Part Six: Case Studies; Systemic Factors; The "Athena" Case; Presented By The Affected Families Group;

"FINALLY, THE USE MADE BY THE POLICE OF THE POST-MORTEM REPORT IN THEIR INVESTIGATION – IT WAS NOT RELEASED TO THE FAMILY UNTIL THE POLICE HAD WIRETAPPED THEIR HOTEL ROOM, SO AS TO GAUGE THEIR REACTION – AGAIN RAISES ISSUES ABOUT THE ACTIVE INVOLVEMENT OF THE CHIEF CORONERS' OFFICE IN ONGOING POLICE INVESTIGATIONS."

CASE STUDY; THE ATHENA CASE; AFFECTED FAMILIES GROUP;

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Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.

These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;

The sixth case has been identified by the Inquiry as the "Athena" Case;

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By way of brief background:

Athena's parents were freed of murder charges by the Ontario Court of Appeal on April 14, 2005 on grounds of excessive delay;

The appeal court acknowledged that, "The prospect of freeing someone on a charge of first-degree murder without a trial on the merits is almost unthinkable," the court conceded.

While the court decision lifted a heavy load from the shoulders of the couple, they were deprived of the opportunity of having their innocence demonstrated in the courtroom, in a prosecution that was based on the opinion of Dr. Charles Randal Smith.

The couple had protested their innocence from the outset;

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"The primary systemic issues raised by the Athena case obviously relate to the Chief Coroner's Office's control over the timing and delivery of post-mortem reports and consultation opinions," the case study begins;

"As found by the trial judge, and affirmed by the Court of Appeal, Dr. Smith’s delays in this case were unexplained, and had a significant impact on the time it took for the case to reach trial, with highly prejudicial effects for the family," it continues;

"There are however several other issues raised by the case which deserve the Commissioner’s attention.

As outlined in the trial judge’s reasons, there were a series of misunderstandings which led to Athena’s body being cremated at a time when the family were still considering whether to obtain a second opinion.

It is also important to note that there was evidence before Justice Trafford that the family, when inquiring about a second (defence) autopsy, was told by the Regional Coroner Dr. Bennett that the cost would be prohibitive.

Finally, the use made by the police of the post-mortem report in their investigation – it was not released to the family until the police had wiretapped their hotel room, so as to gauge their reaction – again raises issues about the active involvement of the Chief Coroners' Office in ongoing police investigations."

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By way of background to Athena's case, here is an earlier Blog which I initially pulled because of concerns over the Inquiry's publish ban - which now has been modified accordingly:

"HE (SMITH) WAS THE SUBJECT OF MANY COMPLAINTS BY DOCTORS, POLICE OFFICERS, AND CROWN ATTORNEYS ABOUT DELAYS ON THE PART OF DR. SMITH IN THE PREPARATION OF POST-MORTEM, OR CONSULTATIVE REPORTS..."

"THE DELAY BY DR. SMITH IN THE PREPARATION OF A COMPREHENSIVE POST-MORTEM REPORT IS SHOCKING, NOT ONLY IN ITS DEPARTURE FROM THE STANDARDS EXPECTED OF HIM AND THE ONTARIO CHIEF CORONER'S OFFICE IN THE CIRCUMSTANCES OF THE CASE BUT BECAUSE OF HIS KNOWLEDGE OF THE IMPORTANCE OF HIS WORK TO THE CASE AND HIS KNOWLEDGE OF THE DESIRE OF THE POLICE, THE CROWN ATTORNEY AND THE DEFENDANTS TO HAVE A COPY OF THE REPORT AS SOON AS WAS REASONABLY POSSIBLE."

SUPERIOR COURT JUSTICE BRIAN TRAFFORD:

Dr. Charles Smith has come under fire for erroneous opinions that sent innocent persons to prison for life.

He has also come under attack for allegedly misplacing key forensic evidence that could show that people charged as a result of his opinions are innocent.

There is a third area in which the once venerated pediatric forensic pathologist has been criticized: An apparent problem with providing police and prosecutors with post-mortem reports, and other important documents in a timely fashion.

Allegations of a propensity for delay are found in Athena's case where Superior Court Justice Brian Trafford stayed charges of first-degree murder charges against a couple largely because of unreasonable delay.

Dr. Charles Smith had taken almost twelve month-s to file what turned out to be a one-page report.

As Trafford observed in his 63-page decision,"He (Smith) was the subject of "many complaints by doctors, police officers, and Crown Attorneys about delays on the part of Dr. Smith in the preparation of post mortem, or consultative reports..."

Trafford also notes that the officer in charge of the case distrusted Smith so intensely that he refused to lay criminal charges against the couple without written confirmation of the timing of the injuries to baby Athena.

Trafford details the Herculean efforts to obtain obtain the written addendum from Smith. (The homicide officers had asked Smith to prepare the document around July 20, 1999 - and Smith did not make it available until April 4, 2000);

An aggravated prosecutor had told a judge conducting a pre-trial conference held on March 6, 2000, "We have been trying ever since then (November, 1999) to get the amended (post-mortem) report. We still do not have it. We've written letters. I've called. The police have called numerous times."

"Understandably (defence) counsel is anxious to get this on and so is the Crown," the Prosecutor continued. "And I am considering taking the unusual step, Your Honour, of subpoenaing the doctor to come to Court to get some explanation as to when we're going to get this other report...

Time to pause for a moment;

A prosecutor on a first-degree murder trial is contemplating the serving of a subpoena on an important Crown witness who is none other than the renowned Dr. Charles Smith, head of the Pediatric Forensic Pathology Unit at the Hospital For Sick Children, in order to obtain a report which is crucial to the police investigation.

Something is very wrong with that picture.

Meanwhile the police where frantically attempting to obtain the document from Smith, as in a letter dated Feb. 1, 2000, signed By Detective Sergeant Matt Crone which notes that, "Proceedings against Athena's father have been delayed by my efforts to obtain this information from you."

"(Prosecutor) Rita Zaied has been placed in the difficult position of being unable to properly disclose this information and thus set a date for the preliminary hearing," Crone continued. "Despite my many phone calls and your assurances, I have not yet received the additional information requested.

"I fully appreciate how full your schedule is, but the situation is now critical and I must formally request, in the strongest terms, that the additional information I have requested be forwarded to me as soon as possible."

(Prosecutor Zaied made a similar written request to Smith in a letter dated March 13, 2000);

The letters clearly came to no avail as Detective Sergeant Crone was forced to serve Dr. Smith with a subpoena compelling production of the written addendum about two weeks later.

Smith's failure to provide police and prosecutors with crucial documents was clearly not unique.

Trafford tells us that:

0: On April 3, 2000, Detective Crone served Dr. Smith with a subpoena compelling production of the written memorandum;

0: In August 1997, Dr. Smith was compelled by a subpoena to attend Court with his report in another case;

0: In September 1998, Dr. Smith, in yet another murder case, was the subject of an application by the defence for an order requiring production of his post-mortem reports;

(This blog would appreciate receiving identification of the two other cases from its loyal readers);

Trafford also tells us that the addendum which had taken Smith more than nine months to produce turned out to be one page long and to contain nothing more than a repetition of the oral opinion he had provided the previous July;

In Athena's case, Trafford found that Smith's unreasonable delay in producing the addendum to the post-mortem report, "caused a significant delay in the completion of the investigation and the decision to proceed against both defendants on a charge of murder."

(Trafford ruled that Smith caused further delay by failing to submit forensic exhibits to the Centre for Forensic Science for a period of approximately six weeks);

But one must also consider the cruel consequences Smith's failure to do his job in a prompt manner had on Athena's mother who found out in the summer of 1998 that she was pregnant, and her husband.

Athena's mother was caught in a terrible dilemma:

She hoped that once the post-mortem report was issued by Smith both she and her husband would be cleared.

But she had been advised by a social worker that she ought not continue the pregnancy because if she had the baby it would likely be taken from he on an application for Crown wardship.

The couple opted for an abortion;

As Trafford puts it:

"The decision to have the abortion was a very difficult one that was difficult to make"

"She and Angela's father considered all their options," he continued.

"The options included having the child and resisting the efforts of the CAS(Children's Aid Society) to obtain custody, consenting to custody by any one of a number of immediate relatives in Toronto or elsewhere and having the child and putting it up for adoption.

The other option, abortion, was the alternative selected by them.

Neither the Toronto Police Services or the Crown Attorneys Office were involved in the decision.

As a result of the termination of the pregnancy, Angela's mother, suffered from extreme feelings of depression, anger, frustration and loss.

She obtained medical treatment for this condition.

If the post-mortem report of Dr. Smith had been received and proved the death of Athena was a sudden unexplained death, she would not have terminated the pregnancy."

Harold Levy...hlevy15@gmail.com;

Part Seventeen: Closing Submissions; Affected Families Blast Former Chief Coroner's continued support of Dr. Charles Smith;

"AS LATE AS NOVEMBER, 2002, DR. YOUNG WAS STILL SUPPORTING DR. SMITH;"

CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP;
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This Blog is currently focussing on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;

The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;

Today's focus is on a section in which the group argues that former Chief Coroner Dr. James Young continued to support Dr. Smith - even after receiving evidence that raised serious questions as to his competence, veracity, and potential obstruction of justice.

"In fact, as time went on the Chief Coroner's Office learned information about Dr. Smith which should have triggered immediate consequences," the section, under the caption "Following the Discovery of the Hair, Dr. Young Continues to Support Dr. Smith," begins;

"In particular, beginning in November, 2001 Dr. Cairns became involved in the Jenna case, where as a result of Det. Charmley’s reinvestigation the hair was rediscovered," it continues;

"Following Dr. Cairns meeting with Dr. Smith and his wife, he knew that Dr. Smith’s explanation about his discovery of the hair made no sense and was likely false.

Prior to April 10, 2002, Dr. Young was briefed by Dr. Cairns on what he had learned.

He acknowledged in his evidence that this issue raised serious questions.

Those included Dr. Smith’s competence, veracity, and potential obstruction of justice.

And yet, the Chief Coroner's Office took no steps whatsoever as a result of this information (except that of Dr. Cairns notifying the Registrar of the College of Physicians and Surgeons Of Ontario of his concerns).

Dr. Smith continued to sit on the Pediatric Death Review Committee and Death Under 2committees. Furthermore, he continued to be the nominal head of the Ontario Pediatric Forensic Pathology Unit.

As a result, for a lengthy period Dr. Smith continued, at least in theory, to be responsible for the review of autopsy reports of other Hospital for Sick Children pathologists in criminally suspicious child death cases, while at the same time being prevented from doing such autopsies himself!

Further, inexplicably, on April 10, 2002, knowing of the information which had emerged in the Jenna case, Dr. Young wrote a letter of support for Dr. Smith to the College.

That letter is carefully crafted (by Dr. Smith’s counsel!), and does not actually defend the correctness of Dr. Smith’s findings in the three cases under review by the College Complaints Committee.

However, it signals in unambiguous terms that the Chief Coroner of Ontario was supporting his pathologist.

According to the letter:

0: Dr. Smith was “qualified” to undertake the work requested in each case;

0: At no time did Dr. Smith act in bad faith or with the intent of obstructing or hindering the coroner’s investigation in each case;

0: For Nicholas and Amber the conclusions he reached fell within the “range of reasonable expectations”;

0: With respect to Amber, in which Dr. Young was directly involved, he was “completely satisfied” that Dr. Smith’s conclusions met the standard expected;

0: Dr. Young had investigated Mr. Gagnon’s allegations and had not found any professional misconduct, and Dr. Smith’s opinion “fell within a range of acceptable opinions”;

0: Dr. Young was not willing to comment on Dr. Smith’s involvement in Jenna, because of the ongoing criminal investigation.

Dr. Young was unable to explain why he wrote this letter, given the circumstances at the time.

He acknowledged with the benefit of hindsight that the Chief Coroner's Office should have stopped Dr. Smith from doing anything after it found out about his conduct in regard to the hair.

Dr. Young’s failure to act may have had collateral consequences.

As outlined earlier, a few months later Dr. Smith was interviewed by the chair of the panel of assessors appointed by the Complaints Committee.

He gave arguably misleading information about his ongoing work in connection with the Ontario Pediatric Forensic Pathology Unit, which he still at least theoretically headed.

Arguably, had Dr. Smith’s position been taken away in April 2002 the College would have investigated those cases further.

As late as November, 2002 Dr. Young was still supporting Dr. Smith; he wrote a letter on his behalf to the Northumberland Ontario Provincial Police after the traffic stop incident.

When Dr. McLellan became acting chief coroner in July 2002 he did not agree that Dr. Smith should continue as Director of the Ontario Pediatric Forensic Pathology Unit;

Dr. Young refused to take the position away from him, but on Dr. McLellan’s insistence, agreed to assume responsibility for all matters relating to Dr. Smith.

It was only in October 2003, in the context of ongoing concerns about cases which were continuing to receive media attention, and in the context of the decision of Justice Trafford in the Athena case, that Chief Coroner's Office demonstrated any real concerns about Dr. Smith continuing to conduct coroner’s autopsies(although Dr. McLellan had continued to express his concern since his appointment as acting Chief Coroner).

At that time, Dr. Smith was forced to resign from his committee work.

Finally, in April 2004 he was forced to resign as head of the Ontario Pediatric Forensic Pathology Unit after Dr. McLellan became Chief Coroner."

Harold Levy...hlevy15@gmail.com;

Dr. Charles Smith's "Sins" As Catalogued in Athena's Case;

"WHETHER DR. SMITH'S OPINIONS IN MR. MULLINS-JOHNSON'S CASE SHOULD BE CLASSIFIED AS UNPROFESSIONAL, ATTENTION-SEEKING, HYPERBOLIC OR JUST PLAIN WRONG, IS BEYOND THE POINT - THEY HAVE CONTRIBUTED TO MR. MULLINS-JOHNSON SPENDING MORE THAT TWELVE YEARS IN PRISON FOR A CRIME HE DID NOT COMMIT;"

WILLIAM MULLINS-JOHNSON'S LAWYERS IN MEMORANDUM TO JUSTICE MINISTER;

During a pre-trial hearing in the Kporwodu and Veno case Justice Brian Trafford heard evidence as to Dr. Charles Smith's competence and objectivity from numerous cases.

Trafford ended up finding six issues surrounding Smith's work which are summarized by William Mullins-Johnson's lawyers in a memorandum filed on their application for ministerial review as follows:

0: His over-interpretation or misinterpretation of findings made during the autopsy;

0: His overstatement or misstatement of findings made by other experts involved in the medical examination of a death;

0: His failure to consult with other experts before expressing an opinion on the cause of death;

0: His failure to review other pertinent information such as lifetime medical records, before expressing his opinion on the cause of death;

0: His failure to conduct tests during the autopsy that should have been done;

0: His failure to properly document all significant aspects of the autopsy or to elaborate on the basis of his opinions;

Mullins-Johnson's lawyers, James Lockyer and David Bayliss, say in the memorandum to the federal justice minister that, "Dr. Smith committed many of the sins including over-interpreting and misinterpreting autopsy findings, and overstating and misstating the fndings of other experts."

"This case (Mullins-Johnson) has all the hallmarks of his modus operandi of finding murder where it does not exist," they continue.

"Whether Doctor Smith's opinions in Mr. Mullins-Johnson's case should be classified as unprofessional, attention-seeking, hyperbolic or just plain wrong is beyond the point - they have contributed to Mr. Mullins-Johnson spending more than twelve years in prison for a crime he did not commit."

(Blogster's note: They might also have added..."for a crime that never occurred.")

One of the reasons that Trafford's indictment of Dr. Smith is so disturbing is that Smith held a position of trust in Ontario's criminal justice system.

Police officers trusted him so highly that they would lay murder charges against parents and babysitters on the basis of his opinion alone - without waiting until all the forensic evidence was in - and without conducting their own independent police investigation; (See previous posting: Interrogation of an innocent man);

Prosecutors not only trusted Smith but built him up as a world class pediatric forensic pathologist when they placed his evidence before the jury.

Judges also got sucked in to the Smith phenomenon - sometimes failing to do all they should have dome to ensure that the proposed expert witness was properly qualified.

But most of all, jurors, reinforced by the adoration bestowed by judges and prosecutors, could be excused for believing that this man was a forensic God who had descended from Mount Olympus to enlighten them.

How could this have happened in a criminal justice system based on the rule of law?

I will leave that for another blog!

Harold Levy;