JUSTICE GOUDGE'S FINDINGS; PART SEVEN; TYRELL'S CASE; SMITH;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;

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An overview report prepared by Commission staff on Tyrell's case reads, in par, as follows;

Tyrell was born in Toronto on February 1, 1994;

Tyrell was the child of Janette and Garth;

Tyrell was almost four years old at the time of his death;

Criminal proceedings were initiated against Tyrell's caregiver, Maureen.

The criminal proceedings concluded on January 22, 2001, when the Crown stayed the second-degree murder charge against Maureen for the stated reason of preventing a miscarriage of justice

(Even though the Crown took the highly unusual move of withdrawing a second-degree murder charge in the face of opinions from highly respected experts which contradicted Dr. Smith's opinion, Justice Goudge notes that, "Dr. Cairns concluded that this was simply another one where reasonable experts could differ."

Justice Goudge's comment is particularly interesting in light of the fact that the charge against Maureen in Tyrell's case was stayed on January 22, 2001 - and the highly publicized withdrawal of the murder charge faced by Louise Reynolds in Sharon's case occurred merely three days later, on January 25, 2001;)

Surely, the timing of the two significant reverses to police prosecutors in cases involving Charles Smith should have give given Dr. Cairns significant pause.)

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Failure to disregard irrelevant and prejudicial information;

This is one of the cases where Justice Goudge found that Smith had allowed irrelevant or prejudicial information to affect his decision making in an individual case.

Justice Goudge was referring to the note Smith made in his autopsy report that Tyrell's mother had left him in Jamaica when he was young and that his father was in jail at the time, having killed a bystander during a shootout.

"If Dr. Smith relied on this information, he should not have done so," ruled Goudge.

"None of the information set out above should have been included ina final autopsy report because it leaves the impression that somehow it played a part in Dr. Smith's thinking;

Diagnosing head injury

Dr. Charles Smith's record in head injury cases - where he tended to find shaken baby syndrome - and Tyrell's case was no exception.

"Dr. Smith made serious errors in the diagnosis of head injury in several of the cases before me," Justice Goudge ruled.

"In some instances, his diagnosis, which today would be considered unreasonable, was acceptable given the knowledge at the time.

"In others. however, Dr. Smith's diagnosis was unreasonable then and would be unreasonable now.

More specifically, Tyrell's caregiver reported that he had been jumping on the couch, had slipped, and had fallen backwards, hitting his head on the marble coffee table or on the tiled floor.

Goudge said that although Smith rightly concluded that Tyrell had died of a head injury, "he failed to recognize that the pathology findings supported the position that Tyrell had suffered a contre coup brain injury, which is classically associated with a backward fall."

"Moreover, in 2000, when he testified for the Crown at the preliminary hearing of Tyrell's caregiver, Dr. Smith wrongly asserted that the caregiver's explanation could not account for Tyrell's injuries," Goudge added.

He went as far as telling the court that the literature suggested that children do not die from a fall of less than three or four storeys.

That was clearly wrong.

By 2000, there had already been a number of anecdotal reports of small household falls causing serious injury and even deaths in infants and children.

Dr. Smith's unequivocal opinion failed to reflect the state of the knowledge in 2000."

Use of default diagnosis;

Justice Goudge criticizes Smith for using default diagnosis in Tyrell's case - as he had also done in the several other cases;

Goudge says a default diagnosis is one that is assumed to be correct because the evidence does not exclude it.

"His reasoning is contrary to the evidence-based approach to forensic pathology," Goudge ruled.

Under an evidence-based framework, forensic pathologists begin from a position of objectivity, have an open mind, and consider all the possibilities before arriving at a decision.

They do not assume a diagnosis in the absence of another explanation and do not place the onus on others to locate contradictory evidence...."

The expert and evidence beyond his expertise:

During the course of the preliminary hearing Dr. Smith gave inappropriate evidence that was far removed from his expertise - such as his opinion that blunt force, shaking and abdominal injuries were more likely to be inflicted by men, whereas asphyxial deaths were more likely caused by women.

But Justice Goudge notes that Smith gave evidence that extended far beyond interpretation of pathological evidence in response to questions from the Court and from counsel - who both should have known better.

"Although experts must always recognize the limits of their expertise and stay within those limits, judges and counsel also play an important role in ensuring that those boundaries are respected.

In other words - my words - the judge and the lawyers did not do their job of protecting the accused and the criminal justice process;

Harold Levy...hlevy15@gmail.com;

Part One: "Shaken Baby" And "Head Injury" Cases Cry Out For Review; AIDWYC and Mullins-Johnson Closing Submissions;

"DR. SMITH WAS NOT THE ONLY PATHOLOGIST IN ONTARIO WHO MADE DIAGNOSES OF SHAKEN BABY SYNDROME.

DR. POLLANEN NOTED IN HIS JANUARY, 2007 MEMORANDUM THAT “MANY OF DR. SMITH’S VIEWS ON SHAKEN BABY SYNDROME WERE SIMILAR TO A PREVAILING VIEW IN THIS CONTROVERSIAL AREA OF FORENSIC PATHOLOGY AT THE TIME HE GAVE TESTIMONY ON THE ISSUE”.

INEVITABLY, MANY OTHER PATHOLOGISTS, WORKING FROM THE SAME ASSUMPTIONS, DREW SIMILAR CONCLUSIONS."

CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;

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The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.

For this reason, I wil be devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:

Today's focus is on a section in which the two parties point out the now proverbial elephant that has been made its presence known throughout the inquiry: the “Shaken Baby” and Head Injury Cases not just in Canada but elsewhere in the world - which Resulted in Criminal Convictions.

"Miscarriages of justice have surely occurred in cases other than those involving Dr. Smith where the diagnosis or cause of death was attributed to shaken baby syndrome or head injury," this section begins;

"According to Dr. Pollanen, “apropos of the results of the Smith and the Goldsmith reviews, there is a reasonable basis to believe that problems could exist with other fatal infant head injury cases, including cases certified as Shaken Baby Syndrome" it continues.

"As Dr. Pollanen and others have made clear throughout this inquiry, infant head injury cases are viewed very differently today than in the past, due to advances in research and scientific understanding.

In the United Kingdom, the Court of Appeal’s authoritative and detailed judgment, R. v. Harris and Others, summarized the state of the science now and the implications for criminal prosecutions based on earlier opinions

Following the release of that decision, the Right Honourable Lord Goldsmith ordered a review of all cases in England in which a parent had been convicted of killing a child under 2.

A total of 297 cases were reviewed, and 28 were found to raise concerns; a further three cases that were still before the courts were immediately withdrawn by the prosecution.

Of those. three cases of “shaken baby syndrome” were reviewed by Lord Goldsmith, resulting in ten that were determined to require further investigation. Of those, three were recommended for referral to the Criminal Cases Review Commission.

Ultimately, a total of 39 cases were referred either to the Criminal Cases Review Commission or the Court of Appeal.

There is no reason to imagine that Ontario is now, or has ever been, immune to this disturbing pattern of scientific and judicial error.

Indeed, it appears that pathologists here have been applying the same diagnostic criteria as their British counterparts in cases raising the same issues; it would be difficult to explain how they had avoided the same tragic errors in an appreciable number of cases.

The expert evidence heard at the Inquiry made it apparent that there is no assurance we have not replicated those mistakes in some cases, and, indeed, gave every reason to believe we have.

These errors are not the result only of “rogue” pathologists such as Dr. Smith – they are a predictable product of incomplete scientific knowledge and a judicial climate ill-equipped to recognize them.

Dr. Smith was not the only pathologist in Ontario who made diagnoses of shaken baby syndrome.

Dr. Pollanen noted in his January, 2007 memorandum that “many of Dr. Smith’s views on Shaken Baby Syndrome were similar to a prevailing view in this controversial area of forensic pathology at the time he gave testimony on the issue”.

Inevitably, many other pathologists, working from the same assumptions, drew similar conclusions.

Several witnesses throughout the inquiry, including several pathologists, were of the view that a review similar to the Goldsmith review is necessary in Ontario to restore public confidence in the system9. In the words of Dr. Lucas:

… with the vision of hindsight and our current state of knowledge applying current day approaches, standards, and expectations for how the conclusion would be drawn in these cases to those cases in – in retrospect… conclusions of the pathologist my be different, and as a consequence the conclusions in the criminal justice system may in fact be different.

To assure the people of Ontario that no one else has been convicted of a crime that did not occur, a similar review must be carried out here.

Further, the Commissioner should go so far as to suggest that a review should be conducted of cases in which infant head injury and shaken baby syndrome have resulted in criminal convictions (albeit in a manner that does not exceed his limited territorial mandate), as was done in the Goldsmith Review.

The system has, as Dr. Lauwers testified, a “moral and ethical” obligation to examine each case to make sure “there isn’t some family that’s come to some significant harm as a result of information which has changed over a period of time”".

The two parties make the following recommendations:

0: Further reviews of the continuing validity of expert pathology opinions that contributed to a criminal prosecution beyond the review of Dr. Smith's cases which has been completed.

0: Based on the evidence heard at this Inquiry, the Commissioner should recommend that the Province of Ontario undertake an immediate review of all “shaken baby” and fatal pediatric head injury cases which have resulted in criminal convictions in the province.

That message should resound not only in Ontario, but in all other Canadian provinces, and wherever else in the world prevailing notions of pathology - now proven wrong - led to the prosecution and conviction of innocent people, some who may still be behind bars.

This injustice cries out to be fixed.

harold Levy...hlevy15@gmail.com;