Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
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Some of Justice Goudge's strongest criticism of the Deputy Coroner, Dr. Jim Cairns relates to the case of Baby X, in which he permitted Dr. Smith to improperly further a police investigation;
Justice Goudge found that in this case Cairns and Smith had attended case conferences with the police in April and May, 1996 and knew that Baby X's mother was a person of interest in the police investigation;
"Subsequently, Baby X's mother contacted Dr. Cairns to inquire about the results of the autopsy" Goudge reports.
"Dr. Cairns asked Dr. Smith to meet with Baby X's mother, and Dr. Smith agreed.
On September 4, 1996, because of their lawful surveillance of her home, the Ontario Provincial Police (OPP) intercepted a telephone conversation between Dr. Smith and Baby X's mother and learned that that Dr. Smith intended to meet with the mother at her home.
The OPP then told Dr. Smith that the police had installed listening devices in the home, which would likely intercept the scheduled conversation.
Although it is not clear when Dr. Cairns learned that the house was under surveillance, he certainly knew that fact before Dr Smith met with Baby X's mother.
Despite this knowledge, he did not object to Dr. Smith going forward with the meeting;
In short, Dr. Cairns permitted D. Smith to attend at a suspect's house and discuss the contents of the report of post-mortem examination with her while the police secretly recorded their conversation.
Dr. Smith met with the Barrie Police Service and the OPP before and after his meeting with Baby X's mother on September 5, 1996;
The police did not tell Dr. Smith what to do during his meeting with Baby X's mother, nor did they ask him to solicit any information from her.
Nonetheless, with Dr. Cairns approval, Dr. Smith improperly furthered a police investigation."
Justice Goudge concluded that, "Baby X's case is a clear example of a situation where Dr. Cairns failed to provide necessary oversight of Dr. Smith Instead, he permitted Dr. Smith to abandon his appropriate role as an expert scientist and to assist a police investigation improperly."
He noted that several of the forensic pathologists and coroners who testified at the Inquiry emphasized that it is inappropriate for a pathologist to meet with a person who is a suspect of an on-going police investigation - and that the effect of that inappropriate meeting was compounded because the conversation was being intercepted by the police.
"Dr. Cairns and D. Smith compromised the independence of their respective positions as Deputy Chief Coroner and expert witness," Goudge ruled.
"This case was a warning sign about D. Smith's failure to understand the appropriate role of a pathologist in a criminally suspicious case."
"Dr. Cairns dis not recognize the warning sign and, indeed, permitted the meeting to go ahead.
Harold Levy...hlevy15@gmail.com;
Showing posts with label alarm bells. Show all posts
Showing posts with label alarm bells. Show all posts
Saturday, November 8, 2008
Saturday, March 15, 2008
Part Four: After Goudge: Will there be lasting change? Not Necessarily; The Cleveland Child Abuse Case; (Continued); No Consequences For Dr. Higgs;
One of the most unsettling aspects of the Cleveland Child Abuse case - the subject of several recent postings - is that Dr Marietta Higgs is still permitted to practice medicine - in spite of all of the harm her questionable diagnostic technique caused to so many innocent parents.
It is also troubling to learn that several of her colleagues took it upon themselves to attack the evidence that had been presented against her - and to rally for her reinstatement.
The Cleveland case has me wondering what Dr. Charles Smith will be doing several years from now.
He is, after all, only about 57-years old and could end up actively practicing medicine somewhere in Ontario, Saskatchewan, or elsewhere in the world where the news of the destruction he has caused has not sunk in.
(We learned from the Goudge inquiry that several of his colleagues at the Hospital for Sick Children in Toronto agreed to provide references for Dr. Smith on his application for a position in Saskatchewan - after his work had been severely criticized by hospital staff);
The efforts of the British professionals to cover up for their colleague was disclosed to the British House of Commons by Sir Stuart Bell, a British Labour Party politician and Member of Parliament for Middlesbrough.
Sir Stuart was so horrified by the horrors of Cleveland that he wrote a book called; "When Salem Came to the Boro, The True Story of the Cleveland Child Abuse Crisis," which was published in 1988. (I would love to get my hands on a copy!)
"This is the first occasion that the Cleveland child abuse crisis has been brought to the Floor of the House other than through parliamentary statements and questions," Sir Stuart told the House of Commons at the outset of his March 2, 1989 address.
"I have taken the opportunity of raising the matter on an Adjournment debate because of the deep concern that my constituents feel at the turn of events following the publication of the consultants' statement in The Guardian," he continued.
"It is a matter of regret to me and to my constituents that once again the consultants should feel that they ought to prove their innocence on matters which have been through the courts.
The motion arises out of the action of 11 paediatricians, who submitted a statement to The Guardian newspaper, among others, in which they stated :
"In our opinion, the majority (quite possibly 90 per cent.) of the children were abused, and the paediatricians' diagnoses were accurate to a far higher degree than the public realise."
The sequence of events that led to the submission of that statement will not be time-consuming in relation to the role of the consultants within the NHS.
Towards the end of last year, at a specialists' sub-committee of the Northern regional health authority, the future of Dr. Marietta Higgs was discussed.
It was decided that a recommendation should be made to the regional health authority that Dr. Higgs be reinstated in Cleveland.
Some of the consultant paediatricians at that meeting had come from as far away as Carlisle, let alone Cleveland.
Some of the Tyneside consultants also formed part of a support group organised in the new year under the guidance of Dr. David Scott and his wife Anne.
It transpired later that Dr. David Scott had worked with Dr. Higgs on a study of cot deaths, and that his wife Anne had been a former secretary to Dr. Higgs in that study.
That support group met early in February and a draft letter of support for Dr. Higgs was prepared and submitted by Dr. Nigel Speight, a consultant paediatrician at Dryburn hospital in Durham.
Dr. Speight has long been an avowed supporter of Dr. Higgs.
He telephoned me in her support when the crisis began, and invited himself to a television broadcast on the extent of the crisis.
However, he did not give evidence to the Butler-Sloss inquiry.
In Cleveland in January, the Communist party got into the support act when it called a meeting in Middlesbrough to discuss the Cleveland child abuse crisis, although the crisis was now fading from public memory.
After that meeting, addressed by another ardent supporter of Dr. Higgs, Ms. Bea Campbell, who subscribes to the view that one in four of the population are abused as children, it was decided to set up a support group similar to the one in Newcastle, again with the avowed purpose of reinstating Dr. Higgs in her old neonatological job at Middlesbrough general hospital.
The draft letter of Dr. Speight found its way to Middlesbrough and was discussed at a meeting of consultant paediatricians on 15 February.
Dr. Geoffrey Wyatt, who was banned from child sexual abuse cases by the regional health authority following his involvement in the Cleveland child abuse crisis, and who accepted that ban as well as a reprimand and warning as to his future conduct, presented on an overhead projector facts and figures which seemed to justify the diagnoses that he and Dr. Higgs had made at Middlesbrough general hospital.
Apparently, Dr. Wyatt proposes to publish those facts and figures in an article in The Lancet.
The meeting discussed the statement of Dr. Speight, made some deletions, principally in reference to police surgeons, and agreed its onward submission to the press.
The purpose of the letter was contained in its last paragraph:
"Following the crisis in Cleveland, Doctor Higgs has been seconded to look after babies at the Princess Mary hospital, a university teaching hospital in Newcastle. We strongly support and would welcome the return of Doctor Higgs to her former post in Cleveland where she was employed with special skills for the care of sick newborn babies."
Pressure on the Northern region health authority, as the employer of Dr. Higgs, has become urgent, in view of the allegation that her secondment to the Princess Mary hospital in Newcastle was about to end, and the fact that a paediatric post was about to be advertised for Cleveland by way of an advance appointment to cover the future retirement of Dr. Hilary Grant, the senior consultant paediatrician.
In any event, Dr. Higgs is still on the books as a consultant paediatrician at Middlesbrough, and her work has been carried on by locums.
There were also court proceedings which I do not intend to cover tonight.
The statement was supposed to be a letter signed by all 11 consultants from Tyneside and Cleveland, but such was the haste to get it out that signatures could not be gathered.
The author of the statement had already left for Khartoum.
The statement was sent out by Val Hall, who turned out to be Mrs. Dr. Geoffrey Wyatt, although Dr. Hall has since said that she was merely the secretary.
In fact, her role has been greater than that. Dr. Hall is also a member of the Cleveland support group, and she has been in touch with several members of Parliament, seeking their support for Dr. Higgs.
There is nothing reprehensible in any of those activities, except the deceit and dissimulation that has accompanied them in the failure to declare an interest.
There was, of course, an anguished reaction by parents and children who were innocently caught up in the crisis.
It might be convenient to state the number of children who were involved. About 121 children were diagnosed as allegedly having been sexually abused.
Of those 121 children, 98 were returned home by the courts.
There were eight arrests but only four successful prosecutions.
Two men hanged themselves in Durham gaol, and in two other cases in which the only evidence was the diagnostic technique of reflex anal dilatation, the charges were dropped.
It is against that tide of the court decision that the paediatricians, in their statement to The Guardian and elsewhere, seek to swim.
Hardly surprisingly, parents and children alike, settling down about 18 months after the crisis, were traumatised by the sudden appearance of the consultants' statement which was promptly picked up and relayed throughout the media.
Some children immediately asked their parents whether it meant that they had to go back to Cleveland hospitals. Mothers and children, too, had nightmares.
Children were afraid to return to school on the Monday morning after the mid-term holiday, because they feared that someone would take them away.
There was dread and horror that the cycle of repeated physical examinations and disclosure work was back again.
There is no new evidence available to the consultant paediatricians that was not in the hands of the Butler Sloss inquiry, to the medical assessor appointed to that inquiry, or to the courts that dealt with the cases.
When I called him on this specific point, the author of the letter, Dr. Nigel Speight, accepted that he had seen no medical records.
The evidence that was available to the courts in relation to the 98 children was weighed carefully by High Court judges, magistrates and registrars alike, who preferred the alternative available medical evidence which concluded that the children had not been abused.
The consultant paediatricians were not entitled to bring new grief and anguish to the innocent families of Cleveland.
The question for the Minister to weigh is this: how can they justify their conduct, ethically and professionally?
Several of the Cleveland consultants who agreed the statements under their name are still in charge of children who were caught up in the crisis.
After publication of the statement in The Guardian, many parents were encouraged to go to those consultants, and everyone who did so was assured that they were not included in the 90 per cent.
The most appropriate statement of the so-called evidence was given by Dr. Douglas Hague, the regional general manager of the health authority. On local television, he said:
"The precise figure will never be known partly because of the weakness of the medically recorded evidence."
That weakness was revealed even by the signatories to the statement that appeared in The Guardian.
Thus, Dr. Peter Morrell and Dr. Marietta Higgs examined a seven-year-old girl at Middlesbrough general hospital on 5 May 1987.
They diagnosed vaginal and anal abuse, but the minutes of a case review meeting held on Friday 5 June 1987 show that Dr. Peter Morrell pointed out that there was no conclusive medical evidence of sexual abuse.
It is to the credit of Dr. Peter Morrell that he changed his mind.
Dr. Nyint Oo, another signatory to the statement, along with his co- signatory, Dr. Diaz, examined three children aged five, seven and 10 who had been diagnosed by Dr. Higgs as having been sexually abused.
This examination took place at 10 o'clock on the evening of Wednesday 24 June.
According to the parents of the children, they were roused from their hospital beds for examination.
Both Dr. Oo and Dr. Diaz disagreed with the diagnosis of Dr. Higgs, and all three children were allowed home.
Another signatory, Dr. Caroline McCowen, could not agree with Dr. Higgs' diagnoses after an examination which she made on 10 July 1987 on three children, all girls, aged 10, eight and two, and those three children were subsequently reunited by the courts with their parents.
Are these now the children whom the consultants say were being abused all along?
To their credit, those consultants, along with three others in Cleveland, have since offered their apologies to the families for the distress that they had caused.
It is a pity that they did not go further and retract their 90 per cent. statement, leaving that task to the regional general manager of the northern regional health authority and the Minister of State, Department of Health.
The families, however, cannot leave matters as they stand.
They cannot leave their future in the hands of irresponsible statements.
They have waited to hear what the Paediatric Association might have said about the letter.
There has been a deafening silence.
Sadly, the paediatricians--the consultants in this matter of the letter--exercised power without responsibility.
Fortunately, I have 21 letters in support of the parents and the children from other doctors and consultants throughout the country which rectify the balance, but the parents have seen the destruction of childhood innocence in their children by repeated medical examinations and disclosure sessions.
Now they are seeing the steady destruction of what is left of their children's childhood...
Harold Levy...hlevy15@gmail.com;
It is also troubling to learn that several of her colleagues took it upon themselves to attack the evidence that had been presented against her - and to rally for her reinstatement.
The Cleveland case has me wondering what Dr. Charles Smith will be doing several years from now.
He is, after all, only about 57-years old and could end up actively practicing medicine somewhere in Ontario, Saskatchewan, or elsewhere in the world where the news of the destruction he has caused has not sunk in.
(We learned from the Goudge inquiry that several of his colleagues at the Hospital for Sick Children in Toronto agreed to provide references for Dr. Smith on his application for a position in Saskatchewan - after his work had been severely criticized by hospital staff);
The efforts of the British professionals to cover up for their colleague was disclosed to the British House of Commons by Sir Stuart Bell, a British Labour Party politician and Member of Parliament for Middlesbrough.
Sir Stuart was so horrified by the horrors of Cleveland that he wrote a book called; "When Salem Came to the Boro, The True Story of the Cleveland Child Abuse Crisis," which was published in 1988. (I would love to get my hands on a copy!)
"This is the first occasion that the Cleveland child abuse crisis has been brought to the Floor of the House other than through parliamentary statements and questions," Sir Stuart told the House of Commons at the outset of his March 2, 1989 address.
"I have taken the opportunity of raising the matter on an Adjournment debate because of the deep concern that my constituents feel at the turn of events following the publication of the consultants' statement in The Guardian," he continued.
"It is a matter of regret to me and to my constituents that once again the consultants should feel that they ought to prove their innocence on matters which have been through the courts.
The motion arises out of the action of 11 paediatricians, who submitted a statement to The Guardian newspaper, among others, in which they stated :
"In our opinion, the majority (quite possibly 90 per cent.) of the children were abused, and the paediatricians' diagnoses were accurate to a far higher degree than the public realise."
The sequence of events that led to the submission of that statement will not be time-consuming in relation to the role of the consultants within the NHS.
Towards the end of last year, at a specialists' sub-committee of the Northern regional health authority, the future of Dr. Marietta Higgs was discussed.
It was decided that a recommendation should be made to the regional health authority that Dr. Higgs be reinstated in Cleveland.
Some of the consultant paediatricians at that meeting had come from as far away as Carlisle, let alone Cleveland.
Some of the Tyneside consultants also formed part of a support group organised in the new year under the guidance of Dr. David Scott and his wife Anne.
It transpired later that Dr. David Scott had worked with Dr. Higgs on a study of cot deaths, and that his wife Anne had been a former secretary to Dr. Higgs in that study.
That support group met early in February and a draft letter of support for Dr. Higgs was prepared and submitted by Dr. Nigel Speight, a consultant paediatrician at Dryburn hospital in Durham.
Dr. Speight has long been an avowed supporter of Dr. Higgs.
He telephoned me in her support when the crisis began, and invited himself to a television broadcast on the extent of the crisis.
However, he did not give evidence to the Butler-Sloss inquiry.
In Cleveland in January, the Communist party got into the support act when it called a meeting in Middlesbrough to discuss the Cleveland child abuse crisis, although the crisis was now fading from public memory.
After that meeting, addressed by another ardent supporter of Dr. Higgs, Ms. Bea Campbell, who subscribes to the view that one in four of the population are abused as children, it was decided to set up a support group similar to the one in Newcastle, again with the avowed purpose of reinstating Dr. Higgs in her old neonatological job at Middlesbrough general hospital.
The draft letter of Dr. Speight found its way to Middlesbrough and was discussed at a meeting of consultant paediatricians on 15 February.
Dr. Geoffrey Wyatt, who was banned from child sexual abuse cases by the regional health authority following his involvement in the Cleveland child abuse crisis, and who accepted that ban as well as a reprimand and warning as to his future conduct, presented on an overhead projector facts and figures which seemed to justify the diagnoses that he and Dr. Higgs had made at Middlesbrough general hospital.
Apparently, Dr. Wyatt proposes to publish those facts and figures in an article in The Lancet.
The meeting discussed the statement of Dr. Speight, made some deletions, principally in reference to police surgeons, and agreed its onward submission to the press.
The purpose of the letter was contained in its last paragraph:
"Following the crisis in Cleveland, Doctor Higgs has been seconded to look after babies at the Princess Mary hospital, a university teaching hospital in Newcastle. We strongly support and would welcome the return of Doctor Higgs to her former post in Cleveland where she was employed with special skills for the care of sick newborn babies."
Pressure on the Northern region health authority, as the employer of Dr. Higgs, has become urgent, in view of the allegation that her secondment to the Princess Mary hospital in Newcastle was about to end, and the fact that a paediatric post was about to be advertised for Cleveland by way of an advance appointment to cover the future retirement of Dr. Hilary Grant, the senior consultant paediatrician.
In any event, Dr. Higgs is still on the books as a consultant paediatrician at Middlesbrough, and her work has been carried on by locums.
There were also court proceedings which I do not intend to cover tonight.
The statement was supposed to be a letter signed by all 11 consultants from Tyneside and Cleveland, but such was the haste to get it out that signatures could not be gathered.
The author of the statement had already left for Khartoum.
The statement was sent out by Val Hall, who turned out to be Mrs. Dr. Geoffrey Wyatt, although Dr. Hall has since said that she was merely the secretary.
In fact, her role has been greater than that. Dr. Hall is also a member of the Cleveland support group, and she has been in touch with several members of Parliament, seeking their support for Dr. Higgs.
There is nothing reprehensible in any of those activities, except the deceit and dissimulation that has accompanied them in the failure to declare an interest.
There was, of course, an anguished reaction by parents and children who were innocently caught up in the crisis.
It might be convenient to state the number of children who were involved. About 121 children were diagnosed as allegedly having been sexually abused.
Of those 121 children, 98 were returned home by the courts.
There were eight arrests but only four successful prosecutions.
Two men hanged themselves in Durham gaol, and in two other cases in which the only evidence was the diagnostic technique of reflex anal dilatation, the charges were dropped.
It is against that tide of the court decision that the paediatricians, in their statement to The Guardian and elsewhere, seek to swim.
Hardly surprisingly, parents and children alike, settling down about 18 months after the crisis, were traumatised by the sudden appearance of the consultants' statement which was promptly picked up and relayed throughout the media.
Some children immediately asked their parents whether it meant that they had to go back to Cleveland hospitals. Mothers and children, too, had nightmares.
Children were afraid to return to school on the Monday morning after the mid-term holiday, because they feared that someone would take them away.
There was dread and horror that the cycle of repeated physical examinations and disclosure work was back again.
There is no new evidence available to the consultant paediatricians that was not in the hands of the Butler Sloss inquiry, to the medical assessor appointed to that inquiry, or to the courts that dealt with the cases.
When I called him on this specific point, the author of the letter, Dr. Nigel Speight, accepted that he had seen no medical records.
The evidence that was available to the courts in relation to the 98 children was weighed carefully by High Court judges, magistrates and registrars alike, who preferred the alternative available medical evidence which concluded that the children had not been abused.
The consultant paediatricians were not entitled to bring new grief and anguish to the innocent families of Cleveland.
The question for the Minister to weigh is this: how can they justify their conduct, ethically and professionally?
Several of the Cleveland consultants who agreed the statements under their name are still in charge of children who were caught up in the crisis.
After publication of the statement in The Guardian, many parents were encouraged to go to those consultants, and everyone who did so was assured that they were not included in the 90 per cent.
The most appropriate statement of the so-called evidence was given by Dr. Douglas Hague, the regional general manager of the health authority. On local television, he said:
"The precise figure will never be known partly because of the weakness of the medically recorded evidence."
That weakness was revealed even by the signatories to the statement that appeared in The Guardian.
Thus, Dr. Peter Morrell and Dr. Marietta Higgs examined a seven-year-old girl at Middlesbrough general hospital on 5 May 1987.
They diagnosed vaginal and anal abuse, but the minutes of a case review meeting held on Friday 5 June 1987 show that Dr. Peter Morrell pointed out that there was no conclusive medical evidence of sexual abuse.
It is to the credit of Dr. Peter Morrell that he changed his mind.
Dr. Nyint Oo, another signatory to the statement, along with his co- signatory, Dr. Diaz, examined three children aged five, seven and 10 who had been diagnosed by Dr. Higgs as having been sexually abused.
This examination took place at 10 o'clock on the evening of Wednesday 24 June.
According to the parents of the children, they were roused from their hospital beds for examination.
Both Dr. Oo and Dr. Diaz disagreed with the diagnosis of Dr. Higgs, and all three children were allowed home.
Another signatory, Dr. Caroline McCowen, could not agree with Dr. Higgs' diagnoses after an examination which she made on 10 July 1987 on three children, all girls, aged 10, eight and two, and those three children were subsequently reunited by the courts with their parents.
Are these now the children whom the consultants say were being abused all along?
To their credit, those consultants, along with three others in Cleveland, have since offered their apologies to the families for the distress that they had caused.
It is a pity that they did not go further and retract their 90 per cent. statement, leaving that task to the regional general manager of the northern regional health authority and the Minister of State, Department of Health.
The families, however, cannot leave matters as they stand.
They cannot leave their future in the hands of irresponsible statements.
They have waited to hear what the Paediatric Association might have said about the letter.
There has been a deafening silence.
Sadly, the paediatricians--the consultants in this matter of the letter--exercised power without responsibility.
Fortunately, I have 21 letters in support of the parents and the children from other doctors and consultants throughout the country which rectify the balance, but the parents have seen the destruction of childhood innocence in their children by repeated medical examinations and disclosure sessions.
Now they are seeing the steady destruction of what is left of their children's childhood...
Harold Levy...hlevy15@gmail.com;
Saturday, March 1, 2008
Up-Date: Alarm Bells; Part Two; Chief Coroner's Office Aware As Early As 1996 That Smith Fouled Up Criminal Case By Mixing Up DNA Analysis;
One of the most troubling questions plaguing the Goudge Inquiry is why the Chief Coroner's Office failed to rein in Dr. Charles Smith in spite of several loudly resounding alarm bells.
A first alarm bell: 1990:
One of the first of these warnings the Julie Bowers case - widely reported in 1990 - in which Smith repeatedly revised his opinion as to the time of death.
An American pathologist retained by the defence later told a reporter: "I've never had an experience like this,"..."I drew a conclusion that [police and prosecutors] had a serious problem on their hands."
Dr. Janet Ophoven told the reporter that when she was first called to review Smith's post-mortem report and other forensic evidence she could not get important forensic samples from Smith (who has acknowledged at the Inquiry that he believed his role was to help the prosecution win the case);(
"He withheld, in my opinion, all the materials that I needed," Ophoven said, noting that she was shocked when the critical tissue slides were finally produced. "They were from somebody else." (See earlier posting: The Julie Bowers Case; The very first alarm bells; A precursor of things to come;)
A second alarm bell; 1991:
This Blog has devoted several postings to a second alarm bell which resounded loudly in 1993: Judge Patrick Dunn's scathing criticism of Dr. Smith and the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) team.
See earlier postings: "Lawyers warned "to guard" against Dr. Charles Smith's testimony back in 1993; Nov. 9, 2007);" and "Dr. Smith's "mistakes" in the Timmins case: Independent reviewers for College found a litany of errors: Nov. 11, 2007);)
A third alarm bell: As early as 1996:
Another alarm bell - dating back to as early as 1996 emerged during lawyer Peter Wardle's cross-examination of Justice John McMahon.
Wardle represents six-families and care-givers who were effected by Dr. Smith's opinions.
McMahon is a former crown law officer who, at one point, was asked to canvas crown attornies across the province as to any prosecutions involving Dr. Smith.
This alarm bell relates to Deputy Chief Coroner Dr. James Cairns awareness of Dr. Smith's deficiencies.
As the transcript indicates:
Mr Peter Wardle: And I'm really just highlighting this for you, sir, because we've heard a lot of evidence about what the Coroner's Office knew or didn't know about
issues relating to Dr. Smith's competence in the -- in the late 1990's.
And -- and this would certainly suggest that Dr. Cairns, at least, was aware of one (1) incident involving a mixing up of a sample, which appears to have had some impact on an ongoing criminal prosecution, is that fair?
MR. JUSTICE JOHN MCMAHON: Absolutely, it would be fair based on that -- what Ms. Quinlan's recollection is.
The mistake Dr. Smith made in this 1994 case was fatal to the prosecution;
As Reporter Kirk Makin noted in his story in the Globe and Mail on July 2, 2007, "The mountain of mistakes made by Charles Smith during his 20-year career as Ontario's top forensic pathologist grew higher yesterday, as the Goudge Inquiry learned that a 1994 incest case was derailed because Dr. Smith mixed up DNA samples".
The facts of this case are complex - so rather than summarizing them I will let them flow directly from McMahon's evidence to the inquiry:
MR. PETER WARDLE: So I wanted to just take you through the body of this email, if we may.
The email indicates that Ms. Quinlan had prosecuted Roy Simmons (phonetic) on a charge of manslaughter in which Dr. Charles Smith was a witness.
The prosecution began in 1994, and I believe -- and she says in the email:
"I believe in 1997 or early 1998, we were advised that Dr. Smith had mixed up samples from the post-mortem that were subsequently used in DNA testing."
And then it goes on to say:
"To give you some background, Simmons was charged in 1994 with killing his 3-month-old grandson.
It was believed that he was also the father of the baby.
DNA tests were done to confirm this; however, the tests [and I'm assuming that's the initial tests] show that not only was Simmons not the father of the baby, he was not the grandfather of the baby or the father of the child -- baby's mother.
Although the maternal grandmother was adamant that Simmons was the father of the baby's mother, we were assured by CS -- CFS of the accuracy of the results of the test."
And then you'll see it goes on to say: "Simmons was convicted of manslaughter in October 1995.
The Ontario Court of Appeal ordered a retrial on an unrelated issue.
Before the retrial, the baby's mother advised the police that the information she had given to them about the paternity of the baby was false.
She confirmed that Simmons was the father of the baby.
DNA testing was redone using a sample from the mother and another sample from the
baby.
These second tests confirmed that Simmons was the father and grandfather of the baby, and of course, the father of the baby's mother."
And it's really the last paragraph I wanted to direct you to: "An investigation was undertaken regarding the mixing up of the original sample.
A meeting was held with Dr. Jim Cairns, Dr. Smith, CFS personnel, the investigating officer, Detective Constable Dave Fawcette, Detective Inspector Ken Smith, and myself."
And -- and just stopping there. It would appear from the chronology that this would be -- it doesn't say when this meeting took place, but I'm assuming from what's in this email, that it must have been somewhere between 1996 and 1998.
MR. JUSTICE JOHN MCMAHON: It would make sense.
MR. PETER WARDLE: And then it says: "Dr. Charles Smith explained at that meeting that he had mislabeled the original sample from the baby taken at the post-mortem and had taken the wrong sample to CFS for DNA testing.
This resulted in the initial incorrect result as to the paternity of the baby."
And then it goes on to say: "Simmons was convicted in 1999. After the retrial on the charge of manslaughter, he pleaded guilty to incest."
In spite of this serious error which derailed a prosecution, the Chief Coroner's Office allowed Dr. Smith to continue performing forensic autopsies on children for a further five years - and prosecutors kept calling on him to testify as their expert witness against accused parents and caregivers in court.
Dr. Cairns was not questioned about this meeting during his testimony at the Inquiry;
Blogster's query: This "mix-up" indicated Dr. Smith had problems keeping track of forensic evidence.
Why didn't the Chief Coroner's Office and the Hospital for Sick Children crack down on the cluttered state of his office and his lack of proper systems for the labelling, storing, and preserving of exhibits, at that time?
Harold Levy; hlevy15@gmail.com;
A first alarm bell: 1990:
One of the first of these warnings the Julie Bowers case - widely reported in 1990 - in which Smith repeatedly revised his opinion as to the time of death.
An American pathologist retained by the defence later told a reporter: "I've never had an experience like this,"..."I drew a conclusion that [police and prosecutors] had a serious problem on their hands."
Dr. Janet Ophoven told the reporter that when she was first called to review Smith's post-mortem report and other forensic evidence she could not get important forensic samples from Smith (who has acknowledged at the Inquiry that he believed his role was to help the prosecution win the case);(
"He withheld, in my opinion, all the materials that I needed," Ophoven said, noting that she was shocked when the critical tissue slides were finally produced. "They were from somebody else." (See earlier posting: The Julie Bowers Case; The very first alarm bells; A precursor of things to come;)
A second alarm bell; 1991:
This Blog has devoted several postings to a second alarm bell which resounded loudly in 1993: Judge Patrick Dunn's scathing criticism of Dr. Smith and the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) team.
See earlier postings: "Lawyers warned "to guard" against Dr. Charles Smith's testimony back in 1993; Nov. 9, 2007);" and "Dr. Smith's "mistakes" in the Timmins case: Independent reviewers for College found a litany of errors: Nov. 11, 2007);)
A third alarm bell: As early as 1996:
Another alarm bell - dating back to as early as 1996 emerged during lawyer Peter Wardle's cross-examination of Justice John McMahon.
Wardle represents six-families and care-givers who were effected by Dr. Smith's opinions.
McMahon is a former crown law officer who, at one point, was asked to canvas crown attornies across the province as to any prosecutions involving Dr. Smith.
This alarm bell relates to Deputy Chief Coroner Dr. James Cairns awareness of Dr. Smith's deficiencies.
As the transcript indicates:
Mr Peter Wardle: And I'm really just highlighting this for you, sir, because we've heard a lot of evidence about what the Coroner's Office knew or didn't know about
issues relating to Dr. Smith's competence in the -- in the late 1990's.
And -- and this would certainly suggest that Dr. Cairns, at least, was aware of one (1) incident involving a mixing up of a sample, which appears to have had some impact on an ongoing criminal prosecution, is that fair?
MR. JUSTICE JOHN MCMAHON: Absolutely, it would be fair based on that -- what Ms. Quinlan's recollection is.
The mistake Dr. Smith made in this 1994 case was fatal to the prosecution;
As Reporter Kirk Makin noted in his story in the Globe and Mail on July 2, 2007, "The mountain of mistakes made by Charles Smith during his 20-year career as Ontario's top forensic pathologist grew higher yesterday, as the Goudge Inquiry learned that a 1994 incest case was derailed because Dr. Smith mixed up DNA samples".
The facts of this case are complex - so rather than summarizing them I will let them flow directly from McMahon's evidence to the inquiry:
MR. PETER WARDLE: So I wanted to just take you through the body of this email, if we may.
The email indicates that Ms. Quinlan had prosecuted Roy Simmons (phonetic) on a charge of manslaughter in which Dr. Charles Smith was a witness.
The prosecution began in 1994, and I believe -- and she says in the email:
"I believe in 1997 or early 1998, we were advised that Dr. Smith had mixed up samples from the post-mortem that were subsequently used in DNA testing."
And then it goes on to say:
"To give you some background, Simmons was charged in 1994 with killing his 3-month-old grandson.
It was believed that he was also the father of the baby.
DNA tests were done to confirm this; however, the tests [and I'm assuming that's the initial tests] show that not only was Simmons not the father of the baby, he was not the grandfather of the baby or the father of the child -- baby's mother.
Although the maternal grandmother was adamant that Simmons was the father of the baby's mother, we were assured by CS -- CFS of the accuracy of the results of the test."
And then you'll see it goes on to say: "Simmons was convicted of manslaughter in October 1995.
The Ontario Court of Appeal ordered a retrial on an unrelated issue.
Before the retrial, the baby's mother advised the police that the information she had given to them about the paternity of the baby was false.
She confirmed that Simmons was the father of the baby.
DNA testing was redone using a sample from the mother and another sample from the
baby.
These second tests confirmed that Simmons was the father and grandfather of the baby, and of course, the father of the baby's mother."
And it's really the last paragraph I wanted to direct you to: "An investigation was undertaken regarding the mixing up of the original sample.
A meeting was held with Dr. Jim Cairns, Dr. Smith, CFS personnel, the investigating officer, Detective Constable Dave Fawcette, Detective Inspector Ken Smith, and myself."
And -- and just stopping there. It would appear from the chronology that this would be -- it doesn't say when this meeting took place, but I'm assuming from what's in this email, that it must have been somewhere between 1996 and 1998.
MR. JUSTICE JOHN MCMAHON: It would make sense.
MR. PETER WARDLE: And then it says: "Dr. Charles Smith explained at that meeting that he had mislabeled the original sample from the baby taken at the post-mortem and had taken the wrong sample to CFS for DNA testing.
This resulted in the initial incorrect result as to the paternity of the baby."
And then it goes on to say: "Simmons was convicted in 1999. After the retrial on the charge of manslaughter, he pleaded guilty to incest."
In spite of this serious error which derailed a prosecution, the Chief Coroner's Office allowed Dr. Smith to continue performing forensic autopsies on children for a further five years - and prosecutors kept calling on him to testify as their expert witness against accused parents and caregivers in court.
Dr. Cairns was not questioned about this meeting during his testimony at the Inquiry;
Blogster's query: This "mix-up" indicated Dr. Smith had problems keeping track of forensic evidence.
Why didn't the Chief Coroner's Office and the Hospital for Sick Children crack down on the cluttered state of his office and his lack of proper systems for the labelling, storing, and preserving of exhibits, at that time?
Harold Levy; hlevy15@gmail.com;
Up-Date: Alarm Bells; Part One; Mann V. Young; An Evidentiary Conflict;
"MR. MARK SANDLER: AND ON NOVEMBER 29TH, 2007, AT PAGE 171 OF THE TRANSCRIPT, MR. SANDLER ASKED DR. YOUNG AS FOLLOWS: "NOW, YOU'VE INDICATED TO THE COMMISSIONER THAT YOU [DR. YOUNG] WERE UNAWARE OF THESE REASONS FOR JUDGMENT AND DID NOT READ THEM BACK IN 1991, AND INDEED, HAD NOT READ THEM UNTIL THIS INQUIRY COMMENCED, IS THAT RIGHT?
DR. YOUNG: THAT'S RIGHT; SADLY BUT CORRECT."
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MR. ROBERT CENTA; HOW DO YOU REACT TO DR. YOUNG'S TESTIMONY?
MS. MICHELE MANN: I DON'T BELIEVE IT'S ACCURATE AT ALL.
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The Goudge Inquiry has heard conflicting evidence as to whether then Chief Coroner James Young was aware of a 1991 decision in Amber's case in which Judge Patrick Dunn severely criticized Dr. Charles Smith's opinion in the case.
Dr. Young testified that he was unaware of the decision when it was issued in 1991 and did not read the reasons until the inquiry commenced.
Ms. Mann, an investigator for the College of Physicians and Surgeons of Ontario told the Inquiry that she informed Dr. Young about the decision at a one-on-one meeting held in his office in the Coroner's building in Toronto on February 14, 1997.to
The issue is crucial as Dr. Young has testified that he regarded the Amber case as "very serious" and that, in retrospect, "that information would have been "very useful".
It is also critical because one of the nagging questions at the Inquiry has been how Dr. Smith was able to continue performing his harmful work for the Coroner's office for so many years.
In an attempt to resolve this conflict, Dr. Young returned to the Inquiry on February 8, 2008, for further questioning.
For the assistance of our readers, I will lay out Ms. Mann's testimony - followed by Dr. Young's further evidence (February 8) on the issue.
Evidence of Ms. Michelle Mann on the issue:
MR. ROBERT CENTA: And what did you do to try and answer the questions that DM (the babysitter's father) had with respect to -- Dr. Young?
MS. MICHELE MANN: Well, I had reviewed the entire file and all the information contained in it and had four (4) -- I believe four (4) questions that were of concern; that DM had.
It was his questions that he had.
He was concerned with respect to Dr. Young's involvement in this matter.
So I planned a meeting with Dr. Young in order to discuss these four (4) issues.
MR. ROBERT CENTA: If you turn to Tab 18
20 in your binder, PFP152788, are these the notes of your meeting with Dr. Young?
MS. MICHELE MANN: Yes, they are.
MR. ROBERT CENTA: And it indicates that you met with him on February the 14th, 1997?
MS. MICHELE MANN: Correct.
MR. ROBERT CENTA: Had you met with Dr. Young prior to this occasion?
MS. MICHELE MANN: No, not in a one-on- one meeting with him. No. I may have seen him at the College occasionally but...
MR. ROBERT CENTA: Had you ever met with (the) Chief Coroner of Ontario as part of an investigation before?
MS. MICHELE MANN: Never.
MR. ROBERT CENTA: Where did you meet him?
MS. MICHELE MANN: At his office in the Coroner's building.
MR. ROBERT CENTA: Was anyone else present during the meeting?
MS. MICHELE MANN: No.
MR. ROBERT CENTA: Approximately how long did the meeting last?
MS. MICHELE MANN: It's hard to recall this long ago, but I would say it was not a brief meeting. I'd say roughly about forty-five (45) minutes, half (1/2) an hour, forty-five (45) minutes.
MR. ROBERT CENTA: And --
MS. MICHELE MANN: Possibly even as much as an hour. I don't think quite as long as an hour.
MR. ROBERT CENTA: What did you tell Dr. Young was the purpose of your meeting with him?
MS. MICHELE MANN: I told him that there were some questions that the complainant had about how his -- Dr. Smith's conduct had been during the -- the -- the investigation of Amber's death.
And when I initially met with him then I reviewed with him the -- the fact that this family had practically bankrupted themselves in efforts to defend their daughter; that several witnesses had been called from various locations around the world to testify for the defence, and that these opinions of these witnesses had been completely different from what Dr. Smith's findings had been and his analysis of the case.
And I also discussed with Dr. Young the -- Judge Dunn -- Justice Dunn's decision which had also been very critical of the actions of Dr. Smith in the investigation of Amber's death.
So all of these issues were discussed with him upfront as a means of putting some context into the meeting before these questions, contained on this document, were actually put to him.
MR. ROBERT CENTA: Other than the questions and the answers that you've recorded in your note, do you recall anything -- anything else that Dr. Young said to you during that meeting?
MS. MICHELE MANN: I remember that he felt very strongly that SM had killed this child, and I remember being surprised at that comment.
It was a very strong assertion that he believed she'd done it, and I was taken a little bit aback by that, given the Judge's decision.
MR. ROBERT CENTA: You indicated that you had referenced Justice Dunn's lengthy decision in your -- to Dr. Young?
MS. MICHELE MANN: Yes, that's correct.
MR. ROBERT CENTA: Do you know whether or not Dr. Young had read Justice Dunn's decision at the time you met with him?
MS. MICHELE MANN: I don't know if he'd read it.
MR. ROBERT CENTA: Was he aware of the fact of the decision when you met with him?
MS. MICHELE MANN: He didn't certainly seem surprised by any of the information I gave him. He didn't ask any further probative questions of me. I certainly got the impression that he -- this was not news to him.
MR. ROBERT CENTA: Did he ask you for a copy of the judgment during your meeting?
MS. MICHELE MANN: No, he didn't.
MR. ROBERT CENTA: Dr. Young was asked some questions about this when he testified on November 4 29th, 2007. And on November 29th, 2007, at page 171 of the transcript, Mr. Sandler asked Dr. Young as follows:
"Now, you've indicated to the Commissioner that you [Dr. Young] were unaware of these reasons for judgment and did not read them back in 1991, and
indeed, had not read them until this Inquiry commenced, is that right?
DR. YOUNG: That's right; sadly but correct.
MR. SANDLER: Apart from reading the actual reasons for judgment themselves, did you ever become aware of two (2) facts; first of all, that a number of expert witnesses had testified for the defence in this Timmins' case?
DR. YOUNG: No.
Was that fact ever --
DR. YOUNG: No.
MR. SANDLER: -- come to be known by you?
DR. YOUNG: No.
MR. SANDLER: And did the fact ever -- ever come to be known, by you, before this Inquiry, apart from the acquittal, that Justice Dunn had been very sharply
critical of the Hospital for Sick Children and the methodology that was used in this case?
DR. YOUNG: No, the opposite. I mean, as I said, I had the reassurance from Dr. Smith, in fact, that Justice Dunn had changed his mind but never heard critic -- never heard of criticism of either the Hospital for Sick Children r Dr. Smith."
Mrs. Mann, how do you react to Dr. Young's testimony?
MS. MICHELE MANN: I don't believe it's accurate at all.
MR. ROBERT CENTA: Why?
MS. MICHELE MANN: Because those facts were discussed with him in the context of my meeting with him in February of '97.
We had discussed the witness information, not in fine detail, but that there had been several witnesses -- recognized experts in the field of pathology -- who had disagreed strongly with Dr. Smith's position on the matter and that Justice's Dunn's decision had been quite critical. These were the main reasons why the -- the SM family came to the College in the first place. So he - -they were discussed with him.
Evidence of Dr. Young in response to Ms. Mann's testimony:
MR. MARK SANDLER: So you've been invited back to provide your comments on Ms. Mann's testimony?
DR. JAMES YOUNG: Yes.
MR. MARK SANDLER: What do you have to say about her recollection and your recollection of the February 1997 meeting?
DR. JAMES YOUNG: Thank you, Mr. Sandler.
The -- first of all, I'd like to put in context the -- the evidence that I gave the last time.
The review of this particular meeting was raised during my evidence.
I had not seen the -- any of the documents, nor discussed any of the matters with anyone prior to that, nor had I had any discussion about this meeting for ten (10) years.
So I was asked questions about it sitting here in the stand, the third or fourth day of my evidence.
So I had some recollection, but not as good a recollection.
This isn't the -- the best place to sit to get clarity of ideas and -- and refresh your memory, I can tell you.
I have had the benefit since then of -- of Ms. Mann's notes, and that certainly refreshes my memory of the -- the meeting considerably.
As soon as I saw the notes, the meeting became much more familiar to me.
The purpose of the meeting as far as I rem -- am concerned is that it was to answer the -- the issues surrounding the -- the three (3) main issues I would characterize as the ordering of the exhumation, the meetings that had taken place in Timmins, and the -- just a minute -- third issue that's in the notes is escaping me.
The ordering of the exh -- who orders the exhumation, the -- oh, the death certificate, the altering of the death certificate.
Those were the -- those were the issues that Ms. Mann was there to address.
Those are the issues that she wrote her notes on.
Those are the issues that she referred back in her correspondence to Mr. M about.
That was the purpose of the meeting, and that constituted the -- the overwhelming bulk of the -- of the meeting that took place.
The meeting was relatively brief. I -- I would estimate it to be probably somewhere around half an hour, but it was certainly less than an hour or three
quarters (3/4) of an hour, and it was -- it was not a lengthy meeting.
The main topic that we discussed at the meeting was, first of all, Ms. Mann was clearly not used to investigating anything to do with coroners or the Criminal Justice System.
She was an experienced investigator from the College of Physicians and Surgeons. I -- I knew her to be an investigator there, but she normally was looking into doctor's conduct and medical affairs.
This was an area that she was not familiar with, and we spent considerable amount of time discussing what a coroner was, what a pathologist was, how the Coroner's System fit or didn't fit into the Criminal Justice System, what everyone's roles were and what their responsibilities, and who did with -- what within the system.
We then went on and discussed the specifics of this particular case; the involvement of the SCAN Team, the release of the body, the subsequent call from Dr. Driver to me, my -- my role in -- in going to Timmins with -- with Dr. Smith.
And that part of the case, as I indicated in my earlier evidence, was the part of the case I was familiar with, and it was, in fact, my -- my last involvement with that particular case, so.
That was the -- during the course of that then we covered the issue of how death certificates are altered, and that they aren't altered by pathologists, they're altered by coroners; how exhumations are obtained.
And -- and I think the letter that she sent to -- both her notes and the letter that -- that she sent, fairly reflect that.
I believe this was the beginning of the conversation, and it was the -- the overwhelming bulk of the infor -- of -- of the conversation.
At some point during the conversation, I don't dispute the fact that there may have been discussion that -- that there was evidence that was contrary to Dr. -- Dr. Smith's.
I would have expected that there would -- that the evidence that was heard at the trial would be contrary to Dr. Smith because I'm not aware of any trial where other experts are called that agree with the Crown evidence. That defeats the point of -- of -- of calling evidence by the defence.
So the fact that people came and disagreed wouldn't surprise me and I'd certainly been told by Dr. Smith that -- that -- and I can't answer honestly whether it was one or two witnesses had come.
My impression was a couple of witnesses had been called and the main theme that they had explored was that there was no such thing as shaken baby and so they absolutely were in -- in contrast to what Dr. Smith had -- had given in evidence.
So, my belief at that time going into the meeting was that there had been evidence called that was contrary to Dr. Smith.
When I discussed it with Ms. Mann, I came out of the meeting believing exactly the
2 same thing, there had been evidence called that was contrary to Dr. Smith.
I have no recollection nor do I believe that any numbers that were used as to how many witnesses or that the discussion lasted very long -- the significant thing was, I didn't hear anything in that discussion that told me anything that I didn't already know and I already had formed the impression there was evidence contrary to Dr. Smith but she didn't say anything that -- that -- that gave me an idea that it was any greater.
On the issue of criticism of Dr. Smith, I was unaware, as I've given evidence, and I remain unaware until the preparation of -- for this hearing that there was this lengthy written decision by -- by Justice Dunn.
I would have been thinking that we were discussing, in fact, the acquittal of -- of Ms. M. from the point of view that there may have been a comment with some criticism because what I had been told by Dr. Smith was that there had been some criticism of him losing an x-ray.
And that had been an issue that we picked up and put into the pathologist's memo eventually.
So that very brief conversation with Ms. Mann, again, I went into the meeting knowing there had been criticism.
There was no specifics of criticisms mentioned.
The fact that there was criticism was mentioned.
And I came out of the meeting with the same impression I went into the meeting with. Yes, there had been criticism of Dr. Smith.
But I didn't come out of the meeting knowing there was a lengthy report from Justice Dunn; nor that the criticism was at the level; nor that there was criticism of the Hospital for Sick Children.
I -- in essence, we had a conversation where, in my mind, I didn't come out with any different impression than I did at the beginning of the conversation.
As for the -- as for the comment that I felt strongly that -- that Ms. M. was guilty, I have no recollection of saying that and it would be highly unusual and uncharacteristic of me to -- to phrase things in that particular way.
So I can't -- beyond -- beyond that, I don't know what I could say about that.
But, certainly, this -- this part of -- of any conversation was very much very protracted and not the substance of the meeting and took very, very little time and was ten (10) years ago and I note is not reflected in any way in any of the notes that were taken at the meeting.
MR. MARK SANDLER: Okay. Those are all the questions I have of Dr. Smith. Thank you.
It will now be up to Commissioner Goudge to sort out this serious conflict.
Harold Levy...hlevy15@gmail.com;
DR. YOUNG: THAT'S RIGHT; SADLY BUT CORRECT."
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MR. ROBERT CENTA; HOW DO YOU REACT TO DR. YOUNG'S TESTIMONY?
MS. MICHELE MANN: I DON'T BELIEVE IT'S ACCURATE AT ALL.
---------------------------------------------------------------------------------------
The Goudge Inquiry has heard conflicting evidence as to whether then Chief Coroner James Young was aware of a 1991 decision in Amber's case in which Judge Patrick Dunn severely criticized Dr. Charles Smith's opinion in the case.
Dr. Young testified that he was unaware of the decision when it was issued in 1991 and did not read the reasons until the inquiry commenced.
Ms. Mann, an investigator for the College of Physicians and Surgeons of Ontario told the Inquiry that she informed Dr. Young about the decision at a one-on-one meeting held in his office in the Coroner's building in Toronto on February 14, 1997.to
The issue is crucial as Dr. Young has testified that he regarded the Amber case as "very serious" and that, in retrospect, "that information would have been "very useful".
It is also critical because one of the nagging questions at the Inquiry has been how Dr. Smith was able to continue performing his harmful work for the Coroner's office for so many years.
In an attempt to resolve this conflict, Dr. Young returned to the Inquiry on February 8, 2008, for further questioning.
For the assistance of our readers, I will lay out Ms. Mann's testimony - followed by Dr. Young's further evidence (February 8) on the issue.
Evidence of Ms. Michelle Mann on the issue:
MR. ROBERT CENTA: And what did you do to try and answer the questions that DM (the babysitter's father) had with respect to -- Dr. Young?
MS. MICHELE MANN: Well, I had reviewed the entire file and all the information contained in it and had four (4) -- I believe four (4) questions that were of concern; that DM had.
It was his questions that he had.
He was concerned with respect to Dr. Young's involvement in this matter.
So I planned a meeting with Dr. Young in order to discuss these four (4) issues.
MR. ROBERT CENTA: If you turn to Tab 18
20 in your binder, PFP152788, are these the notes of your meeting with Dr. Young?
MS. MICHELE MANN: Yes, they are.
MR. ROBERT CENTA: And it indicates that you met with him on February the 14th, 1997?
MS. MICHELE MANN: Correct.
MR. ROBERT CENTA: Had you met with Dr. Young prior to this occasion?
MS. MICHELE MANN: No, not in a one-on- one meeting with him. No. I may have seen him at the College occasionally but...
MR. ROBERT CENTA: Had you ever met with (the) Chief Coroner of Ontario as part of an investigation before?
MS. MICHELE MANN: Never.
MR. ROBERT CENTA: Where did you meet him?
MS. MICHELE MANN: At his office in the Coroner's building.
MR. ROBERT CENTA: Was anyone else present during the meeting?
MS. MICHELE MANN: No.
MR. ROBERT CENTA: Approximately how long did the meeting last?
MS. MICHELE MANN: It's hard to recall this long ago, but I would say it was not a brief meeting. I'd say roughly about forty-five (45) minutes, half (1/2) an hour, forty-five (45) minutes.
MR. ROBERT CENTA: And --
MS. MICHELE MANN: Possibly even as much as an hour. I don't think quite as long as an hour.
MR. ROBERT CENTA: What did you tell Dr. Young was the purpose of your meeting with him?
MS. MICHELE MANN: I told him that there were some questions that the complainant had about how his -- Dr. Smith's conduct had been during the -- the -- the investigation of Amber's death.
And when I initially met with him then I reviewed with him the -- the fact that this family had practically bankrupted themselves in efforts to defend their daughter; that several witnesses had been called from various locations around the world to testify for the defence, and that these opinions of these witnesses had been completely different from what Dr. Smith's findings had been and his analysis of the case.
And I also discussed with Dr. Young the -- Judge Dunn -- Justice Dunn's decision which had also been very critical of the actions of Dr. Smith in the investigation of Amber's death.
So all of these issues were discussed with him upfront as a means of putting some context into the meeting before these questions, contained on this document, were actually put to him.
MR. ROBERT CENTA: Other than the questions and the answers that you've recorded in your note, do you recall anything -- anything else that Dr. Young said to you during that meeting?
MS. MICHELE MANN: I remember that he felt very strongly that SM had killed this child, and I remember being surprised at that comment.
It was a very strong assertion that he believed she'd done it, and I was taken a little bit aback by that, given the Judge's decision.
MR. ROBERT CENTA: You indicated that you had referenced Justice Dunn's lengthy decision in your -- to Dr. Young?
MS. MICHELE MANN: Yes, that's correct.
MR. ROBERT CENTA: Do you know whether or not Dr. Young had read Justice Dunn's decision at the time you met with him?
MS. MICHELE MANN: I don't know if he'd read it.
MR. ROBERT CENTA: Was he aware of the fact of the decision when you met with him?
MS. MICHELE MANN: He didn't certainly seem surprised by any of the information I gave him. He didn't ask any further probative questions of me. I certainly got the impression that he -- this was not news to him.
MR. ROBERT CENTA: Did he ask you for a copy of the judgment during your meeting?
MS. MICHELE MANN: No, he didn't.
MR. ROBERT CENTA: Dr. Young was asked some questions about this when he testified on November 4 29th, 2007. And on November 29th, 2007, at page 171 of the transcript, Mr. Sandler asked Dr. Young as follows:
"Now, you've indicated to the Commissioner that you [Dr. Young] were unaware of these reasons for judgment and did not read them back in 1991, and
indeed, had not read them until this Inquiry commenced, is that right?
DR. YOUNG: That's right; sadly but correct.
MR. SANDLER: Apart from reading the actual reasons for judgment themselves, did you ever become aware of two (2) facts; first of all, that a number of expert witnesses had testified for the defence in this Timmins' case?
DR. YOUNG: No.
Was that fact ever --
DR. YOUNG: No.
MR. SANDLER: -- come to be known by you?
DR. YOUNG: No.
MR. SANDLER: And did the fact ever -- ever come to be known, by you, before this Inquiry, apart from the acquittal, that Justice Dunn had been very sharply
critical of the Hospital for Sick Children and the methodology that was used in this case?
DR. YOUNG: No, the opposite. I mean, as I said, I had the reassurance from Dr. Smith, in fact, that Justice Dunn had changed his mind but never heard critic -- never heard of criticism of either the Hospital for Sick Children r Dr. Smith."
Mrs. Mann, how do you react to Dr. Young's testimony?
MS. MICHELE MANN: I don't believe it's accurate at all.
MR. ROBERT CENTA: Why?
MS. MICHELE MANN: Because those facts were discussed with him in the context of my meeting with him in February of '97.
We had discussed the witness information, not in fine detail, but that there had been several witnesses -- recognized experts in the field of pathology -- who had disagreed strongly with Dr. Smith's position on the matter and that Justice's Dunn's decision had been quite critical. These were the main reasons why the -- the SM family came to the College in the first place. So he - -they were discussed with him.
Evidence of Dr. Young in response to Ms. Mann's testimony:
MR. MARK SANDLER: So you've been invited back to provide your comments on Ms. Mann's testimony?
DR. JAMES YOUNG: Yes.
MR. MARK SANDLER: What do you have to say about her recollection and your recollection of the February 1997 meeting?
DR. JAMES YOUNG: Thank you, Mr. Sandler.
The -- first of all, I'd like to put in context the -- the evidence that I gave the last time.
The review of this particular meeting was raised during my evidence.
I had not seen the -- any of the documents, nor discussed any of the matters with anyone prior to that, nor had I had any discussion about this meeting for ten (10) years.
So I was asked questions about it sitting here in the stand, the third or fourth day of my evidence.
So I had some recollection, but not as good a recollection.
This isn't the -- the best place to sit to get clarity of ideas and -- and refresh your memory, I can tell you.
I have had the benefit since then of -- of Ms. Mann's notes, and that certainly refreshes my memory of the -- the meeting considerably.
As soon as I saw the notes, the meeting became much more familiar to me.
The purpose of the meeting as far as I rem -- am concerned is that it was to answer the -- the issues surrounding the -- the three (3) main issues I would characterize as the ordering of the exhumation, the meetings that had taken place in Timmins, and the -- just a minute -- third issue that's in the notes is escaping me.
The ordering of the exh -- who orders the exhumation, the -- oh, the death certificate, the altering of the death certificate.
Those were the -- those were the issues that Ms. Mann was there to address.
Those are the issues that she wrote her notes on.
Those are the issues that she referred back in her correspondence to Mr. M about.
That was the purpose of the meeting, and that constituted the -- the overwhelming bulk of the -- of the meeting that took place.
The meeting was relatively brief. I -- I would estimate it to be probably somewhere around half an hour, but it was certainly less than an hour or three
quarters (3/4) of an hour, and it was -- it was not a lengthy meeting.
The main topic that we discussed at the meeting was, first of all, Ms. Mann was clearly not used to investigating anything to do with coroners or the Criminal Justice System.
She was an experienced investigator from the College of Physicians and Surgeons. I -- I knew her to be an investigator there, but she normally was looking into doctor's conduct and medical affairs.
This was an area that she was not familiar with, and we spent considerable amount of time discussing what a coroner was, what a pathologist was, how the Coroner's System fit or didn't fit into the Criminal Justice System, what everyone's roles were and what their responsibilities, and who did with -- what within the system.
We then went on and discussed the specifics of this particular case; the involvement of the SCAN Team, the release of the body, the subsequent call from Dr. Driver to me, my -- my role in -- in going to Timmins with -- with Dr. Smith.
And that part of the case, as I indicated in my earlier evidence, was the part of the case I was familiar with, and it was, in fact, my -- my last involvement with that particular case, so.
That was the -- during the course of that then we covered the issue of how death certificates are altered, and that they aren't altered by pathologists, they're altered by coroners; how exhumations are obtained.
And -- and I think the letter that she sent to -- both her notes and the letter that -- that she sent, fairly reflect that.
I believe this was the beginning of the conversation, and it was the -- the overwhelming bulk of the infor -- of -- of the conversation.
At some point during the conversation, I don't dispute the fact that there may have been discussion that -- that there was evidence that was contrary to Dr. -- Dr. Smith's.
I would have expected that there would -- that the evidence that was heard at the trial would be contrary to Dr. Smith because I'm not aware of any trial where other experts are called that agree with the Crown evidence. That defeats the point of -- of -- of calling evidence by the defence.
So the fact that people came and disagreed wouldn't surprise me and I'd certainly been told by Dr. Smith that -- that -- and I can't answer honestly whether it was one or two witnesses had come.
My impression was a couple of witnesses had been called and the main theme that they had explored was that there was no such thing as shaken baby and so they absolutely were in -- in contrast to what Dr. Smith had -- had given in evidence.
So, my belief at that time going into the meeting was that there had been evidence called that was contrary to Dr. Smith.
When I discussed it with Ms. Mann, I came out of the meeting believing exactly the
2 same thing, there had been evidence called that was contrary to Dr. Smith.
I have no recollection nor do I believe that any numbers that were used as to how many witnesses or that the discussion lasted very long -- the significant thing was, I didn't hear anything in that discussion that told me anything that I didn't already know and I already had formed the impression there was evidence contrary to Dr. Smith but she didn't say anything that -- that -- that gave me an idea that it was any greater.
On the issue of criticism of Dr. Smith, I was unaware, as I've given evidence, and I remain unaware until the preparation of -- for this hearing that there was this lengthy written decision by -- by Justice Dunn.
I would have been thinking that we were discussing, in fact, the acquittal of -- of Ms. M. from the point of view that there may have been a comment with some criticism because what I had been told by Dr. Smith was that there had been some criticism of him losing an x-ray.
And that had been an issue that we picked up and put into the pathologist's memo eventually.
So that very brief conversation with Ms. Mann, again, I went into the meeting knowing there had been criticism.
There was no specifics of criticisms mentioned.
The fact that there was criticism was mentioned.
And I came out of the meeting with the same impression I went into the meeting with. Yes, there had been criticism of Dr. Smith.
But I didn't come out of the meeting knowing there was a lengthy report from Justice Dunn; nor that the criticism was at the level; nor that there was criticism of the Hospital for Sick Children.
I -- in essence, we had a conversation where, in my mind, I didn't come out with any different impression than I did at the beginning of the conversation.
As for the -- as for the comment that I felt strongly that -- that Ms. M. was guilty, I have no recollection of saying that and it would be highly unusual and uncharacteristic of me to -- to phrase things in that particular way.
So I can't -- beyond -- beyond that, I don't know what I could say about that.
But, certainly, this -- this part of -- of any conversation was very much very protracted and not the substance of the meeting and took very, very little time and was ten (10) years ago and I note is not reflected in any way in any of the notes that were taken at the meeting.
MR. MARK SANDLER: Okay. Those are all the questions I have of Dr. Smith. Thank you.
It will now be up to Commissioner Goudge to sort out this serious conflict.
Harold Levy...hlevy15@gmail.com;
Friday, February 22, 2008
Another alarm bell: Tuesday February 26; Cairns DNA;
MR. PETER WARDLE: Now, if we could just
14 look at the email from Elizabeth Quinlan that's in the
15 middle of the page and, first of all, perhaps you could
16 tell us who Elizabeth Quinlan was. I'm assuming she was
17 a Crown.
18 Do you know in what jurisdiction?
19 MR. JUSTICE JOHN MCMAHON: I believe she
20 was in Barrie. I don't know the lady directly, because
21 there's about nine hundred (900) Crown attorneys, but --
22 and I'm cheating somewhat, but I -- I believe that in any
23 event, but I see at the ba -- bottom there it even tells
24 you that she's with that office.
25 MR. PETER WARDLE: So I wanted to just
--------------------------------------------------------------------------------
61
1 take you through the body of this email, if we may. The
2 email indicates that Ms. Quinlan had prosecuted Roy
3 Simmons (phonetic) on a charge of manslaughter in which
4 Dr. Charles Smith was a witness.
5 The prosecution began in 1994, and I
6 believe -- and she says in the email:
7 "I believe in 1997 or early 1998, we
8 were advised that Dr. Smith had mixed
9 up samples from the post-mortem that
10 were subsequently used in DNA testing."
11 And then it goes on to say:
12 "To give you some background, Simmons
13 was charged in 1994 with killing his 3-
14 month-old grandson. It was believed
15 that he was also the father of the
16 baby. DNA tests were done to confirm
17 this; however, the tests [and I'm
18 assuming that's the initial tests] show
19 that not only was Simmons not the
20 father of the baby, he was not the
21 grandfather of the baby or the father
22 of the child -- baby's mother.
23 Although the maternal grandmother was
24 adamant that Simmons was the father of
25 the baby's mother, we were assured by
--------------------------------------------------------------------------------
62
1 CS -- CFS of the accuracy of the
2 results of the test."
3 And then you'll see it goes on to say:
4 "Simmons was convicted of manslaughter
5 in October 1995. The Ontario Court of
6 Appeal ordered a retrial on an
7 unrelated issue. Before the retrial,
8 the baby's mother advised the police
9 that the information she had given to
10 them about the paternity of the baby
11 was false. She confirmed that Simmons
12 was the father of the baby. DNA
13 testing was redone using a sample from
14 the mother and another sample from the
15 baby. These second tests confirmed
16 that Simmons was the father and
17 grandfather of the baby, and of course,
18 the father of the baby's mother."
19 And it's really the last paragraph I
20 wanted to direct you to:
21 "An investigation was undertaken
22 regarding the mixing up of the original
23 sample. A meeting was held with Dr.
24 Jim Cairns, Dr. Smith, CFS personnel,
25 the investigating officer, Detective
--------------------------------------------------------------------------------
63
1 Constable Dave Fawcette, Detective
2 Inspector Ken Smith, and myself."
3 And -- and just stopping there. It would
4 appear from the chronology that this would be -- it
5 doesn't say when this meeting took place, but I'm
6 assuming from what's in this email, that it must have
7 been somewhere between 1996 and 1998.
8 MR. JUSTICE JOHN MCMAHON: It would make
9 sense.
10 MR. PETER WARDLE: And then it says:
11 "Dr. Charles Smith explained at that
12 meeting that he had mislabeled the
13 original sample from the baby taken at
14 the post-mortem and had taken the wrong
15 sample to CFS for DNA testing. This
16 resulted in the initial incorrect
17 result as to the paternity of the
18 baby."
19 And then it goes on to say:
20 "Simmons was convicted in 1999. After
21 the retrial on the charge of
22 manslaughter, he pleaded guilty to
23 incest."
24 And I'm really just highlighting this for
25 you, sir, because we've heard a lot of evidence about
--------------------------------------------------------------------------------
64
1 what the Coroner's Office knew or didn't know about
2 issues relating to Dr. Smith's competence in the -- in
3 the late 1990's.
4 And -- and this would certainly suggest
5 that Dr. Cairns, at least, was aware of one (1) incident
6 involving a mixing up of a sample, which appears to have
7 had some impact on an ongoing criminal prosecution, is
8 that fair?
9 MR. JUSTICE JOHN MCMAHON: Absolutely, it
10 would be fair based on that -- what Ms. Quinlan's
11 recollection is.
14 look at the email from Elizabeth Quinlan that's in the
15 middle of the page and, first of all, perhaps you could
16 tell us who Elizabeth Quinlan was. I'm assuming she was
17 a Crown.
18 Do you know in what jurisdiction?
19 MR. JUSTICE JOHN MCMAHON: I believe she
20 was in Barrie. I don't know the lady directly, because
21 there's about nine hundred (900) Crown attorneys, but --
22 and I'm cheating somewhat, but I -- I believe that in any
23 event, but I see at the ba -- bottom there it even tells
24 you that she's with that office.
25 MR. PETER WARDLE: So I wanted to just
--------------------------------------------------------------------------------
61
1 take you through the body of this email, if we may. The
2 email indicates that Ms. Quinlan had prosecuted Roy
3 Simmons (phonetic) on a charge of manslaughter in which
4 Dr. Charles Smith was a witness.
5 The prosecution began in 1994, and I
6 believe -- and she says in the email:
7 "I believe in 1997 or early 1998, we
8 were advised that Dr. Smith had mixed
9 up samples from the post-mortem that
10 were subsequently used in DNA testing."
11 And then it goes on to say:
12 "To give you some background, Simmons
13 was charged in 1994 with killing his 3-
14 month-old grandson. It was believed
15 that he was also the father of the
16 baby. DNA tests were done to confirm
17 this; however, the tests [and I'm
18 assuming that's the initial tests] show
19 that not only was Simmons not the
20 father of the baby, he was not the
21 grandfather of the baby or the father
22 of the child -- baby's mother.
23 Although the maternal grandmother was
24 adamant that Simmons was the father of
25 the baby's mother, we were assured by
--------------------------------------------------------------------------------
62
1 CS -- CFS of the accuracy of the
2 results of the test."
3 And then you'll see it goes on to say:
4 "Simmons was convicted of manslaughter
5 in October 1995. The Ontario Court of
6 Appeal ordered a retrial on an
7 unrelated issue. Before the retrial,
8 the baby's mother advised the police
9 that the information she had given to
10 them about the paternity of the baby
11 was false. She confirmed that Simmons
12 was the father of the baby. DNA
13 testing was redone using a sample from
14 the mother and another sample from the
15 baby. These second tests confirmed
16 that Simmons was the father and
17 grandfather of the baby, and of course,
18 the father of the baby's mother."
19 And it's really the last paragraph I
20 wanted to direct you to:
21 "An investigation was undertaken
22 regarding the mixing up of the original
23 sample. A meeting was held with Dr.
24 Jim Cairns, Dr. Smith, CFS personnel,
25 the investigating officer, Detective
--------------------------------------------------------------------------------
63
1 Constable Dave Fawcette, Detective
2 Inspector Ken Smith, and myself."
3 And -- and just stopping there. It would
4 appear from the chronology that this would be -- it
5 doesn't say when this meeting took place, but I'm
6 assuming from what's in this email, that it must have
7 been somewhere between 1996 and 1998.
8 MR. JUSTICE JOHN MCMAHON: It would make
9 sense.
10 MR. PETER WARDLE: And then it says:
11 "Dr. Charles Smith explained at that
12 meeting that he had mislabeled the
13 original sample from the baby taken at
14 the post-mortem and had taken the wrong
15 sample to CFS for DNA testing. This
16 resulted in the initial incorrect
17 result as to the paternity of the
18 baby."
19 And then it goes on to say:
20 "Simmons was convicted in 1999. After
21 the retrial on the charge of
22 manslaughter, he pleaded guilty to
23 incest."
24 And I'm really just highlighting this for
25 you, sir, because we've heard a lot of evidence about
--------------------------------------------------------------------------------
64
1 what the Coroner's Office knew or didn't know about
2 issues relating to Dr. Smith's competence in the -- in
3 the late 1990's.
4 And -- and this would certainly suggest
5 that Dr. Cairns, at least, was aware of one (1) incident
6 involving a mixing up of a sample, which appears to have
7 had some impact on an ongoing criminal prosecution, is
8 that fair?
9 MR. JUSTICE JOHN MCMAHON: Absolutely, it
10 would be fair based on that -- what Ms. Quinlan's
11 recollection is.
Friday, February 1, 2008
The Julie Bowers case: The Very First Alarm Bells: A Precursor Of Things To Come;
“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." “
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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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One of this Blog's readers has asked for some background on the Julie Bower's case.
First the status: The Bower's case was not one of the cases subject to the Ontario Chief Coroner's review.
It is expected, however, to come under scrutiny in the second phase of the Inquiry which is about to begin.
First, the basics.
Julie Bowers was charged with the second-degree murder of her 11-month-old son Dustin who she had reported kidnapped from her car in January, 1988.
The next day Bowers, then 26, reported to the police that she had a dream in which she saw Dustin's body - and that she believed she could lead them to it.
Bower's dream led to the discovery of Dustin's body North of Kinkardine, Ontario, on a frigid day, in an area of dense brush.
One of the central factors in the case is that the police presumed Dustin was dead -although he was not immediately examined by a doctor or taken to a hospital.
Bowers was charged with second-degree murder in a prosecution that was widely viewed as a "slam-dunk" because of the bizarre elements of the dream and her ability to lead the police to her son.
But Bowers was subsequently acquitted on March 16, 1990 following a lengthy trial, as a result of a brilliant defense (as usual) by legendary Toronto lawyer Jack Pinkofsky.
The acquittal was extraordinary - given the bizarre elements of the dream and Bower's ability to lead the police to Dustin
The police theory was that Bowers had deliberately drowned her baby backed by evidence by - (guess who!) - who provided a time of death when Bower's could be shown to have exclusive access to her so. (Echoes of the Waudby and Mullins-Johnson cases which were scrutinized by the Goudge Inquiry).
Here is how the forensics played out (as distilled from Toronto Star reports).
At the preliminary hearing in June, 1988, Smith, who performed the autopsy, gave evidence which placed Dustin in snow at the earliest at 5.30 p.m. on Jan. 14.
In a meeting with Pinkofsky and his staff in May 1989, the doctor suggested the time of deposit was 9.30 p.m., he said.
But during the trial, Smith said he had since refined his medical opinion and concluded Dustin could have been abandoned as early as 8.00 a.m. on Jan. 14.
Pinkofsky brought in Dr. Janice Ophoven, a Minnesota U.S.A. forensic pathologist - a real forensic pathologist - who took a very different view;
As my former colleague Toronto Star reporter Maureen Murray wrote in her wonderfully nuanced and detailed coverage of the trial:
"Ophoven, who has testified in more than 20 hypothermia-related cases, said Dustin may simply have been near death when police discovered the toddler shortly before 3 p.m. on Jan.15, 1988.
She said the process of death by exposure to cold results in the body's systems slowly failing, and vital signs are undetectable prior to actual death.
"Fixed and dilated pupils, undetectable heart rate, no breathing, no evidence of blood circulation is also compatible with someone who is profoundly hypothermic, but still alive," Ophoven said.
In hypothermia cases, particularly in children, "re-establishing a normal temperature, rewarming and resuscitation, before deciding absence of life is the case, is important and in my opinion must be done."
Coroner Richard Mann pronounced Dustin dead at the scene about 4 p.m. after failing to detect any vital signs, court has been told. (He died of hypothermia or cold);
The child was then left lying on a blanket near the side of the roadway before being removed about 6 p.m.
Ophoven said Dustin should have been rushed to a hospital.
She said she suspects Dustin was still alive because autopsy results indicate his body showed no significant signs of freezing.
Ophoven examined the autopsy report on Dustin as well as tissue samples taken from his body and statements made by doctors and police who examined or observed the body.
She said Dustin's body was stiff, but not frozen except for signs of frostbite on his left foot. There were no signs his organs were ever frozen except for slight freezing in the passage of his voice box, she said.
The boy's testicles - the most likely area besides the skin to show initial signs of freezing - appeared normal, she said.
The condition of Dustin's body indicates the child was exposed to the cold for 16 to 18 hours, Ophoven testified.
She concluded he was likely left in the snow between 10 p.m. and midnight on Jan. 14, 1988.
It's virtually impossible Dustin was abandoned as early as 1 p.m. on Jan. 14, she said...
Ophoven criticized the procedures used by Dr. Charles Smith, who performed the autopsy, to determine the likely time of death.
She also pointed out what she called omissions in Smith's report.
Smith has testified Dustin may have been exposed to the elements for up to 40 hours prior to the autopsy and could have been abandoned as early as 11.30 a.m. on Jan. 14.
Reporter Murray provided a gripping portrayal of Pinkosky's cross-examination of Smith in a story dated January 24, 1990, which read, in part:
"The doctor who examined Dustin Bowers' body has been grilled for his apparent change in testimony over the length of time the child was abandoned in the snow.
"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...
Pinkofsky zeroed in on several areas where the doctor had made revisions in his testimony since the June, 1988, preliminary hearing.
During that hearing, Smith said Dustin was probably exposed to the cold at least 2 1/2 hours after his mother reported him missing.
Smith, a pathologist at the Hospital for Sick Children, performed an autopsy on Dustin the night the body was found.
But Smith's evidence at the trial suggests the baby could have been abandoned as early as 8 a.m. on Jan. 14, five hours before his mother reported him abducted.
Pinkofsky hinted Smith altered his earlier testimony after realizing it could help the mother's defense.
"You have since learned the implications of the opinions you gave under oath on June 28, 1988 . . . It means that the wrong person is sitting before this court," the lawyer said."
Madam Justice Mabel Van Camp warned Pinkofsky it was for the jury to decide whether or not the accused is guilty.
"The figures I have given this court are to the best of my ability today," Smith said.
He told Pinkofsky he hadn't willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Smith told court he has acquired greater knowledge since he began writing a textbook on pediatric forensic pathology.
He considered factors, such as the degree of freezing in Dustin's body and the environment conditions, to help him estimate the time of death and how long the body lay before being discovered, court heard.
At the end of the lively cross examination, Smith told Pinkofsky: "I've enjoyed an extraordinary artistry of cross examination."
Van Camp told the witness the remark was out of line. he trial continues.
Ophoven clearly loathes Smith to this day.
This is evident from a story by reporter Robb Tripp (another astute reporter of the criminal justice system) which appeared in the Kingston Whig under the heading: "Most awful case: Errors known long ago, pathologist says".
"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, "the story begins.
"Dr. Janice Ophoven, a pediatric forensic pathologist in Minnesota and a medical examiner, was an expert witness for the defense 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 un-cooperative.
"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.
In another story, under the heading "Reliving the pain of death; How a once-respected pathologist turned victims into suspects," Tripp has Ophoven wondering how Smith could describe himself as a forensic pediatric pathologist.
"Dr. Janice Ophoven, a forensic pathologist and county medical examiner in Minnesota with three decades of experience, wondered what forensic training Smith had when she confronted him 17 years ago," Tripp writes.
"Ophoven appeared as a defence expert in a 1990 murder trial in Kincardine and provided opinions that cast doubt on Smith's findings and his methods.
"I knew that [Smith] didn't have forensic training," said Ophoven, who is an expert on child deaths. "I could tell."
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."
Now for the wind-up:
Questions abound:
First, the jury seemed to have no trouble seeing through Dr. Charles Smith - in spite of the bizarre nature of the facts implicating Bowers. Why couldn't the trained police and prosecutors be as perceptive?
Secondly, why didn't Smith's vacillating performance - and demonstration of so little knowledge of forensic pediatric pathology - sound the alarm bells and expose him to scrutiny by his superiors at the Hospital For Sick Children and the Chief Coroner's Office; So many innocent people and their families would have been spared their hellish experiences.
Lastly, Bower's trial was in 1990 - quite some time before Smith was appointed Director of the Ontario Pediatric Forensic Pathology Unit; Why would he be put in this prestigious position of enormous responsibility after demonstrating such pathetic, self-taught knowledge of forensic pathology?
We now know from Smith's own mouth - during his testimony at the Inquiry over the last few days - that in the ‘80’s Smith regarded himself as "an advocate" who was out to win for the prosecution team.
Although Dr. Ophoven desperately needed the tissue samples from Smith in order to fulfill her responsibilities as an expert for the defense it looks like Smith was blocking her all the way - or to put it another way – running interference for the Crown.
This appears to back up Commission Counsel Linda Rothstein’s suggestion denied by Smith that he approached his responsibilities in the criminal justice system as if he were playing a game.
But Julie Bowers was charged with murder – and this “game” could send her to prison for life as her son’s killer.
Ophoven also learned that Smith had kept the vital forensic evidence in this case at his home - which does not seem out of the question of evidence from the Inquiry that he kept a crucial forensic exhibit from the Waudby case at his home.
I get shivers when I think of the implication that Smith - the self-admitted advocate for the Crown and self-perceived member of the prosecution team - kept the materials at his home to make sure the Crown won and Bowers went to prison for the rest of her life.
We also know, by his own admission, that at the time of Dustin Bower’s death in the 1980’s, Smith was utterly ignorant of the most fundamental concepts of forensic pediatric pathology - such as calculating the time of death – as he presumably, according to his sworn testimony in court, is now.
Oh, yes.
As Murray reported, Smith testified that he hadn’t willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Indeed, he had acquired “greater knowledge” since he began writing a text on pediatric pathology.
Has anyone seen the book lately?
Harold Levy…hlevy15@gmail.com;
"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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One of this Blog's readers has asked for some background on the Julie Bower's case.
First the status: The Bower's case was not one of the cases subject to the Ontario Chief Coroner's review.
It is expected, however, to come under scrutiny in the second phase of the Inquiry which is about to begin.
First, the basics.
Julie Bowers was charged with the second-degree murder of her 11-month-old son Dustin who she had reported kidnapped from her car in January, 1988.
The next day Bowers, then 26, reported to the police that she had a dream in which she saw Dustin's body - and that she believed she could lead them to it.
Bower's dream led to the discovery of Dustin's body North of Kinkardine, Ontario, on a frigid day, in an area of dense brush.
One of the central factors in the case is that the police presumed Dustin was dead -although he was not immediately examined by a doctor or taken to a hospital.
Bowers was charged with second-degree murder in a prosecution that was widely viewed as a "slam-dunk" because of the bizarre elements of the dream and her ability to lead the police to her son.
But Bowers was subsequently acquitted on March 16, 1990 following a lengthy trial, as a result of a brilliant defense (as usual) by legendary Toronto lawyer Jack Pinkofsky.
The acquittal was extraordinary - given the bizarre elements of the dream and Bower's ability to lead the police to Dustin
The police theory was that Bowers had deliberately drowned her baby backed by evidence by - (guess who!) - who provided a time of death when Bower's could be shown to have exclusive access to her so. (Echoes of the Waudby and Mullins-Johnson cases which were scrutinized by the Goudge Inquiry).
Here is how the forensics played out (as distilled from Toronto Star reports).
At the preliminary hearing in June, 1988, Smith, who performed the autopsy, gave evidence which placed Dustin in snow at the earliest at 5.30 p.m. on Jan. 14.
In a meeting with Pinkofsky and his staff in May 1989, the doctor suggested the time of deposit was 9.30 p.m., he said.
But during the trial, Smith said he had since refined his medical opinion and concluded Dustin could have been abandoned as early as 8.00 a.m. on Jan. 14.
Pinkofsky brought in Dr. Janice Ophoven, a Minnesota U.S.A. forensic pathologist - a real forensic pathologist - who took a very different view;
As my former colleague Toronto Star reporter Maureen Murray wrote in her wonderfully nuanced and detailed coverage of the trial:
"Ophoven, who has testified in more than 20 hypothermia-related cases, said Dustin may simply have been near death when police discovered the toddler shortly before 3 p.m. on Jan.15, 1988.
She said the process of death by exposure to cold results in the body's systems slowly failing, and vital signs are undetectable prior to actual death.
"Fixed and dilated pupils, undetectable heart rate, no breathing, no evidence of blood circulation is also compatible with someone who is profoundly hypothermic, but still alive," Ophoven said.
In hypothermia cases, particularly in children, "re-establishing a normal temperature, rewarming and resuscitation, before deciding absence of life is the case, is important and in my opinion must be done."
Coroner Richard Mann pronounced Dustin dead at the scene about 4 p.m. after failing to detect any vital signs, court has been told. (He died of hypothermia or cold);
The child was then left lying on a blanket near the side of the roadway before being removed about 6 p.m.
Ophoven said Dustin should have been rushed to a hospital.
She said she suspects Dustin was still alive because autopsy results indicate his body showed no significant signs of freezing.
Ophoven examined the autopsy report on Dustin as well as tissue samples taken from his body and statements made by doctors and police who examined or observed the body.
She said Dustin's body was stiff, but not frozen except for signs of frostbite on his left foot. There were no signs his organs were ever frozen except for slight freezing in the passage of his voice box, she said.
The boy's testicles - the most likely area besides the skin to show initial signs of freezing - appeared normal, she said.
The condition of Dustin's body indicates the child was exposed to the cold for 16 to 18 hours, Ophoven testified.
She concluded he was likely left in the snow between 10 p.m. and midnight on Jan. 14, 1988.
It's virtually impossible Dustin was abandoned as early as 1 p.m. on Jan. 14, she said...
Ophoven criticized the procedures used by Dr. Charles Smith, who performed the autopsy, to determine the likely time of death.
She also pointed out what she called omissions in Smith's report.
Smith has testified Dustin may have been exposed to the elements for up to 40 hours prior to the autopsy and could have been abandoned as early as 11.30 a.m. on Jan. 14.
Reporter Murray provided a gripping portrayal of Pinkosky's cross-examination of Smith in a story dated January 24, 1990, which read, in part:
"The doctor who examined Dustin Bowers' body has been grilled for his apparent change in testimony over the length of time the child was abandoned in the snow.
"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...
Pinkofsky zeroed in on several areas where the doctor had made revisions in his testimony since the June, 1988, preliminary hearing.
During that hearing, Smith said Dustin was probably exposed to the cold at least 2 1/2 hours after his mother reported him missing.
Smith, a pathologist at the Hospital for Sick Children, performed an autopsy on Dustin the night the body was found.
But Smith's evidence at the trial suggests the baby could have been abandoned as early as 8 a.m. on Jan. 14, five hours before his mother reported him abducted.
Pinkofsky hinted Smith altered his earlier testimony after realizing it could help the mother's defense.
"You have since learned the implications of the opinions you gave under oath on June 28, 1988 . . . It means that the wrong person is sitting before this court," the lawyer said."
Madam Justice Mabel Van Camp warned Pinkofsky it was for the jury to decide whether or not the accused is guilty.
"The figures I have given this court are to the best of my ability today," Smith said.
He told Pinkofsky he hadn't willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Smith told court he has acquired greater knowledge since he began writing a textbook on pediatric forensic pathology.
He considered factors, such as the degree of freezing in Dustin's body and the environment conditions, to help him estimate the time of death and how long the body lay before being discovered, court heard.
At the end of the lively cross examination, Smith told Pinkofsky: "I've enjoyed an extraordinary artistry of cross examination."
Van Camp told the witness the remark was out of line. he trial continues.
Ophoven clearly loathes Smith to this day.
This is evident from a story by reporter Robb Tripp (another astute reporter of the criminal justice system) which appeared in the Kingston Whig under the heading: "Most awful case: Errors known long ago, pathologist says".
"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, "the story begins.
"Dr. Janice Ophoven, a pediatric forensic pathologist in Minnesota and a medical examiner, was an expert witness for the defense 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 un-cooperative.
"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.
In another story, under the heading "Reliving the pain of death; How a once-respected pathologist turned victims into suspects," Tripp has Ophoven wondering how Smith could describe himself as a forensic pediatric pathologist.
"Dr. Janice Ophoven, a forensic pathologist and county medical examiner in Minnesota with three decades of experience, wondered what forensic training Smith had when she confronted him 17 years ago," Tripp writes.
"Ophoven appeared as a defence expert in a 1990 murder trial in Kincardine and provided opinions that cast doubt on Smith's findings and his methods.
"I knew that [Smith] didn't have forensic training," said Ophoven, who is an expert on child deaths. "I could tell."
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."
Now for the wind-up:
Questions abound:
First, the jury seemed to have no trouble seeing through Dr. Charles Smith - in spite of the bizarre nature of the facts implicating Bowers. Why couldn't the trained police and prosecutors be as perceptive?
Secondly, why didn't Smith's vacillating performance - and demonstration of so little knowledge of forensic pediatric pathology - sound the alarm bells and expose him to scrutiny by his superiors at the Hospital For Sick Children and the Chief Coroner's Office; So many innocent people and their families would have been spared their hellish experiences.
Lastly, Bower's trial was in 1990 - quite some time before Smith was appointed Director of the Ontario Pediatric Forensic Pathology Unit; Why would he be put in this prestigious position of enormous responsibility after demonstrating such pathetic, self-taught knowledge of forensic pathology?
We now know from Smith's own mouth - during his testimony at the Inquiry over the last few days - that in the ‘80’s Smith regarded himself as "an advocate" who was out to win for the prosecution team.
Although Dr. Ophoven desperately needed the tissue samples from Smith in order to fulfill her responsibilities as an expert for the defense it looks like Smith was blocking her all the way - or to put it another way – running interference for the Crown.
This appears to back up Commission Counsel Linda Rothstein’s suggestion denied by Smith that he approached his responsibilities in the criminal justice system as if he were playing a game.
But Julie Bowers was charged with murder – and this “game” could send her to prison for life as her son’s killer.
Ophoven also learned that Smith had kept the vital forensic evidence in this case at his home - which does not seem out of the question of evidence from the Inquiry that he kept a crucial forensic exhibit from the Waudby case at his home.
I get shivers when I think of the implication that Smith - the self-admitted advocate for the Crown and self-perceived member of the prosecution team - kept the materials at his home to make sure the Crown won and Bowers went to prison for the rest of her life.
We also know, by his own admission, that at the time of Dustin Bower’s death in the 1980’s, Smith was utterly ignorant of the most fundamental concepts of forensic pediatric pathology - such as calculating the time of death – as he presumably, according to his sworn testimony in court, is now.
Oh, yes.
As Murray reported, Smith testified that he hadn’t willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Indeed, he had acquired “greater knowledge” since he began writing a text on pediatric pathology.
Has anyone seen the book lately?
Harold Levy…hlevy15@gmail.com;
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