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View the entire episode (aired on Saturday March 16, 2019) at:
https://www.ctvnews.ca/w5/who-left-little-dusty-bowers-to-die-in-the-snow-1.4334156
Thanks to CTV for making this important presentation available. It is a hugely important public service - television journalism at its finest by W5, a top notch investigative program. HL.
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PUBLISHER'S NOTE (1): W5's probe of the July Bowers case 'Who left little Dusty Bowers to die in the snow?' provides a very apt portrayal of disgraced pathologist Charles Smith. Anyone who views the excellent investigative piece will understand why Smith, the namesake of this Blog, was once correctly described as an earthquake under Canada's criminal justice system. The viewer will also appreciate the toxic mix of incompetence and an all-too-willingness to accommodate the investigating authorities (whatever the evidence may be), often with horrific consequences to innocent people, and to the criminal justice system. Yet Smith was viewed by many many actors in the criminal justice system, including police, who rely heavily on the words of pathologists, prosecutors, judges as a 'God of pathology' - which, undoubtedly was how he wanted to be perceived, and what he tried so hard to accomplish. And, with his elegant bearing and soft believable voice, jurors tended to swallow up every word. Bravo to Avery Haines, former prosecutor Brian Farmer, W5 and CTV for this excellent investigative piece which viewers will note led to one very positive result.
Harold Levy; Publisher; The Charles Smith Blog.
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PUBLISHER'S NOTE: (2): Incredibly, as in the CTV 'W5' documentary "Who left little Dusty Bowers to die in the snow, we are still hearing about disgraced pathologist Charles Smith - the namesake of this Blog - often many years after his work on the case, if not decades, was concluded. This documentary beautifully illustrates Smith's willingness to provide the police investigators with what they wanted to hear - to hell with objective forensic evidence. (Or as the W5 documentary puts it, Smith's propensity to tailor his evidence to match Crown theories.) As W5 Journalist Avery Haines tells viewers with respect to the autopsy report: "The man who wrote this went to be the most disgraced pathologist in Canadian history. The pathologist's name is Charles Smith...At the time he was considered a medical God - a pediatric pathologist at Toronto's renowned Hospital for Sick Children...In a case with no motive, no physical evidence, and only a dream, Charles Smith's testimony was vital." As Prosecutor Brian Farmer then put it: The important part of the case was the timing where Julie Bowers where Julie Bowers reported her child missing and where she went. So the forensic portion dealing with the time of death and actual condition of Dustin when he was examined were of critical importance - absolute critical importance. Avery Haine: "On the stand Smith told the jury that parts of Dusty were frozen because in his medical opinion Dusty had been left in the bitter cold for up to 27 hours. That's a timeline that stretched back to one hour before Julie Bowers reported her missing. Brian Farmer: Dr. Smith very quickly confirmed what the police believed and everybody else believed at the time. Dr. Smith's evidence fitted so perfectly with the conclusions people had come to. That was the problem. It fit so perfectly. Avery Haines: So why was it a problem? Well, because that perfect fit was brand new. Before trial Charles Smith offered two different time lines - eventually coming up with one that fit the Crown's theory. (Defence Lawyer) Jack) Pinkosfky hammered Smith on his changing opinion and destroyed the doctor's credibility on the stand. Avery Haines to Brian Farmer: What's going on in your mind when you're watching Charles Smith on the stand? Brian Farmer: I'm watching the jury and I could see that this had a profound effect on them. I had a sick feeling at that point because I thought, you know, how do we explain this? Is there any way to recover? Avery Haines: Did you have a sick feeling because you were watching a case crumble? Or did you have a feeling that maybe police got it wrong? Brian Farmer: It's just that the mind starts to question how this possibly happened with a witness as important, as well recognized as Charles Smith. Avery Haines: Because nobody knew who Charles Smith would go on to become? Brian Farmer: Exactly. This guy was at the top of the pyramid. The chief pathologist at Toronto Sick Children Hospital. (HL. Smith was not chief pathologist at Sick Kids as most people erroneously thought. But he did not go out of the way to correct the misleading impressions.) Farmer (continuing): You can't get any bigger than that. Avery Haines: It would be years before the public learned that Charles Smith had a long history of tailoring his testimony to match crown theories. In 2005, 45 of his child autopsies were reviewed in an unprecedented inquiry. Narrator: The verdict from Justice Steven Goudge was scathing and blunt. Avery Haines: The findings? Smith made questionable conclusions in 20 cases. So far 5 convictions have been overturned. But if Brian Farmer thought that the Charles Smith timeline issues hurt his case, what happened next was about to make it worse. Voice of Dr. Janice Ophoven. "I basically told the jury that there was no way that Julie Bowers could have been responsible for the death of her son. Avery Haines: Dr. Janice Ophoven is a pediatric pathologist in Minnesota who was flown in by the defence to testify. At the time she was considered one of the world's leading expertd in child hypothermia. Janice Ophoven: Given the time that he was supposed to be outside, where's the damage? Avery Haines: Remember when Charles Smith...claimed that Dusty's body was frozen? Dr. Ophoven says that's just not true. If Dusty had been left by Julie at the time police say she left him Dusty should have been frozen solid. Dr Ophoven: Yeah, absolutely. Avery Haines: He wasn't frozen solid? No. He had a cold injury on his cheeks. He had effects of cold on his vocal chords, but there was no damage to any of his tissues, any of his organs. There was nothing. The evidence absolutely did not confirm the state's theory that this child had been put outside before she called the alarm. It just didn't. Avery Haines: 100%. Dr. Ophoven. 100%: 100% not. Avery Haines. Crown Attorney Brian Farmer watched as his case was dealt a major blow by an expert with a lot of credibility. Brian farmer: I was stunned because when we found out about her existencee of course we did some research on her, and found out that she wasn't just a defence hack expert. Avery Haines. She's the real deal. Brian Farmer: She's the real deal; Most of the work she had done was for district attorneys. I've never known of a trial where the defence has called such significant evidence that just didn't raise some doubt but absolutely devastated the Crown's case. Avery Haines: But the biggest and most heart-breaking twist was yet to come, Avery Haines to Dr. Ophoven: You dropped a bombshell in your testimony at Julie Bower's trial. Janice Ophoven. Right. It's my belief that the most likely time that Dusty died was when he was in the bag being transported to Toronto for autopsy. Avery Haines: You believe that Dusty died in the body bag? Dr. Ofhaven: "Yes, I do. Absolutely. Avery Haines: It was unbelievable and devastating testimony, that Dusty Bowers may have been alive when he was discovered and then left for hours on that wooden lane way. Avery Haines (to Brian Farmer): What was that moment like in court? Brian Farmer: Well, Two or three jurors stood up and bent over. I thought they were going to be sick....other jurors, you could see them physically whincing. I thought that, oh man, we are in serious trouble.The episode moves on to a quote from Toronto lawyer (great lawyer) Joanne McLean - who played a huge role in the exoneration of so many of Charles Smith's victims HL - "They (the police) didn't do an investigation of the case." The W host/correspondent Kevin Newman identifies two bombshells revealed by W5: Bombshell 1: American pathologist Ophoven's testimony that it was scientifically impossible for Julie Bowers to have left her baby in the snow before he was reported missing. Bombshell 2: This sickening revelation that Dusty could have been alive when he was discovered. Avery Haines: What should the coroner have done when Dusty's body was found? Dr. Ophoven: They should have started a resuscitation immediately. In a hypothermia case they are not pronounced dead until they are warm and dead.. I mean that's the rule. Avery Haines: Not only was no attempt made to resuscitate Dusty, he was left on the side of the road for more than three hours and then spent another three hours in a body bag being transferred to a Toronto morgue. "Avery Haines to Joanne McLean: What was it like to find out that Dusty may have been alive when he was found? At this point McLean points out several serious flaws in the police investigation including the failure to measure the direction and depth of five prints located near Dusty's body - and to seek forensic evidence which may have helped track down Dusty's killer. Prosecutor Brian Farmer minced no words as he referred to the "complete collapse of the forensic evidence."
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PUBLISHER'S NOTE (3): From the transcript of the Goudge Inquiry into many of Smith's cases ( Evidence heard: 2007, 2008);
"DR. CHARLES SMITH: The third one -- the third one I believe may have been a factor even in one (1) or more of these cases. In the very beginning when I went to court in the -- on the few occasions in the 1980s, I -- I honestly believed it was my role to support the Crown attorney. I was there to make a case look good. That's being very blunt but that was the way I felt and I know when I talked with some of my other colleagues especially those who were junior, we -- we shared the same -- the same kind of an attitude. And -- and I think it -- it took me a long time, years, to acknowledge that my role was really not to make the Crown's case, or to make the case of whoever wanted me in court, but really to be much more impartial. And though into the 1990s I would have told you that that was what my role was, I -- I think I was pretty lousy at executing it. I'm sorry for that -- for that language. I think I was poor at executing it. Though I knew what to do, I didn't do it and so my -- my understanding or my book knowledge was not -- was not borne out by my execution in court.
MS. LINDA ROTHSTEIN: And did your desire to make a case for the Crown lead as well to its converse? A feeling that you were there to refute the defence case?
DR. CHARLES SMITH: I -- I certainly felt that pressure at times when I walked into court; that pressure from a Crown attorney, yeah.
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PASSAGE OF THE DAY: "Julie Bowers was charged with first degree murder. Throughout, she has always maintained her innocence. And when her murder trial was held—two years later in Toronto—the jury believed her. She was found not guilty. Most of the people who still hold onto the belief that Julie Bowers “got away with murder” didn’t sit through the 49-day trial and hear the evidence. They don’t know that the pathologist called by the Crown Attorney was Charles Smith, who would become the focus of an unprecedented inquiry years later that resulted in five murder convictions being overturned because of his flawed autopsy reports. They don’t know about the straight-out-of-the-movies defence theory that Julie’s twin brother and sister-in-law were involved in the disappearance. They don’t know that a world-renowned expert testified that it was “scientifically impossible” for Julie Bowers to have committed the crime. And they don’t know that the Crown prosecutor, the man who was in charge of trying to convince a jury of Julie Bowers’ guilt, is still traumatized now, all these years later, by the realization that he could have put an innocent woman behind bars."
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EPISODE: "Who left little Dusty Bowers to die in the snow?" an investigation by W5 Investigative correspondent Avery Haynes, aired by CTV on March 9, 2019.
SUB-HEADING: "Baby in the Snow, part one: W5's Avery Haines tells the story of the frantic search for and tragic discovery of a missing baby in Kincardine, Ont. back in 1988. W5: Baby in the Snow, part two: Julie Bowers was charged with the murder of her infant son Dusty, sparking one of the most sensational trials of the time. W5: Baby in the Snow, part three: Julie Bowers sits down with W5's Avery Haines to talk about the police search for Dusty and the dream she had of her son lying in the snow.
SUB-HEADING: "An abduction. A bizarre dream. A baby found dead in the snow."
GIST: "Avery Haines: It’s a crime that stretches back three decades and, until a year ago, I had only vague memories of it. I started researching the tragedy after asking a friend to tell me the
one case that she hasn’t been able to shake in her long career as a
journalist. Without hesitation she said, “Julie Bowers. She got away
with murder.” I’ve heard that same line again and again this past year: “She got away
with murder” -- from the court clerk when I called to get trial
transcripts, to the police officer who discovered the toddler’s body, to
the people of Kincardine, who are still haunted by a crime that in many
ways stole their innocence. In 1988, Julie Bowers was a 24-year-old mother of two little boys: two-year old Ben and 11-month-old Dusty. They lived in the small Ontario town of Kincardine, on the shores of
Lake Huron. It was a place where people didn’t think twice about leaving
their sleeping kids in the car while doing errands. And that’s exactly what Julie said she did that bitterly cold January
day. Dusty was asleep, she says, so she left him in his car-seat and
popped into the bank with her older son, Ben. Julie says when she came
out, minutes later, Dusty was gone. He was just a few days shy of his
first birthday. The shocking news of a kidnapping quickly spread throughout the small
town of six thousand. The Ontario Provincial Police was called in to
help the overwhelmed local police force. Roadblocks were set up. The
hours passed and the dread grew. Julie made a tearful plea on TV for her
son to be returned. The next morning there was still no sign of Dusty. Julie went to the police station for an update on the search and, at
her sister-in-law’s prodding, told them about a dream she had the night
before -- a dream of her son Dusty laying in the snowy woods. The first investigator on the case had some suspicions about Julie
Bowers’ kidnapping claims from almost the beginning. And when he heard
of the dream, he had a feeling that she would lead them to the missing
baby. Sure enough, 26 hours after he was reported missing, Dusty’s body was found in a wooded area just outside of town. He had a light covering of snow on his face. His little blue toque had
fallen down over his eyes. Tears had frozen on his cheeks. Julie Bowers was charged with first degree murder. Throughout, she has always maintained her innocence. And when her murder trial was held—two years later in Toronto—the jury believed her. She was found not guilty. Most of the people who still hold onto the belief that Julie Bowers
“got away with murder” didn’t sit through the 49-day trial and hear the
evidence. They don’t know that the pathologist called by the Crown Attorney was
Charles Smith, who would become the focus of an unprecedented inquiry
years later that resulted in five murder convictions being overturned
because of his flawed autopsy reports. They don’t know about the straight-out-of-the-movies defence theory
that Julie’s twin brother and sister-in-law were involved in the
disappearance. They don’t know that a world-renowned expert testified
that it was “scientifically impossible” for Julie Bowers to have
committed the crime. And they don’t know that the Crown prosecutor, the man who was in
charge of trying to convince a jury of Julie Bowers’ guilt, is still
traumatized now, all these years later, by the realization that he could
have put an innocent woman behind bars. Producer Derek Miller and I have spent months combing old news footage,
digging up articles, ordering court transcripts and sifting through
police evidence. We have interviewed almost every key player in this
tragedy, including Julie Bowers, who hadn’t spoken publicly since a
courthouse scrum after the verdict decades ago. Julie agreed to be interviewed only if we altered her appearance,
because the “baby killer” stigma still plagues her, despite the
acquittal and the decades that have passed. We started out with an investigation into why so many people believed
Julie Bowers got away with murdering her toddler. Instead we found a
much different story and what emerges is more complicated than innocence
or guilt. It raises serious questions about what happened after Julie Bowers was
acquitted and what was—and more specifically—what wasn’t done to follow
up on compelling leads. We have uncovered a confidential OPP document that reveals surprising
new details about the investigation that police promised to undertake
after the Attorney General decided not to appeal Bowers’ acquittal. And finally, our investigation has led to a new development that offers
a glimmer of hope that one day there might be justice for Dusty."
The entire story can be found at:
The entire story can be found at:
See also my Blog on the Julie Bowers case, which ran on February 1, 2008 in its entirety at the link below, under the heading 'The Julie Bowers case: The very first alarm bells. A precursor of things to come." At the outset of the post, I ran three the following three excerpts: excerpts
"HE WITHHELD, IN MY OPINION, ALL THE MATERIALS THAT I NEEDED," SHE SAID.
WHEN CRITICAL TISSUE SLIDES WERE FINALLY PRODUCED, OPHOVEN WAS SHOCKED.
"THEY WERE FROM SOMEBODY ELSE," SHE SAID.
SMITH EVENTUALLY PRODUCED THE CORRECT SAMPLES AND ALTHOUGH THE SLIDES WEREN'T CRITICAL TO HER FINAL CONCLUSIONS, OPHOVEN WAS TROUBLED BY THE BEHAVIOUR OF SMITH, WHO HAD APPARENTLY KEPT THE SLIDES AT HIS HOME.
"I'VE NEVER HAD AN EXPERIENCE LIKE THIS," SHE SAID. "I DREW A CONCLUSION THAT [POLICE AND PROSECUTORS] HAD A SERIOUS PROBLEM ON THEIR HANDS." “
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WHEN LAW ENFORCEMENT AUTHORITIES ARE HUNTING THE KILLER OF A CHILD, THEY'RE PERCEIVED TO BE "WORKING FOR GOD," SAID OPHOVEN.
"YOU ARE UNTOUCHABLE UNLESS THERE'S A FORENSIC PATHOLOGIST TO REEL YOU IN AND BRING SOME SCIENCE TO THE TABLE," OPHOVEN SAID. "BUT IF YOU'RE WORKING FOR LAW ENFORCEMENT AND YOU HAVE NO FORENSIC TRAINING, THEN THE CAUSE OF DEATH IS GOING TO BE WHATEVER YOU SAY IT IS, WHETHER IT'S TRUE OR NOT."
DR. JANICE OPHOVEN: FORENSIC PATHOLOGIST WHO ASSISTED THE DEFENCE IN THE JULIE BOWER'S CASE”.
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"IS THIS THE WAY YOU PASS OFF YOUR EVIDENCE - AS A SERIES OF GUESSES?" DEFENSE LAWYER JACK PINKOFSKY ASKED DR. CHARLES SMITH YESTERDAY, DURING A LENGTHY CROSS EXAMINATION.
"THE ESTIMATION OF THE TIME OF DEATH IS REALLY AN EDUCATED GUESSING GAME," SMITH RESPONDED...
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http://smithforensic.blogspot.com/2008/02/bowers.html
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See also Kingston Whig-Standard story by reporter Robb Trip published on April 30, 2007 -more than three decades after Dusty Bower's died) under the heading "Most awful case; Errors known long ago, pathologist says. Edited version provided on the NetK web site by Dr. Robert N. Moles.
On 30 April 2007 Rob Tripp of the Whigg-Standard reported “'Most awful case'; Errors known long ago, pathologist says”. He said that top officials in Ontario's criminal justice system should have realized 15 years ago that they needed to review thoroughly the work of a senior pathologist, says a respected American forensic expert. Dr Janice Ophoven, a pediatric forensic pathologist in Minnesota and a medical examiner, was an expert witness for the defence at the 1990 trial of Julie Bowers of Kincardine. "In all my years, this is the most awful case that I've had," said Ophoven, who has worked as a pathologist for 30 years and is a certified forensic expert. Bowers was acquitted of murdering her 11-month-old son, Dustin, after a sensational 49-day trial. Ophoven's findings cast doubt on the work of Dr Charles Smith, who testified for the prosecution after conducting the autopsy on Dustin. The case appears to be one of the earliest in which Smith's work was publicly discredited.
Earlier this month, an international panel of experts that reviewed 45 of Smith's cases over a decade concluded he erred in at least 20, and a dozen people may have been wrongly convicted because of his mistakes. One of the cases reviewed was that of Kingston's Louise Reynolds, accused of killing her seven-year-old daughter, Sharon, in 1997. Smith's conclusions were later discredited and charges against Reynolds were withdrawn after she spent almost two years in custody. The Bowers case was not part of the review of Smith's work, but it will be examined in the second phase of the probe.
"I found the process and [Smith's] opinions to be extremely troublesome," Ophoven told the Whig-Standard in an interview from her office in Woodbury, Minn. She said his behaviour was erratic and he was unco-operative. "If you have a sentinel case that says something is really, really wrong, there's an obligation to verify if this was a single bad day or it was ... the tip of an iceberg," Ophoven said. "I would have marked this as a sentinel case." Jack Pinkofsky, the Toronto lawyer who hired Ophoven to review Smith's work, said he doesn't believe any review of Smith's work was conducted after the Bowers case. "Unfortunately, nobody in the government did anything about it," Pinkofsky said. "He went on to bigger and better things." Pinkofsky said he made it clear, informally, to the Crown lawyers that he thought Smith should be investigated. "The idea that he was incompetent just passed everyone, either through oversight or worse, or they weren't geared in those days to think people in power could do wrong," he said. Pinkofsky said the Crown considered, but did not file, an appeal of the acquittal, meaning senior officials in the Crown law office must have known about Smith's work was questionable. "Everybody who knows about the case ... was always amazed that nothing was done about Smith as a result of the Bowers case," he said. "Had something been done about him at that time, look at what it would have saved in terms of anguish, costs, grief to the justice system." Brian Farmer, the Crown attorney who prosecuted Bowers, could not be reached for comment. Ophoven wondered how many years have gone by since judges and others pointed out that his findings didn't make sense. "Why didn't the justice system ... follow up on that issue?" she said. "The answer is obvious, because there's not only no incentive to do so, but they're in a horrible conflict of interest." Smith was subsequently given more responsibility for investigating suspicious child deaths. A year after the Bowers trial, he was named director when the province established a pediatric forensic pathology unit at the Hospital for Sick Children in Toronto. He went on to perform hundreds of autopsies on children who died under suspicious circumstances, including the Reynolds case in Kingston. Smith's courtroom testimony was critical to many prosecutions of parents who were accused of abusing or killing their children through the 1990s. The Bowers case was so riddled with problems, Ophoven said, that it still gives her nightmares. She concluded that Dustin likely was still alive when his body was found and examined by a local coroner, who wrongly pronounced him dead at the scene. His body was left in the snow for crime scene analysis for roughly three hours before it was placed in a body bag and transported for autopsy. "He may have even died in the bag," Ophoven said, repeating the testimony she offered at the trial. When Ophoven was first called to review Smith's post-mortem report and other forensic evidence, she could not get important samples from Smith. "He withheld, in my opinion, all the materials that I needed," she said. When critical tissue slides were finally produced, Ophoven was shocked. "They were from somebody else," she said. Smith eventually produced the correct samples and although the slides weren't critical to her final conclusions, Ophoven was troubled by the behaviour of Smith, who had apparently kept the slides at his home. "I've never had an experience like this," she said. "I drew a conclusion that [police and prosecutors] had a serious problem on their hands." When Ophoven reviewed Smith's post-mortem report, which concluded Dustin died of hypothermia, she could not find evidence that would substantiate key findings. There were no signs of serious tissue damage in areas of Dustin's body where it would be expected, given Smith's assertion that the child was severely frozen. Smith explained, at one time during courtroom proceedings, that he couldn't measure the child's body temperature because he didn't have a thermometer that would go that low. Smith offered at least three different time frames to explain how long Dustin had been in the snow. His first opinion was for a short time span, Ophoven said, excluding the mother as the killer. He changed his opinion twice after that, finally testifying at trial that Dustin was left alone in the snow for 21 to 32 hours, or perhaps longer. This timing meant the mother could be the killer. "He altered his opinion to fit the prosecution of the case," Ophoven believes. She said the lack of freezing in the body meant Dustin could not have been alone in the snow for as long as Smith concluded. Ophoven said Smith has operated for so long in Ontario, committing more mistakes, perhaps because his work usually gave police and prosecutors what they needed: Strong findings of criminal responsibility against parents, babysitters and others. "So who the hell is going to look into Dr. Smith's scientific acumen if what he gets them is what they're looking for?" she wondered. "It's terrifying." Bowers claimed her son was abducted from her car after she left him alone briefly to go into a bank. She led police to his body the next day, claiming that she saw the location in a dream. Bowers was acquitted 17 years ago. Police have not charged anyone else in the case since then."
http://netk.net.au/Smith/Smith27.asp
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/