On the Crown Lawyer's "triable issues" comment: This suggestion of criminality as charges are being withdrawn is totally unfair to the Hossanah's who have protested their innocence from the outset - because it leaves them under a cloud with no ways of allowing the public to know that they are innocent. Indeed, it unfairly leaves them wrapped in a cloak of guilt.
On the Crown Lawyer's "otherwise held accountable' comment: On my reading of the case, the Hosannah's are utterly innocent victims of an adversary justice process - so fixed on the parent's guilt in their tunnel vision that police and prosecutors failed to give proper weight to an alternative possible medical cause of the child's tragic death. Yet the prosecutor says the parents have been otherwise 'held accountable' for the death of their daughter. That may get the governments some points vis a vis the public on the dropping of serious criminal charges - but it ignores the fact that the criminal process should not be the 'punishment' in our system of justice. The criminal process should rather be an instrument for achieving justice - not punishment, which is imposed only after am accused person has had a trial and has been convicted. We learn from the Star article that the Hosannah's were convicted of manslaughter in the death of their child in 2014 and served nearly eight months in jail before they were released on bail, pending appeal - which they won - and they lost custody of their other children. All this when they should have been regarded as grieving parents who deserved the compassion and support of the community. Not the cold, clammy prison bars and the undeserved wrath of the state and society.
SUB-HEADING: "Dr. Michael Pollanen testified that his conclusion on why the child died was “reasonable,” and the prosecutor called him a “qualified” expert."
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GIST: "A high-profile child homicide case has fallen apart after testimony from Ontario’s top pathologist, Dr. Michael Pollanen, led to an accusation that he “deceived the criminal justice system.”
Manslaughter charges against Sean and Maria Hosannah in the death of their two-year-old daughter Matinah were withdrawn in late March, ending a years-long ordeal for the parents.
They spent time in jail after their initial conviction and have always maintained their innocence.
Just days into a pretrial hearing, where the Hosannahs were challenging the admissibility of the medical evidence underpinning the charges against them, the case collapsed. Pollanen was the first and only witness to take the stand.
At the Hosannahs’ original trial, Pollanen had dismissed alternative explanations for Matinah’s severe vitamin and protein deficiencies, such as genetics.
Under cross-examination at a hearing before the Hosannahs’ new trial, the pathologist conceded that a “cascade” of events involving genetics and other factors was “reasonable” and couldn’t be ruled out.
He acknowledged that he hadn’t read the relevant medical literature closely enough to be able to make an informed opinion on its plausibility.
‘A miscarriage of justice’
Defence lawyer Nathan Gorham, who represents Matinah’s father, said this case is a “cautionary tale” about “how flawed expert evidence can contribute to a miscarriage of justice.”
“Better safeguards are needed to prevent inaccurate expert opinions from distorting the search for a true verdict in a criminal trial,” Gorham told the Star.
The Crown’s decision to drop the charges means the court will not rule on the medical evidence, leaving unanswered questions about what happened to Matinah.
Crown lawyer Eric Taylor, who has prosecuted the case from the beginning, told the court that it was no longer in the public interest to carry on.
He said his decision was not related to the concerns about Pollanen’s evidence, and defended the pathologist.
Pollanen did not respond to calls and emails requesting comment for this story.
A spokesperson for the solicitor general, which is responsible for Ontario’s death investigation system, said the ministry does not comment on statements that have been made by the defence in court filings.
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Pollanen’s appointment meant to restore public confidence
For those accused of murder, Pollanen’s opinion can often be the difference between freedom and imprisonment. As Ontario’s chief forensic pathologist, he routinely testifies in complex homicide cases; he estimated in the pretrial that he has given evidence in court at least 250 times.
Pollanen’s 2006 appointment as the top pathologist was meant to help restore public confidence in Ontario’s justice system after the devastating wrongful-conviction scandal involving disgraced pathologist Charles Smith.
The Hosannahs’ case is one of several in recent years that have exposed serious concerns about Pollanen’s expert opinions.
Standing outside the courthouse after the hearing ended, Matinah’s father said, “This is surreal.”
“We knew all along that this was going to happen eventually, that justice would come,” he said.
The Hosannahs were convicted of killing Matinah in 2014 and served nearly eight months in jail before they were released on bail, pending appeal.
They lost custody of their other children and are currently facing a criminal charge in relation to one of Matinah’s surviving siblings in a case that also involves allegations of malnutrition.
They intend to plead not guilty, Gorham said, and are fighting to get their kids back.
“The whole saga for them is linked to Dr. Pollanen’s opinion,” Gorham told the Star.
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Experts cast doubt on Pollanen’s conclusions
Pollanen performed the autopsy in 2011 and asserted that Matinah died from an asthma attack and malnutrition, the result of not getting enough food, or enough of the right food.
At the original trial, Pollanen told the jury that he had “ruled out” alternative explanations for the severe protein and vitamin deficiencies found in the 27-month old when she died.
Fresh medical evidence casting doubt on Pollanen’s conclusion, contained in two expert reports, prompted the Ontario Court of Appeal to overturn the Hosannahs’ convictions in 2020 and order a new trial.
At the recent hearing, Gorham repeatedly pressed Pollanen.
“Surely, you must recognize that in a homicide case like this, you didn’t do enough research to express an opinion.”
“I disagree,” Pollanen replied. “I believe the opinion I gave was reasonable.”
In a court filing before the Crown dropped the charges, the Hosannahs’ lawyers slammed Pollanen for allegedly denying “his own failures” and refusing “to admit things that were obviously true.”
They alleged he “caused a miscarriage of justice” and argued the proceedings should be stayed, due in part to Pollanen’s evidence, which they alleged, “offended basic notions of fairness.”
“People believed him because his title implied that he was an elite expert, because he was convincing and charismatic, and because the medical and scientific issues on the case made it difficult to detect the dubious underpinnings of his opinion,” wrote lawyers Gorham and Selwyn Pieters, who represented Matinah’s mother.
Pollanen is a ‘qualified’ expert, Crown says
Taylor, the Crown lawyer, defended Pollanen as a “properly qualified” expert, whose opinion “would be admissible.” He said he did “not share” the view expressed by the defence lawyers that the pathologist “intentionally misled or deceived the court.”
Taylor said there were still “triable issues” around whether the Hosannahs appropriately sought medical attention for Matinah before her death, and that there remained “a reasonable prospect of conviction with respect to the charge” of failing to provide the necessaries of life.
He said he had concluded that it was no longer “in the public interest” to pursue the prosecution, “given the passage of time and given the fact that the Hosannahs have been otherwise” held accountable “for the death of their daughter.”
At their 2014 trial, the jury heard that the Hosannahs followed a strict vegetarian diet that consisted of healthy food and that they were distrustful of doctors. However, the parents have always insisted that they sought appropriate medical treatment for their daughter and fed her a balanced diet.
When Matinah died, the family home was clean and the fridge was stocked with nutritious food, including milk and eggs, say court documents filed by their lawyers in the recent pretrial hearing.
Still, the lawyers argued, “doctors became suspicious that Matinah’s parents, a young Black couple, had abused their daughter and contributed to her death” and said that, in this case, the court should “be mindful of the dangers of racial bias and systemic, unconscious discrimination.”
What caused Matinah’s death?
Pollanen’s conclusions in the case started to unravel during the Hosannahs’ appeal.
After another forensic pathologist challenged Pollanen’s opinion that an asthma attack had contributed to Matinah’s death, Pollanen conceded that the evidence didn’t show signs of acute asthma.
Gorham’s cross-examination of Pollanen focused on an expert report by Dr. Marvin Miller, an Ohio-based pediatrician and genetics specialist.
Pollanen had received Miller’s report at least three years ago, when it was included as part of the “fresh evidence” that led the court to overturn the Hosannahs’ convictions and order a new trial.
Miller disagreed with Pollanen’s assertion in his autopsy report that “there was no evidence of an underlying disease” to explain the malnutrition or vitamin D deficiency rickets found in Matinah, a condition that weakens the bones.
He refuted Pollanen’s interpretations of the evidence, providing alternative medical explanations for the various findings that had led Pollanen to conclude she had not received adequate food.
Pollanen agreed that the 20 medical journal articles and other literature that Miller referenced in his report seemed relevant, but he said he didn’t know if he’d read any of them.
At that point in the appeal, Gorham continued, Pollanen would have understood that the Hosannahs had been convicted of manslaughter, and that they intended to use this expert report, which directly challenged his opinion, to argue that their convictions should be overturned.
“Did it ever occur to you that given the magnitude of the situation it was something that ought to be done that you review the literature included in (the expert) report?” Gorham asked.
“It occurred to me, but we have to stay in our area of expertise,” Pollanen replied, noting that he is not a pediatrician. “I thought it was more appropriate that another expert should do it.”
At the outset of the pretrial hearing, Pollanen testified that Matinah’s death investigation was “maximally” complicated. He agreed that reviewing the relevant medical literature is an important component in ensuring objectivity in the evidence-based approach to death investigations that he has espoused.
Miller’s opinion informed the alternative explanation for Matinah’s death that Gorham proposed during his cross-examination, which Pollanen acknowledged was “reasonable.”
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Pollanen’s expert opinions have drawn scrutiny, criticism
In the aftermath of the scandal involving Smith, whose flawed autopsy analyses tainted more than a dozen criminal cases, Pollanen played a key role in helping to overturn wrongful convictions.
He is credited for bringing objectivity and an “evidence-based approach” to the province’s forensic pathology service, whose experts are entrusted with the difficult work of searching a body for clues to render an opinion about what caused a death.
However, Pollanen has been accused of falling into some of the same traps that led to the miscarriages of justice he has worked to rectify. In 2017, a Superior Court judge denounced him for offering “expert opinions on matters that were not appropriate, not within his knowledge and expertise, and incorrect” about the death of two-year-old Nicholas Cruz.
His role in the death investigation of another infant has also come under intense scrutiny, in a battle that is still playing out in court.
The pathologist who performed the autopsy, and believed mysterious fractures found on the boy were the result of a bone disease, alleges that Pollanen abused his power to overrule some of his colleagues and change the cause of death to child abuse.
The parents in the “baby Alexander” case were blamed for the fractures and separated from their surviving children.
In that case, Pollanen has argued it was his duty to get involved in the investigation, and to try to resolve the disagreement between the doctor who performed the autopsy and other doctors, including a child abuse pediatrician
. The police saw no evidence of abuse.
These cases show the concerns about Pollanen are “an ongoing and systemic issue,” Gorham and Pieters asserted in a court filing.
The Hosannahs were “publicly shamed” following their conviction, their lawyers said. The Star named the parents after it successfully fought in court to narrow a publication ban, which had been in place to protect the privacy of Matinah’s surviving siblings.
The Hosannahs will now be added to the Canadian Registry of Wrongful Convictions, said Kent Roach, a University of Toronto law professor, who launched the database earlier this year.
The registry does not judge innocence but logs all cases where a conviction is overturned “based on new matters of significance related to guilt.”
https://www.thestar.com/news/investigations/2023/04/05/an-expert-opinion-sent-two-parents-to-jail-for-their-daughters-death-now-the-case-has-fallen-apart-and-ontarios-top-pathologist-is-under-scrutiny-again.html
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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