Part Eight: Gaurov's Father: A Second Shocking Revelation From Goudge Inquiry; Both Smith And Huyer Were "Struggling" With Criminality In the Case;

"SPEAK TO PATHOLOGIST, DR. CHARLES SMITH, OF SICK KIDS HOSPITAL RE. UPDATE. STILL IS OF THE OPINION THAT DEATH WAS FROM EITHER TWO (2) SOURCES: SHAKEN BABY, BLUNT TRAUMA. HE HAS CONSULTED WITH DR. HUYER, SCAN PROGRAM. THEY BOTH HAVE MISGIVINGS ABOUT CRIMINAL ELEMENT. QUOTE, 'HAS STRUGGLED WITH THIS BEING CRIMINAL. AGREES TO MEET WITH MARY HALL ANY TIME.'"

NOTE WRITTEN BY TORONTO HOMICIDE OFFICER DETECTIVE JOHN LINE IN RELATION TO KUMAR INVESTIGATION. DETECTIVE LINE WAS REFERRING TO MARY HALL WHO WAS DESCRIBED BY LAWYER JAMES LOCKYER AS HEAD CROWN ATTORNEY IN THE SCARBOROUGH OFFICE OUT OF WHICH KUMAR WAS PROSECUTED;

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In an earlier posting I referred to the shocking disclosure from the Goudge Inquiry that Dinesh Kumar's lawyer's testified that he had not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

That decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN (Suspected Child Abuse And Neglect) team.

Two other shocking disclosures relating to Gaurov's case also emanated from the Inquiry;

The second - the subject of this post - was that Dr. Charles Smith had informed homicide investigators that both he, and Dr. Dirk Huyer, the head of the SCAN team at the Hospital for Sick Children In Toronto were both "struggling" to find criminality in the case - a far cry from the language in their official reports;

The section of transcript relating to this disclosure is found in lawyer James Lockyer's cross-examination of Dr. Helen Whitwell, the independent examiner who reviewed Gaurov's case at the request of former Chief Coroner, Dr. Barry McLellan;

It reads as follows:

MR. JAMES LOCKYER: And so in Gaurov's case, whilst we have -- the preexisting condition may have been responsible for what ultimately caused Gaurov's death, beyond that, potentially, as Dr. Pollanen has pointed out, we don't even seem to have the triad in the first place.


DR. HELEN WHITWELL: No, you don't.

MR. JAMES LOCKYER: I don't know quite why Dr. Smith said this, but he seems to have had a lot of trouble with the case himself, and we got some notes just a -- a few days ago in this regard. If we could go to PFP302155; And what we're looking at here is the notes of one (1) of the officers in charge of the case, Detective Lines (sic). And if you go -- could you -- I'm sorry, I don't have a page number here. Could you just keep -- keep moving and I'll tell you when to stop through these notes. We're looking for March 23rd, which you'll see at the top of one (1) of the pages. And if you look at the entry for 2:55 on March 23rd -- and if you could raise the page a little so we can go to the bottom of it -- what it says there, and this is Detective Lines, one (1) of the officers in charge, and what he's noted March 23rd of 1992, which is post-autopsy, he's noted: "Speak to pathologist, Dr. Charles Smith, of Sick Kids Hospital re.
update. Still is of the opinion that death was from either two (2) sources: shaken baby, blunt trauma. He has consulted with Dr. Huyer, SCAN program. They both have misgivings about criminal element. Quote, 'Has struggled with this being criminal. Agrees to meet with Mary Hall any time.' And I can just tell you, Dr. Whitwell, that Mary Hall was then a -- the head Crown attorney in the Scarborough office where --

DR. HELEN WHITWELL: Right.

MR. JAMES LOCKYER: -- out of which Mr. Kumar was prosecuted.
So it would seem, at least in the early days -- and this is before Gaurov's father is charged with the second degree murder of his son Gaurov -- that even after the autopsy, Dr. Smith, and indeed Dr. Huyer of the SCAN unit, to use the -- to use the quote, "struggling" with the question of whether any crime had
been committed in Gaurov's death in the first place. I don't think you would have known that. We only got this document about a week ago --

DR. HELEN WHITWELL: Right.

MR. JAMES LOCKYER: -- through -- through the officer himself providing it.

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We are told that this note was written before Dinesh Kumar was encouraged by prosecutors to plead guilty to criminal negligence causing his son Gaurov's death in order to avoid being prosecuted for murder.

The existence of such a note - in which both Dr. Smith and the Head of the SCAN team are struggling to find any scientific evidence of criminality in the case - clearly raises the prospect that there was no reasonable possibility of obtaining a conviction.

The last time I looked at a Criminal Code - Criminal Negligence Causing Death was just what it sounded like: a very serious criminal offence.

So we have to wonder why the prosecutors who, as crown attorneys, also hold the function of being officers of the Court, proceeded to take Mr. Kumar to Court on any criminal charge at all - whether they were bound by the law to withdraw all charges against him or not.

A very shocking revelation indeed, which, it seems, only raised its ugly head publicly more than 16-years after Mr. Kumar pleaded guilty to an offence he did not commit, to avoid life in prison for murder on the evidence of the celebrated Dr. Smith's evidence supported by the world famous Hospital for Sick Children, to regain custody of his son, and to avoid deportation from Canada;

How could our Canadian Justice system fall so low?

Next Posting: Part Nine; Gaurov's Father; A Third Shocking Revelation From The Goudge Inquiry;

Harold Levy...hlevy15@gmail.com;

Part Six: Gaurov's Father: Spotlight On The Court Of Appeal;

"FRESH EVIDENCE IN THE FORM OF NEW MEDICAL EVIDENCE IS NOW AVAILABLE WHICH ESTABLISHES THAT THE DECEASED BABY, GAUROV KUMAR, LIKELY DIED FROM ACCIDENTAL OR NATURAL CAUSES AND SHOULD BE ADMITTED INTO EVIDENCE ON APPEAL;"

NOTICE OF APPEAL: ONTARIO COURT OF APPEAL;

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Dinesh Kumar's fight for exoneration after sixteen years is now before the Ontario Court of Appeal.

To its credit, the Ontario Government has agreed that the appeal has merit - and has not put any obstacles in its way.

To this writer's knowledge, at the moment more than a dozen cases involving Dr. Charles Smith have been filed in the Ontario Court of Appeal.

Mr. Kumar is appealing his conviction on the following grounds:

0: Fresh evidence in the form of new medical evidence is now available which establishes that the deceased baby, Gaurov Kumar, likely died from accidental or natural causes and should be admitted into evidence on appeal;

0: There was no absence of due diligence on the part of the defence at trial.

0: Leave should be granted to the Appellant to withdraw his plea of guilty, and,

(0) The fresh evidence is such that to sustain the Appellant’s conviction would amount to a miscarriage of justice.

In a nutshell, he is asking the Court to admit the fresh evidence, grant leave to withdraw his plea of guilty should be granted, quash the conviction, and enter a verdict of acquittal.

A date has not yet been set for the appeal.

Harold Levy...hlevy15@gmail.com;

Part Two: Gaurov's Father: Pleaded Guilty 16 Years Ago Because He Feared Smith; Judge Open Way To Kumar's Appeal After Crown Conceeds Its Merit;

"IN HIS APPLICATION, MR. KUMAR CONTENDS THAT HE WAS EFFECTIVELY FORCED TO PLEAD GUILTY, RATHER THAN FACE TRIAL TESTIMONY FROM THE COUNTRY'S LEADING FORENSIC PATHOLOGIST - CHARLES SMITH.

THE NOW-DISCREDITED DR. SMITH WAS TO TESTIFY FOR THE CROWN THAT GAUROV WAS A VICTIM OF SHAKEN BABY SYNDROME - A POPULAR DIAGNOSIS AT THE TIME - WHICH IS NOW IN SERIOUS QUESTION IN THE FORENSIC PATHOLOGY COMMUNITY.

REFERRING TO THE CONTROVERSY, JUDGE ROSENBERG SAID YESTERDAY: "NEW EVIDENCE HAS NOW COME TO LIGHT CASTING SERIOUS DOUBT ON THE VALIDITY OF THE FINDINGS OF DR. SMITH."

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FROM GLOBE AND MAIL REPORTER KIRK MAKIN'S STORY ON DINESH KUMAR'S BID TO APPEAL HIS CONVICTION IN THE DEATH OF HIS SON IN SPITE OF HIS GUILTY PLEA ANDTHE PASSAGE OF SIXTEEN YEARS;

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Kirk Makin reports in today's Globe and Mail that Justice Marc Rosenberg has given the green light to Dinesh Kumar's application to appeal his 1993 conviction.

Makin has been covering the Goudge inquiry from the outset and is the author of "Redrum The Innocent", an extraordinary account of the wrongful conviction of Guy Paul Morin, published by Penguin in 1992.

"A Toronto man's chances of being exonerated in the 1992 death of his five-week-old baby appeared to soar yesterday, after an Ontario Court of Appeal judge reopened the 16-year-old case and offered him some hopeful words," Makin's story begins;

"Mr. Justice Marc Rosenberg said he found it "very understandable" that Dinesh Kumar accepted a plea bargain from the Crown in 1993, which resulted in him getting a 90-day sentence for criminal negligence causing death," it continues.

"Judge Rosenberg said the plea offer was "exceedingly lenient," considering Mr. Kumar faced a term of life imprisonment if convicted for the murder of his child, Gaurov.

"It is manifestly in the interests of justice that an extension of time be granted in these unusual circumstances, notwithstanding the long passage of time," Judge Rosenberg said.

In his application, Mr. Kumar contends that he was effectively forced to plead guilty, rather than face trial testimony from the country's leading forensic pathologist - Charles Smith.

The now-discredited Dr. Smith was to testify for the Crown that Gaurov was a victim of shaken baby syndrome - a popular diagnosis at the time - which is now in serious question in the forensic pathology community.

Referring to the controversy, Judge Rosenberg said yesterday: "New evidence has now come to light casting serious doubt on the validity of the findings of Dr. Smith."

In another significant move yesterday, Crown counsel Gillian Roberts told the court she did not oppose reopening Mr. Kumar's appeal - a concession that indicates the Crown sees merit in his appeal.

After the brief hearing, Mr. Kumar - who was accompanied by his wife, Veena, his son, Saurob, and several relatives - expressed delight at the outcome. "This is a great day now," he said in an interview. "I am happy. It is a very good thing for us."

Defence counsel James Lockyer said he will file Mr. Kumar's appeal immediately. "I think that the way Justice Rosenberg spoke was very encouraging," he said. "The next step is to sit down with the Crown and sort out where we go from here."

Mr. Lockyer said he is hoping the Crown will simply agree to Mr. Kumar being exonerated, without both sides having to go to the trouble and expense of seeking expert opinions from forensic pathologists abroad.

"I would like Mr. Kumar's name to be cleared as soon as possible," he said.

Five weeks after his birth, Gaurov screamed in his sleep one night. Mr. Kumar told police that he rushed over to the child's crib to find him gasping and looking bluish. Doctors determined later that night that Gaurov was brain-dead. A day later, on March 20, 1992, he was removed from life support.

On June 26, 1992, Mr. Kumar was arrested for second-degree murder.

The real cause of Gaurov's death might never be determined. In a brief to the court, Mr. Lockyer and co-counsel Alison Craig stated that Dr. Smith should have realized that shaken baby syndrome was not even a legitimate diagnosis at the time, since one of three indicators that must be present for such a diagnosis - retinal hemorrhages - was absent."

Harold Levy...hlevy15@gmail.com