"GIVEN THE ALARMING FREQUENCY OF WRONGFUL CONVICTIONS -- THE GOUDGE INQUIRY INTO SEVERAL SUCH CASES INVOLVING DISGRACED PATHOLOGIST CHARLES SMITH WRAPPED UP LAST MONTH -- PERHAPS THERE SHOULD BE A STANDING OFFICE CHARGED WITH EXONERATING THE WRONGFULLY CONVICTED ON A PERMANENT BASIS;"
FATHER RAYMOND DE SOUZA; NATIONAL POST;
-----------------------------------------------------------------------------
Father Raymond De Souza is rapidly becoming one of the most articulate and impassioned critics of Canada's criminal justice system through his columns published in the National Post;
Father De Souza's philosophy is well reflected in the title to a recent column called, "Holding the justice system to a higher standard," published on Thursday April, 24, on the recent acquittal of Robert Baltovich following a pursuit for justice that lasted almost two decades.
(Father De Souza is the author of an earlier column published on March 31, 2008, under the heading, "Dr. Smith And The Price Of Justice," which I have included below for those who have not yet had the opportunity to read it.
"The Premier of Ontario opened the door to a public inquiry into the wrongful conviction of Robert Baltovich yesterday," the column begins. (The Baltovich case is summarized in the Wikipedia entry which I have included in this post);
"Given the alarming frequency of wrongful convictions -- the Goudge Inquiry into several such cases involving disgraced pathologist Charles Smith wrapped up last month -- perhaps there should be a standing office charged with exonerating the wrongfully convicted on a permanent basis," it continues;
It has now become clear that in Canada it is not rare for police, prosecutors and, in the Baltovich case at least, the trial judge, to rush to injustice, honouring in no real sense the presumption of innocence.
Along with a seemingly endless parade of wrongful convictions, the Baltovich case -- which meandered through the courts for 18 years with nothing other than circumstantial evidence to back it up -- puts us dangerously close to a damaging erosion of public confidence.
As the malfeasance of our police and prosecutors becomes more widely-known, reasonable citizens will begin to doubt whether they can trust any convictions procured by a system that apparently cares for successful prosecutions more than truth or justice.
Today the Supreme Court of Canada is hearing arguments in the Grant case -- the case began when a young black man was stopped by Toronto police some years ago because he appeared "fidgety" and was found to be carrying a loaded handgun.
Many experts expect the outcome will loosen the prohibitions on improperly gathered evidence being admitted at trial. Leaving aside the merits of the Grant case, it is not a propitious time to entrust Canada's police or prosecutors with greater latitude. As inquiries are springing up into miscarriages of justice, it would seem better to hold the criminal justice system to a higher standard. It is the accused who in a just system are entitled to the benefit of the doubt, not the state.
I have returned to this theme several times in the past year, which would be a bore except that our courts are freeing the wrongfully convicted even more often than I write about abuse of prosecutorial power. Yet my thinking on this was sharpened last week in the most unusual of circumstances -- covering the papal visit in Washington and New York.
Not than any of us were arrested, but living a week under the security protocols of the United States Secret Service gives one a taste of what the safety and security state does with unchecked power. Not surprisingly, it abuses it.
The Secret Service stands out because, with unlimited budgets in its favour and a peculiar American enthusiasm for ostentatious displays of security cheering it on, no incursion into our liberties was thought too much.
If the Secret Service had its way -- which it did last week -- we would all be in a never-ending airport security lineup: much inconvenience, ever greater invasions of privacy and very little actual security.
We were told repeatedly that the papal visit was conducted at the highest level of security the Secret Service provides, save for a presidential inauguration.
Many people seemed perversely proud of this -- that the visit of the Pope provoked a curtailing of liberties second only to those used to mark great patriotic festivals.
Despite all journalists being screened by the Secret Service weeks ago, for every event we were required to show up four to eight hours in advance, be made to wait in various places while the whole dog-sniffing, metal-detecting routine ensued.
Then it was on to a special bus and into a holding pen on the other end to pass a few more hours, sometimes being forbidden to look out the windows, or interview members of the general public a few feet away.
Much like their colleagues in airport security, the Secret Service were not particularly competent, as even after hours of sequestering we were frequently taken into non-secure areas to mingle with the general public, rendering the whole operation useless.
As far as it went, it was a perfect image of the security state: Plenty of power to invade and curtail the liberties of free citizens, ostentatious displays of force, a widespread suspicion that we were up to no good and, in the end, shockingly poor competence in discharging the duties for which it is given extraordinary powers in the first place.
A week under the thumb of the Secret Service is instructive, and really only inconvenient. The criminal justice system, as it is pleased to call itself, offers far more than inconvenience.
And 18 years is altogether different from one week."
-------------------------------------------------------------------------------
A concise Wikipedia entry for those readers who are not familiar with the Baltovich case which will be referred to in up-coming posts:
Robert Baltovich (born July 17, 1965) is a Canadian man who was wrongly convicted in 1992 of the murder of his girlfriend, Elizabeth Bain in Scarborough, Ontario, Canada. He spent eight years in prison and nearly another decade trying to clear his name, before being found not guilty in a retrial on April 22, 2008.
Elizabeth Bain murder;
In 1990 Baltovich graduated with a degree in psychology from the University of Toronto at Scarborough. Here he also met and developed a relationship with Elizabeth Bain, a fellow student.
Bain disappeared on June 19, 1990, telling her mother she was going to "check the tennis schedule" on campus. On June 22, her car was found with a large bloodstain in the back seat. Her body was never found.
First trial and conviction;
On November 19, 1990, Baltovich was arrested and charged with first-degree murder. His case continued in the courts for several years, during which he consistently maintained his innocence. His lawyers suggested that the so-called "Scarborough rapist", the name by which the infamous Canadian serial killer Paul Bernardo was then known, might be responsible for the murder.
On March 31, 1992, he was convicted of second-degree murder. His lawyers appealed and on March 31, 2000, Baltovich was released on bail, pending the outcome of his appeal. In September 2004 his appeal was finally processed and his case gained national attention again when his lawyers alleged that he had been wrongfully convicted and that Bernardo was guilty of Bain's murder. They allege that circumstantial evidence suggests links to Bernardo, and that this evidence could not have been available during Baltovich's original trial as the identity of the Scarborough rapist was then unknown.
Appeal, retrial and acquittal;
On December 2, 2004, the Ontario Court of Appeal set aside the conviction, delivering what news reports called "a scathing attack" [1] on the conduct of the original trial judge. This fell short of the acquittal that Baltovich's counsel had argued for. On July 15, 2005, Ontario's Ministry of the Attorney-General announced that Baltovich would face a new trial on charges of second-degree murder, at an unspecified date, and remain free on bail in the meantime...
On March 31, 2008, jury selection began in the second-degree murder trial. The trial, slated to begin in Toronto on April 14, 2008, was delayed, with the Crown (prosecution) giving no reason. When the trial resumed, the Crown declined to call any of the more than 50 witnesses they had planned, citing "recent developments, including the cumulative effect of the pre-trial evidentiary rulings rendered to date in this case, other evidentiary issues, and changes to case law".[2] With no Crown case, the judge directed the jury to make a finding of not guilty on April 22, 2008.
Crown seeks plea bargain;
It is widely reported that the crown had sought an agreement in which if Robert Baltovich revealed the location of Elizabeth Bain's body, he would receive a one day sentance. On the basis of his innocence and lack of knowledge of this event, this plea bargain was rejected.
-------------------------------------------------------------------------------
Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;
-------------------------------------------------------------------------------
Earlier post featuring column by Father De Souza:
"GOD HELP THE FALSELY ACCUSED; THEIR INNOCENCE IS NO MATCH FOR A CORRUPT SYSTEM;"
FATHER RAYMOND J. DE SOUZA;
-------------------------------------------------------------------------------------
The National Post has provided insightful gavel to gavel reporting of the Goudge Inquiry by reporter Tom Blackwell.
In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"
Father De Souza has an interesting background.
A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.
Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.
"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.
"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.
"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.
The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.
Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.
It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.
Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.
Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.
A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.
The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.
Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.
Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.
Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.
Remember the Klemko controversy last summer?
Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.
His offence?
He has testified for defendants as an outside consultant in various cases.
The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.
The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.
The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.
So we have coroners who think they should say what the Crown prosecutors want.
Cops who are told not to contradict what the Crowns want. Crowns who want convictions.
The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.
Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.
God help the falsely accused; their innocence is no match for a corrupt system.
Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.
It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.
Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.
It will be terribly costly -- but less costly than imprisoning the innocent.
Less costly than accusing innocent parents of murdering their own children.
Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.
Less costly than having a justice system unworthy of the name.
Harold Levy...hlevy15@gmail.com;
Showing posts with label critical comment. Show all posts
Showing posts with label critical comment. Show all posts
Friday, April 25, 2008
Thursday, April 24, 2008
Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;
"GIVEN THE ALARMING FREQUENCY OF WRONGFUL CONVICTIONS -- THE GOUDGE INQUIRY INTO SEVERAL SUCH CASES INVOLVING DISGRACED PATHOLOGIST CHARLES SMITH WRAPPED UP LAST MONTH -- PERHAPS THERE SHOULD BE A STANDING OFFICE CHARGED WITH EXONERATING THE WRONGFULLY CONVICTED ON A PERMANENT BASIS;"
FATHER RAYMOND DE SOUZA; NATIONAL POST;
-------------------------------------------------------------------------------------
Father Raymond De Souza is rapidly becoming one of the most articulate and impassioned critics of Canada's criminal justice system through his columns published in the National Post;
Father De Souza's philosophy is well reflected in the title to a recent column called, "Holding the justice system to a higher standard," published on Thursday April, 24, on the recent acquittal of Robert Baltovich following a pursuit for justice that lasted almost two decades.
(Father De Souza is the author of an earlier column published on March 31, 2008, under the heading, "Dr. Smith And The Price Of Justice," which I have included below for those who have not yet had the opportunity to read it.
"The Premier of Ontario opened the door to a public inquiry into the wrongful conviction of Robert Baltovich yesterday," the column begins. (The Baltovich case is summarized in the Wikipedia entry which I have included in this post);
"Given the alarming frequency of wrongful convictions -- the Goudge Inquiry into several such cases involving disgraced pathologist Charles Smith wrapped up last month -- perhaps there should be a standing office charged with exonerating the wrongfully convicted on a permanent basis," it continues;
It has now become clear that in Canada it is not rare for police, prosecutors and, in the Baltovich case at least, the trial judge, to rush to injustice, honouring in no real sense the presumption of innocence.
Along with a seemingly endless parade of wrongful convictions, the Baltovich case -- which meandered through the courts for 18 years with nothing other than circumstantial evidence to back it up -- puts us dangerously close to a damaging erosion of public confidence.
As the malfeasance of our police and prosecutors becomes more widely-known, reasonable citizens will begin to doubt whether they can trust any convictions procured by a system that apparently cares for successful prosecutions more than truth or justice.
Today the Supreme Court of Canada is hearing arguments in the Grant case -- the case began when a young black man was stopped by Toronto police some years ago because he appeared "fidgety" and was found to be carrying a loaded handgun.
Many experts expect the outcome will loosen the prohibitions on improperly gathered evidence being admitted at trial. Leaving aside the merits of the Grant case, it is not a propitious time to entrust Canada's police or prosecutors with greater latitude. As inquiries are springing up into miscarriages of justice, it would seem better to hold the criminal justice system to a higher standard. It is the accused who in a just system are entitled to the benefit of the doubt, not the state.
I have returned to this theme several times in the past year, which would be a bore except that our courts are freeing the wrongfully convicted even more often than I write about abuse of prosecutorial power. Yet my thinking on this was sharpened last week in the most unusual of circumstances -- covering the papal visit in Washington and New York.
Not than any of us were arrested, but living a week under the security protocols of the United States Secret Service gives one a taste of what the safety and security state does with unchecked power. Not surprisingly, it abuses it.
The Secret Service stands out because, with unlimited budgets in its favour and a peculiar American enthusiasm for ostentatious displays of security cheering it on, no incursion into our liberties was thought too much.
If the Secret Service had its way -- which it did last week -- we would all be in a never-ending airport security lineup: much inconvenience, ever greater invasions of privacy and very little actual security.
We were told repeatedly that the papal visit was conducted at the highest level of security the Secret Service provides, save for a presidential inauguration.
Many people seemed perversely proud of this -- that the visit of the Pope provoked a curtailing of liberties second only to those used to mark great patriotic festivals.
Despite all journalists being screened by the Secret Service weeks ago, for every event we were required to show up four to eight hours in advance, be made to wait in various places while the whole dog-sniffing, metal-detecting routine ensued.
Then it was on to a special bus and into a holding pen on the other end to pass a few more hours, sometimes being forbidden to look out the windows, or interview members of the general public a few feet away.
Much like their colleagues in airport security, the Secret Service were not particularly competent, as even after hours of sequestering we were frequently taken into non-secure areas to mingle with the general public, rendering the whole operation useless.
As far as it went, it was a perfect image of the security state: Plenty of power to invade and curtail the liberties of free citizens, ostentatious displays of force, a widespread suspicion that we were up to no good and, in the end, shockingly poor competence in discharging the duties for which it is given extraordinary powers in the first place.
A week under the thumb of the Secret Service is instructive, and really only inconvenient. The criminal justice system, as it is pleased to call itself, offers far more than inconvenience.
And 18 years is altogether different from one week."
-------------------------------------------------------------------------------
A concise Wikipedia entry for those readers who are not familiar with the Baltovich case which will be referred to in up-coming posts:
Robert Baltovich (born July 17, 1965) is a Canadian man who was wrongly convicted in 1992 of the murder of his girlfriend, Elizabeth Bain in Scarborough, Ontario, Canada. He spent eight years in prison and nearly another decade trying to clear his name, before being found not guilty in a retrial on April 22, 2008.
Elizabeth Bain murder;
In 1990 Baltovich graduated with a degree in psychology from the University of Toronto at Scarborough. Here he also met and developed a relationship with Elizabeth Bain, a fellow student.
Bain disappeared on June 19, 1990, telling her mother she was going to "check the tennis schedule" on campus. On June 22, her car was found with a large bloodstain in the back seat. Her body was never found.
First trial and conviction;
On November 19, 1990, Baltovich was arrested and charged with first-degree murder. His case continued in the courts for several years, during which he consistently maintained his innocence. His lawyers suggested that the so-called "Scarborough rapist", the name by which the infamous Canadian serial killer Paul Bernardo was then known, might be responsible for the murder.
On March 31, 1992, he was convicted of second-degree murder. His lawyers appealed and on March 31, 2000, Baltovich was released on bail, pending the outcome of his appeal. In September 2004 his appeal was finally processed and his case gained national attention again when his lawyers alleged that he had been wrongfully convicted and that Bernardo was guilty of Bain's murder. They allege that circumstantial evidence suggests links to Bernardo, and that this evidence could not have been available during Baltovich's original trial as the identity of the Scarborough rapist was then unknown.
Appeal, retrial and acquittal;
On December 2, 2004, the Ontario Court of Appeal set aside the conviction, delivering what news reports called "a scathing attack" [1] on the conduct of the original trial judge. This fell short of the acquittal that Baltovich's counsel had argued for. On July 15, 2005, Ontario's Ministry of the Attorney-General announced that Baltovich would face a new trial on charges of second-degree murder, at an unspecified date, and remain free on bail in the meantime...
On March 31, 2008, jury selection began in the second-degree murder trial. The trial, slated to begin in Toronto on April 14, 2008, was delayed, with the Crown (prosecution) giving no reason. When the trial resumed, the Crown declined to call any of the more than 50 witnesses they had planned, citing "recent developments, including the cumulative effect of the pre-trial evidentiary rulings rendered to date in this case, other evidentiary issues, and changes to case law".[2] With no Crown case, the judge directed the jury to make a finding of not guilty on April 22, 2008.
Crown seeks plea bargain;
It is widely reported that the crown had sought an agreement in which if Robert Baltovich revealed the location of Elizabeth Bain's body, he would receive a one day sentance. On the basis of his innocence and lack of knowledge of this event, this plea bargain was rejected.
-------------------------------------------------------------------------------
Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;
-------------------------------------------------------------------------------
Earlier post featuring column by Father De Souza:
"GOD HELP THE FALSELY ACCUSED; THEIR INNOCENCE IS NO MATCH FOR A CORRUPT SYSTEM;"
FATHER RAYMOND J. DE SOUZA;
-------------------------------------------------------------------------------------
The National Post has provided insightful gavel to gavel reporting of the Goudge Inquiry by reporter Tom Blackwell.
In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"
Father De Souza has an interesting background.
A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.
Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.
"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.
"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.
"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.
The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.
Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.
It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.
Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.
Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.
A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.
The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.
Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.
Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.
Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.
Remember the Klemko controversy last summer?
Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.
His offence?
He has testified for defendants as an outside consultant in various cases.
The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.
The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.
The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.
So we have coroners who think they should say what the Crown prosecutors want.
Cops who are told not to contradict what the Crowns want. Crowns who want convictions.
The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.
Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.
God help the falsely accused; their innocence is no match for a corrupt system.
Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.
It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.
Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.
It will be terribly costly -- but less costly than imprisoning the innocent.
Less costly than accusing innocent parents of murdering their own children.
Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.
Less costly than having a justice system unworthy of the name.
Harold Levy...hlevy15@gmail.com;
FATHER RAYMOND DE SOUZA; NATIONAL POST;
-------------------------------------------------------------------------------------
Father Raymond De Souza is rapidly becoming one of the most articulate and impassioned critics of Canada's criminal justice system through his columns published in the National Post;
Father De Souza's philosophy is well reflected in the title to a recent column called, "Holding the justice system to a higher standard," published on Thursday April, 24, on the recent acquittal of Robert Baltovich following a pursuit for justice that lasted almost two decades.
(Father De Souza is the author of an earlier column published on March 31, 2008, under the heading, "Dr. Smith And The Price Of Justice," which I have included below for those who have not yet had the opportunity to read it.
"The Premier of Ontario opened the door to a public inquiry into the wrongful conviction of Robert Baltovich yesterday," the column begins. (The Baltovich case is summarized in the Wikipedia entry which I have included in this post);
"Given the alarming frequency of wrongful convictions -- the Goudge Inquiry into several such cases involving disgraced pathologist Charles Smith wrapped up last month -- perhaps there should be a standing office charged with exonerating the wrongfully convicted on a permanent basis," it continues;
It has now become clear that in Canada it is not rare for police, prosecutors and, in the Baltovich case at least, the trial judge, to rush to injustice, honouring in no real sense the presumption of innocence.
Along with a seemingly endless parade of wrongful convictions, the Baltovich case -- which meandered through the courts for 18 years with nothing other than circumstantial evidence to back it up -- puts us dangerously close to a damaging erosion of public confidence.
As the malfeasance of our police and prosecutors becomes more widely-known, reasonable citizens will begin to doubt whether they can trust any convictions procured by a system that apparently cares for successful prosecutions more than truth or justice.
Today the Supreme Court of Canada is hearing arguments in the Grant case -- the case began when a young black man was stopped by Toronto police some years ago because he appeared "fidgety" and was found to be carrying a loaded handgun.
Many experts expect the outcome will loosen the prohibitions on improperly gathered evidence being admitted at trial. Leaving aside the merits of the Grant case, it is not a propitious time to entrust Canada's police or prosecutors with greater latitude. As inquiries are springing up into miscarriages of justice, it would seem better to hold the criminal justice system to a higher standard. It is the accused who in a just system are entitled to the benefit of the doubt, not the state.
I have returned to this theme several times in the past year, which would be a bore except that our courts are freeing the wrongfully convicted even more often than I write about abuse of prosecutorial power. Yet my thinking on this was sharpened last week in the most unusual of circumstances -- covering the papal visit in Washington and New York.
Not than any of us were arrested, but living a week under the security protocols of the United States Secret Service gives one a taste of what the safety and security state does with unchecked power. Not surprisingly, it abuses it.
The Secret Service stands out because, with unlimited budgets in its favour and a peculiar American enthusiasm for ostentatious displays of security cheering it on, no incursion into our liberties was thought too much.
If the Secret Service had its way -- which it did last week -- we would all be in a never-ending airport security lineup: much inconvenience, ever greater invasions of privacy and very little actual security.
We were told repeatedly that the papal visit was conducted at the highest level of security the Secret Service provides, save for a presidential inauguration.
Many people seemed perversely proud of this -- that the visit of the Pope provoked a curtailing of liberties second only to those used to mark great patriotic festivals.
Despite all journalists being screened by the Secret Service weeks ago, for every event we were required to show up four to eight hours in advance, be made to wait in various places while the whole dog-sniffing, metal-detecting routine ensued.
Then it was on to a special bus and into a holding pen on the other end to pass a few more hours, sometimes being forbidden to look out the windows, or interview members of the general public a few feet away.
Much like their colleagues in airport security, the Secret Service were not particularly competent, as even after hours of sequestering we were frequently taken into non-secure areas to mingle with the general public, rendering the whole operation useless.
As far as it went, it was a perfect image of the security state: Plenty of power to invade and curtail the liberties of free citizens, ostentatious displays of force, a widespread suspicion that we were up to no good and, in the end, shockingly poor competence in discharging the duties for which it is given extraordinary powers in the first place.
A week under the thumb of the Secret Service is instructive, and really only inconvenient. The criminal justice system, as it is pleased to call itself, offers far more than inconvenience.
And 18 years is altogether different from one week."
-------------------------------------------------------------------------------
A concise Wikipedia entry for those readers who are not familiar with the Baltovich case which will be referred to in up-coming posts:
Robert Baltovich (born July 17, 1965) is a Canadian man who was wrongly convicted in 1992 of the murder of his girlfriend, Elizabeth Bain in Scarborough, Ontario, Canada. He spent eight years in prison and nearly another decade trying to clear his name, before being found not guilty in a retrial on April 22, 2008.
Elizabeth Bain murder;
In 1990 Baltovich graduated with a degree in psychology from the University of Toronto at Scarborough. Here he also met and developed a relationship with Elizabeth Bain, a fellow student.
Bain disappeared on June 19, 1990, telling her mother she was going to "check the tennis schedule" on campus. On June 22, her car was found with a large bloodstain in the back seat. Her body was never found.
First trial and conviction;
On November 19, 1990, Baltovich was arrested and charged with first-degree murder. His case continued in the courts for several years, during which he consistently maintained his innocence. His lawyers suggested that the so-called "Scarborough rapist", the name by which the infamous Canadian serial killer Paul Bernardo was then known, might be responsible for the murder.
On March 31, 1992, he was convicted of second-degree murder. His lawyers appealed and on March 31, 2000, Baltovich was released on bail, pending the outcome of his appeal. In September 2004 his appeal was finally processed and his case gained national attention again when his lawyers alleged that he had been wrongfully convicted and that Bernardo was guilty of Bain's murder. They allege that circumstantial evidence suggests links to Bernardo, and that this evidence could not have been available during Baltovich's original trial as the identity of the Scarborough rapist was then unknown.
Appeal, retrial and acquittal;
On December 2, 2004, the Ontario Court of Appeal set aside the conviction, delivering what news reports called "a scathing attack" [1] on the conduct of the original trial judge. This fell short of the acquittal that Baltovich's counsel had argued for. On July 15, 2005, Ontario's Ministry of the Attorney-General announced that Baltovich would face a new trial on charges of second-degree murder, at an unspecified date, and remain free on bail in the meantime...
On March 31, 2008, jury selection began in the second-degree murder trial. The trial, slated to begin in Toronto on April 14, 2008, was delayed, with the Crown (prosecution) giving no reason. When the trial resumed, the Crown declined to call any of the more than 50 witnesses they had planned, citing "recent developments, including the cumulative effect of the pre-trial evidentiary rulings rendered to date in this case, other evidentiary issues, and changes to case law".[2] With no Crown case, the judge directed the jury to make a finding of not guilty on April 22, 2008.
Crown seeks plea bargain;
It is widely reported that the crown had sought an agreement in which if Robert Baltovich revealed the location of Elizabeth Bain's body, he would receive a one day sentance. On the basis of his innocence and lack of knowledge of this event, this plea bargain was rejected.
-------------------------------------------------------------------------------
Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;
-------------------------------------------------------------------------------
Earlier post featuring column by Father De Souza:
"GOD HELP THE FALSELY ACCUSED; THEIR INNOCENCE IS NO MATCH FOR A CORRUPT SYSTEM;"
FATHER RAYMOND J. DE SOUZA;
-------------------------------------------------------------------------------------
The National Post has provided insightful gavel to gavel reporting of the Goudge Inquiry by reporter Tom Blackwell.
In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"
Father De Souza has an interesting background.
A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.
Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.
"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.
"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.
"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.
The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.
Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.
It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.
Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.
Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.
A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.
The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.
Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.
Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.
Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.
Remember the Klemko controversy last summer?
Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.
His offence?
He has testified for defendants as an outside consultant in various cases.
The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.
The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.
The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.
So we have coroners who think they should say what the Crown prosecutors want.
Cops who are told not to contradict what the Crowns want. Crowns who want convictions.
The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.
Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.
God help the falsely accused; their innocence is no match for a corrupt system.
Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.
It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.
Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.
It will be terribly costly -- but less costly than imprisoning the innocent.
Less costly than accusing innocent parents of murdering their own children.
Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.
Less costly than having a justice system unworthy of the name.
Harold Levy...hlevy15@gmail.com;
Tuesday, April 15, 2008
Part Seven: Critical Comment; Defending Parents (2);
I FACED THE SAME -- THIS WAS A LEGALLY-AIDED CASE -- I FACED THE SAME PROBLEM THAT EVERYONE ELSE DOES WITH A MAN OF HIS CALIBER AND WHAT HE CHARGES.
HE ACTUALLY OWNS HIS OWN HOSPITAL. WE -- WE WENT -- I SENT A JUNIOR DOWN TO CHICAGO -- AND THEN MY WIFE AND I WENT DOWN TO VISIT HIM AND THAT GENTLEMAN BELIEVED IN THE CASE SO STRONGLY HE AGREED TO COME AND DO IT FOR FREE.
-----------------------------------------------------------------------------------
LAWYER BRUCE HILLYER TO THE GOUDGE INQUIRY - ON HIS EFFORTS TO RETAIN AN AMERICAN AUTHORITY TO COUNTER THE HIGHLY PERSUASIVE EVIDENCE OF DR. CHARLES RANDAL SMITH;
-----------------------------------------------------------------------------------
A recent posting quoted journalist David Crowe as follows in his article entitled "Defending Parents" which appeared in the Atlantic Free Press;
"Most of all, do not trust the legal system to find truth.
The legal system commonly fails people who cannot afford to hire good lawyers and experts.
If you are facing medical accusations in court you need to throw all your financial resources at the case to minimize your risk of joining the long list of parents in prison under false pretences."
The grossly unfair balance of power between the usually impoverished accused and the Crown - which can bring batteries of witnesses into the courtroom in a typical "shaken baby death" case - was well illustrated by the evidence given by lawyer Bruce Hillyer to the Goudge Inquiry;
The following portion of lawyer Hillyer's testimony to the Commission On Feb. 8, 2008, reads as follows:
"MR. MARK SANDLER: All right. What prior experience did you have, if any, in pediatric or other death cases where cause of death was an issue?
MR. BRUCE HILLYER: Well, I've been blessed with a -- I shouldn't say blessed.
I had had a very high profile case in my little community, at least, two (2) years before.
It involved an allegation of -- of Shaken Baby Syndrome, and we were able to prove, and I highlight the word "prove", that the child died of natural causes.
MR. MARK SANDLER: All right. And very briefly, could you just describe for the Commissioner what that case involved and -- and who were the experts that were lined up on the case?
MR. BRUCE HILLYER: Sure. The -- the allegation was that a mature woman who had her own children was volunteering as a babysitter and, oh, in a six (6) hour window of time this child that she was babysitting went into a convulsive state and the child was taken to the local hospital, Joseph Brant Memorial Hospital, where she was stabilized.
And then the child was taken to McMaster University Hospital where all the trouble began, and there a succession of specialists opined that this child had died as a result of Shaken Baby Syndrome.
And the experts that were marshalled against us started with Dr. Rao, who I understand has testified here.
She was the pathologist.
There was a Dr. Hollenburg (phonetic), Dr. Parise, the name of the pediatrician escapes me; and -- but there was probably about a half a dozen specialists surrounding the pathology opinion of Dr. Rao that was the core of the Crown's case that I had to meet.
MR. MARK SANDLER: All right. And did you have defence experts?
MR. BRUCE HILLYER: I did.
I -- when I first got the case, I bought into the Crown's theory that this child had died of Shaken Baby Syndrome and my initial defence was going to be that it couldn't possibly have happened in this narrow window of time, particularly given the information that the police had -- had gathered and that we were able to muster that the -- it was, perhaps, more likely that the parents would have been responsible for any -- any assaultive behaviour with the child.
But as I started to -- just because of what I do in the rest of my practice, I -- I don't -- I'm afraid I have a rather jaundiced view of the medical profession and so I have to be satisfied myself that what everybody is saying is correct -- so I started right from scratch.
I went back and studied Shaken Baby Syndrome.
I discovered, in my view, this child did not die -- didn't fit the pattern and then sought out a series of experts, and the most important expert for me was Dr. Leetsma in Chicago who I can't say enough good things about.
I faced the same -- this was a legally-aided case -- I faced the same problem that everyone else does with a man of his caliber and what he charges.
He actually owns his own hospital. We -- we went -- I sent a junior down to Chicago -- and then my wife and I went down to visit him and that gentleman believed in the case so strongly he agreed to come and do it for free.
That -- that's how -- I can't -- I have to say that, and -- and I was joined by two (2) other fine doctors here in the city, a Dr. Arnold Noyek at Mount Sinai and Dr. Michael Hauck, (phonetic) both ENT specialists, who had the same approach.
So while the funding was obviously an issue and we were embarrassed by having to ask these fine people to -- to come and help on the basis of a Legal Aid tariff, they were willing to -- to do it even if we didn't get any money from Legal Aid.
That -- that's how -- that's how great they were.
MR. MARK SANDLER: All right. And just as a matter of curiosity, the position of the defence having consulted those experts was what, as to cause of
death?
MR. BRUCE HILLYER: This child, we were able to establish clearly, died of an ear infection.
It was just right there.
Dr. Rao, fortunately for the client, had decided that she was going to write a paper on this case as a shaken baby case and so took a lot more lides than we would normally find in -- in our forensic pathology and once Dr. Leetsma pointed me in the right direction as to where I had to go, what slides I needed, and it was -- it was quite an effort because we -- we were getting the slides in bits and pieces and they were going to Chicago and back and forth by air so that finally we got right slides and we were able to show that -- show what had happened.
Now I mentioned the experts that I -- that I initially faced. What disturbed me about that case was the role of the Coroner's Office because Dr. Cairns started showing up at the trial in the mid -- in mid-week, first week, and by the second week he had arranged for three (3) more experts, and I was presented with the opinions of three (3) additional experts at the beginning of the third week of the trial, at which point Justice Spyer phonetic) was very unhappy with that set of circumstances and gave me the option of a mistrial or adjournment or whatever I needed.
But fortunately, I was satisfied that what each of those experts had to say was medical nonsense and I didn't ask for an adjournment and we just dealt with the witnesses right away, one after the other.
MR. MARK SANDLER: All right. Now if we can move back to...excuse me for a moment, Commissioner.
MS. LINDA ROTHSTEIN: Sorry, Commissioner.
(BRIEF PAUSE)
MR. MARK SANDLER: Ms. Rothstein just points out something to me that in fairness to Dr. Cairns I should put to you. Did you see who you thought was Dr. Cairns today here?
MR. BRUCE HILLYER: No. Dr. Young was here today;"
Blogster's Note: For purposes of completeness, here is the cross-examination of Bruce Hillyer by lawyer Brian Gover representing the Chief Coroner's office;
MR. BRIAN GOVER: Fair enough. And thank you for that. Now, Mr. Hillyer, you testified that -- you testified about a case that you were involved in before the case that we know as Joshua's case, that was also a pediatric homicide, is that right, sir?
MR. BRUCE HILLYER: That's right.
MR. BRIAN GOVER: And you testified that what disturbed you about that case was the role of the Coroner's Office, is that right, sir?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And that was a case that was tried before Justice Spier (phonetic), is that right?
MR. BRUCE HILLYER: Yes. And a jury.
MR. BRIAN GOVER: In Milton?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And the Crown attorney was Mr. Brian O'Mara (phonetic)?
MR. BRUCE HILLYER: That's correct.
MR. BRIAN GOVER: The Crown's theory was that death ensued as a result of Shaken Baby Syndrome, is that right?
MR. BRUCE HILLYER: That's correct.
MR. BRIAN GOVER: And experts at McMaster University had concluded that death ensued from Shaken Baby Syndrome, is that right?
MR. BRUCE HILLYER: That's correct, yes.
MR. BRIAN GOVER: And I may not have your facility with the medical terminology but I understand that in that case the death, pardon me, the evidence disclosed that a cavernous sinus was thrombosed. Do you recall that, sir?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And you had obtained expert opinion evidence that suggested that the baby may have died from an ear infection, as you've told us, is that right?
MR. BRUCE HILLYER: Yes. Yes.
MR. BRIAN GOVER: And that expert opinion evidence was in the form of Dr. Leetsma's report, is that right?
MR. BRUCE HILLYER: Well, it was a combination of Leetsma, Noyek, and Hauck (phonetic).
MR. BRIAN GOVER: Fair enough. And you did not disclose that evidence to Mr. O'Mara, is that fair?
MR. BRUCE HILLYER: Correct. That's correct.
MR. BRIAN GOVER: And just as you told us you didn't disclose the evidence to Ms. Walsh in Joshua's case, is that right?
MR. BRUCE HILLYER: What evidence? I didn't have any evidence to not disclose to her.
MR. BRIAN GOVER: Fair enough. All right. So you've -- coming back to the case that was before Justice Spier, that was a deliberate decision on
your part not to disclose that evidence to Mr. O'Mara, --
MR. BRUCE HILLYER: Right.
MR. BRIAN GOVER: -- is that fair? And during the trial you led evidence in accordance with the defence position that death ensued due to the ear
infection, is that fair?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And you agree with me that the evidence in the case was complicated?
MR. BRUCE HILLYER: Very.
MR. BRIAN GOVER: And Mr. O'Mara, the Crown attorney, sought an adjournment with a view to responding to the evidence that you led, isn't that
right?
MR. BRUCE HILLYER: Well, no, he -- he didn't. He just showed up with these three new experts in tow and just disclosed that he wanted leave to call their evidence, and it was presented to me in that manner, and then it was presented to Justice Spier in Chambers, and I -- then Justice Spier left it up to me to decide whether -- how I would deal with it.
MR. BRIAN GOVER: But he tried to refresh your memory.
You recall there was an adjournment from a Thursday to a Monday that was granted by Justice Spier and that was granted by Justice Spier, and that was granted at the Crown's request. Does that refresh your memory, sir?
MR. BRUCE HILLYER: It doesn't, sorry.
MR. BRIAN GOVER: No? And I suggest to you that Mr. O'Mara (phonetic) contacted Dr. Cairns, do you agree with that, sir?
MR. BRUCE HILLYER: I have no way of -- I -- I would assume so. I don't think Cairns would have stumbled into the Milton courthouse.
MR. BRIAN GOVER: And you know, sir, that Dr. Cairns was the Deputy Chief Coroner of Ontario, is that right?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: You knew that he was the Deputy Chief Coroner in charge of investigations, is that fair?
MR. BRUCE HILLYER: I didn't know exactly -- I didn't know much about his role actually or the Office of the Coroner.
MR. BRIAN GOVER: Right. And we'll come to that.
MR. BRUCE HILLYER: Okay.
MR. BRIAN GOVER: Did you know that he was the Chair of the Paediatric Death Review Committee?
MR. BRUCE HILLYER: I didn't.
MR. BRIAN GOVER: No. And --
MR. BRUCE HILLYER: Did you know he's a family doctor?
MR. BRIAN GOVER: Do you know, sir, that the -- pardon me, sir.
MR. BRUCE HILLYER: Okay.
MR. BRIAN GOVER: Did you know, Mr. Hillyer, that the Office of the Chief Coroner has a role in assisting Crown counsel in identifying expert
witnesses when that assistance is sought by Crown counsel?
MR. BRUCE HILLYER: I -- I'm not surprised by that. I assumed that's why he was there.
MR. BRIAN GOVER: Exactly. And you accept that that's an appropriate role, --
MR. BRUCE HILLYER: Absolutely.
MR. BRIAN GOVER: -- is that fair, sir?
MR. BRUCE HILLYER: Yep.
MR. BRIAN GOVER: And what you became aware of, Mr. Hillyer, is that Mr. O'Mara consulted with three (3) experts identified by Dr. Cairns, is that
right?
MR. BRUCE HILLYER: Three (3) that I'm aware of.
MR. BRIAN GOVER: Right. And they are Dr. John Deck, a neuropathologist, is that right?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And then two (2) experts from the Hospital for Sick Children, is that right, sir?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: A neurosurgeon and a pediatric radiologist, is that fair?
MR. BRUCE HILLYER: That's correct, yep.
MR. BRIAN GOVER: And oral opinions were obtained from them, is that right?
MR. BRUCE HILLYER: At least, oral. I was given written opinions.
MR. BRIAN GOVER: And ultimately, none of them testified, is that right, sir?
MR. BRUCE HILLYER: That's incorrect. They all testified. I cross-examined all three (3) of them.
MR. BRIAN GOVER: And when Mr. O'Mara put the evidence of death resulting from Shaken Baby Syndrome, Dr. Leetsma testified, and I quote: "You may be right, but I cannot exclude the possibility of disease process." End quote. Do you recall that, sir?
MR. BRUCE HILLYER: If you're quoting from a transcript, I'm in no position to say those words weren't there.
MR. BRIAN GOVER: And that's what you mean by the differential diagnosis, isn't that right, the alternative?
MR. BRUCE HILLYER: No, that's not what a differential diagnosis is. You start off -- a differential diagnosis is you're faced with a clinical
situation, you're trained to assume the worst possible disease -- process, and add the ones that are less serious down the road. And you start with number 1 and you start ruling it out.
MR. BRIAN GOVER: Fair enough. And your client was acquitted, sir?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And to be clear about this, there was no finding that death was caused by an ear infection, was there, in this jury trial, Mr. Hillyer?
MR. BRUCE HILLYER: No finding?
MR. BRIAN GOVER: Yes.
MR. BRUCE HILLYER: Well, it wasn't a civil case, it was a criminal case. The charge was manslaughter.
MR. BRIAN GOVER: Then what's the answer then to my question? There is no finding that death was caused by an ear infection, was there, Mr. Hillyer?
MR. BRUCE HILLYER: No, nor could there have been.
MR. BRIAN GOVER: Thank you, those are my
questions."
Harold Levy...hlevy15@gmail.com
HE ACTUALLY OWNS HIS OWN HOSPITAL. WE -- WE WENT -- I SENT A JUNIOR DOWN TO CHICAGO -- AND THEN MY WIFE AND I WENT DOWN TO VISIT HIM AND THAT GENTLEMAN BELIEVED IN THE CASE SO STRONGLY HE AGREED TO COME AND DO IT FOR FREE.
-----------------------------------------------------------------------------------
LAWYER BRUCE HILLYER TO THE GOUDGE INQUIRY - ON HIS EFFORTS TO RETAIN AN AMERICAN AUTHORITY TO COUNTER THE HIGHLY PERSUASIVE EVIDENCE OF DR. CHARLES RANDAL SMITH;
-----------------------------------------------------------------------------------
A recent posting quoted journalist David Crowe as follows in his article entitled "Defending Parents" which appeared in the Atlantic Free Press;
"Most of all, do not trust the legal system to find truth.
The legal system commonly fails people who cannot afford to hire good lawyers and experts.
If you are facing medical accusations in court you need to throw all your financial resources at the case to minimize your risk of joining the long list of parents in prison under false pretences."
The grossly unfair balance of power between the usually impoverished accused and the Crown - which can bring batteries of witnesses into the courtroom in a typical "shaken baby death" case - was well illustrated by the evidence given by lawyer Bruce Hillyer to the Goudge Inquiry;
The following portion of lawyer Hillyer's testimony to the Commission On Feb. 8, 2008, reads as follows:
"MR. MARK SANDLER: All right. What prior experience did you have, if any, in pediatric or other death cases where cause of death was an issue?
MR. BRUCE HILLYER: Well, I've been blessed with a -- I shouldn't say blessed.
I had had a very high profile case in my little community, at least, two (2) years before.
It involved an allegation of -- of Shaken Baby Syndrome, and we were able to prove, and I highlight the word "prove", that the child died of natural causes.
MR. MARK SANDLER: All right. And very briefly, could you just describe for the Commissioner what that case involved and -- and who were the experts that were lined up on the case?
MR. BRUCE HILLYER: Sure. The -- the allegation was that a mature woman who had her own children was volunteering as a babysitter and, oh, in a six (6) hour window of time this child that she was babysitting went into a convulsive state and the child was taken to the local hospital, Joseph Brant Memorial Hospital, where she was stabilized.
And then the child was taken to McMaster University Hospital where all the trouble began, and there a succession of specialists opined that this child had died as a result of Shaken Baby Syndrome.
And the experts that were marshalled against us started with Dr. Rao, who I understand has testified here.
She was the pathologist.
There was a Dr. Hollenburg (phonetic), Dr. Parise, the name of the pediatrician escapes me; and -- but there was probably about a half a dozen specialists surrounding the pathology opinion of Dr. Rao that was the core of the Crown's case that I had to meet.
MR. MARK SANDLER: All right. And did you have defence experts?
MR. BRUCE HILLYER: I did.
I -- when I first got the case, I bought into the Crown's theory that this child had died of Shaken Baby Syndrome and my initial defence was going to be that it couldn't possibly have happened in this narrow window of time, particularly given the information that the police had -- had gathered and that we were able to muster that the -- it was, perhaps, more likely that the parents would have been responsible for any -- any assaultive behaviour with the child.
But as I started to -- just because of what I do in the rest of my practice, I -- I don't -- I'm afraid I have a rather jaundiced view of the medical profession and so I have to be satisfied myself that what everybody is saying is correct -- so I started right from scratch.
I went back and studied Shaken Baby Syndrome.
I discovered, in my view, this child did not die -- didn't fit the pattern and then sought out a series of experts, and the most important expert for me was Dr. Leetsma in Chicago who I can't say enough good things about.
I faced the same -- this was a legally-aided case -- I faced the same problem that everyone else does with a man of his caliber and what he charges.
He actually owns his own hospital. We -- we went -- I sent a junior down to Chicago -- and then my wife and I went down to visit him and that gentleman believed in the case so strongly he agreed to come and do it for free.
That -- that's how -- I can't -- I have to say that, and -- and I was joined by two (2) other fine doctors here in the city, a Dr. Arnold Noyek at Mount Sinai and Dr. Michael Hauck, (phonetic) both ENT specialists, who had the same approach.
So while the funding was obviously an issue and we were embarrassed by having to ask these fine people to -- to come and help on the basis of a Legal Aid tariff, they were willing to -- to do it even if we didn't get any money from Legal Aid.
That -- that's how -- that's how great they were.
MR. MARK SANDLER: All right. And just as a matter of curiosity, the position of the defence having consulted those experts was what, as to cause of
death?
MR. BRUCE HILLYER: This child, we were able to establish clearly, died of an ear infection.
It was just right there.
Dr. Rao, fortunately for the client, had decided that she was going to write a paper on this case as a shaken baby case and so took a lot more lides than we would normally find in -- in our forensic pathology and once Dr. Leetsma pointed me in the right direction as to where I had to go, what slides I needed, and it was -- it was quite an effort because we -- we were getting the slides in bits and pieces and they were going to Chicago and back and forth by air so that finally we got right slides and we were able to show that -- show what had happened.
Now I mentioned the experts that I -- that I initially faced. What disturbed me about that case was the role of the Coroner's Office because Dr. Cairns started showing up at the trial in the mid -- in mid-week, first week, and by the second week he had arranged for three (3) more experts, and I was presented with the opinions of three (3) additional experts at the beginning of the third week of the trial, at which point Justice Spyer phonetic) was very unhappy with that set of circumstances and gave me the option of a mistrial or adjournment or whatever I needed.
But fortunately, I was satisfied that what each of those experts had to say was medical nonsense and I didn't ask for an adjournment and we just dealt with the witnesses right away, one after the other.
MR. MARK SANDLER: All right. Now if we can move back to...excuse me for a moment, Commissioner.
MS. LINDA ROTHSTEIN: Sorry, Commissioner.
(BRIEF PAUSE)
MR. MARK SANDLER: Ms. Rothstein just points out something to me that in fairness to Dr. Cairns I should put to you. Did you see who you thought was Dr. Cairns today here?
MR. BRUCE HILLYER: No. Dr. Young was here today;"
Blogster's Note: For purposes of completeness, here is the cross-examination of Bruce Hillyer by lawyer Brian Gover representing the Chief Coroner's office;
MR. BRIAN GOVER: Fair enough. And thank you for that. Now, Mr. Hillyer, you testified that -- you testified about a case that you were involved in before the case that we know as Joshua's case, that was also a pediatric homicide, is that right, sir?
MR. BRUCE HILLYER: That's right.
MR. BRIAN GOVER: And you testified that what disturbed you about that case was the role of the Coroner's Office, is that right, sir?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And that was a case that was tried before Justice Spier (phonetic), is that right?
MR. BRUCE HILLYER: Yes. And a jury.
MR. BRIAN GOVER: In Milton?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And the Crown attorney was Mr. Brian O'Mara (phonetic)?
MR. BRUCE HILLYER: That's correct.
MR. BRIAN GOVER: The Crown's theory was that death ensued as a result of Shaken Baby Syndrome, is that right?
MR. BRUCE HILLYER: That's correct.
MR. BRIAN GOVER: And experts at McMaster University had concluded that death ensued from Shaken Baby Syndrome, is that right?
MR. BRUCE HILLYER: That's correct, yes.
MR. BRIAN GOVER: And I may not have your facility with the medical terminology but I understand that in that case the death, pardon me, the evidence disclosed that a cavernous sinus was thrombosed. Do you recall that, sir?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And you had obtained expert opinion evidence that suggested that the baby may have died from an ear infection, as you've told us, is that right?
MR. BRUCE HILLYER: Yes. Yes.
MR. BRIAN GOVER: And that expert opinion evidence was in the form of Dr. Leetsma's report, is that right?
MR. BRUCE HILLYER: Well, it was a combination of Leetsma, Noyek, and Hauck (phonetic).
MR. BRIAN GOVER: Fair enough. And you did not disclose that evidence to Mr. O'Mara, is that fair?
MR. BRUCE HILLYER: Correct. That's correct.
MR. BRIAN GOVER: And just as you told us you didn't disclose the evidence to Ms. Walsh in Joshua's case, is that right?
MR. BRUCE HILLYER: What evidence? I didn't have any evidence to not disclose to her.
MR. BRIAN GOVER: Fair enough. All right. So you've -- coming back to the case that was before Justice Spier, that was a deliberate decision on
your part not to disclose that evidence to Mr. O'Mara, --
MR. BRUCE HILLYER: Right.
MR. BRIAN GOVER: -- is that fair? And during the trial you led evidence in accordance with the defence position that death ensued due to the ear
infection, is that fair?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And you agree with me that the evidence in the case was complicated?
MR. BRUCE HILLYER: Very.
MR. BRIAN GOVER: And Mr. O'Mara, the Crown attorney, sought an adjournment with a view to responding to the evidence that you led, isn't that
right?
MR. BRUCE HILLYER: Well, no, he -- he didn't. He just showed up with these three new experts in tow and just disclosed that he wanted leave to call their evidence, and it was presented to me in that manner, and then it was presented to Justice Spier in Chambers, and I -- then Justice Spier left it up to me to decide whether -- how I would deal with it.
MR. BRIAN GOVER: But he tried to refresh your memory.
You recall there was an adjournment from a Thursday to a Monday that was granted by Justice Spier and that was granted by Justice Spier, and that was granted at the Crown's request. Does that refresh your memory, sir?
MR. BRUCE HILLYER: It doesn't, sorry.
MR. BRIAN GOVER: No? And I suggest to you that Mr. O'Mara (phonetic) contacted Dr. Cairns, do you agree with that, sir?
MR. BRUCE HILLYER: I have no way of -- I -- I would assume so. I don't think Cairns would have stumbled into the Milton courthouse.
MR. BRIAN GOVER: And you know, sir, that Dr. Cairns was the Deputy Chief Coroner of Ontario, is that right?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: You knew that he was the Deputy Chief Coroner in charge of investigations, is that fair?
MR. BRUCE HILLYER: I didn't know exactly -- I didn't know much about his role actually or the Office of the Coroner.
MR. BRIAN GOVER: Right. And we'll come to that.
MR. BRUCE HILLYER: Okay.
MR. BRIAN GOVER: Did you know that he was the Chair of the Paediatric Death Review Committee?
MR. BRUCE HILLYER: I didn't.
MR. BRIAN GOVER: No. And --
MR. BRUCE HILLYER: Did you know he's a family doctor?
MR. BRIAN GOVER: Do you know, sir, that the -- pardon me, sir.
MR. BRUCE HILLYER: Okay.
MR. BRIAN GOVER: Did you know, Mr. Hillyer, that the Office of the Chief Coroner has a role in assisting Crown counsel in identifying expert
witnesses when that assistance is sought by Crown counsel?
MR. BRUCE HILLYER: I -- I'm not surprised by that. I assumed that's why he was there.
MR. BRIAN GOVER: Exactly. And you accept that that's an appropriate role, --
MR. BRUCE HILLYER: Absolutely.
MR. BRIAN GOVER: -- is that fair, sir?
MR. BRUCE HILLYER: Yep.
MR. BRIAN GOVER: And what you became aware of, Mr. Hillyer, is that Mr. O'Mara consulted with three (3) experts identified by Dr. Cairns, is that
right?
MR. BRUCE HILLYER: Three (3) that I'm aware of.
MR. BRIAN GOVER: Right. And they are Dr. John Deck, a neuropathologist, is that right?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And then two (2) experts from the Hospital for Sick Children, is that right, sir?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: A neurosurgeon and a pediatric radiologist, is that fair?
MR. BRUCE HILLYER: That's correct, yep.
MR. BRIAN GOVER: And oral opinions were obtained from them, is that right?
MR. BRUCE HILLYER: At least, oral. I was given written opinions.
MR. BRIAN GOVER: And ultimately, none of them testified, is that right, sir?
MR. BRUCE HILLYER: That's incorrect. They all testified. I cross-examined all three (3) of them.
MR. BRIAN GOVER: And when Mr. O'Mara put the evidence of death resulting from Shaken Baby Syndrome, Dr. Leetsma testified, and I quote: "You may be right, but I cannot exclude the possibility of disease process." End quote. Do you recall that, sir?
MR. BRUCE HILLYER: If you're quoting from a transcript, I'm in no position to say those words weren't there.
MR. BRIAN GOVER: And that's what you mean by the differential diagnosis, isn't that right, the alternative?
MR. BRUCE HILLYER: No, that's not what a differential diagnosis is. You start off -- a differential diagnosis is you're faced with a clinical
situation, you're trained to assume the worst possible disease -- process, and add the ones that are less serious down the road. And you start with number 1 and you start ruling it out.
MR. BRIAN GOVER: Fair enough. And your client was acquitted, sir?
MR. BRUCE HILLYER: Yes.
MR. BRIAN GOVER: And to be clear about this, there was no finding that death was caused by an ear infection, was there, in this jury trial, Mr. Hillyer?
MR. BRUCE HILLYER: No finding?
MR. BRIAN GOVER: Yes.
MR. BRUCE HILLYER: Well, it wasn't a civil case, it was a criminal case. The charge was manslaughter.
MR. BRIAN GOVER: Then what's the answer then to my question? There is no finding that death was caused by an ear infection, was there, Mr. Hillyer?
MR. BRUCE HILLYER: No, nor could there have been.
MR. BRIAN GOVER: Thank you, those are my
questions."
Harold Levy...hlevy15@gmail.com
Monday, April 14, 2008
Part Six: critical comment: "Defending Parents"; News Of Smith Debacle Travels beyond Canada's Borders;
"MOST OF ALL, DO NOT TRUST THE LEGAL SYSTEM TO FIND TRUTH.
THE LEGAL SYSTEM COMMONLY FAILS PEOPLE WHO CANNOT AFFORD TO HIRE GOOD LAWYERS AND EXPERTS.
IF YOU ARE FACING MEDICAL ACCUSATIONS IN COURT YOU NEED TO THROW ALL YOUR FINANCIAL RESOURCES AT THE CASE TO MINIMIZE YOUR RISK OF JOINING THE LONG LIST OF PARENTS IN PRISON UNDER FALSE PRETENCES;"
---------------------------------------------------------------------------------
DAVID CROWE: "DEFENDING PARENTS"; "ATLANTIC FREE PRESS";
---------------------------------------------------------------------------------
Word on Dr. Charles Smith's devastating impact on Canada's criminal justice system is spreading;
The Associated Press's reportage on the Goudge Inquiry brought the plight of Dr. Smith's victims to readers far beyond Canada's borders.
Google Analytics - a Web-Site tracking service - tells me that in the last month, the 3,700 plus visitors to this Blog have come from almost fifty count ires and territories - including the Phillipines, Sri Lanka and Saudi Arabia;
Now, an alternative Web-Site called "Atlantic Free Press," - who's motto is "Hard Truths For Hard Times" - has run a provocative story by David Crowe, under the heading "defending Parents," which refers to Sharon's case, the William Mullins-Johnson case, and related cases in other parts of the world;
"The Atlantic Free Press" is published out of the Netherlands, and can be found at atlanticfreepress.com.
Crowe is described as: "(A) science critic and writer based in Calgary, Canada. (who) has a degree in biology and has written extensively on HIV/AIDS, failures of modern medicine and telecommunications."
"Any parent’s nightmare is the death of a child," the story begins.
"Yet, there is one thing far, far worse – to be accused of killing the child you have just started grieving," it continues;
"While the risk of a child dying is thankfully low, if it does happen, the risk of such horrendous accusations is significant if the death does not have an obvious explanation.
The overwhelming influence of doctors on judges and juries, and the widespread belief that forensic evidence is unassailable make a false conviction quite likely.
Once accusations fly, so may friends and family, confusing accusations with proven facts, and adding to the stress and grief.
If a conviction follows even fewer will stick by the jailed parents.
The stress and lack of financial resources, may even drive parents to plead guilty, coerced into a plea bargain believing prosecutors’s threats to toss them in jail and throw away the key if they fight back.
An Epidemic of False Accusations
The epidemic of false medical accusations against parents is worldwide, particularly in richer countries where the allopathic medical industry has its strongest grip on the public consciousness and the legal system.
In Canada, numerous convictions have been overturned or are being re-examined, due to the sloppy and possibly malicious testimony of one of Ontario’s top pathologists, the now disgraced Dr. Charles Smith.
In one infamous case he failed to recognize the distinctive marks left by dog’s teeth and accused a mother of stabbing her daughter with scissors. Only later was it discovered that a pit bull had been present at the time of her death.
In another case, William Mullins-Johnson spent twelve years in jail convicted of raping and killing his niece because of Dr. Smith, always in danger of being killed by other prisoners.
He was released when it became clear that all Smith’s evidence was unreliable.
Two years later he was fully acquitted with a judge apologizing to him, “It is regrettable that as a result of flawed pathological evidence you were wrongfully convicted and spent so long in custody.”
He has described the trauma of family and friends turning their back on him, and how even after his innocence was proven, his family is still torn. [9,10]
In England, similar cases have gained widespread national attention and concern.
In one of the best known cases, Sally Clarke’s son Harry had not been doing well since being given three vaccinations when he was eight weeks old (he was born three weeks premature).
This was discounted at the trial and she was sentenced to prison for life for killing him, although released 3-1/2 years later.
Her fate was sealed by the opinions of prominent pediatrician Roy Meadow.
Sadly, she never recovered emotionally from these compounded tragedies and committed suicide. [6,7,8]
Roy Meadow also testified in the case of Angela Cannings, accused of smothering two of her children because Meadow testified that two cases of SIDS in one house was a statistical impossibility.
Cannings spent two years in jail before her conviction was overturned on appeal.
The number of proven miscarriages of justice became so great that Britain decided to review all 258 convictions of a parent accused of the death of a child based solely on medical evidence in the past ten years.
Being on the witness stand allows doctors to play God.
Judges and juries defer to the opinions of medical experts, even when there is no visible evidence of harm on the child’s body.
Those accepted as experts by the court are allowed to have their opinions taken as evidence.
This power may go to the head of some who know it is unlikely that they will face judgment for any injustices they cause.
The reaction of the medical profession when these problems come to light is generally lamentable.
In the Sally Clark case Richard Horton, the editor of the prestigious journal Lancet, wrote a strong defense of Roy Meadow when his license to practice was under review by the UK doctor’s association.
Horton did not argue that the conviction was erroneous, but wanted the blame spread around, rather than only punishing the man who gave false evidence.
This attitude puts the right of a man who has done something horrible to continue working above the suffering he caused to a mother who has to grieve her baby alone in a cold cell.
Dr. Mohammed Al-Bayati
One man who single-handedly has saved many parents from such dire consequences is the California-based pathologist and toxicologist Dr. Mohammed Al-Bayati.
He understands how coroners can see their role as securing convictions rather than seeking the truth or accepting uncertainty.
He has seen how easily they jump to conclusions based on accepting the fraction of the available data that is concordant with their theory.
The children described in this article are real cases, documented in the scientific journal Medical Veritas by Dr. Al-Bayati.
Destiny Jacobo
Destiny Jacobo died suddenly before her second birthday.
Los Angeles County coroner, James K. Ribe, reported the death as Shaken Baby Syndrome compounded by forcible rectal insertion (i.e. brutal physical and sexual abuse).
This resulted in her parents being tried for murdering their own daughter.
The mother was persuaded to plead guilty to receive a ‘lighter’ sentence and was sent to jail for life in 1996.
Almost a decade later Al-Bayati reviewed the autopsy report and discovered many facts that contradicted Ribe’s strongly stated accusations.
He found bleeding had occurred in several organs, not just in the head, that the pancreas was severely damaged and that the lungs excess fluid in them, probably caused by pneumonia.
He found no evidence of anal trauma and the bleeding, while in the rectal area, was actually outside the physically undamaged rectum.
It is clearly impossible to insert a blunt object into the anus without physical damage to the entryway.
He concluded that Destiny died from infections, including pneumonia, possibly due to Vitamin K deficiency.
This vitamin is produced by intestinal bacteria which are susceptible to depletion by drugs such as antibiotics and antifungals.
Deficiency causes bleeding and increases the risk of bone fractures which obviously can easily be confused with symptoms of physical abuse.
While the mother is still locked up, the father did not plead guilty and, while also sentenced to prison for life, was actually released only five years later when he proved he was not physically present.
The father is appealing the mother’s conviction and has complained about Ribe’s conduct to the California Medical Board.
The Death of Baby Nadine
Baby Nadine died in Sweden when her heart suddenly stopped on her fortieth day of life.
Accused of shaking her to death, her father was sentenced to five years for manslaughter.
Again, doctors ignored evidence of pre-existing health problems beginning before birth, and rushed to accuse.
Another jury was swayed by faith in the pronouncements of doctors.
Nadine’s health problems began before birth.
Her mother’s membranes ruptured prematurely and she was delivered by a C-Section.
Her mother also smoked and drank. At birth several metabolic abnormalities were measured, including jaundice (a bilirubin level almost double the maximum ‘normal’ value), indicating that Nadine was already suffering from an infection and inflammation.
Nadine was sickly and had an extremely low weight gain during her short life.
Partly because of this, during her first month of life she received three courses of antibiotics.
Her mother, who was breastfeeding, also took antibiotics.
An appeal to the Swedish Supreme Court was rejected, but Peter Althin, a famous lawyer and member of parliament has taken up the case, and supporters hope to achieve a retrial on the basis that the Supreme Court used as an expert the very doctor whose testimony had resulted in the conviction in the first place.
Baby Stryker’s Death
Baby Stryker had serious health problems starting from birth, resulting in the use of antibiotics and other medications. His mother had also previously had two stillbirths.
When only 55 days old Stryker stopped breathing in the middle of the night.
Heroic efforts by the father and paramedics were not able to revive him.
Among the many findings in the autopsy were elevated levels of methanol and formic acid in the blood and the parents were accused of poisoning their baby with methanol (“wood alcohol”).
A report by Al-Bayati revealed the evidence of other health problems and the lack of evidence for methanol-induced damage.
He point out that the methanol and formic acid were probably due to contamination of blood samples with formalin, a compound containing both methanol and formaldehyde (which can be converted into formalin by enzymes present in red blood cells).
After these accusations the other two children were taken and, in a heart-wrenching twist, a third child was snatched from the mother’s arms right after birth.
The investigation dragged on for two years but after a family court hearing in September, 2007, the children were returned to their parents with full custody, although the police still have a murder investigation open.
Baby Averial’s Death
Unlike most of the other babies in this article, Averial had a normal birth. Like many other American babies she was given a Hepatitis B vaccination before leaving the hospital and was fed formula.
The parents noticed that she was always fussy, did not sleep deeply and had serious diarrhea, problems which conceivably were due to the vaccination and the formula.
When Averial was less than two months old she suddenly stopped breathing and went limp in her father’s arms.
The hospital treated her with epinephrine and sodium carbonate to revive her and reduce the acidity of the blood.
This treatment has a risk of significant bleeding and hospital data shows her blood volume decreased 21% in three hours.
Despite intensive treatment she died about 10 days after admission.
Imaging done at the hospital showed skull and rib fractures as well as extensive internal bleeding, evidence that damned the parents.
The Medical Examiner claimed that these symptoms must, because there were no external signs of abuse, have been caused by the father shaking his daughter to death.
The father remains accused of capital murder.
Al-Bayati was able to use the hospital’s own information to show that the testimony was false.
The earliest images clearly show no fractures and bleeding, and so these problems must have been due to aggressive treatment at the hospital.
Al-Bayati believes that the skull fracture was due to the internal bleeding triggered by epinephrine and sodium carbonate treatment, leading to massive swelling.
He believes that her death was due to unrecognized bronchopneumonia and respiratory distress.
Averial’s father is out on $200,000 bail still awaiting trial more than three years after his daughter’s death.
What You Should Do
The best defense against false accusations is a good offence and you need to find a medical expert not scared to buck the system.
Sadly such experts are not common, because most doctors support each other instinctively.
A strong report founded on solid science will often cause legal authorities to back off, knowing that the case will probably attract publicity and may, in the end, make them look heartless, sloppy and incompetent.
If the case does go to trial a strong contrary medical report based on science may well sway the jury.
Even if jury does not fully believe in the parent’s innocence, they may at least accept that the cause of death is uncertain.
A common factor in many cases is a combination of pre-existing health problems and aggressive medical treatment that only makes things worse.
Vaccines and antibiotics are often seen as completely innocuous, and many medical experts are reluctant to question these pillars of pediatric treatment.
Most of all, do not trust the legal system to find truth.
The legal system commonly fails people who cannot afford to hire good lawyers and experts.
If you are facing medical accusations in court you need to throw all your financial resources at the case to minimize your risk of joining the long list of parents in prison under false pretences.
Side Bar or End Note?
Financial problems with these cases are common, as 200 to 300 hours of medical research are required for each case, or even more.
Dr. Mohammed Al-Bayati has set up a non-profit organization, the “International Center for Better Medicine”, so that other people can assist with the payment of his fees.
Checks can be sent to this organization at 150 Bloom Drive, Dixon, CA, 95620. While Al-Bayati has acted pro-bono in several cases, he cannot always afford to do so.
Every $100 donated ensures that accused parents get one hour of the best medical-legal expertise."
(Footnotes for this story can be found on the Atlantic Free Press Web-Site);
Canadians, and people concerned about miscarriages of justice elsewhere in the world, have the opportunity to make contributions to the Association In Defence Of The Wrongly Convicted (AIDWYC) which continues to do a phenomenal job of securing justice and vindication for victims of Dr. Charles Smith such as William Mullins-Johnson.
This momentous task is just part of the work that AIDWYC does in its perpetual battle against wrongful convictions in Canada and elsewhere,
AIDWYC is holding a fundraiser called "Sounds Like Justice" at the Courthouse in Toronto on May 8th.
The current list of performers includes Blue Peter, Fred Eaglesmith, John and Mary and the Valkyries, The Spoons, Liberty Silver, the Dave Shaw Trio and Dave Moran.
More details can be found at www.aidwyc.org;
Harold Levy...hlevy15@gmail.com
THE LEGAL SYSTEM COMMONLY FAILS PEOPLE WHO CANNOT AFFORD TO HIRE GOOD LAWYERS AND EXPERTS.
IF YOU ARE FACING MEDICAL ACCUSATIONS IN COURT YOU NEED TO THROW ALL YOUR FINANCIAL RESOURCES AT THE CASE TO MINIMIZE YOUR RISK OF JOINING THE LONG LIST OF PARENTS IN PRISON UNDER FALSE PRETENCES;"
---------------------------------------------------------------------------------
DAVID CROWE: "DEFENDING PARENTS"; "ATLANTIC FREE PRESS";
---------------------------------------------------------------------------------
Word on Dr. Charles Smith's devastating impact on Canada's criminal justice system is spreading;
The Associated Press's reportage on the Goudge Inquiry brought the plight of Dr. Smith's victims to readers far beyond Canada's borders.
Google Analytics - a Web-Site tracking service - tells me that in the last month, the 3,700 plus visitors to this Blog have come from almost fifty count ires and territories - including the Phillipines, Sri Lanka and Saudi Arabia;
Now, an alternative Web-Site called "Atlantic Free Press," - who's motto is "Hard Truths For Hard Times" - has run a provocative story by David Crowe, under the heading "defending Parents," which refers to Sharon's case, the William Mullins-Johnson case, and related cases in other parts of the world;
"The Atlantic Free Press" is published out of the Netherlands, and can be found at atlanticfreepress.com.
Crowe is described as: "(A) science critic and writer based in Calgary, Canada. (who) has a degree in biology and has written extensively on HIV/AIDS, failures of modern medicine and telecommunications."
"Any parent’s nightmare is the death of a child," the story begins.
"Yet, there is one thing far, far worse – to be accused of killing the child you have just started grieving," it continues;
"While the risk of a child dying is thankfully low, if it does happen, the risk of such horrendous accusations is significant if the death does not have an obvious explanation.
The overwhelming influence of doctors on judges and juries, and the widespread belief that forensic evidence is unassailable make a false conviction quite likely.
Once accusations fly, so may friends and family, confusing accusations with proven facts, and adding to the stress and grief.
If a conviction follows even fewer will stick by the jailed parents.
The stress and lack of financial resources, may even drive parents to plead guilty, coerced into a plea bargain believing prosecutors’s threats to toss them in jail and throw away the key if they fight back.
An Epidemic of False Accusations
The epidemic of false medical accusations against parents is worldwide, particularly in richer countries where the allopathic medical industry has its strongest grip on the public consciousness and the legal system.
In Canada, numerous convictions have been overturned or are being re-examined, due to the sloppy and possibly malicious testimony of one of Ontario’s top pathologists, the now disgraced Dr. Charles Smith.
In one infamous case he failed to recognize the distinctive marks left by dog’s teeth and accused a mother of stabbing her daughter with scissors. Only later was it discovered that a pit bull had been present at the time of her death.
In another case, William Mullins-Johnson spent twelve years in jail convicted of raping and killing his niece because of Dr. Smith, always in danger of being killed by other prisoners.
He was released when it became clear that all Smith’s evidence was unreliable.
Two years later he was fully acquitted with a judge apologizing to him, “It is regrettable that as a result of flawed pathological evidence you were wrongfully convicted and spent so long in custody.”
He has described the trauma of family and friends turning their back on him, and how even after his innocence was proven, his family is still torn. [9,10]
In England, similar cases have gained widespread national attention and concern.
In one of the best known cases, Sally Clarke’s son Harry had not been doing well since being given three vaccinations when he was eight weeks old (he was born three weeks premature).
This was discounted at the trial and she was sentenced to prison for life for killing him, although released 3-1/2 years later.
Her fate was sealed by the opinions of prominent pediatrician Roy Meadow.
Sadly, she never recovered emotionally from these compounded tragedies and committed suicide. [6,7,8]
Roy Meadow also testified in the case of Angela Cannings, accused of smothering two of her children because Meadow testified that two cases of SIDS in one house was a statistical impossibility.
Cannings spent two years in jail before her conviction was overturned on appeal.
The number of proven miscarriages of justice became so great that Britain decided to review all 258 convictions of a parent accused of the death of a child based solely on medical evidence in the past ten years.
Being on the witness stand allows doctors to play God.
Judges and juries defer to the opinions of medical experts, even when there is no visible evidence of harm on the child’s body.
Those accepted as experts by the court are allowed to have their opinions taken as evidence.
This power may go to the head of some who know it is unlikely that they will face judgment for any injustices they cause.
The reaction of the medical profession when these problems come to light is generally lamentable.
In the Sally Clark case Richard Horton, the editor of the prestigious journal Lancet, wrote a strong defense of Roy Meadow when his license to practice was under review by the UK doctor’s association.
Horton did not argue that the conviction was erroneous, but wanted the blame spread around, rather than only punishing the man who gave false evidence.
This attitude puts the right of a man who has done something horrible to continue working above the suffering he caused to a mother who has to grieve her baby alone in a cold cell.
Dr. Mohammed Al-Bayati
One man who single-handedly has saved many parents from such dire consequences is the California-based pathologist and toxicologist Dr. Mohammed Al-Bayati.
He understands how coroners can see their role as securing convictions rather than seeking the truth or accepting uncertainty.
He has seen how easily they jump to conclusions based on accepting the fraction of the available data that is concordant with their theory.
The children described in this article are real cases, documented in the scientific journal Medical Veritas by Dr. Al-Bayati.
Destiny Jacobo
Destiny Jacobo died suddenly before her second birthday.
Los Angeles County coroner, James K. Ribe, reported the death as Shaken Baby Syndrome compounded by forcible rectal insertion (i.e. brutal physical and sexual abuse).
This resulted in her parents being tried for murdering their own daughter.
The mother was persuaded to plead guilty to receive a ‘lighter’ sentence and was sent to jail for life in 1996.
Almost a decade later Al-Bayati reviewed the autopsy report and discovered many facts that contradicted Ribe’s strongly stated accusations.
He found bleeding had occurred in several organs, not just in the head, that the pancreas was severely damaged and that the lungs excess fluid in them, probably caused by pneumonia.
He found no evidence of anal trauma and the bleeding, while in the rectal area, was actually outside the physically undamaged rectum.
It is clearly impossible to insert a blunt object into the anus without physical damage to the entryway.
He concluded that Destiny died from infections, including pneumonia, possibly due to Vitamin K deficiency.
This vitamin is produced by intestinal bacteria which are susceptible to depletion by drugs such as antibiotics and antifungals.
Deficiency causes bleeding and increases the risk of bone fractures which obviously can easily be confused with symptoms of physical abuse.
While the mother is still locked up, the father did not plead guilty and, while also sentenced to prison for life, was actually released only five years later when he proved he was not physically present.
The father is appealing the mother’s conviction and has complained about Ribe’s conduct to the California Medical Board.
The Death of Baby Nadine
Baby Nadine died in Sweden when her heart suddenly stopped on her fortieth day of life.
Accused of shaking her to death, her father was sentenced to five years for manslaughter.
Again, doctors ignored evidence of pre-existing health problems beginning before birth, and rushed to accuse.
Another jury was swayed by faith in the pronouncements of doctors.
Nadine’s health problems began before birth.
Her mother’s membranes ruptured prematurely and she was delivered by a C-Section.
Her mother also smoked and drank. At birth several metabolic abnormalities were measured, including jaundice (a bilirubin level almost double the maximum ‘normal’ value), indicating that Nadine was already suffering from an infection and inflammation.
Nadine was sickly and had an extremely low weight gain during her short life.
Partly because of this, during her first month of life she received three courses of antibiotics.
Her mother, who was breastfeeding, also took antibiotics.
An appeal to the Swedish Supreme Court was rejected, but Peter Althin, a famous lawyer and member of parliament has taken up the case, and supporters hope to achieve a retrial on the basis that the Supreme Court used as an expert the very doctor whose testimony had resulted in the conviction in the first place.
Baby Stryker’s Death
Baby Stryker had serious health problems starting from birth, resulting in the use of antibiotics and other medications. His mother had also previously had two stillbirths.
When only 55 days old Stryker stopped breathing in the middle of the night.
Heroic efforts by the father and paramedics were not able to revive him.
Among the many findings in the autopsy were elevated levels of methanol and formic acid in the blood and the parents were accused of poisoning their baby with methanol (“wood alcohol”).
A report by Al-Bayati revealed the evidence of other health problems and the lack of evidence for methanol-induced damage.
He point out that the methanol and formic acid were probably due to contamination of blood samples with formalin, a compound containing both methanol and formaldehyde (which can be converted into formalin by enzymes present in red blood cells).
After these accusations the other two children were taken and, in a heart-wrenching twist, a third child was snatched from the mother’s arms right after birth.
The investigation dragged on for two years but after a family court hearing in September, 2007, the children were returned to their parents with full custody, although the police still have a murder investigation open.
Baby Averial’s Death
Unlike most of the other babies in this article, Averial had a normal birth. Like many other American babies she was given a Hepatitis B vaccination before leaving the hospital and was fed formula.
The parents noticed that she was always fussy, did not sleep deeply and had serious diarrhea, problems which conceivably were due to the vaccination and the formula.
When Averial was less than two months old she suddenly stopped breathing and went limp in her father’s arms.
The hospital treated her with epinephrine and sodium carbonate to revive her and reduce the acidity of the blood.
This treatment has a risk of significant bleeding and hospital data shows her blood volume decreased 21% in three hours.
Despite intensive treatment she died about 10 days after admission.
Imaging done at the hospital showed skull and rib fractures as well as extensive internal bleeding, evidence that damned the parents.
The Medical Examiner claimed that these symptoms must, because there were no external signs of abuse, have been caused by the father shaking his daughter to death.
The father remains accused of capital murder.
Al-Bayati was able to use the hospital’s own information to show that the testimony was false.
The earliest images clearly show no fractures and bleeding, and so these problems must have been due to aggressive treatment at the hospital.
Al-Bayati believes that the skull fracture was due to the internal bleeding triggered by epinephrine and sodium carbonate treatment, leading to massive swelling.
He believes that her death was due to unrecognized bronchopneumonia and respiratory distress.
Averial’s father is out on $200,000 bail still awaiting trial more than three years after his daughter’s death.
What You Should Do
The best defense against false accusations is a good offence and you need to find a medical expert not scared to buck the system.
Sadly such experts are not common, because most doctors support each other instinctively.
A strong report founded on solid science will often cause legal authorities to back off, knowing that the case will probably attract publicity and may, in the end, make them look heartless, sloppy and incompetent.
If the case does go to trial a strong contrary medical report based on science may well sway the jury.
Even if jury does not fully believe in the parent’s innocence, they may at least accept that the cause of death is uncertain.
A common factor in many cases is a combination of pre-existing health problems and aggressive medical treatment that only makes things worse.
Vaccines and antibiotics are often seen as completely innocuous, and many medical experts are reluctant to question these pillars of pediatric treatment.
Most of all, do not trust the legal system to find truth.
The legal system commonly fails people who cannot afford to hire good lawyers and experts.
If you are facing medical accusations in court you need to throw all your financial resources at the case to minimize your risk of joining the long list of parents in prison under false pretences.
Side Bar or End Note?
Financial problems with these cases are common, as 200 to 300 hours of medical research are required for each case, or even more.
Dr. Mohammed Al-Bayati has set up a non-profit organization, the “International Center for Better Medicine”, so that other people can assist with the payment of his fees.
Checks can be sent to this organization at 150 Bloom Drive, Dixon, CA, 95620. While Al-Bayati has acted pro-bono in several cases, he cannot always afford to do so.
Every $100 donated ensures that accused parents get one hour of the best medical-legal expertise."
(Footnotes for this story can be found on the Atlantic Free Press Web-Site);
Canadians, and people concerned about miscarriages of justice elsewhere in the world, have the opportunity to make contributions to the Association In Defence Of The Wrongly Convicted (AIDWYC) which continues to do a phenomenal job of securing justice and vindication for victims of Dr. Charles Smith such as William Mullins-Johnson.
This momentous task is just part of the work that AIDWYC does in its perpetual battle against wrongful convictions in Canada and elsewhere,
AIDWYC is holding a fundraiser called "Sounds Like Justice" at the Courthouse in Toronto on May 8th.
The current list of performers includes Blue Peter, Fred Eaglesmith, John and Mary and the Valkyries, The Spoons, Liberty Silver, the Dave Shaw Trio and Dave Moran.
More details can be found at www.aidwyc.org;
Harold Levy...hlevy15@gmail.com
Part Five: Critical Comment: A Humourist Weighs In:
"ALL DR. SMITH DID WAS POINT THE BLAME FOR THE DEATHS AT THE ACCUSED, BASED ON HIS AUTOPSY EXAMINATIONS IN WHICH HE USED THE SKILL AND FINESSE OF A HIPPOPOTAMUS ON SKATES;
MARCEL STRIGBERGER; |RESPONSIBILITY R US);
-----------------------------------------------------------------------------------
The talented Toronto lawyer and humourist Marcel Strigberger has waded into the Smith saga with a column which ran yesterday (Sunday April 13) on legalhumour.com., that ran under the heading, "Responsibility R Us."
"Have you noticed that people are taking less and less responsibility for their actions?," the column begins.
"They screw up and instead of admitting same they find somebody or something else to blame their actions on, somebody other than themselves," it continues;
"The following examples were in the news recently.
"Let's start with the public inquiry of pathologist Dr. Charles Smith, whose faulty post mortems sent a number of accused innocent people to penitentiary for the alleged murder of children between 1991 and 2001.
Lawyers for Dr Smith did admit he had something to do with the wrongful convictions but went on to point their legal fingers at "the system”.
Dr. Smith was just part of the system.
Of course he was.
The fault lies just as much with other folks.
After all it was the jury member who found those innocent people guilty.
And it was the judge who put them behind bars.
All Dr. Smith did was point the blame for the deaths at the accused, based on his autopsy examinations in which he used the skill and finesse of a hippopotamus on skates.
Frankly I am surprised that his inquiry lawyers have not suggested that Dr Smith get nominated for the Nobel Prize.
And speaking of skates, we then see Jonathan Roy, goalie for the Quebec Remparts and son of Hall of Fame goalie Patrick, impress us with his brilliance.
During a fight involving some players, Roy skates from his net across the entire length of the arena and with the momentum of a locomotive, rams into the opposing goalie.
He then leisurely punches and pummels said goalie while the poor unsuspecting guy is wiggling on the ice like a worm.
Roy then leaves the ice, and for the pièce de résistance, he gives the local Chicoutimi booing fans the finger.
When interviewed the next day, Roy blames his cool behaviour on a "rush of adrenalin”.
He says something like, "normally I'm a nice guy, readily rivalling the placid qualities of Mahatma Ghandi. But last night, hey. Funny thing that adrernalin."
And of course we have that damages claim against former Vancouver Canuck Todd Bertuzzi who attacked Avalanche player Steven Moore from the rear, crippling him and ending his hockey career.
Todd had a great excuse for his actions.
It’s all the fault of his former coach.
Third Party claim blames said coach for "failing to exercise control over and caution his players when he knew or ought to have known that this was likely to result in injury to Moore.”
I for one am surprised that Bertuzzi did not sue the NHL for failing to award him the Lady Byng Trophy.
After all he probably feels his actions constituted the epitome of gentlemanly and sportsmanlike conduct.
These guys make former governor Eliot Spitzer look good.
At least he just said, "I'm sorry."
Harold Levy...hlevy15@gmail.com;
MARCEL STRIGBERGER; |RESPONSIBILITY R US);
-----------------------------------------------------------------------------------
The talented Toronto lawyer and humourist Marcel Strigberger has waded into the Smith saga with a column which ran yesterday (Sunday April 13) on legalhumour.com., that ran under the heading, "Responsibility R Us."
"Have you noticed that people are taking less and less responsibility for their actions?," the column begins.
"They screw up and instead of admitting same they find somebody or something else to blame their actions on, somebody other than themselves," it continues;
"The following examples were in the news recently.
"Let's start with the public inquiry of pathologist Dr. Charles Smith, whose faulty post mortems sent a number of accused innocent people to penitentiary for the alleged murder of children between 1991 and 2001.
Lawyers for Dr Smith did admit he had something to do with the wrongful convictions but went on to point their legal fingers at "the system”.
Dr. Smith was just part of the system.
Of course he was.
The fault lies just as much with other folks.
After all it was the jury member who found those innocent people guilty.
And it was the judge who put them behind bars.
All Dr. Smith did was point the blame for the deaths at the accused, based on his autopsy examinations in which he used the skill and finesse of a hippopotamus on skates.
Frankly I am surprised that his inquiry lawyers have not suggested that Dr Smith get nominated for the Nobel Prize.
And speaking of skates, we then see Jonathan Roy, goalie for the Quebec Remparts and son of Hall of Fame goalie Patrick, impress us with his brilliance.
During a fight involving some players, Roy skates from his net across the entire length of the arena and with the momentum of a locomotive, rams into the opposing goalie.
He then leisurely punches and pummels said goalie while the poor unsuspecting guy is wiggling on the ice like a worm.
Roy then leaves the ice, and for the pièce de résistance, he gives the local Chicoutimi booing fans the finger.
When interviewed the next day, Roy blames his cool behaviour on a "rush of adrenalin”.
He says something like, "normally I'm a nice guy, readily rivalling the placid qualities of Mahatma Ghandi. But last night, hey. Funny thing that adrernalin."
And of course we have that damages claim against former Vancouver Canuck Todd Bertuzzi who attacked Avalanche player Steven Moore from the rear, crippling him and ending his hockey career.
Todd had a great excuse for his actions.
It’s all the fault of his former coach.
Third Party claim blames said coach for "failing to exercise control over and caution his players when he knew or ought to have known that this was likely to result in injury to Moore.”
I for one am surprised that Bertuzzi did not sue the NHL for failing to award him the Lady Byng Trophy.
After all he probably feels his actions constituted the epitome of gentlemanly and sportsmanlike conduct.
These guys make former governor Eliot Spitzer look good.
At least he just said, "I'm sorry."
Harold Levy...hlevy15@gmail.com;
Thursday, April 10, 2008
Part Four: Critical Comment; The Ethical Element: Why Public Officials Must Act To Prevent Harm;
"DOING SOMETHING WHICH HARMS SOMEONE ELSE IS WRONG. FAILING TO DO SOMETHING WHICH CAN PREVENT HARM IS ALSO WRONG. THIS INCLUDES FAILING TO COMMUNICATE INFORMATION ABOUT A PROBLEM."
-----------------------------------------------------------------------------------
CHRIS MCCORMICK; THE DAILY GLEANER;
-----------------------------------------------------------------------------------
One of the many significant issues raised by evidence called at the Goudge Inquiry is the extent of the ethical obligations imposed on public officials to act on information they have received in order to protect the public.
This ethical issue has been raised in no uncertain terms in the closing submissions filed by the "affected families group" which questions why former Chief Coroner Dr, James Young and Acting Chief Coroner Dr, James Cairns did not use whatever tools were available to them rein in Dr. Smith in response to the numerous alarm bells - before his did any further harm within our criminal justice system.
The ethical issue is also raised by Chris McCormick who teaches criminology at St. Thomas University, in a column which appeared in the Daily Gleaner on April 10, 2008 in the context of another public inquiry involving the work of pathologists now under way in Newfoundland;
"A provincial inquiry headed by Justice Margaret Cameron is being held into how 300 women in Newfoundland and Labrador tested for breast cancer were given wrong results between 1997-2005" the column begins;
"When I wrote about this six weeks ago, it was reported that hundreds of tests were botched, and about 100 women were informed that their tests had to be redone and their treatments were changed,"it continues.
"Moreover, the estimate was that several dozen women who received the wrong results died.
The major news outlets at the time called this a "scandal."
It appears now that senior officials played a key role in not releasing information to the public.
The former provincial health minister, John Ottenheimer, said he was told about the problems on July 19, 2005, and then fully briefed two days later.
Memos also show the former chief executive of the health authority, George Tilley, thought that the problem was explosive.
E-mails show the premier's office was also told about the problem and was working on a communications strategy to deal with upwards of 1,500 women in Newfoundland and Labrador who had their tests compromised by faulty procedures.
However, the former health minister said he was not informed about two external reviews that showed serious problems in the pathology laboratory.
Furthermore, the health authority tried to keep these reviews confidential, but they were recently forced to release them by the courts.
The reviews say the lab was characterized by a high turnover in staff, a lack of proper procedures manuals, a lack of competency-testing, and improper training.
Previously undisclosed e-mail correspondence revealed at the inquiry show government officials knew of the scandal at least three months before the public was informed in October 2005.
However, officials in charge of formulating a communications strategy decided that no action need be taken.
The former minister says he was in favour of public disclosure, but that he gave in to pressure from officials at the Eastern Health authority to not do so.
He said that he deferred to the oncologists (cancer specialists), the surgeons and senior administrative personnel.
He said he deferred to them because he was not a medical person.
He also said he could be excused for not treating this more seriously, as his was a very busy department.
Now let's get that straight.
A publicly elected minister, with a responsibility to the public, deferred to medical personnel on whether to release critical information as if disclosure was a medical matter.
That's kind of hard to swallow.
It is true that action was taken.
Testing was transferred to a Toronto hospital and physicians were informed.
It is conceivable that a general news release might have alarmed the public unduly.
The full scope of the problem did not become evident until 2007, almost two years after health authorities became aware of the lab's testing problems.
However the minister himself said he felt relieved when a St. John's newspaper, The Independent, published the story.
However to not release this information smacks of cowardice.
At one point in the inquiry's hearings, a slightly different slant on events has been offered.
It appears that it was not medical advice that swayed the decision to go public.
Rather, legal advice suggested a letter not be sent to patients about retested lab results as it could increase the health authority's legal liability.
Testimony at the inquiry shows there was advice from lawyers, insurance companies and people in communications about disclosure, but an ethics director did not become involved for over a year.
And as the lawyer for a class action lawsuit said, this is all about ethics.
Doing something which harms someone else is wrong.
Failing to do something which can prevent harm is also wrong.
This includes failing to communicate information about a problem.
The voices of victims and relatives are hard to find in this story.
Politicians and administrators are so far taking centre stage.
However, as the husband of one deceased patient said, "They should have dealt with it. Something went badly wrong and we'll find out why.""
Harold Levy...hlevy15@gmail.com;
-----------------------------------------------------------------------------------
CHRIS MCCORMICK; THE DAILY GLEANER;
-----------------------------------------------------------------------------------
One of the many significant issues raised by evidence called at the Goudge Inquiry is the extent of the ethical obligations imposed on public officials to act on information they have received in order to protect the public.
This ethical issue has been raised in no uncertain terms in the closing submissions filed by the "affected families group" which questions why former Chief Coroner Dr, James Young and Acting Chief Coroner Dr, James Cairns did not use whatever tools were available to them rein in Dr. Smith in response to the numerous alarm bells - before his did any further harm within our criminal justice system.
The ethical issue is also raised by Chris McCormick who teaches criminology at St. Thomas University, in a column which appeared in the Daily Gleaner on April 10, 2008 in the context of another public inquiry involving the work of pathologists now under way in Newfoundland;
"A provincial inquiry headed by Justice Margaret Cameron is being held into how 300 women in Newfoundland and Labrador tested for breast cancer were given wrong results between 1997-2005" the column begins;
"When I wrote about this six weeks ago, it was reported that hundreds of tests were botched, and about 100 women were informed that their tests had to be redone and their treatments were changed,"it continues.
"Moreover, the estimate was that several dozen women who received the wrong results died.
The major news outlets at the time called this a "scandal."
It appears now that senior officials played a key role in not releasing information to the public.
The former provincial health minister, John Ottenheimer, said he was told about the problems on July 19, 2005, and then fully briefed two days later.
Memos also show the former chief executive of the health authority, George Tilley, thought that the problem was explosive.
E-mails show the premier's office was also told about the problem and was working on a communications strategy to deal with upwards of 1,500 women in Newfoundland and Labrador who had their tests compromised by faulty procedures.
However, the former health minister said he was not informed about two external reviews that showed serious problems in the pathology laboratory.
Furthermore, the health authority tried to keep these reviews confidential, but they were recently forced to release them by the courts.
The reviews say the lab was characterized by a high turnover in staff, a lack of proper procedures manuals, a lack of competency-testing, and improper training.
Previously undisclosed e-mail correspondence revealed at the inquiry show government officials knew of the scandal at least three months before the public was informed in October 2005.
However, officials in charge of formulating a communications strategy decided that no action need be taken.
The former minister says he was in favour of public disclosure, but that he gave in to pressure from officials at the Eastern Health authority to not do so.
He said that he deferred to the oncologists (cancer specialists), the surgeons and senior administrative personnel.
He said he deferred to them because he was not a medical person.
He also said he could be excused for not treating this more seriously, as his was a very busy department.
Now let's get that straight.
A publicly elected minister, with a responsibility to the public, deferred to medical personnel on whether to release critical information as if disclosure was a medical matter.
That's kind of hard to swallow.
It is true that action was taken.
Testing was transferred to a Toronto hospital and physicians were informed.
It is conceivable that a general news release might have alarmed the public unduly.
The full scope of the problem did not become evident until 2007, almost two years after health authorities became aware of the lab's testing problems.
However the minister himself said he felt relieved when a St. John's newspaper, The Independent, published the story.
However to not release this information smacks of cowardice.
At one point in the inquiry's hearings, a slightly different slant on events has been offered.
It appears that it was not medical advice that swayed the decision to go public.
Rather, legal advice suggested a letter not be sent to patients about retested lab results as it could increase the health authority's legal liability.
Testimony at the inquiry shows there was advice from lawyers, insurance companies and people in communications about disclosure, but an ethics director did not become involved for over a year.
And as the lawyer for a class action lawsuit said, this is all about ethics.
Doing something which harms someone else is wrong.
Failing to do something which can prevent harm is also wrong.
This includes failing to communicate information about a problem.
The voices of victims and relatives are hard to find in this story.
Politicians and administrators are so far taking centre stage.
However, as the husband of one deceased patient said, "They should have dealt with it. Something went badly wrong and we'll find out why.""
Harold Levy...hlevy15@gmail.com;
Monday, April 7, 2008
Part Three; Critical Comment; Globe And Mail Columnist Christie Blatchford Goes To the Defence of Doctors Young And Cairns:
"AND IN THE OFFICE ITSELF DURING THE CRITICAL TIME PERIOD, THE TWO JIMS WERE ON PAPER THE BOSSES AND SUPERVISORS OF DR. SMITH, WHO AS SOCIAL WORKERS SAY "PRESENTED" AS A TRAINED FORENSIC PATHOLOGIST BUT WASN'T ACTUALLY, ALTHOUGH HE KNEW ENOUGH TO APPEAR UNASSAILABLE AND UNTOUCHABLE TO MEDICAL COLLEAGUES THERE AND AT THE HOSPITAL FOR SICK CHILDREN, WHERE HE ALSO THEN WORKED.
THE WHOLE BALL OF WAX WAS INFINITELY MORE COMPLICATED AND MORE NUANCED THAN MANY WANT TO PAINT IT - YOU KNOW, AS EVERYTHING ELSE IN LIFE IS."
-------------------------------------------------------------------------------------
Columnist Christie Blatchford: Globe And Mail;
-------------------------------------------------------------------------------------
Globe And Mail Columnist Christie Blatchford has followed her paper's recent hard-hitting editorial calling for accountability in Ontario's Chief Coroner's Office with a hard-hitting column of her own, in which she comes to the defence of former Chief Coroner Dr. James Young and Deputy Chief Coroner Dr. James Cairns.
In the spirit of this Blog, I will reserve my own comments on this column until our readers have had the opportunity to reach their own unencumbered thoughts on what Blatchford has to say.
Suffice it to say for now that the ultimate judgment to be made on Dr. Young's and Dr. Cairn's exercise of their public responsibilities will be made by Commissioner Stephen Goudge after hearing months of evidence under oath - and not by the unidentified "ungrateful" reporters who Blatchford singles out;
"I guess it was inevitable that one day, someone I know and like would come under attack by those in my own business," Blatchford's April 8, 2008, column began;
"I've been writing for newspapers for more than a quarter-century, and after all that time, some reliable sources inevitably became familiar faces, and a very few of those have become friends," the column continued;
"Yet though on some level I knew this day was coming, I was, as Bruce Springsteen sings in Livin' in the Future, for my dough the best song from his newest album, Magic, "Still I was struck deaf and dumb" by the viciousness of it all.
The men in question are the two Jims, as they were sometimes called, Jim Young, for a time the chief coroner of Ontario, and Jim Cairns, the deputy coroner.
This week, they and the institution (although that is rather a grand name for dark little offices in a grim little building) they once ran were the subject of a series of calls for their heads, and a particularly scathing Globe and Mail editorial.
Now, I've never had that much truck for the breed that manages to simultaneously write from the comfort of anonymity and please the newspaper publisher or owner - as most of you know, editorials, unlike columns, are meant to espouse the corporate or newspaper view, and they carry no bylines.
That mixture of anonymity and official sanction can be a recipe for righteous hyperbole.
The two Jims were certainly already well-wounded.
For the past several years in particular, as the story of disgraced pathologist Charles Smith emerged first in dribs and drabs and then in bunches, the small coroner's office has been the subject of what I would call a fairly organized assault, led by lawyers for the Association in Defence of the Wrongly Convicted, which represents a group of parents, some of whose members went to jail or lost their children as a result of Dr. Smith's failures and mistakes, and now even by lawyers for Dr. Smith himself.
The two Jims were key witnesses at the hearings, grilled for days by lawyers.
The key accusation against both of them, in a nutshell, is that they failed to provide the sort of oversight that is such a buzzword now and which in the modern fashion the world appears to believe would have and should have caught Dr. Smith in his tracks, and revealed him as dangerously sloppy at best, and a prosecutorial stooge at worst, far sooner than he was stopped.
Now, the Ontario coroner's system always struck me as just plain weird.
At death inquests, coroners (who are, after all, medical doctors) make legal rulings, wrestle with bright, quarrelsome lawyers and preside over an increasing number of public institutions and officials who arrive at the shabby inquest courts with lawyers in tow, often bent on thwarting the inquest from doing its business and from ever arriving at the facts of a case, let alone truth.
And in the office itself during the critical time period, the two Jims were on paper the bosses and supervisors of Dr. Smith, who as social workers say "presented" as a trained forensic pathologist but wasn't actually, although he knew enough to appear unassailable and untouchable to medical colleagues there and at the Hospital for Sick Children, where he also then worked.
The whole ball of wax was infinitely more complicated and more nuanced than many want to paint it - you know, as everything else in life is.
Dr. Young I know less well.
I first met him when I worked alongside him for a short time in the sports department of The Globe, where he was toiling to put himself through medical school.
Dr. Cairns I got to know better, by watching him at inquests where he was a brave advocate for dead children of the province who sometimes had no other, and because as a reporter, I could always call him for information.
While in the latter years of his tenure we became friends, he was always accessible and honest even in the years when we weren't.
What's more, rare in government and its agencies then and now, he actually believes fiercely in the right of the public to know and in freedom of the press.
In probably two decades of reporterly calls, made at all hours of the day and night, he never once exaggerated a whit.
Most reporters have had the experience of hearing a police officer, lawyer or politician overselling the strength of a case or a position; indeed, that is one of the criticisms of Dr. Smith in the witness box, that he gilded the lily in favour of the prosecution.
As a source, Dr. Cairns never did that.
He really was a "just the facts" kind of source: He'd tell reporters what he knew, what he could, and never more.
If he didn't know the answer, he would say so, and then try to get it.
If he had the answer, but was prohibited by law from disclosing it and could find no way around the law (as I said, he actually believed in the right to know), he would say that, too.
There are reporters at every news organization in Toronto and beyond who would have had comparable experiences with him, yet their voices have gone silent.
I realize this may all seem a little inside-baseball, but the point is, these are good qualities for a public servant to have, or so I believe.
While he clearly misjudged Dr. Smith - who isn't guilty of that? - I have no doubt it was ever deliberate or done, as this paper's editorial suggested, to keep Dr. Smith on a pedestal, and the coroner's office bathing in reflected glory.
Glory, what glory?
This was an office run for the longest time on a shoestring, virtually ignored most of the time by its masters in government and everyone else too, where the stuff of daily life was emotionally battering, and where the workload was enormous and the pay ordinary.
How cruel that none of us in this business, who relied on Dr. Cairns so much for so long, remember any of this now."
How sharper than a serpent's tooth is an ungrateful reporter."
Harold Levy...hlevy15@gmail.com
THE WHOLE BALL OF WAX WAS INFINITELY MORE COMPLICATED AND MORE NUANCED THAN MANY WANT TO PAINT IT - YOU KNOW, AS EVERYTHING ELSE IN LIFE IS."
-------------------------------------------------------------------------------------
Columnist Christie Blatchford: Globe And Mail;
-------------------------------------------------------------------------------------
Globe And Mail Columnist Christie Blatchford has followed her paper's recent hard-hitting editorial calling for accountability in Ontario's Chief Coroner's Office with a hard-hitting column of her own, in which she comes to the defence of former Chief Coroner Dr. James Young and Deputy Chief Coroner Dr. James Cairns.
In the spirit of this Blog, I will reserve my own comments on this column until our readers have had the opportunity to reach their own unencumbered thoughts on what Blatchford has to say.
Suffice it to say for now that the ultimate judgment to be made on Dr. Young's and Dr. Cairn's exercise of their public responsibilities will be made by Commissioner Stephen Goudge after hearing months of evidence under oath - and not by the unidentified "ungrateful" reporters who Blatchford singles out;
"I guess it was inevitable that one day, someone I know and like would come under attack by those in my own business," Blatchford's April 8, 2008, column began;
"I've been writing for newspapers for more than a quarter-century, and after all that time, some reliable sources inevitably became familiar faces, and a very few of those have become friends," the column continued;
"Yet though on some level I knew this day was coming, I was, as Bruce Springsteen sings in Livin' in the Future, for my dough the best song from his newest album, Magic, "Still I was struck deaf and dumb" by the viciousness of it all.
The men in question are the two Jims, as they were sometimes called, Jim Young, for a time the chief coroner of Ontario, and Jim Cairns, the deputy coroner.
This week, they and the institution (although that is rather a grand name for dark little offices in a grim little building) they once ran were the subject of a series of calls for their heads, and a particularly scathing Globe and Mail editorial.
Now, I've never had that much truck for the breed that manages to simultaneously write from the comfort of anonymity and please the newspaper publisher or owner - as most of you know, editorials, unlike columns, are meant to espouse the corporate or newspaper view, and they carry no bylines.
That mixture of anonymity and official sanction can be a recipe for righteous hyperbole.
The two Jims were certainly already well-wounded.
For the past several years in particular, as the story of disgraced pathologist Charles Smith emerged first in dribs and drabs and then in bunches, the small coroner's office has been the subject of what I would call a fairly organized assault, led by lawyers for the Association in Defence of the Wrongly Convicted, which represents a group of parents, some of whose members went to jail or lost their children as a result of Dr. Smith's failures and mistakes, and now even by lawyers for Dr. Smith himself.
The two Jims were key witnesses at the hearings, grilled for days by lawyers.
The key accusation against both of them, in a nutshell, is that they failed to provide the sort of oversight that is such a buzzword now and which in the modern fashion the world appears to believe would have and should have caught Dr. Smith in his tracks, and revealed him as dangerously sloppy at best, and a prosecutorial stooge at worst, far sooner than he was stopped.
Now, the Ontario coroner's system always struck me as just plain weird.
At death inquests, coroners (who are, after all, medical doctors) make legal rulings, wrestle with bright, quarrelsome lawyers and preside over an increasing number of public institutions and officials who arrive at the shabby inquest courts with lawyers in tow, often bent on thwarting the inquest from doing its business and from ever arriving at the facts of a case, let alone truth.
And in the office itself during the critical time period, the two Jims were on paper the bosses and supervisors of Dr. Smith, who as social workers say "presented" as a trained forensic pathologist but wasn't actually, although he knew enough to appear unassailable and untouchable to medical colleagues there and at the Hospital for Sick Children, where he also then worked.
The whole ball of wax was infinitely more complicated and more nuanced than many want to paint it - you know, as everything else in life is.
Dr. Young I know less well.
I first met him when I worked alongside him for a short time in the sports department of The Globe, where he was toiling to put himself through medical school.
Dr. Cairns I got to know better, by watching him at inquests where he was a brave advocate for dead children of the province who sometimes had no other, and because as a reporter, I could always call him for information.
While in the latter years of his tenure we became friends, he was always accessible and honest even in the years when we weren't.
What's more, rare in government and its agencies then and now, he actually believes fiercely in the right of the public to know and in freedom of the press.
In probably two decades of reporterly calls, made at all hours of the day and night, he never once exaggerated a whit.
Most reporters have had the experience of hearing a police officer, lawyer or politician overselling the strength of a case or a position; indeed, that is one of the criticisms of Dr. Smith in the witness box, that he gilded the lily in favour of the prosecution.
As a source, Dr. Cairns never did that.
He really was a "just the facts" kind of source: He'd tell reporters what he knew, what he could, and never more.
If he didn't know the answer, he would say so, and then try to get it.
If he had the answer, but was prohibited by law from disclosing it and could find no way around the law (as I said, he actually believed in the right to know), he would say that, too.
There are reporters at every news organization in Toronto and beyond who would have had comparable experiences with him, yet their voices have gone silent.
I realize this may all seem a little inside-baseball, but the point is, these are good qualities for a public servant to have, or so I believe.
While he clearly misjudged Dr. Smith - who isn't guilty of that? - I have no doubt it was ever deliberate or done, as this paper's editorial suggested, to keep Dr. Smith on a pedestal, and the coroner's office bathing in reflected glory.
Glory, what glory?
This was an office run for the longest time on a shoestring, virtually ignored most of the time by its masters in government and everyone else too, where the stuff of daily life was emotionally battering, and where the workload was enormous and the pay ordinary.
How cruel that none of us in this business, who relied on Dr. Cairns so much for so long, remember any of this now."
How sharper than a serpent's tooth is an ungrateful reporter."
Harold Levy...hlevy15@gmail.com
Sunday, April 6, 2008
Part Two; Critical Comment: Globe And Mail Says Ontario's Chief Coroner's Office Must Be Made Accountable;
"IT WAS THE JOB OF DR. YOUNG AND DEPUTY CHIEF CORONER JAMES CAIRNS NOT TO BE FOOLED;
THEY WERE THE ONES IN CHARGE, NOT DR. SMITH;
AND THE EVIDENCE WAS BEFORE THEIR EYES - IN A JUDGE'S SCATHING RULING AS EARLY AS 1991, IN A PIECE OF CRUCIAL EVIDENCE THAT WOUND UP IN DR. SMITH'S SHIRT POCKET, RATHER THAN AS A COURT EXHIBIT, IN MEDIA EXPOSES - IF ONLY THEY HAD CARED TO LOOK;
------------------------------------------------------------------------------------
EDITORIAL;
GLOBE AND MAIL;
MARCH 31, 2008;
-------------------------------------------------------------------------------------
One of the themes that has emerged from the Goudge Inquiry is the necessity for accountability on the part of those who take on senior roles in the public service.
The Globe and Mail did not mince words when it tackled that theme in a hard-hitting editorial which appeared last month;
"For mealy-mouthed denial after causing life-destroying harm, the Ontario Chief Coroner's Office (OCCO) set such a lofty standard last week that all abdications of responsibility should now be measured against it," the editorial begins;
"Leaders of the Eastern Health Authority in Newfoundland and Labrador, however, whose agency made mistakes that may have actually killed people, are showing signs that they may one day surpass the Ontario standard with their own denials," it continues;
"It was the job of Ontario Chief Coroner James Young to supervise Charles Smith, the province's top scientist in charge of investigating baby deaths.
Dr. Smith of Toronto botched that job so badly over a 13-year period ending in 2004 that as many as 20 people were wrongly accused or convicted of crimes, up to and including murder, and one went to jail for as long as 12 years.
Children were taken away from their families permanently because parents were wrongly accused of abuse.
And the response from the chief coroner's office, in its final submission to Mr. Justice Stephen Goudge of the Ontario Court of Appeal, was to say Dr. Smith made such a good personal impression that he fooled them.
"Aside from Dr. Smith's reputation as an expert in the field of pediatric forensic pathology, he was also someone who exuded confidence and self-assurance, which had a positive impact on those working with him for OCCO," the office says in its brief.
"It would have been difficult and perhaps even unreasonable, under the circumstances, for OCCO to anticipate a situation in which a world-renowned pathologist who was considered to be the top in his field - and who presented as highly competent - would fail the system in the manner that is the subject of this commission of inquiry."
Presented as highly competent?
It was the job of Dr. Young and Deputy Chief Coroner James Cairns not to be fooled.
They were the ones in charge, not Dr. Smith.
And the evidence was before their eyes - in a judge's scathing ruling as early as 1991, in a piece of crucial evidence that wound up in Dr. Smith's shirt pocket, rather than as a court exhibit, in media exposés - if only they had cared to look.
But partly on the strength of Dr. Smith's inflated reputation, the coroner's office itself grew in the public's esteem.
And so the office turned a blind eye to his failings.
Dr. Smith, for his own part, while accepting some measure of responsibility for some mistakes (which included acting as the prosecution's advocate in the courtroom, more a willful misreading of his duty than a simple mistake), pointed a finger back at the coroner's office for failing to supervise him properly, as if to say, "It's not my fault I can't be trusted on my own."
In Newfoundland and Labrador, meanwhile, a separate inquiry is examining how the Eastern Health Authority misread crucial laboratory tests for 383 cancer patients from 1997 to 2005.
At least one woman underwent a double mastectomy when she did not have breast cancer because of the inaccurate tests; others were denied medication that might have helped them.
Joan Dawe, the head of Eastern's board, testified at the inquiry that she saw no reason to question whether all affected patients had been notified of the faulty test results, in spite of news reports that should have raised alarm bells.
Massive breaches of public trust will not be healed by denials of responsibility.
The medical establishment in the Ontario Chief Coroner's Office has proven be a collection of emperors with no clothes, and Newfoundland and Labrador's public health officials may soon be shown in a similar state.
Creating a culture of accountability in the medical establishment is job number one for these inquiries.
NEXT POSTING: Globe and Mail columnist Christie Blatchford goes to the defence of former Chief Coroner, Dr. James Young, and former Deputy Chief Coroner, Dr. James Cairns;
Harold Levy...hlevy15@gmail.com;
THEY WERE THE ONES IN CHARGE, NOT DR. SMITH;
AND THE EVIDENCE WAS BEFORE THEIR EYES - IN A JUDGE'S SCATHING RULING AS EARLY AS 1991, IN A PIECE OF CRUCIAL EVIDENCE THAT WOUND UP IN DR. SMITH'S SHIRT POCKET, RATHER THAN AS A COURT EXHIBIT, IN MEDIA EXPOSES - IF ONLY THEY HAD CARED TO LOOK;
------------------------------------------------------------------------------------
EDITORIAL;
GLOBE AND MAIL;
MARCH 31, 2008;
-------------------------------------------------------------------------------------
One of the themes that has emerged from the Goudge Inquiry is the necessity for accountability on the part of those who take on senior roles in the public service.
The Globe and Mail did not mince words when it tackled that theme in a hard-hitting editorial which appeared last month;
"For mealy-mouthed denial after causing life-destroying harm, the Ontario Chief Coroner's Office (OCCO) set such a lofty standard last week that all abdications of responsibility should now be measured against it," the editorial begins;
"Leaders of the Eastern Health Authority in Newfoundland and Labrador, however, whose agency made mistakes that may have actually killed people, are showing signs that they may one day surpass the Ontario standard with their own denials," it continues;
"It was the job of Ontario Chief Coroner James Young to supervise Charles Smith, the province's top scientist in charge of investigating baby deaths.
Dr. Smith of Toronto botched that job so badly over a 13-year period ending in 2004 that as many as 20 people were wrongly accused or convicted of crimes, up to and including murder, and one went to jail for as long as 12 years.
Children were taken away from their families permanently because parents were wrongly accused of abuse.
And the response from the chief coroner's office, in its final submission to Mr. Justice Stephen Goudge of the Ontario Court of Appeal, was to say Dr. Smith made such a good personal impression that he fooled them.
"Aside from Dr. Smith's reputation as an expert in the field of pediatric forensic pathology, he was also someone who exuded confidence and self-assurance, which had a positive impact on those working with him for OCCO," the office says in its brief.
"It would have been difficult and perhaps even unreasonable, under the circumstances, for OCCO to anticipate a situation in which a world-renowned pathologist who was considered to be the top in his field - and who presented as highly competent - would fail the system in the manner that is the subject of this commission of inquiry."
Presented as highly competent?
It was the job of Dr. Young and Deputy Chief Coroner James Cairns not to be fooled.
They were the ones in charge, not Dr. Smith.
And the evidence was before their eyes - in a judge's scathing ruling as early as 1991, in a piece of crucial evidence that wound up in Dr. Smith's shirt pocket, rather than as a court exhibit, in media exposés - if only they had cared to look.
But partly on the strength of Dr. Smith's inflated reputation, the coroner's office itself grew in the public's esteem.
And so the office turned a blind eye to his failings.
Dr. Smith, for his own part, while accepting some measure of responsibility for some mistakes (which included acting as the prosecution's advocate in the courtroom, more a willful misreading of his duty than a simple mistake), pointed a finger back at the coroner's office for failing to supervise him properly, as if to say, "It's not my fault I can't be trusted on my own."
In Newfoundland and Labrador, meanwhile, a separate inquiry is examining how the Eastern Health Authority misread crucial laboratory tests for 383 cancer patients from 1997 to 2005.
At least one woman underwent a double mastectomy when she did not have breast cancer because of the inaccurate tests; others were denied medication that might have helped them.
Joan Dawe, the head of Eastern's board, testified at the inquiry that she saw no reason to question whether all affected patients had been notified of the faulty test results, in spite of news reports that should have raised alarm bells.
Massive breaches of public trust will not be healed by denials of responsibility.
The medical establishment in the Ontario Chief Coroner's Office has proven be a collection of emperors with no clothes, and Newfoundland and Labrador's public health officials may soon be shown in a similar state.
Creating a culture of accountability in the medical establishment is job number one for these inquiries.
NEXT POSTING: Globe and Mail columnist Christie Blatchford goes to the defence of former Chief Coroner, Dr. James Young, and former Deputy Chief Coroner, Dr. James Cairns;
Harold Levy...hlevy15@gmail.com;
Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;
"GOD HELP THE FALSELY ACCUSED; THEIR INNOCENCE IS NO MATCH FOR A CORRUPT SYSTEM;"
FATHER RAYMOND J. DE SOUZA;
-------------------------------------------------------------------------------------
The National Post has provided insightful gavel to gavel reporting of the Goudge Inquiry by reporter Tom Blackwell.
In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"
Father De Souza has an interesting background.
A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.
Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.
"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.
"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.
"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.
The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.
Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.
It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.
Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.
Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.
A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.
The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.
Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.
Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.
Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.
Remember the Klemko controversy last summer?
Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.
His offence?
He has testified for defendants as an outside consultant in various cases.
The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.
The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.
The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.
So we have coroners who think they should say what the Crown prosecutors want.
Cops who are told not to contradict what the Crowns want. Crowns who want convictions.
The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.
Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.
God help the falsely accused; their innocence is no match for a corrupt system.
Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.
It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.
Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.
It will be terribly costly -- but less costly than imprisoning the innocent.
Less costly than accusing innocent parents of murdering their own children.
Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.
Less costly than having a justice system unworthy of the name.
Harold Levy...hlevy15@gmail.com
FATHER RAYMOND J. DE SOUZA;
-------------------------------------------------------------------------------------
The National Post has provided insightful gavel to gavel reporting of the Goudge Inquiry by reporter Tom Blackwell.
In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"
Father De Souza has an interesting background.
A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.
Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.
"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.
"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.
"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.
The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.
Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.
It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.
Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.
Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.
A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.
The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.
Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.
Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.
Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.
Remember the Klemko controversy last summer?
Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.
His offence?
He has testified for defendants as an outside consultant in various cases.
The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.
The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.
The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.
So we have coroners who think they should say what the Crown prosecutors want.
Cops who are told not to contradict what the Crowns want. Crowns who want convictions.
The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.
Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.
God help the falsely accused; their innocence is no match for a corrupt system.
Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.
It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.
Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.
It will be terribly costly -- but less costly than imprisoning the innocent.
Less costly than accusing innocent parents of murdering their own children.
Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.
Less costly than having a justice system unworthy of the name.
Harold Levy...hlevy15@gmail.com
Subscribe to:
Posts (Atom)
