JUSTICE GOUDGE'S FINDINGS; PART TWELVE; JOSHUA'S CASE;

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 of Joshua's case prepared by Commission staff indicates that:

Joshua was born in Belleville, Ontario on September 23, 1995 to Sherry Lee-Ann Sherret and Peter.

Joshua had an older half-brother born on July 4, 1994 to Sherry and another partner.

Sherry, Peter, Joshua and Joshua's bother all resided together in Trenton.Ontario.

Joshua died on January 23, 1996, at the age of four months in Trenton,Ontario.

At the time of Joshua's death Sherry was 20 years old.

On March 27, 1996, sherry was charged with first-degree murder in Joshua's death.

After a preliminary inquiry she was committed to stand trial on that charge.

However, that committal was subsequently quashed and she was ordered to stand trial on a charge of second-degree murder instead.

On January 4, 1999, a new indictment charging infanticide was placed before the Ontario Court of Justice (General Division).

Sherry entered a plea of not guilty.

However, the Crown then read into the record certain agreed facts.

The defence called no evidence in response to the facts read in and did not dispute them.

As a result sherry was convicted of infanticide.

On June 2, 1999, she was sentenced to a one-year custodial term followed by two years of probation.

Just prior to the laying of the criminal charge, on March 7, 1996, Joshua's brother was apprehended by the Northumberland Children's Aid Society and placed in foster care.

He was ultimately adopted by his foster family.

In September, 2005, Sherry had another child, a daughter.

The Children's Aid Society obtained a Supervision Order in October, 2006, in relation to this child.

On April 11, 2007, that order was terminated.

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Failure to disregard irrelevant and prejudicial information;

"It is equally clear that the pathologist must disregard irrelevant and prejudicial information," says Justice Goudge. "Good science demands no less."

In Joshua's case, Justice Goudge faults Dr. Smith for recording in the final autopsy report that Joshua's mother was married, but did not officially live with her husband so she could continue to collect welfare.

"None of this information is at all relevant to pathology," he says..."None of the information set out above should have been included in a final autopsy report because it leaves the impression that it somehow played a part in Dr. Smith's thinking."

Preserving autopsy records:

Justice Goudge was extremely troubled by Dr. Smith's loss of exhibits in criminal case.

This is also true of Joshua's case, where he finds that Smith was asked to provide for the defence the microscopic slides and X-Rays relating to the case before the preliminary hearing.

"D. Smith failed to deliver the material requested," he says.

"In fact he lost the slides for some time, although he eventually found them.

The X-Rays, however, were lost and never found."

Misinterpreting artifact's:

Justice Goudge reports that Dr. Smith also misinterpreted artifact's in Joshua's case - Just as he had in Valin's case and Nicholas' case.

In Joshua's case, for example, Dr. Smith performed the post-mortem examination and found a microscopic hemorrhage in the connective tissues of Joshua's neck.

Dr. Smith concluded that the cause of death was asphyxia,and testified at the preliminary hearing in the case that the hemorrhage was a "worrying" finding, suggesting that Joshua was suffocated.

"That diagnosis was wrong" says Justice Goudge.

"The experts who examined the microscopic slides determined that the hemorrhage was likely caused during dissection at the autopsy.

It likely was a post-mortem artifact and was therefore unrelated to Joshua's cause of death."

Delay:

Charles Smith got caught in a lie relating to delay in the context of Joshua's case;

In March 1996, he told a police officer that he had completed his final post-mortem report, was waiting for it to be typed, but was typing the report himself at home at night because he had no administrative assistant and was the only pathologist on schedule for the next few days.

"This was untrue," says Goudge.

"Dr. Smith had access to an administrative assistant, and the 1996 schedule for pathologists showed that Dr. Smith was not the only pathologist on rotation for the few days following his conversation Sergeant MacLellan,

Despite this, when Sergeant MacLellan advised that he needed the report by the following Tuesday because court proceedings were scheduled for Wednesday, Dr. Smith responded that he did not think the report would be ready y then."

Ongoing communication with the police;

Justice Goudge heard evidence that at a meeting with police on February 8, 1996, Dr. Smith, when asked, said that he believed Sherry Sherret had killed Joshua.

"He said that mothers who kill their babies share certain characteristics," said Goudge.

"For example, they usually talk about it ahead of time, or they might be involved in relationship fights or custody battles, as a result of which they may be trying to get back at the baby's father."

But Justice Goudge concluded that Smith's remarks about the characteristics of mothers who kill their children were also inappropriate, since they were beyond his expertise.

"To say that he believed that Ms. Sherret killed her son on the basis of "hallmark characteristics" was inappropriate," said Goudge.

"He had no expertise to say so."

The speculating expert:

Justice Goudge ruled that Dr. Smith should not have offered opinions that were "speculative, unsubstantiated, and not based on the pathology findings" as he did in his evidence at the preliminary hearing in Joshua's case when he said he was "highly suspicious" that Joshua had been suffocated - even though there was no pathological evidence to support the opinion."

"I find it hard to accept Dr. Smith's explanation that he did not know that he ought not speculate," said Goudge. Pathologists provide pathology opinions. I do not see how pathologists can believe that, when there is no pathology evidence, it is open to them to speculate on what could have happened."

This humble Bloggist is quite confident that Dr. Smith was well aware that he should not give speculative evidence in court.

Whether it was based on pathological evidence or not, it certainly was an excellent way to make sure the accused parent or caregiver was convicted.

The expert and casual language;

Dr. Smith's propensity from time to time to use language that was loose and unscientific shone through in Joshua's case where he testified that, if he were a "betting man" he would say that Joshua's death was non-accidental.

It sounds like another sure-fire trick to get a conviction to me - and reinforces my belief that one has to stretch and contrive in order to convict an Innocent person.

What else would you expect from a supposedly neutral person who saw himself as a member of the prosecution team?

Cooperating with other experts:

Justice Goudge notes that court proceedings had to be postponed because Smith did to requests to locate and forward autopsy materials from Joshua's case to another pathologist for review.

This was typical of Smith.

The last thing he would ever have wanted was to have his work reviewed by another set of eyes (a truly expert set of eyes) - especially someone hired by the defence who may not have bought into his mystique.

Indeed, virtually all of his delays, could be interpreted as efforts to avoid countability - rather than the lack of training that he claimed.

Harold Levy...hlevy15@gmail.com;

When Innocent Parents Plead Guilty: The Aftermath Of Dr. Charles Smith's Intrusion In Their Lives;

In a previous posting, I reported Brenda Waudby's lawyer's allegation that prosecutors would not would not withdraw a charge of murdering her daughter, Baby Jenna, unless she first pleaded guilty to a Family Court allegation that had previously physically assaulted her; (See Part Three; Case Studies' Systemic Factors; The "Jenna" Case; April 17, 2008);

Two problems:

First problem; The prosecutors were withdrawing the charge because they had received evidence indicating that Waudby could not possibly have committed the crime. (Jenna's babysitter later admitted killing Baby Jenna and sexually assaulting her);

Second problem: Waudby had never physically assaulted Baby Jenna - (another flawed opinion of Dr. Charles Smith. She only pleaded guilty - with all of the consequences relating to her family vis @ vis the local Children's Aid Society that the guilty plea would entail - to get rid of the horrific murder charge.

Sadly, Waudby is not the only one of Dr. Smith's victims who felt compelled to plead guilty to an offence they did not commit in a prosecution involving Dr. Charles Smith;

Previous postings to this Blog have shown how an innocent mother named Sherry Sherrett felt she had no choice but to agree to be convicted of infanticide in connection with the death of her beloved son Joshua in order to avoid being found guilty of murdering him - and going to prison for life - because of Dr. Charles Smith's celebrated prowess over jurors.

This Blog has also looked at the the direct consequences to Sherrett - including a year spent in prison and the collateral damage caused to her family. (See recent posting: Collateral damage; Part One and Part Two;)

I was absolutely stunned to hear defence lawyer Bruce Hillyer's account at the Goudge Inquiry as to how he had to assist Sherrett with an unusual "nolo contendere" plea - in which there is no acknowledgment of guilt - even though he was confident that the medical evidence he would call pointed to her innocence;

Hillyer made clear to Commission Counsel Mark Sandler that Sherrett never ever admitted guilt to him, that she insisted she had never hurt Joshua or done anything unlawful to him, and that she believed Joshua died because of mould or the unconventional bed she had recently put him in.

A loving, utterly innocent mother, mother spent a year in prison following her pragmatic plea;

Outrageous;

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By way of brief introduction:

Joshua died in January of 1996 at the age of four (4) months in Trenton.

At the time of Joshua's death, Sherry, his mother, was twenty (20) years old.

On March the 27th of 1996, she was charged with first degree murder.

She was committed on that charge after a preliminary inquiry.

That committal was subsequently quashed and a charge of second degree murder substituted.

On January the 4th of 1999, a new indictment charging infanticide was placed before the Court.

She entered a plea of not guilty.

The Crown read into the record certain agreed facts.

The defence called no evidence in response to those facts and did not dispute them.

As a result, he was convicted of infanticide and sentenced to a one
(1) year custodial term followed by probation.

Related Children's Aid proceedings involving Joshua's brother and another child, a daughter, that was born to Sherry in September of 2005.

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The following excerpts from the transcript paint an excellent picture of what Hellyer faced as defence counsel in this case - and of Sherrett's brutal predicament:

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Excerpt One: Hillyer's view of the merit's of the Crown's case:


MR. MARK SANDLER: So when you look at the merits of the case, here you were at the end of the preliminary inquiry, and I'll -- I'll take you to the end of the period where you successfully brought a certiorari to -- to quash the first degree charge, and the second degree charge was substituted. How did you feel about the strength of the defence case?

MR. BRUCE HILLYER: On the medical side, I -- well it -- it -- the problem was from my experience as a jury trial lawyer, you know, the -- the unknown is there. I mean, I -- I had -- it was going to come down to my client's word against a fellow like Smith who, s Mr. Struthers says, was very articulate, well spoken, good posture; would quickly, as you can see from the transcript, go off on tangents, and talk about other issues with some purported degree of expertise.
And, you know, that was -- it was going to be -- I was troubled by -- by it, but I was -- academically, I wasn't worried about the medicine, assuming I had a trier of fact that could cut the wheat from the chaff. I guess I was worried a jury might not be able to do that.

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Excerpt Two: The Judges's out of court view of Dr. Smith's reputation:

MR. MARK SANDLER: All right. Did you have any dialogue with Dr. Smith outside of the courtroom prior to, during, or after the preliminary inquiry?

MR. BRUCE HILLYER: I don't think so.

MR. MARK SANDLER: All right.

MR. BRUCE HILLYER: But I did with the -- with the preliminary hearing judge.

MR. MARK SANDLER: All right.

MR. BRUCE HILLYER: The only reason I mention that is that he was -- he took me aside afterwards, and it's a very small town; very small
courtroom; and said, You know, Dr. Smith's a very good witness, and they were -- he was very proud of him. I guess Dr. Smith -- I don't whether he'd done any -- any
of his work down in the Belleville area, but they -- he was certainly well known down there. And you know, it was just more information to assimilate. He was -- the judge was encouraging me to enter into plea negotiations with -- with the Crown.

MR. MARK SANDLER: All right.

MR. BRUCE HILLYER: Who I understood he was -- he jogged with.

MR. MARK SANDLER: All right. I mean, you're not suggesting anything improper --

MR. BRUCE HILLYER: No, not at all. No, no. I have high regard for Ms. Walsh. She handled herself very well.

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Ecerpt Three: How the Crown initiated plea discussions: -

MR. MARK SANDLER: And it reflects that on October 15th of 1998, Ms. Walsh sent a memorandum to Staff Sergeant MacLellan in which she stated: "Since our last conversation, I've spoken to Bruce Hillyer about our offer of a plea of guilty to infanticide. Today, he agreed to give a firm answer by November 15. By that time, he should be able to have arranged for a psychiatric evaluation of Sherry to canvass the issues relevant to infanticide which will hopefully also
address sentencing issues and to meet ith her." Were discussions taking place as between you and Sheila Walsh about a potential resolution to infanticide?

MR. BRUCE HILLYER: Well, how that all ar -- we'd already had a pretrial -- a judicial pretrial -- where we were talking about the length of the trial, whether there would be challenge for cause. I think challenge for cause was more -- more liberal then, than it is now. There was a window of time where it was, anyway. And we may have had discussions then, but I indicated there would be no plea being offered. And as we got closer to -- to the trial date, I think Sheila called me, and asked me to -- I think her first -- asked me to consider was manslaughter, and I -- I just -- I said I'll pass it on, but I don't -- I'm sure the answer will be no, and it was. And then she called back, and surprisingly said, Well you gotta give me something. She was very uneasy about -- about prosecuting the case. And I said, Well, I don't know what it could be. And, so I said, But I'll have a look, which was sort of -- I sort of didn't think that it would amount to anything. And then I started wandering through the - the criminal code, and the charge of infanticide caught my attention, because I'd never dealt with it before.
And the only way I could even think that it would possibly be an appropriate charge would be on the basis that my client had -- was well aware of the health problems the child was having, and she, in fact, had gone out of her way to report the matter to the landlord, to the local health authorities, but she was a
single -- single mother on, I believe, social assistance, you know, very -- very -- not very -- no resources. And then we got to the -- and in discussions with the bedding, she was concerned that .. all these loose sleeping bags and blanket was --
wasn't an appropriate way to deal with -- to deal with bedding for such a young child, because I think the baby had just moved from a -- from a crib setting into this -- into this more unconventional setting. And, you know, she was communicating to me, if only I had gotten up in the night or whatever, and
-- and that was the only way I could -- I could even justify it in my own mind, and without speaking to my client, I communicated that to Ms. Walsh.

MR. MARK SANDLER: And just stopping there for a moment. What I -- what I'm hearing you saying is that a plea of guilt based upon omission as
opposed to commission.

MR. BRUCE HILLYER: Right.

MR. MARK SANDLER: Okay.

MR. BRUCE HILLYER: Yes. And Ms. Walsh came back and said, No, she would insist on -- on commission, and so I -- I just said, Well, is -- are you
saying you'll do that? And she said she would, so I said, Well, I'll put it to -- I'll put it to my client.

MR. MARK SANDLER: Now, just stopping there for a moment. Just to be clear, who had initiated this discussion as to possible resolution?

MR. BRUCE HILLYER: The Crown.

MR. MARK SANDLER: And you said that she had some discomfort or expressed some concern about -- about the case. Did she tell you what it was that --

MR. BRUCE HILLYER: No.

MR. MARK SANDLER: -- caused that --

MR. BRUCE HILLYER: I mean I didn't -- I didn't understand what was going on then, what -- what I've seen here now. I just assumed it was -- well, I
hoped, I guess, in a perfect world that she thought that the medical evidence was not going to go very far. There were some evidentiary issues that were going to get revisited at the trial with respect to the KGB statements that we had -- we had spent all our time on at the preliminary hearing, virtually, anyway, or was she just was feeling sorry for my client; I didn't know -- I didn't know what it was.

MR. MARK SANDLER: All right.

MR. BRUCE HILLYER: But it was just a desire to -- to find a resolution that was nowhere near manslaughter or murder.

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Excerpt Four: Hellyer puts the Crowns's plea offer to Sherrett:

MR. MARK SANDLER: So, could -- could you give the Commissioner a sense, first of all, of -- of how the conversation then went with your client that
ultimately resulted in what transpired in Court?

MR. BRUCE HILLYER: Yeah, well, this is - I know it was -- it was re -- I think it was recorded somehow, but it was done in Mr. Bonn's office. I asked
that -- that my client and -- and her parents go into Mr. Bonn's office in Trenton and that --

MR. MARK SANDLER: Mr. Bonn was who?

MR. BRUCE HILLYER: He was the lawyer whose office had asked me to help.

MR. MARK SANDLER: All right.

MR. BRUCE HILLYER: For lack of a better description, the solicitor. And I was on the line at the other end and I put to -- I put them -- I put the options to my client, discussed the -- what -- what the -- what
could happen. And I'm assuming she made the decision right away, but I'm not sure, but she made it clear that she would not plead guilty to anything. And so -- and I
don't know whether it was during that phone call or whether it was later -- I assume it was during that phone call because I've -- I've done a lot of work in the
states. I'm a member of the Board of Governors of the American Trial Lawyers Association, which is now the American Association for Justice. And I've par -- taken part in their -- not only their civil sections, but their criminal sections,
as well, and I was always interested in this nolo contendere or whatever they call it down there, nolo pros. And I ran it by my partner of the day, who's now Justice Forsyth, who actually wrote a paper on -- on the need for -- in the Criminal Lawyers Quarterly, I think, on the need for a nolo pros procedure, because, of course, I had to face -- I had to look myself in the mirror when -- at the end of the day and hope I had done the right thing. And -- and then I called -- I think I must have gotten instructions that if -- if we can do it that way, she would do it, and then I contacted Ms. Walsh and put that proposal to her which she accepted.

MR. MARK SANDLER: All right. Had -- throughout the process, up to and including the time that the case was dealt with in Court, did the client ever
admit guilt?

MR. BRUCE HILLYER: No.

MR. MARK SANDLER: And did you have a sense of the factors that informed her decision to proceed by way of nolo contendere rather than to proceed
to trial?

MR. BRUCE HILLYER: Could you say that again, please?

MR. MARK SANDLER: Did you have a sense or did you discuss with her what factors informed her decision to take that offer?

MR. BRUCE HILLYER: I guess it would just be a fear of going to trial and being found guilty of second or manslaughter and having an extensive period of -- a far more lengthy period of time in jail.

MR. MARK SANDLER: Okay. Now, if you go to -- well, I'll ask you this. It's probably implicit, if not explicit, in what you've already said, but you had consulted Dr. Plunkett; you'd consulted Dr. Jaffe. We've heard what Dr. Jaffe had had to say about the case. What level of confidence did you have in ultimate success on the murder trial, had it proceeded to trial?

MR. BRUCE HILLYER: I had a good level of confidence on the medical evidence. What I didn't have a good level of confidence on was in my client. She was extremely stressed and upset over the events surrounding
the death of Joshua. She -- you've got to appreciate the -- this is a small town. The Children's Aid had -- first of all, the fact that anyone would think that -- that she killed her child; second of all, the Children's Aid had taken away her -- her other child. She was -- I won't say irrational, but she was -- she was difficult. It was very difficult to sort of communicate effectively with her in a very logical -- logical sense, because she was consumed with -- with all the emotional, whether it was guilt in her mind for not having gotten up that night or whether the way the bed was made, or whether it was the social pressure that she
was -- she was getting from the community. She was telling me stories about people
making fun of her and speaking unkindly of her. She was really in a mess intellectually and emotionally, in terms of making decisions which is why I insisted that she have her parents there and Mr. Bond, the solicitor, to hopefully, effectively communicate what the options were. I mean, if -- at the end of the day,
looking forward in the crystal ball, you don't know how a jury is going to perceive something. I've got Doctor -- or I've got Judge Hunter telling me what a great witness this guy is; Jaffe is telling me what a great witness he is. I hadn't -- I didn't dance with him at the preliminary because -- I was ready to. If you see in the material, I had a whole pile of medical stuff I was ready to go at him with, but he didn't -- he didn't hurt me in- chief. I just drew a circle around him and left him alone. So I was reasonably confident, but it's not me that has to do the time, so I wasn't prepared to recommend that she gamble.

MR. MARK SANDLER: All right. If you go to page 100 of the overview report, we see that paragraph 199, that on September the 7th of 2005 you drafted a letter on Sherry's behalf to assist her with the family law proceedings. And you reflected: "I was quite perplexed in representing her about whether or not the Crown could establish that her child had, indeed, died as a result of an unlawful
act. The Crown's case rested primarily on the opinion of Dr. Smith, the forensic pathologist with the Centre of Forensic Sciences in Toronto, who, at the time, had a very high reputation in his field. In preparing the defence, I had commissioned opinions from Dr. Jaffe, a forensic pathologist from Toronto, and I also consulted with American doctors who I spoke with on the telephone. They were all deeply troubled by what Dr. Smith reported but, in essence, they deferred to him,
with the exception of Dr. Jaffe, with respect to his conclusions and findings." Just stopping there for a moment. Does hat assist in refreshing your memory as to what you ight have received from -- from those other than Dr. Jaffe about the case?

MR. BRUCE HILLYER: Not really.

MR. MARK SANDLER: Okay.

MR. BRUCE HILLYER: Don't forget, I wrote that letter in '05, so. Yeah, I'm not so sure that that comment is correct; it may be but I don't know.

MR. MARK SANDLER: And then you reflect: "Faced with the prospect of a conviction and all that flows from that, I vigorously represented Sherry, and at the eleventh hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide on the basis that at the time, Sherry was suffering from post partum depression. The compromise was seen as a way out for both sides. The Crown fearing they couldn't get a conviction of any kind, and the defence fearing a conviction for murder, while not justified, would result in a lengthy period of incarceration." And then you reflect some of the
psychological or psychiatric opinions that were rendered, and then you say:
"Some cases come back to haunt you, and this is one (1) of them." Ad then you reflect certain -- more recent information that have cau -- that has called into
question Dr. Smith's testimony, and you say: "It's far to late to ever know what
happened -- really happened with respect to the death of Sherry's child, but I'd like to think in all the circumstances, and in particular, with respect to the reports that I have enclosed and were commissioned so many years, that one (1) shouldn't have any concerns now. In my view, even then with respect to Sherry's ability to ook after a child and to be a lovingand caring mother." And did that represent your views of the case?

MR. BRUCE HILLYER: It certainly did.

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Excerpt Five: How to reconcile Sherrett's unbending denial with the opinions of other experts? (Doctors and psychologists);

MR. MARK SANDLER: Now, one (1) of the things I just want to ask you about very briefly, and I won't take you to all the documentation, but it would
appear that -- that the various psychologists, or psychiatrists weighed in on Sherry's case, gave some conflicting views on -- on how to analyze her situation. And -- and am I right that one (1) of the factors that appears to explain some of the different views is -- is how to reconcile what it was that she had been found guilty with, with her continuing denial that she had committed the offense?

MR. BRUCE HILLYER: I -- yeah. I -- yeah, it -- it's hard for me to answer that question. I mean, it -- I suspect the -- the doctors must have
assumed that -- that she smothered her child and that they were sort of working with that as part of their hypothesis. With -- and -- and they were struggling
with coming up with a -- with a diagnosis. This --

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Excerpt Six: The lack of remorse conundrum:

MR. MARK SANDLER: And we also see that the presiding justice appeared to rely upon the absence of remorse in determining what the appropriate sentence was. Am I right?

MR. BRUCE HILLYER: Yes. In fairness to Justice Byers, she was very -- I don't know whether you know this, but once this became known about Dr. Smith and this -- and this case has been back in the news, was -- I'm told publically commented on it in the local media down in Trenton, and sort of regretted the way that it had all unravelled.

Harold Levy...hlevy15@gmail.com;

Part One: Closing Submissions; Top Leadership of Chief Coroner's Office Cited For Failing To Prevent Harm To Children and Miscarriages Of Justice;

"DCI SUBMITS THE COMMISSION SHOULD FIND THAT DR. JAMES YOUNG, DR. JIM CAIRNS AND DR. CHARLES SMITH CONTRIBUTED TO THE CRISIS IN PEDIATRIC FORENSIC PATHOLOGY BY VIRTUE OF THE CULTURE OF THEIR LEADERSHIP..."EACH WAS COMMITTED TO EITHER A PERSONAL INTEREST OR IDEOLOGY;"

LAWYER SUZAN FRASER; CLOSING SUBMISSIONS TO GOUDGE INQUIRY; ON BEHALF OF "DEFENCE FOR CHILDREN INTERNATIONAL CANADA: (DCI-CANADA);

Among the thousands of pages of submissions filed at the Goudge Inquiry, one brief deserves particular attention;

It is filed by Toronto lawyer Suzan Fraser who represents an organization called "Defence for Children International Canada (DCI-Canada);

Fraser's memorable cross-examination of Dr. Charles Smith is discussed is a previous posting called: "Lawyer Suzan Fraser's brilliant cross-examination of Dr. Charles Smith: A powerful voice on behalf of children" which was posted on Feb. 2, 2008;

She focused on the tragic disruption caused within families when siblings were seized by child protection authorities after a parent was wrongly charged with killing a child because of the flawed opinion of Dr. Charles Randal Smith;

Fraser's powerful voice on behalf of children is heard once again in closing submissions that suggest the children and their families were betrayed by a Coroner's office which failed to rein Dr. Smith in;

Fraser wants Commissioner Stephen Goudge to find that the institution of the Office of the Chief Coroner was, "an insular and unaccountable organization and the individuals in charge of pediatric death investigations failed personally to prevent miscarriages of justice and a crisis in pediatric forensic pathology."

And that's just for a start;

Fraser adds that her organization's experience with child deaths - as corroborated by the evidence heard at the Inquiry - "confirms that systems designed to serve and protect children fail for a number of reasons, including systemic causes and the attitudes and actions of individuals, particularly those in charge."

"An organizational culture that shuns openness and accountability is often a major cause when institutions fail children," she says."

Fraser argues that the only way Justice Goudge can understand how the Chief Coroner's Office became "so insular" is to identify "the contributions of individuals as well as systemic and structural factors."

More specifically, she contends that, "confronting the flawed organizational culture within the Chief Coroner's Office requires that the Commission make findings in respect of the role of Dr. (James) Young (former Chief Coroner of Ontario), Dr. (James) Cairns, former Deputy Chief Coroner) and Dr. Smith."

"We believe that addressing their contributions to the failure is the first step in restoring accountability and openness to the coroner’s office and pediatric forensic pathology in Ontario," she says. "This in turn will help to restore confidence in the coroner’s office and pediatric forensic pathology in Ontario."

Here is a portion of the section in which Fraser lays out the alleged failure of Young, Cairns and Smith for Commissioner Goudge:

"DCI submits the Commission should find that Dr. James Young, Dr. Jim Cairns and Dr. Charles Smith contributed to the crisis in pediatric forensic pathology by virtue of the culture of their leadership," the section begins;.

"Each was committed to either a personal interest or ideology," it continues.

"For Dr. Young, it was the protection of his office.

For Dr. Cairns, it was the pursuit of an improved death investigation for children based on his vision of what was right.

For Dr. Smith, it was to carve out a niche as the leading pediatric forensic pathologist and protect his position within the Hospital for Sick Children.

Each needed each other to fulfill their pursuits.

The product was an organizational culture that was so insular, so immune to criticism and so lacking in accountability that someone who was dogmatic, arrogant and ignorant could thrive.

Dr. Smith has admitted that he was all those things and more.

All things that speak to both his competency and his ethics:
he was an advocate;
he was an advocate for the Crown;
he gave confusing testimony;
he went beyond his expertise;
he saw himself as a member of the prosecution team; and
he was profoundly ignorant.


Their shared vision, exposing child abuse by death investigation, was championed by the media and fuelled a moral panic that parents were getting away with murder.

The panic appears to have reached its zenith in the Spring and Summer of 1997, which saw:

0: the Ontario Child Mortality Task Force released its interim report in March, 1997 and Final report in July, 1997;

0:The Toronto Star ran its “Cry for the Children” series in March, April and May, 1997;

0: the inquests into the deaths of Shanay Johnson and Kasandra;

0: The Toronto Star call for inquests to be mandatory for children who die while under the supervision of the CAS;

0: And Jordan Heikamp dies of starvation on June 23, 1997 at the age of 5 weeks.

The climate was ripe for absolute trust to be placed in the death investigation system.

During this wave of moral panic and absolute trust, investigations were being conducted into the deaths of Joshua, Jenna, Sharon, Nicholas and Jordan, a preliminary inquiry was conducted into the death of Taylor and inquests were conducted into the death of Kasandra and Shanay Johnson who died as a result of violence by her caregiver.

In our submission, in this insular culture, together with the unique opportunity afforded by society’s increasing awareness and repugnance of child abuse, Dr. Smith flourished.

It is important to recognize that the impact of this institutional culture is far-reaching.

First, the experiences of those investigated, charged and in some cases convicted as a result of Dr. Smith are well understood.

Second, surviving siblings and future born children were also affected.

The overview reports provide some detail to their experiences.

A chart, summarizing what is known about the child welfare proceedings is attached as Appendix “B” to these submissions.

It is fair to say, that as the result of Dr. Smith’s opinion at least 17 children were taken into the care of the state and three children were placed for adoption.

Those not adopted, appear to have been ultimately returned to their families after the criminal charges were dealt with by the court.

Third, the findings in these cases appear to have influenced the academic literature.

Dr. Pollanen’s article “Fatal Child Abuse Maltreatment Syndrome” appears to draw its conclusions from many of the cases here.

Finally, Dr. Smith’s inquest work led to 73 recommendations in the Kasandra inquest7 which formed a platform for the reform of the Child and Family Service Act in May, 19998.

Dr. Cairns and Dr. Young introduced Dr. Smith as the leading authority in either the country or the continent.

The only pediatric forensic pathology training in which Dr. Smith participated was training given by himself.

He was invited by (The Chief Coroner's Office) throughout the 1980’s and 1990’s to deliver training and the Coroner’s office encouraged him to develop expertise in pediatric forensic pathology.

It was advantageous for (the Office of the Chief Coroner of Ontario) to have someone with expertise in Child Abuse and Neglect. They needed Dr. Smith and Dr. Smith needed them.

Next Posting:

Part Two: Closing Submissions; End secret surveillance of parents while being informed of the circumstances of their child's death; Important recommendation from Defence For Children International Canada;

Harold Levy...hlevy15@gmail.com;

Part One: Collateral Damage: Dr. Charles Smith's Forgotten Victims;

THE BOY, CHRISTOPHER (NOT HIS REAL NAME), IS ONE OF AT LEAST 17 CHILDREN WHOSE LIVES WERE THROWN INTO CHAOS AFTER THE DEATH OF A SIBLING. IN EACH CASE, DISGRACED PATHOLOGIST DR. CHARLES SMITH PERFORMED AN AUTOPSY OR OFFERED A CONSULTING OPINION ON THE DEATHS. BAD ENOUGH THEY HAD LOST A SISTER OR A BROTHER. BUT SMITH'S MISTAKES HELPED IMPLICATE THEIR PARENTS AND RESULTED IN THESE CHILDREN BEING REMOVED FROM THEIR HOMES BY CHILDREN'S AID SOCIETIES.

THERESA BOYLE: TORONTO STAR;

The "collateral damage" caused by Dr. Charles Smith has been vividly captured by Toronto Star reporter Theresa Boyle, in a story, published on March 9, 2008, that focuses on "The 'forgotten victims' torn from their homes."

The disturbing story is accompanied by a photograph of Sherry Sherret in her home, holding the baby album of the son taken away from her for adoption.

Boyle's story makes the point that much of the damage caused by Smith - and those who failed to rein him in - will linger for years to come.

"July 2012. This date won't come soon enough for Sherry Sherret," Boyle's story begins;

"It's when her first born will turn 18. And it's when the Belleville mother will finally be reunited with the son who was put up for adoption when he was only 5," it continues.

"The boy, Christopher (not his real name), is one of at least 17 children whose lives were thrown into chaos after the death of a sibling. In each case, disgraced pathologist Dr. Charles Smith performed an autopsy or offered a consulting opinion on the deaths. Bad enough they had lost a sister or a brother. But Smith's mistakes helped implicate their parents and resulted in these children being removed from their homes by children's aid societies.

At least three children, including Christopher, were adopted out to other families. There is no legal recourse to undo adoptions as the Child and Family Service Act stipulates that once an adoption order is finalized, it cannot be reviewed.

The remaining children were sent to live with relatives or foster families for as long as two years.These children are from the 20 botched death investigations that have been explored at the ongoing Inquiry into Pediatric Forensic Pathology. A panel of renowned forensic pathologists determined Smith erred in all these cases.

While attention has largely been focused on potentially wrongful convictions, these children have been the "forgotten victims" of his errors, says Julie Kirkpatrick, lawyer for one family.

The upheaval they faced is "among the worst consequences of Smith's mistakes," she says, adding they are no less victims of miscarriages of justice.

One of the many issues explored at the inquiry is that of child protection. Child advocates are putting forth an array of recommendations on behalf of the displaced children, including possible reconciliation of broken-up families.

Twice a year, Sherret, 32, gets letters and pictures from Christopher. She stares at the photos intently, looking for signs of her son's growth. From a picture he sent this past Christmas, she can see his face had filled out some. He looks more like his dad, her ex, she notes. But she can see her own DNA in his eyes.

"He's a gorgeous young man. He will be 14 years old in July. I keep thinking to myself, four more years," she says.

In his letters to her, he addresses her as "Dear Sherry."

"That hurts," she says. "But it's understandable."

She signs her letters back, "Love, Mommy Sherry."

Sherret lost two sons in 1996. That January, she discovered 4-month-old Joshua dead in his playpen. Smith said the child was suffocated, as evidenced by marks on his neck. The pathologist also said the boy had a fractured skull. Sherret was charged with first-degree murder.

Years later, when Smith's work came under scrutiny, Joshua's body was exhumed. It was revealed his skull wasn't fractured and the marks on his neck were actually created by Smith, himself, during the autopsy. Experts who reviewed the case said Joshua had accidentally asphyxiated in an unsafe sleep environment. He had slept in a playpen, under a sleeping bag, comforter and blankets.

Child-welfare workers removed Christopher, then 18 months, from her custody. He was first placed with his grandparents and then with a foster family.

In January 1999, Sherret was convicted on a reduced charge of infanticide. The following June she was sentenced to a year in jail and two years probation. Meantime, Sherret learned children's aid was putting forth an application to the courts to have Christopher move from foster care to adoption. The foster family told Sherret they would be willing to make him a permanent part of their family.

Evoking the parable of King Solomon threatening to split a baby to determine its rightful mother, Sherret made the difficult decision to let this family adopt her son, fearing he could otherwise bounce around different homes. The adoption agreement included the exchange of letters, annual phone calls from Christopher's foster mother and plans for a reunion when he turns 18.

Lawyer Suzan Fraser has been representing Defence for Children International at the inquiry. The group aims to protect the rights of youngsters and is going to bat for the 17 displaced children.

"The big problem is that there is no process for dealing with apprehension or adoption orders made on the basis of flawed pathology evidence," Fraser remarks.

She says the damage inflicted on the affected children is immeasurable. "Imagine the anger and the sorrow to learn that you had been wrongfully taken from your mother or father. Imagine the taunts of the other children in foster care teasing you because your mother killed your sister.

"Imagine the horror of losing your sibling and then your mother, when your mother was actually protective rather than the killer everyone thought she was? Imagine having no power to fix it."

Fraser is fearful there may be even more children out there who were uprooted from their homes because of errors Smith made in child-death investigations. Undoing Smith's mistakes isn't so easy. The Child and Family Services Act makes no provision to appeal an adoption order except within the first 30 days after it has been made.

"The best interests and stability of a child require that the adoption order is not subject to further review, even if unjust and based on a clearly erroneous factual premise," states a paper prepared for the inquiry by Queen's law professor Nicholas Bala and McGill social work professor Nico Trocme.

"However, if it is established that a child was removed from parental custody due to an erroneous belief that the parent was responsible for the death of a sibling, it may well be in the best interests of the children to have at least some contact with the parents, depending on their age and wishes. At the very least, the adoptive parents, and through them the children, should be informed of the new circumstances," they continue.

Sherret says Christopher doesn't know why she gave him up for adoption.

He only recently learned he has a 2-year-old sister. This is Sherret's third child, the only one with her. Christopher's adoptive mother was afraid to tell him about his new sibling, lest it raise questions about why his biological mother could keep one child and not another, Sherret says.

While she dreams about the day they'll see each other again, she has nightmares about the last time she saw him. It was in a playroom at the Northumberland Children's Aid Society. Sherret knew she wouldn't see her son, then 5, again until he was 18. She kept her eye on the clock, savouring her last three hours with him.

Mom and child played for the first 2 1/2 hours, but as the end of their visit neared, Sherret pulled the lad onto her lap for a serious chat. "I told him that mommy still has some problems to deal with and that he couldn't come home," Sherret recounts.

The lad reacted angrily. "He told me I lied," she says, explaining how Christopher reminded her of a previous promise that he could come home. "He wanted to come home and he wanted to know if he could keep Whisper, his kitty."

In his letters to her now, Christopher asks if she still has Whisper. She does.

Sherret wept during her final minutes with her son. Her tears continued to flow in the car on her way home. She had lost her two sons now and was on her way to prison.

The next day, she was sent to the Vanier Centre for Women in Brampton, where other inmates called her a "baby killer." She ignored their taunts until one day it became too much. She overheard one women ask another: "Do you know how Sherry killed her baby?"

"I remember just coming around the corner and starting to beat on her," recalls Sherret, who was moved to segregation and then to another detention centre.

As devastating as it was to be blamed, jailed and taunted for Joshua's death, those experiences paled in comparison to losing custody of Christopher, she says. "Having a child taken from you is like having your life taken from you. I just didn't want to be around. I didn't want to live. But then I sat there and thought, I've got to go on because I know I'll get a chance to see him at some point."

Despite the hell a biological parent like Sherret has gone though, returning custody of a child may not be the best idea, experts warn.

"While the unmerited separation of children from their parents is a great injustice, it does not necessarily follow that returning these children to the care of their parents is in their best interest," Bala and Trocme write in their report for the inquiry.

"In particular, if children are returned to their parents' custody after several years in a stable foster home, they may well be traumatized by the stress of separation from their foster families and the experience of returning to a now unfamiliar environment," they continue.

Still, Sherret's lawyer, James Lockyer, hopes adoptive parents would be open to allowing some sort of contact between the birth parents and the children.

"What you would hope is that the adoptive parent might have the foresight, strength, courage to consider allowing the children to recontact the parent. But that's a pretty tall order," he admits, likening the struggle to Bertolt Brecht's The Caucasian Chalk Circle, a play about a literal tug-of-war over a child.

Lockyer doesn't blame children's aid societies in these cases. They were just sadly relying on bad information from sources like Smith, he notes. "Wrongful convictions have consequences way beyond someone being in jail for something they didn't do."

less than three years ago, Sherret discovered she was pregnant again. Her first reaction was panic. Her name was still on the province's child-abuse registry and she faced the prospect of having her third child taken from her, too.

Her reaction wasn't so unusual. In another case in which Smith was involved, a couple decided to have an abortion after learning of an unexpected pregnancy. Angela Veno and Anthony Kporwodu had their toddler son seized by children's aid after they were charged with the 1998 death of their infant daughter. They were told any new child would also be seized. Sherret was duty bound to report her pregnancy to CAS, which she did. This is how she discovered serious questions were being raised about Smith's work. A CAS official told her the doctor was being investigated.

Sherret contacted the Association in Defence of the Wrongly Convicted and Lockyer, who would assist her in trying to clear her name. He would also help her in her efforts to keep her third child. Initially, the CAS wanted to remove Sherret from her home when the baby was born, leaving the infant to reside with its father. Eventually they settled for a supervisory order, meaning Sherret could never be alone with the baby.

The child was born on Sept. 29, 2005.

For the first 11 months of the child's life, father Rob couldn't even go to the store without waking the baby and taking her with him.

But last April, a provincial court ruled that the supervision order be dropped. By this time, two outside experts had confirmed there was no foul play involved involved in Joshua's death.

"I believe I lost a special 11 months with her. It was an 11 months I could not be alone with my beautiful girl," Sherret says. "I had to go though hell to stay in her life."

Sherret has been diagnosed with major, chronic depression and post-traumatic stress disorder. "I'm exhausted physically, mentally."

Her children keep her going.

"I'm mad, but I have to live every day for my daughter and (Christopher), not just me," she says.

While she dreams about the day she'll see Christopher again, she has no illusions. "He's grown up with his family pretty much most of his life and it would just be wrong to take him away from them. I just want some kind of a relationship with him."

She's kept a lot of Christopher's old toys. She watches her daughter play with them, remembering her son doing the same.

"I would be so happy if I could see them play together," she says."

Next posting: Collateral Damage: Part Two;

Harold Levy: hlevy15@gmail.com;

Part One: After Goudge: Will There Be Lasting Change? Not Necessarily: The British Experience;

"IN 2003 SALLY CLARK WAS RELEASED FROM JAIL AFTER BEING FALSELY ACCUSED OF MURDERING HER TWO SONS. SHE NEVER RECOVERED FROM THE TRAUMA AND DIED A YEAR AGO, EFFECTIVELY OF A BROKEN HEART. CASSANDRA JARDINE LOOKS AT HOW SUCH A GROSS MISCARRIAGE OF JUSTICE COULD OCCUR AND ASKS WHETHER LESSONS HAVE BEEN LEARNT."

CASSANDRA JARDINE: TELEGRAPH;

One of the most extraordinary perspectives wrongful convictions caused by flawed forensic expert testimony recently appeared on the Telegraph Web-site.

It is written by Cassandra Jardine, a Telegraph feature writer who has been writing about parenting for more than ten years and is the author of a book called, "How to be a better parent."

Jardine's insightful story appears under the heading, "Has Sally Clark's case changed attitudes to infant death?.

It has an eerie applicability to Canada where we are still reeling from the devastation caused to individuals and the criminal justice system by Dr. Charles Smith and the officials and institutions who failed to rein him in.

(Jardine refers to the On-going Goudge Inquiry in Canada as she cites just one line from Dr. Smith's testimony: "I believe I heard what I wanted to hear.")

The Canadian version could have been entitled: "Has William Mullins-Johnson's case. Brenda Waudby's case, Sharon's mother's case, Sherry Sherret's, and far too many other cases, changed attitudes to Infant deaths?"

Jardine also asks whether the initial cautions injected into Britains system in light of the Sally Clark case have evaporated in the wake of some forensic experts who have found different ways of casting their evidence so that even more innocent parents and care-givers can be charged with murdering children?

That's also a fair question in Canada: The Goudge Inquiry has done a phenomenal job of discovering what went wrong. But will its recommendations - expected later this spring - be enough to create lasting change?

Will Justice Goudge's recommendations be enough to overcome a culture in which police, prosecutor's, judges, and Children's Aid Societies all too easily set aside the fundamental protections which are supposed to exist for all persons investigated or charged with crimes, because an infant has died?

---------------------------------------------------------------------------------------

"Exactly a year ago Sally Clark died, aged 42, while her solicitor husband, Steve, was on a business trip," Jardine's story begins.

"At an inquest her death was ascribed to acute alcohol poisoning resulting from her grief and 'enduring personality change after a catastrophic experience'. In other words she never recovered from the nightmare that began on December 13, 1996, when her first son, 11-week-old Christopher, stopped breathing," it continues.

"Sally and Stephen Clark outside the Court of Appeal in January 2003. Sally was released from prison after serving more than three years for killing her two baby sons.

Mothers never get over the death of a baby, though they may move on. For Sally - once a bright and capable solicitor - even that was not possible. Two years later her second child, Harry, who was eight weeks old, also died suddenly. From that moment Sally received not sympathy but condemnation. Paediatricians decided - in line with what was then current thinking on child abuse - that two deaths in a family was suspicious and a Crown Court jury found her guilty of murdering both of her sons. 'Die, woman, die,' other prisoners shouted out as she climbed into the prison van.

What happened next made legal history. In January 2003, after serving three and a half years of a life sentence, Sally was freed. The defence at her second appeal revealed that Harry's body had been riddled with the bacterium staphylococcus aureus, which would have caused a form of meningitis - information that the prosecution pathologist Dr Alan Williams had not shared with Sally's defence at her trial. As she left the High Court, Sally declared, 'There are no winners here.'

Others charged with similar crimes, however, hoped that lessons would be learnt from what was called in the Court of Appeal 'one of the worst miscarriages of justice in recent years'. The way the medical evidence was presented to court was 'shoddy', said Dr Sam Gullino, a forensic pathologist from Florida, who prepared a report for Sally's second appeal. 'Sound medical principles were abandoned in favour of over-simplifications, over-interpretations, exclusion of relevant data and the imagining of non-existent findings.'

For a short while it looked as if the tide had turned. Inherited disorders were found to explain other babies' deaths: three other mothers, Trupti Patel, Angela Cannings and Donna Anthony, accused of shaking or smothering their own children, were found not guilty or had their convictions quashed. Meadow's Law - named after Prof Sir Roy Meadow - was discredited: no longer were two cot deaths in a family to be deemed suspicious and three murder unless proved otherwise. Summing up at Cannings' appeal in December 2004, Lord Justice Judge said that courts should not convict on disputed medical evidence alone: 'It is better for some of the guilty to go unpunished than for innocent women to be jailed.'

But, the cheers were short-lived. Fast-forward three years to last November. Once again the scene is a courtroom. This time the woman on trial is mother-of-two Keran Henderson, a childminder who was looking after 11-month-old Maeve Sheppard at her home in Iver Heath, Buckinghamshire, in March 2005 when - according to Keran - the child suddenly went floppy. Maeve died in hospital two days later, and Keran was accused of having caused Maeve's death by shaking her violently, having lost her temper over a dirty nappy.

As the verdict of guilty was delivered, Keran let out a piteous wail. 'If you could hear, as we did, the sound of that woman's grief you too might think her honest,' Mike Seckerson, the foreman of the jury, said. But it wasn't this alone that caused him to reveal his 'disgust' at the way the trial was conducted. He and the other medically unqualified jurors were bombarded by information from a dozen medical experts. The majority of the jury 'listened to expert opinion and thought it evidence', leaving Seckerson with the unhappy task of delivering a majority verdict with which he disagreed.

Seckerson is not alone in fearing that yet another terrible miscarriage of justice has occurred. Jack Straw, the minister for justice, has been inquiring solicitously about Keran's comfort in prison, says her husband Iain, who is campaigning to bring his wife home to their nine- and 14-year-old sons. Neighbours have rallied around in support of a woman who had been a respected childminder for seven years, ran the local Beaver Scout group, helped elderly neighbours and was always up for any charity event. Neither of her own children has ever suffered at her hand. Significantly, Maeve had been in and out of hospital during her short life, yet none of this counted. Someone had shaken the child, medical experts concluded, on the basis of certain signs.

'As an ex-policeman, I can't get my head around the fact that people are found guilty without any real evidence,' Iain says. 'There's no CCTV footage, no witness statement or weapon with fingerprints or blood. I think doctors are scared of saying, I don't know what happened.'

He is shocked that no one from the police or the CPS that he encountered was medically trained. 'I know the pressure is on the police to get results, to find someone guilty, but I wasn't even asked for my statement. Nor did they question the other children who were in the house that afternoon, who went home calm and happy. Would they have behaved like that if Keran had flown into a rage?'

Keran is not the only person in prison for a crime that might never have occurred. Suzanne Holdsworth, another childminder, is three years into a life sentence for causing the death of two-year-old Kyle Fisher who also, she says, went floppy. Doctors have compared the bleeding in his brain with injuries that would occur as the result of being thrown from a car at 60mph, yet he was not bruised and the banisters against which she supposedly battered him bear no traces of DNA. Chaha'Oh-Niyol Kai-Whitewind is in prison for suffocating her son, though her appeal may reveal natural causes as an alternative explanation for his nosebleed and blood found in the lungs.

Criminal convictions for harming children are just the visible tip of the iceberg. A far greater number of cases, where the evidence is insufficient for a criminal trial, are heard in the family courts, where on the 'balance of probabilities' parents are deemed to have harmed or (yet more vaguely because of 'personality disorders') be capable of harming children who are then removed from them, often at birth.

Information about family court cases is hard to obtain. Proceedings are secret so no one knows which experts are saying what, though observers note clusters of similar cases involving certain consultants. Parents claim that they are being accused of emotional and physical abuse on the basis of theories or syndromes that are not as foolproof as is claimed.

Angela Cannings, with her husband Terry. She was jailed for life for murdering her two baby sons, but had her conviction overturned in 2003

In the year since Sally Clark died, those facing family court proceedings have at last acquired a champion in the form of the Liberal Democrat MP John Hemming who set up Justice for Families after his girlfriend's baby was nearly taken from her because she had once failed to report a stillbirth. His office at the House of Commons contains files on more than 200 individual cases, which he uses to identify patterns and lobby for changes in the law. 'I hear of a new case almost every day,' he says.

'Smothering' has gone out of fashion as an accusation. So has 'salt poisoning', which Ian and Angela Gay were accused of. The couple were released from prison in 2006 when it was shown, at appeal, that their foster son Christian Blewitt suffered from a faulty osmostat, which allowed his body to accumulate fatally high levels of sodium. They had not, as was claimed, force-fed him teaspoons of salt.

There remain, however, two controversial medical diagnoses: shaken baby syndrome (SBS), a cluster of symptoms deemed to indicate shaking; and metaphyseal fractures, which are fractures at the ends of the long arm and leg bones, believed to denote that a child's limbs have been wrenched.

Events usually start with a paediatrician or radiologist who flags up the possibility of non-accidental injury (NAI). Social workers and police officers then look for evidence, sometimes ignoring information about good character or happy family life. And often solicitors acting for the defence are 'supine', says Bill Bache, who having successfully represented Angela Cannings and the Gays is now working on Keran Henderson's appeal.

Bache, like Hemming, has many suggestions for improving the system: a thorough multi-disciplinary discussion of possible causes of injuries or illness before cases proceed being one of them. At the heart of the problem, he says, lies 'angled dogmatism' on the signs and symptoms of abuse and a willingness by some doctors to give opinions outside of their areas of expertise. 'I am handling 35 cases of parents accused of child abuse at the moment,' he says. 'All medical conundrums.'

The drive to hold parents accountable for abusing children began in 1962 when a Colorado paediatrician, Dr Henry Kempe, published his research into 'battered child syndrome'. Drawing on 302 cases of abuse of children under three, he concluded that 'beating of children is not confined to people with a psychopathic personality or of borderline socioeconomic status'; parents often denied causing the injuries but 'to the informed physician, the bones tell a story the child is too young or frightened to tell'.

This information was shocking. It had always been accepted that psychopaths, addicts, sociopaths or even women suffering from post-natal depression could harm children. Kempe was saying that apparently normal, loving people could be abusers. His research changed the role of paediatricians; it became their task to spot hidden abuse.

Identifying the signs provided a useful career opportunity for ambitious doctors in the 1970s and 80s. Dr John Caffey in the US wrote the first influential paper establishing SBS in 1973. In Britain, Prof Sir Roy Meadow, author of the ABC of Child Abuse, rose to fame on the strength of his 1977 academic paper on Munchausen's Syndrome by Proxy (MSbP) - children made ill by attention-seeking adults - based on the behaviour of two mothers, one of whom had (Sir Roy claimed) poisoned her toddler with salt, while the other had contaminated her child's urine sample with her own blood. Knighted in 1996, Sir Roy was soon lecturing on the hidden epidemic of abuse and appearing as an expert witness. By the time he gave evidence at Sally Clark's trial, Sir Roy claimed to have found 81 cot deaths which were in fact murder though, unfortunately, he destroyed the data.

He told the court that he could think of no natural explanation for either of the Clarks' children's deaths and quoted the case-clinching statistic that the chances of two cot deaths in one family was one in 73 million - a figure arrived at by multiplying the incidence of one death (1:8543) by itself. It later emerged that the chance of a second death was more like one in 120 because there could be an underlying defect. Though struck off by the General Medical Council in 2005 for 'gross professional misconduct', he was reinstated the following year.

The other leading light in the drive to unearth hidden abuse in Britain was Prof David Southall. Working on aspects of MSbP in the late 1980s and early 90s, he videoed parents whom he suspected of suffocating children. Thirty-three parents or step-parents were prosecuted, though the evidence may have been unreliable: clasping a child to the chest could, for example, indicate feeding rather than smothering. The Clark case was also his undoing when, having merely seen Steve on tele?vision, he stated to police that it was 'beyond reasonable doubt' that Steve had murdered his sons. A three-year ban from child protection work followed in 2004; in December 2007 he was struck off for, among other charges, concealing the medical records of some 4,500 children.

Sir Roy and Southall are unrepentant but, in Canada, there has been an inquiry into the actions of Dr Charles Smith who was for two decades one of Canada's top forensic pathologists. He testified in 45 cases dating back to 1991, to children being suffocated, sodomised and shaken. Many of those parents have since been exonerated. 'I believe I heard what I wanted to hear,' he admitted at the inquiry in January.

But the fall from grace of some of the theorists of abuse has not made as much difference as expected. The term 'noble cause corruption' has entered the language. The tainted term MSbP has fallen into disuse, only to be replaced by another set of initials, FII - Factitious or Induced Illness. Real abuse is still being missed, as in the case of Victoria Climbié, partly because social services are busy investigating false allegations. Change is slow, says Penny Mellor, who campaigns against non-scientific medical syndromes such as MSbP, because a small coterie of expert medical witnesses are sticking to theories that have been undermined by subsequent research. 'We have pathologists who don't have adequate training and experts who are so busy being experts that they have little time to keep up to date.'

Sir Roy's portrait still hangs in the London offices of the Royal College of Paediatrics and Child Health. 'Why not? He is a past president,' says Prof Terence Stephenson, the dean of the medical school at Nottingham University and the college's vice-president for science and research. He is one of the doctors who has adopted attack as the best form of defence in response to the fall of Sir Roy and Southall. Speaking as Professionals Against Child Abuse, they argue that doctors are being victimised by parents and the media who deny the reality of child abuse. 'Protect doctors to protect children,' he wrote to the Prime Minister in February, following a report on the case of Jessica Randall, whose abuse at the hands of her father was missed by 30 professionals.

False allegations campaigners consider Prof Stephenson a 'hawk' who has appeared in 50 cases: he prefers, he says, civil cases where a single expert witness is jointly appointed. 'In criminal cases you have to be willing to be countermanded and cross-examined' - although later he says that 'an expert is only tested by being challenged by another expert'. Stephenson comes across as a pleasant man, driven by a passionate belief in his cause. 'I have two children. If someone were to accuse me of harming them I would be heartbroken. But our role at the Royal College is to do what's best for children. Child abuse is still under-diagnosed.'

I want to question him about evidence that casts doubt on current orthodox thinking. Diagnosis of SBS is based on a triad of symptoms: subdural haemorrhages, retinal haemorrhages and cerebral edema (swelling of the brain). The triad is important because regardless of other evidence, such as the absence or presence of bruises, these symptoms - particularly retinal haemorrhages - are used to diagnose abuse. Sally Clark would never have been put on trial had Harry not been found (erroneously it transpired) to have bleeding behind the eyes. Equally, Jessica Randall was never put on the 'at risk' register because MRI and eye scans showed no retinal haemorrhages.

Jay and Trupti Patel after Trupti was found not guilty of murdering her three children

Dr Jennian Geddes, a neuropathologist, has suggested in the Court of Appeal that the triad need not arise from shaking. Choking could be an alternative. 'She admitted in court that it was only a hypothesis,' Prof Stephenson says dismissively. (The same could be said of the theory that the triad always denotes shaking.) There is research, too, which shows that the triad can result from a fall from only 3ft, as from a bed. 'Fewer than three per cent would get retinal and subdural haemorrhages,' he replies. But are children who fall from beds always tested?

We move on to the other contentious area - meta?physeal fractures. Stephenson appears equally dismissive about possible alternatives to a diagnosis of abuse. 'I've seen hundreds. They are extra?ordinarily rare in real, witnessed accidents.' Yes, but they are also hard to see and radiologists won't look for them unless the possibility of abuse has been flagged.

When I suggest that paediatricians, especially those appearing regularly as expert witnesses, appear to have fixed minds, he counters by making a derisive comment about Dr Colin Paterson, a pathologist struck off by the GMC for suggesting for the defence in 30 cases that children could suffer from temporary brittle bones, resulting in multiple fractures. Some pathologists believe he had a viable theory, but the wrong causation. Stephenson says, 'There's no evidence to back up temporary brittle bones.'

Isn't there? Infants are being diagnosed with rickets resulting from vitamin D deficiency due to insufficient exposure to sunlight. 'Only in ethnic minorities.' Not according to research from Birmingham University, which states that one in eight Caucasian children has rickets.

'No doubt there are grey areas,' he concludes. 'If we only reported cases where we were absolutely right we would miss lots of cases. Society wants us to err on the side of caution. If society wants us to, we could go back to the situation pre-1962 and turn a blind eye.'

The problem with grey areas is their tendency to become black and white. The doctors who see a child in hospital believe absolutely in what their colleagues have published - that what they are seeing is child abuse - and alert social workers and police. They in turn hire expert witnesses who believe in the abuse diagnosis. The result is costly.

'Money is certainly wasted pursuing these cases, but I'm more concerned about the human cost,' says Bill Bache, who speaks of distraught parents not allowed to be left alone with their dying child in hospital because they have fallen under suspicion; couples often forced to live separately and encouraged to blame one another; and children denied the comfort of family life.

Yet some children do die of natural but unidentified causes. Cot deaths, for example, dropped from 30 to seven per year after 1990, when parents were advised not to put babies to sleep on their fronts. Though they may not acknowledge it, doctors can also cause harm by giving inappropriate treatment. The routine practice of resuscitating children by putting them on a drip is one that worries Penny Mellor, who campaigns on behalf of parents who claim to be wrongly accused of child abuse. 'If they aren't dehydrated, putting more fluids into them can cause swelling of the brain and bleeding,' she claims.

More information is needed to protect the innocent - children, parents and, indeed, doctors. Slowly it is emerging. When the history of false allegations is written there will be a roll-call of honour for those who have taken a fresh look at the medical conundrums and questioned orthodox thinking. Some Americans will feature: the forensic pathologist Dr John Plunkett, an expert in childhood head injuries; Dr Patrick Lantz, who has been looking at retinal haemorrhages; the biomechanics expert Dr Kirk Thibault, who has looked at the resulting impact when a child has a fall or is shaken; and Dr Chuck Hyman, who has investigated a link between short umbilical cords and weak bones.

British experts will be on that list, too: the chemical pathologist Dr Glyn Walters, who gave evidence about alternative causes of death in the Clark and Gay cases; the neuropathologists Dr Waney Squier, Dr Jennian Geddes and Dr Helen Whitwell, who have found that oxygen deprivation, possibly from choking, can cause brain swelling and bleeding; the geneticist Prof Michael Patton, who has looked at defects that can cause cot death; the ophthalmologist Gillian Adams, who was has raised doubts about retinal haemorrhages being solely indicative of shaking; Prof Nick Bishop, who is investigating why some children fracture easily; and Dr Paul Johnson, who has asked courts to take obstetric history into account.

It is not easy standing against the tide, says Dr Squier, a prosecution witness at the trial of Keran Henderson. She identified brain damage but said there was no evidence that the child had been shaken, which led to tense discussions among the medical experts. 'As a pathologist I describe what I see,' she said. 'It's not my business to say what caused an injury if I don't know.'

Despite her caution, a dozen experts who were prepared to theorise about shaking won the day and Keran Henderson is now serving a three-year prison sentence. I asked her husband Iain whether he thinks that, even if exonerated, she will emerge, like Sally Clark, a broken woman. 'I don't know if she'll survive,' he replied. 'She went to prison eight years after Sally Clark. Prisoners aren't stupid, so she hasn't been given such a hard time. I'm hoping that hers is the case that brings about real change.'

Harold Levy...hlevy15@gmail.com

"System Failure": A Journalist's Perspective;

"THE SYSTEM - AN AMORPHOUS COLLECTIVE OF POLICE, PROSECUTORS, DEFENCE LAWYERS, DOCTORS AND SCIENTISTS - DOES NOT OPERATE WITH THE RUTHLESS EFFICIENCY OF A TV CRIME DRAMA, EVIDENCE AT THE INQUIRY HAS SHOWN. AT TIMES, IT APPEARS FRIGHTENINGLY INEPT, BOTH AT DOING THE WORK THAT IS ITS RAISON D'ETRE AND AT MONITORING ITS OWN PERFORMANCE".

FROM "SYSTEM FAILURE" BY ROBB TRIPP; KINGSTON WHIG-STANDARD;

Several of our readers have suggested that I highlight "System failure" - an analysis of many of the important things that have been learned thus far at the Goudge Inquiry.

The story is by reporter Robb trip who has distinguished himself by his fine reporting on "Sharon's Case" and the larger context involving Dr. Charles Smith and Ontario's badly broken pediatric forensic pathology system, for the Kingston Whig-Standard;

It is particularly relevant in view of the recently filed witness statement in which Dr. Martin Queen says he heard Kingston police making disparaging comments about Sharon's mother during Sharon's autopsy. (See: Kingston Police disparaged Sharon's mother during autopsy; Witness Statement; Sunday Feb. 10, 2009);

"More than 50 days of testimony at a provincial inquiry did not foster any certainty about how Sharon, a seven-year-old Kingston girl, died in a filthy basement 11 years ago," the story begins.

"No certainty, although the case is central to the work of the inquiry as it reviews more than a decade of faulty child-death investigations in Ontario.

There is certainty now about two things.

The pathologist who conducted the autopsy on the mutilated body of the child, Dr. Charles Smith, was stunningly inept and poorly supervised.

The system in which he worked failed miserably in its narrow-minded quest to affix blame for Sharon's death.

"Justice is never going to be served for that little girl," says Lynn Bergeron, a factory worker in Cornwall.

Bergeron lived four doors away from Louise Reynolds and her daughter Sharon on June 12, 1997, the night Sharon's body was found in the basement of her Rosemund Crescent townhouse.

Bergeron took the distraught mother into her home, comforted her and helped search the neighbourhood that night when Sharon could not be found.

"It still haunts me," says Bergeron. "Not a week goes by that I don't think of her."

It frustrates her that the inquiry has deepened, not resolved, the mystery.

"Everyone's forgetting about this little girl," she says.

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The Goudge commission was established by the province after a shocking review by the Office of the Chief Coroner.

It found that Smith, once considered the country's leading expert on suspicious child deaths, made mistakes in 20 cases, including at least a dozen in which wrongful convictions may have occurred.

The inquiry's mandate is to find out what went wrong and offer recommendations to restore public confidence and to fix a badly broken system. It was not charged with uncovering the truth about how 20 children died.

That may never be possible, particularly in Sharon's case.

Louise Reynolds was charged with second-degree murder in June 1997, two weeks after her daughter died.

Sharon had been savaged.

There were more than 80 wounds to her arms, neck and head. A large portion of her scalp was torn from her head and tossed on the floor a metre from her body.

Police theorized that Reynolds, a single mother living on welfare, stabbed her third-born child in a fit of rage over recurring head lice.

Smith was assigned by his boss, chief coroner Dr. James Young, to do the autopsy, he has testified.

Smith had virtually no experience with penetrating injuries or animal attacks, the inquiry heard, although by then he had been doing coroner's autopsies for 16 years.

Smith concluded that Sharon was stabbed to death. When the defence raised the notion that a pit bull terrier that was in the basement that night attacked the child, Smith was unequivocal.

It was "absurd" to suggest a dog had anything to do with the child's death, Smith testified at a preliminary hearing in Kingston in 1998. A judge ordered Reynolds to stand trial for murder.

With that, the justice system bore down on the accused mother, unrelentingly for another three years, until prosecutors withdrew the charge in the face of uncertain forensic evidence.

After a second autopsy, other experts concluded that most of Sharon's injuries were attributable to a dog attack. Smith changed his opinion.

In January 2001, the system released its grip on Reynolds.

For many observers, the story was concluded - a dog did it.

This tidy explanation hasn't satisfied everyone, the inquiry revealed.

Insp. Brian Begbie, one of the key Kingston Police investigators on the case, made it clear he still has doubts about what happened.

"Not one defence expert ... has been able to definitively say all of these wounds - all of these wounds - were caused by a dog," Begbie testified.

Begbie alluded to mountains of other circumstantial evidence the police amassed that was never tested in a courtroom.

There were signs of a cleanup in the basement that night.

There were conflicting accounts from witnesses that the man who owned the pit bull in the basement that night found Sharon's body long before police officers did.

There were conflicting statements about whether Sharon's body was found covered in garbage bags - although no bags covered her when she was found by police.

A large sweatshirt, soaked in blood, was found near Sharon's body.

Begbie still has doubts about the forensic findings. He noted that one of the final experts to consider the evidence, a renowned forensic anthropologist in Tennessee, found marks on Sharon's skull that he didn't think were dog injuries.

"The dog didn't put the marks there, so what did?" Begbie responded under questioning by Peter Wardle, a lawyer who represents Reynolds. Wardle said some experts believe that those marks were made during the first autopsy.

Begbie said police investigated the possibility and were told that no one used a scalpel on the child's skull in the area where the marks appear.

Begbie is not alone in his doubt.

Dr. Robert Wood, a forensic dentist and bite-mark expert who mistook dog injuries for stab wounds when he first considered the case, testified that he still has misgivings.

"I even believe that some of the marks were stab marks in the head," Wood told the inquiry.

Smith did not use his testimony at the inquiry as a chance to permanently distance himself from the mystery of Sharon's death.

Instead, he said he was never convinced that Louise Reynolds was guilty.

"I always recognized that she could have been innocent," Smith testified. "The determination of who was responsible for Sharon's death was not mine."

Begbie also noted, cryptically, that Kingston Police continue to work on the case, although he did not elaborate.

Smith's appearance at the inquiry solidified any remaining doubt about his incompetence. During a week of sometimes solemn, sometimes tearful testimony, the doctor acknowledged his many mistakes.

He apologized profusely and said he was embarrassed and truly sorry. But Smith afforded himself absolution, professing that he didn't know, as he bungled case after case, that he should have been better trained.

"Retrospectively, I didn't realize how extraordinarily limited was my knowledge or expertise and so I didn't recognize how potentially dangerous it was, if I can use that expression, to do that work," Smith testified of his autopsy on Sharon.

The disastrous public failure of the Reynolds prosecution, coupled with several other botched cases, eventually led to the review that exposed Smith's mistakes.

The public inquiry that followed has exposed the failings of the entire system.

Dr. James Young, who was chief coroner from 1990 to 2004, testified that he should have realized sooner that there were serious problems with Smith's work.

Young said that "sadly," he never read a blistering judgment issued by a Timmins judge in 1991, who acquitted a young girl charged with killing a child she was babysitting.

The judge harshly criticized Smith's opinions, which were contradicted by nine other experts. The judgment cast serious doubt on Smith's work. Young testified that he never read the judgment until the Goudge commission began its work.

Eight years after the Timmins case, after another bungled child death investigation involving Smith, Young received a complaint from the father of a Sudbury woman wrongly accused of killing her child, based on Smith's faulty work.

The man quoted the 1991 judgment in his letter of complaint.

Young testified that he read only the first portion of the 1999 letter of complaint.

"So I very likely stopped reading at that point 'cause I have absolutely no recollection, and I was - I think it would be fair to say - dumbfounded in your office when you showed me the [1991] judgment and referred to it the first time," Young told a lawyer for the inquiry.

While Young testified at the inquiry that he read only part of the 1999 letter, that's not what he told the Sudbury man who sent it.

"I have read your brief in detail and considered it very carefully," Young wrote in a May 1999 response entered into evidence at the inquiry.

Eventually, Young dismissed the complaints against Smith.

Young also sought to block the Ontario College of Physicians and Surgeons from hearing complaints against Smith, arguing that the college had no jurisdiction over Smith's work done on contract for the Office of the Chief Coroner.

Eventually the college did hear the complaints, and censured Smith for troubling deficiencies in his work.

There was no detailed investigation of Smith's work until a new chief coroner, Dr. Barry McLellan, was in place.

While Smith's errors are alarming, he was just one component in a process - a justice system in Ontario that grinds through more than half a million criminal prosecutions each year.

The system - an amorphous collective of police, prosecutors, defence lawyers, doctors and scientists - does not operate with the ruthless efficiency of a TV crime drama, evidence at the inquiry has shown.

At times, it appears frighteningly inept, both at doing the work that is its raison d'etre and at monitoring its own performance.

The inquiry heard that:

The branch of the justice system that prosecutes, Crown attorneys, has no central system of monitoring and tracking the performance of expert witnesses. Senior Crown officials rely on word-of-mouth to uncover problems.

In some parts of Ontario, local coroners never attend death scenes. In the Reynolds case, local coroner Dr. Ross McIlquham visited the death scene the morning after Sharon's body was found. He did not get close to the body, pronouncing her dead from a distance.

Local coroners have virtually no forensic training, although they are often the only person with a medical background to visit a death scene. Most are family doctors.

Virtually no one with forensic medical expertise attends at death scenes in Ontario.

Pathologists virtually never attend death scenes, unlike practices in parts of the U.S. and England.

When a two-month-old Belleville boy died in 1992, there was suspicion he had been shaken to death. Examination of his brain was important, yet staff at Kingston General Hospital accidentally destroyed the brain before it could be microscopically examined. No one took responsibility for placing the brain in a bucket of water, rather than preservative. Despite this significant error, the child's father was convicted in the boy's death.

The death of a four-month-old Trenton boy in 1996, Joshua, was investigated by a police officer with no experience in suspicious deaths. The officer testified that he'd never even been to an autopsy before he watched Smith examine Joshua.

The inquiry also heard that Smith operated in an unattractive and highly specialized field. Few doctors seek to specialize in forensic medicine and, although a certification system is in the works, there is still no formal accreditation and education process for forensic pathologists in Canada.

The inquiry will now conduct 11 days of round-table discussions on systemic issues..."


As I said in the previous posting:

"It boggles this Blogster's mind that the Kingston force cannot admit that it made a horrible mistake that put a grieving mother and her family through hell, refuses to learn whatever it can from the experience, and is unable to just get on with it."

For shame!

Harold Levy...hlevy15@gmail.com;

Goudge Inquiry: Joshua's Case: Part Four; Notable Quotes From External Reviewer's Report;

Dr. Jack Crane reviewed Joshua's case:

Here are some notable quotes from his "Expanded Report;"

On Dr. Smith's finding of "asphyxia":

"The autopsy report prepared by Dr. Smith was quite detailed but is lacking any form of discussion or conclusion as to how the diagnosis of asphyxia, as the cause of death, was determined...Furthermore, a diagnosis of asphyxia is vague and non-specific and should properly be provided in the context of the mechanism by which it was produced, e.g.compression of neck.""

On Dr. Smith's interpretation of the significance of certain petechia haemorrhages:

"The finding of petechial haemorrhages (pinhead=sized) spots of bleeding on the surfaces of the internal organs is a common finding in all types of infant deaths and is of no significance whatsoever."

On Dr. Smith's testimony:

"It is my view that parts of Dr. Smith's testimony to the court were misleading. Whilst he does concede that he cannot be sure of the cause of death he uses, what I consider to be inappropriate language, terms such as "If I was a betting man, I would bet that it was. (Reference to death being non-accidental);.

He also commented "I am certainly suspicious of that". (Referring to suffocation);

Also in his testimony he makes reference to neck haemorrhage as being worrying and would increase the likelihood of a non-accidental etiology whereas in my opinion this was no more than an artefactual finding. (Inflicted on the body during the autopsy. H.L.);

On the so-called skull fracture Dr. Smith discovered after completing his post-mortem report;

"There is, in my opinion, no evidence of any fracture."

(See previous postings:
The Joshua case: Part One: How Smith caused havoc by failing to deliver a crucial forensic report;
The Joshua case: Part Two: Yet another disturbing tale of important forensic evidence lost by Dr. Charles Randal Smith;)
The Joshua case: Part Three: Aftermath of a flawed opinion;)

Harold Levy: hlevy15@gmail.com;