsight though, there is a flaw that wasn't apparent. And that is the credibility of Smith. First, Justice Crane, in his charge to the jury, said Smith had
"a speciality in forensic pediatric pathology." In fact, Smith did not
qualify as a specialist in forensics at all. The judge also said: "Dr. Smith has outstanding credentials, and
it is his opinion that Tristan's injuries could have possibly been
inflicted as early as 6 p.m." This gave jurors permission to consider
the possibility Kuzyk's ex-fiancé caused the fatal injuries. Whether Smith's evidence was the key to the acquittal, only the six men and six women of that jury will ever know.
The entire story can be read at:
https://www.thespec.com/news-story/7461691-clairmont-what-if-disgraced-doctor-caused-wrongful-acquittal-in-1999-murder-case-/
------------------------------------------------------------
PART TWO:
COMMENTARY: "Hamilton babysitter accused in second child beating again walks away free," by Hamilton Spectator columnist Susan Clairmont, published on February 1, 2019.
SUB-HEADING: "Crown withdraws charge against Shelly Kuzyk because three other adults were with baby girl her limbs were broken, Susan Clairmont writes.
The entire story can be read at:
https://www.thespec.com/news-story/7461691-clairmont-what-if-disgraced-doctor-caused-wrongful-acquittal-in-1999-murder-case-/
------------------------------------------------------------
PART TWO:
COMMENTARY: "Hamilton babysitter accused in second child beating again walks away free," by Hamilton Spectator columnist Susan Clairmont, published on February 1, 2019.
SUB-HEADING: "Crown withdraws charge against Shelly Kuzyk because three other adults were with baby girl her limbs were broken, Susan Clairmont writes.
GIST: "For the second time, babysitter Shelly Kuzyk walked into a
courtroom accused of beating the hell out of a baby — killing one of
them — and walked out a free woman. This time, her alleged victim was an eight-week-old girl with two broken legs and a broken arm. Last time, it was 15-month-old Tristin Tooke, who suffered fatal head injuries. Unlike Tristin, the baby girl (whose identity is protected by a publication ban) has made a full recovery, court heard. Both times, the case fell apart because the Crown could not prove
Kuzyk had exclusive access to the child during the time when the
injuries were said to be inflicted. When a jury found Kuzyk not guilty of Tristin's second-degree
murder, she was completely in the clear. On Friday, however, she agreed
to a three-year peace bond prohibiting her from being alone with or in a
caregiving role to children under 14. Because she was acquitted at her 1999 murder trial, that case could not be introduced by deputy Crown attorney Janet Booy in this matter. Booy withdrew the charge of aggravated assault, following a
preliminary hearing, because at least three other adults were with the
infant during the time her limbs were broken, making it impossible to
prove Kuzyk's guilt beyond a reasonable doubt. Kuzyk's lawyer, Asgar Manek, told court his client denies she
caused the injuries, but she agrees she is one of four possible
suspects. For that reason, she accepts the peace bond. Extremely pale with blond hair in a bun, Kuzyk, 47, read a prepared statement outside the courtroom. "I believe I've been vindicated because of the fact the charge
has been dropped," she said. "I am happy and relieved I can finally move
on with my life.No members of the child's family were in court. Kuzyk's peace
bond prohibits contact with the family and bans her from possessing
weapons.On April 14, 2017, Kuzyk babysat the infant daughter of her close friend, who lived in the same apartment building, court heard. Kuzyk, who lived with her boyfriend, watched the child from 5:30
to 10 p.m. The child's mother picked her up, changed and fed her, and
noticed nothing amiss then, or during a 3 a.m. diaper change. The next morning during another diaper change, the mom noticed
the baby cried when her right leg was raised. There was a bruise near
her ankle. The mom called Kuzyk and asked if anything had happened to the girl. Kuzyk said no. At 5:30 that evening, the mom asked Kuzyk to watch the child
again, while she ran to the drugstore. After that, the baby's biological
father had the child at the park. Back in the mom's care, the child was "fussy." On April 16, the mom brought the baby to urgent care and then
McMaster Children's Hospital for an exam and x-rays. The baby had two
fractures on one leg, another to her other leg and a broken arm. A doctor who testified at the preliminary hearing said it was difficult to know exactly when each fracture occurred. The pivotal issue in Tristin's murder was also the timing of his injuries. Several trial witnesses — including emergency doctors who tried
to save the boy's life and forensic pathologist Dr. Chitra Rao, who was
an internationally recognized child abuse expert — agreed on a time
frame that left Kuzyk as the only suspect. However, a defence witness testified he believed the time frame
was wider, opening the possibility Kuzyk's fiancé could have killed
Tristin. Who was that defence witness? Disgraced pediatric pathologist Charles Smith, who would go on to
be at the heart of one of the most tragic medical and legal scandals in
Canadian history. His inept work led to at least a dozen people being
wrongfully convicted of killing children. His discredited career also
raises the possibility he caused a killer to be wrongfully acquitted. There is one more twist to acknowledge in this 20-year saga. The Hamilton police detective who arrested Kuzyk for murder all
those years ago was — by sheer coincidence — the same one who caught the
case of the eight-week-old baby with the broken limbs. The detective
has since retired. "I'm of the opinion that my client was judged mostly because of
her past acquittal," Manek said outside the courtroom, adding that he
thinks the detective failed to properly consider other suspects. Kuzyk has no children of her own, Manek said, but loved caring for the baby girl. "She adored the child."
The entire story can be read at: https://www.thespec.com/
PART THREE:
STORY: "Smith's testimony nearly sent man to death row," by Globe and Mail justice reporter Kirk Makin, published originally on February 9, 2008.
GIST: "One final, forensic bombshell exploded at the Goudge commission yesterday, when it emerged that Charles Smith testified for the state of Ohio in a 2000 child-murder case where the accused man narrowly escaped being executed. After the man, Christopher Fuller, was convicted of aggravated murder and attempted rape of his three-year-old daughter, Randi - with the help of Dr. Smith's testimony - the jury recommended that he be put to death. The trial judge, however, turned down the request. Citing the 31-year-old man's childhood of severe deprivation and his low IQ, the judge instead sentenced him to life imprisonment. The revelation emerged yesterday - the last day of testimony at the inquiry into the discredited work of Dr. Smith - after lawyer Julian Falconer stumbled across it in a database comprising 30,000 documents that was given to lawyers at the inquiry. The key document was a Sept. 22, 2000, letter from district attorney John Holcomb to Dr. Smith expressing gratitude for his "truly outstanding work." James Lockyer and Louis Sokolov - lawyers representing groups of the wrongly convicted at the inquiry - told reporters that they have not yet been able to ascertain how vital Dr. Smith's testimony was to the state's case. "I have no idea what the courts of Ohio would do with this information," Mr. Sokolov told reporters. "We are in no position to say whether this was a miscarriage of justice. "But what we do know was that a pathologist whose work has been severely discredited in this province gave evidence which contributed to a guilty verdict and [the man] is in prison for life," he added. Mr. Falconer said that, in light of Mr. Holcomb's praise for Dr. Smith, "I suggest that there is little doubt that Mr. Holcomb meant to convey to Dr. Smith that he played an important role in securing Mr. Fuller's conviction." The revelation threw the inquiry into a brief tizzy, as Mr. Falconer, Mr. Sokolov and Mr. Lockyer applied to reopen questioning of former chief coroner James Young. However, Mr. Justice Stephen Goudge ruled against them, noting that they had four months in which to discover the document and take action. In the Ohio case, the victim was determined to have died of "asphyxia" caused by neck and chest compression. The case involved forensic evidence that included the identification of minute hemorrhages as evidence of asphyxia, and a "dilated anus" as evidence of a probable sexual assault. Mr. Falconer noted that the evidence was "eerily similar" to key evidence in the 1992 conviction of an Ontario man, William Mullins-Johnson, in the sex slaying of his niece, Valin Johnson. Mr. Mullins-Johnson was exonerated in October after the Ontario Court of Appeal was told that Dr. Smith's evidence on these points was dangerously wrong. According to evidence at Mr. Fuller's trial, he initially told police that he found Randi unconscious on the bathroom floor one evening and attempted to resuscitate her in a panic. In a second statement to police, he admitted to striking her after she struggled against his attempts to force her to engage in sexual conduct. In rendering sentence, Judge Matthew Crehan said that Mr. Fuller had been dropped on his head as a child, suffered from Asperger's disorder and was depressed. Goudge commission counsel Mark Sandler told the inquiry that lawyers for Dr. Smith have informed him that the Fuller case is the only death-penalty case in which their client has played a role. Mr. Sokolov responded that, given Dr. Smith's general record for accuracy, he was not prepared to accept this assurance at face value."
The entire story can be read at:
GIST: "One final, forensic bombshell exploded at the Goudge commission yesterday, when it emerged that Charles Smith testified for the state of Ohio in a 2000 child-murder case where the accused man narrowly escaped being executed. After the man, Christopher Fuller, was convicted of aggravated murder and attempted rape of his three-year-old daughter, Randi - with the help of Dr. Smith's testimony - the jury recommended that he be put to death. The trial judge, however, turned down the request. Citing the 31-year-old man's childhood of severe deprivation and his low IQ, the judge instead sentenced him to life imprisonment. The revelation emerged yesterday - the last day of testimony at the inquiry into the discredited work of Dr. Smith - after lawyer Julian Falconer stumbled across it in a database comprising 30,000 documents that was given to lawyers at the inquiry. The key document was a Sept. 22, 2000, letter from district attorney John Holcomb to Dr. Smith expressing gratitude for his "truly outstanding work." James Lockyer and Louis Sokolov - lawyers representing groups of the wrongly convicted at the inquiry - told reporters that they have not yet been able to ascertain how vital Dr. Smith's testimony was to the state's case. "I have no idea what the courts of Ohio would do with this information," Mr. Sokolov told reporters. "We are in no position to say whether this was a miscarriage of justice. "But what we do know was that a pathologist whose work has been severely discredited in this province gave evidence which contributed to a guilty verdict and [the man] is in prison for life," he added. Mr. Falconer said that, in light of Mr. Holcomb's praise for Dr. Smith, "I suggest that there is little doubt that Mr. Holcomb meant to convey to Dr. Smith that he played an important role in securing Mr. Fuller's conviction." The revelation threw the inquiry into a brief tizzy, as Mr. Falconer, Mr. Sokolov and Mr. Lockyer applied to reopen questioning of former chief coroner James Young. However, Mr. Justice Stephen Goudge ruled against them, noting that they had four months in which to discover the document and take action. In the Ohio case, the victim was determined to have died of "asphyxia" caused by neck and chest compression. The case involved forensic evidence that included the identification of minute hemorrhages as evidence of asphyxia, and a "dilated anus" as evidence of a probable sexual assault. Mr. Falconer noted that the evidence was "eerily similar" to key evidence in the 1992 conviction of an Ontario man, William Mullins-Johnson, in the sex slaying of his niece, Valin Johnson. Mr. Mullins-Johnson was exonerated in October after the Ontario Court of Appeal was told that Dr. Smith's evidence on these points was dangerously wrong. According to evidence at Mr. Fuller's trial, he initially told police that he found Randi unconscious on the bathroom floor one evening and attempted to resuscitate her in a panic. In a second statement to police, he admitted to striking her after she struggled against his attempts to force her to engage in sexual conduct. In rendering sentence, Judge Matthew Crehan said that Mr. Fuller had been dropped on his head as a child, suffered from Asperger's disorder and was depressed. Goudge commission counsel Mark Sandler told the inquiry that lawyers for Dr. Smith have informed him that the Fuller case is the only death-penalty case in which their client has played a role. Mr. Sokolov responded that, given Dr. Smith's general record for accuracy, he was not prepared to accept this assurance at face value."
