INNOCENT MAN PLEADED GUILTY TO LESSER OFFENCE TO ESCAPE ALMOST CERTAIN CONVICTION AT HANDS OF CHARLES SMITH; JUSTICE SYSTEM'S "DIRTY LITTLE SECRET";

We know from the Goudge Inquiry that several innocent individuals pleaded guilty to crimes they did not commit - or did not contest certain charges - in order to avoid what their lawyer's described as the almost certain risk of being convicted of murder by the lethal testimony of Dr. Charles Smith;

Globe and Mail Justice Reporter Kirk Makin focused on the issue of lawyer's who help clients plead guilty to offenses they may not be guilty of for collateral reasons in a story which appears today under the heading: "Reopens troubling debate about role lawyers play in arranging guilty pleas for clients who may be not guilty."

"In light of overwhelming evidence from then-respected pathologist Charles Smith, lawyer Robert Graydon knew that his client, Richard Brant, would be a fool to pass up a Crown offer of just six months behind bars for the shaking death of his two-month-old baby, Dustin," Makin's story begins.

"However, there was one serious obstacle to Mr. Brant accepting the plea bargain. The mourning father insisted he had done absolutely nothing to cause Dustin's death - in direct contradiction of findings by the now-discredited Dr. Smith," the story continues;

"After several anguished conversations with Mr. Graydon - now an Ontario Court judge - Mr. Brant said he would concede to having jostled Dustin accidentally during a physical struggle with his wife, according to an affidavit filed in the Ontario Court of Appeal.

By asking the appeal court last week to reopen and overturn his 10-year-old conviction, Mr. Brant also reopened a troubling debate about the role lawyers play in arranging guilty pleas for clients who may be innocent. In Mr. Brant's case, it is very hard to see how his lawyer could have known whether his client was innocent, but he did know the strength of the evidence against him. Judge Graydon declined to be interviewed on the topic.

"I think it's a dirty little secret," University of Windsor law professor David Tanovich, a veteran defence lawyer, said of the role of defence counsel in such cases. "Very few people talk about it."

Michael Code, a defence lawyer who teaches ethics at the University of Toronto law school, said lawyers cannot be party to a client they know is innocent pleading guilty, yet they often feel a tremendous temptation to help a client procure a light sentence.

"It is the hidden underbelly of the justice system, and it does need to be talked about and dragged into the open," Prof. Code said.

Experts say two categories of defendant engage in these so-called pleas of convenience. The first are those who face testimony from a virtually unassailable Crown witness, such as Dr. Smith. The second are those who are denied bail pending a trial.

"They don't want to spend the time in the cramped and overcrowded cells," Prof. Tanovich said. "They want to plead guilty because they can get out right away with time served."

Andras Schreck, a Toronto defence lawyer, said many defendants jump at the chance to end proceedings and go home. "How many people are going to say no to that?" he asked. "I would think that it probably happens hundreds of times a day."

Mr. Schreck said the solution to these pleas of convenience is simple: "Just don't deny bail as often."

For an accused person facing a serious charge, the worry of being found guilty after a trial provides a powerful inducement to accept a bargain-basement offer from the Crown.

Typically, defence lawyers convey these offers using "a whole bunch of nods and winks" in order to skirt ethical boundaries, Prof. Code said: "It won't be a proper discussion. It will be a plea of convenience in disguise."

"Personally, I never do it," Mr. Schreck said. "But some other lawyers will say: 'Look, you really should plead guilty. I'm not going to act for you if you don't.' "

Notwithstanding two significant high-court decisions that brushed over the issue, the courts have remained strangely silent about the role of lawyers.

In a 2003 case - R. v. Taillefer and Duguay - the Supreme Court set aside a guilty plea in a murder case in which one of the defendants pleaded guilty to manslaughter just to end the legal proceedings. "Yet remarkably, nothing was said about whether this was ethical or not," Prof. Code said.

In a 1995 ruling in the case of R. v. S. K., the Ontario Court of Appeal stressed that defence counsel must be careful not to "mislead" the courts about plea bargains, but it went no further.

Mr. Schreck said the role of Crown prosecutors also cries out for scrutiny. "It happens far too often, where the Crown realizes their case is weak and, instead of withdrawing the charge, that they try to induce a guilty plea," he said. "If you do have a case, don't go offering a ridiculously lenient sentence."

In Mr. Brant's case, his ultimate six-month sentence for aggravated assault was a far cry from the six- to eight-year manslaughter sentence he would likely have gotten had he lost at trial.

In an affidavit to the Court of Appeal last week, Mr. Brant recalled: "For many months, Mr. Graydon told me it was in my best interests to plead guilty. He said he would tell the court that Dustin's injuries had been caused during a struggle with Mary on the Friday evening. He urged me to accept the offer."

In fact, Mr. Brant emphasized, he did nothing that could have caused Dustin's death.

"There are no easy answers to this," Mr. Schreck said. "But right now, we are all turning a blind eye to the problem - which is not a good starting point.""

Harold Levy...hlevy15@gmail.com;

"CHARLES SMITH'S LEGACY": POWERFUL NATIONAL POST EDITORIAL IN TODAY'S PAPER;

"THERE IS NO WAY TO COMPENSATE SMITH'S LEGAL VICTIMS IN ANY ADEQUATE FASHION. THEIR LIVES HAVE BEEN RUINED BY HIS INCOMPETENT QUACKERY."

NATIONAL POST; JANUARY 12, 2009;

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"Richard Brant may be no angel, but that is no reason he should continue to be known as a baby-killer. Brant, who is currently serving out the end of a robbery conviction at a halfway house in New Brunswick, was granted an extraordinary appeal on Tuesday of his 1995 conviction for killing his two-month-old son Dustin in 1992," the powerful National Post editorial begins;

"His is yet another case of a life ruined by the fraudulent testimony of disgraced Ontario pathologist Charles Smith," the editorial continues;

When Dustin died, the neuropathologist who first examined him ruled his death was natural, the result of a respiratory blockage caused by pneumonia.

But Smith, considered at the time "the king" of child death investigators in North America, insisted the attending doctor had erred and concluded Dustin's death was due to shaken baby syndrome.

Brant now insists he took the Crown's plea offer of six months for aggravated assault because of Smith's reputation.

But now that Smith -- who was the subject of a public inquiry last year and a review by an international panel of pathologists

A review commission would help win justice for the wrongfully convicted -- has been discredited, Brant, rightly, wants his 14-year-old conviction overturned.

He deserves at least that.

There is no way to compensate Smith's legal victims in any adequate fashion.

Their lives have been ruined by his incompetent quackery.

Consider, for instance, the case of William Mullins-Johnson of Sault Ste. Marie, who spent 12 years in prison for the sexual assault and first-degree murder of his four-year-old niece Valin in 1994 -- a crime he did not commit.

Smith insisted there were signs of strangulation on Valin's body and that Mr. Mullins-Johnson was the most likely culprit.

Yet after the pathology experts had reviewed his case, Mr. Mullins-Johnson was acquitted of both charges in 2007.

At last year's inquiry into Smith's misconduct, Mr. Mullins-Johnson stated that the pathologist's actions "destroyed my family, my brother's relationship with me and my niece that's still left and my nephew that's still living."

These relationships can never be put back the way they were before Smith wrongfully and negligently concluded a trusted uncle had assaulted and murdered his tiny niece.

Nor can the hellish years Mr. Mullins-Johnson spent in prison ever be returned to him. (An investigation by John Chipman of CBC Radio's The Current, aired this week, shows that the man's life is still a mess: He has fallen in with drugs, and is having difficulty with personal relationships.)

Nor are Smith's victims the only Canadians to spend long terms in prisons for crimes they did not commit.

There are, of course, famous cases such as that of David Milgaard, who spent 23 years in prison for a rape and murder he did not commit, and Donald Marshall, who was imprisoned for life for murdering Sandy Seale in 1971, a crime he always insisted he was innocent of, and for which he was acquitted in 1983.

Thomas Sophonow, Guy Paul Morin, Steven Truscott, James Driskell and others have all spent years behind bars or living with the stigma of crimes they did not commit because there is no effective method within our system to deal with wrongful convictions.

We are not implying that our court system generates miscarriages of justice as a matter of routine, nor that police officers, pathologists or Crown prosecutors set out to convict innocent people.

But even scattered instances of wrongful conviction are grounds for societal soul-searching: It is an unconscionable abuse of a citizen's right to freedom to send him to jail when he is innocent of wrongdoing.

The infringement is especially egregious because it cannot be remedied: There is no way to give someone time back that has been taken from him.

Ottawa and the provinces should consider an independent public body that can review complaints of wrongful conviction and recommend meritorious cases to provincial appeal courts.

The U. K. has such a body, the Criminal Cases Review Commission, which in its 14-year history has received more than 11,000 applications for review and referred just 395--fewer than 4% -- to an appellant court.

These numbers show that a panel could be structured in such a way that the truly guilty are not permitted to clog up the court system.

The advantage of such a review commission is that is takes the task of deciding who may have a legitimate grievance away from busy Cabinet ministers in charge of the justice system, and delivers it to experts with the time and resources to review them thoroughly.

Several royal commissions and inquiries in Canada have recommended such a body be formed. The case of Dr. Charles Smith serves to reinforce why one is essential.

Harold Levy...hlevy15@gmail.com;

DR. CHARLES SMITH'S LEGACY; A NEW COLUMN BY ALAN SHANOFF IN THE TORONTO SUN;

Columnist Shanoff's latest column on the Smith debacle ran today under the heading "Expert witness reveals flaws in system," and the sub-heading, "Due to the incompetence of now disgraced pediatric pathologist Dr. Charles Smith numerous people were wrongly convicted and imprisoned."

"An appeal by a man convicted of shaking his boy to death in 1995 was launched last week. Children were wrongly taken from their parents. How did this happen?" the column began;

"In large part it's due to Smith having been qualified to give evidence as an expert witness in the field of pediatric forensic pathology at least 45 times," it continued;

"Based on the findings of the Justice Stephen Goudge Report, we know that allowing Smith to testify as an expert or accepting Smith's evidence as expert testimony was erroneous. We know that Smith had no training in forensic pathology.

We also know that in 1991 Justice Patrick Dunn acquitted a babysitter charged with manslaughter in the death of a 16- month-old child.

In the course of his reasons acquitting the babysitter Justice Dunn lowered the boom on Smith pointing out that Smith wasn't familiar with the scientific literature, failed to conduct a thorough investigation, gave unscientific evidence and was dogmatic in the giving of his evidence.

Yet, Smith was allowed to conduct autopsies, advise Crown attorneys, and testify in other suspicious death cases until 2001!

He was never confronted with Justice Dunn's critical findings. How could this have happened? Why weren't Justice Dunn's findings on Smith circulated and relied upon by others? Why was Smith repeatedly allowed to testify as an expert witness?

ALLOWED BY JUDGES

Let's start with the dozens of judges who allowed Smith to testify as an expert. Judges are the ultimate gatekeepers when it comes to allowing a witness to give opinion, as opposed to factual, evidence.

Only the judge can give the permission which allows experts to testify. It's fair to say that many judges failed as gatekeepers. They not only allowed Smith to testify as an expert but they failed to define the limits of Smith's so-called expertise.

There's plenty of blame to go around. Let's not forget the dozens of Crown attorneys who asked the judges to allow Smith to testify as an expert witness. It's also fair to say that many defence lawyers failed to properly question Smith's qualifications an expert witness.

This is admittedly a complex area but how do we explain such massive human error? Isn't there a network of defence lawyers who share information? Why didn't other defence lawyers use Justice Dunn's findings to attack Smith's expertise or credibility in other cases?

Would you believe that judges have adopted a rule of evidence making it extremely difficult to cross-examine or question a witness based on prior negative judicial comments or findings made about that witness?

It's true; judges are extremely reluctant to allow any witness, let alone an expert witness to be cross-examined on the basis of what was said about them in other cases.

PREVIOUSLY REJECTED

In a 1999 case the Ontario Court of Appeal stated that "it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case."

So even if others knew about Justice Dunn's findings, they could not use it to impeach Smith as an expert witness in subsequent cases. In other words, let's pretend Justice Dunn's findings were never made.

If we want to prevent some of the human error that leads to wrongful convictions surely we have to reject this counter-intuitive rule of evidence.

The fact that an expert witness was disbelieved in one case must be relevant in other cases. The fact that a police officer has been caught in a lie in one case must be relevant in other cases. It's common sense, isn't it?

I'm not suggesting that the expert or officer should never be allowed to testify again or that their evidence should never be believed. But surely the prior findings are relevant in subsequent cases and the witnesses should be required to satisfy the court why their evidence should now be believed.

So, in the end judges failed us in acting as gatekeepers to keep out Smith's so-called expert testimony and they failed us by adopting a rule that prevented defence lawyers from using Justice Dunn's findings to attack Smith's credibility and expertise.

We need to learn from our mistakes."

Harold Levy...hlevy15@gmail.com;