Human Failings And Dr. Smith: Good Questions Asked By The Sudbury Star About The Gagnon Case;

Several of this Blog's readers have drawn my attention to a probing editorial that appears in todays's Sudbury Star; (My thanks to them);

It runs under the heading: "Human Failings and Dr. Smith";

"Sudbury Star reporter Denis St. Pierre's exhaustive narrative Friday and Saturday of the nightmare that Lianne Gagnon and her family endured over the death of her 11-month-old son unveiled one astonishing development after another," the editorial begins.

"Just reading about what Gagnon and her family went through was draining. Imagine suffering as they did," it continues.

"There are lessons buried in all this - of oversight, and of human failing.

Dr. Charles Smith's story is now well known. Once an esteemed pediatric child pathologist who vigorously - even belligerently - pursued cases in a manner that was beyond his mandate, he has been thoroughly impugned as an incompetent, under-trained doctor who ignored facts, bullied investigators and lied under oath.

He left a trail of persecuted innocents in his wake, sending some people to jail - a Sault Ste Marie man for 12 years - and subjecting Sudbury's Gagnon family to a dreadful experience.

A panel of outside experts concluded Smith made errors in 20 of 45 criminal investigations into suspicious child deaths from 1991 to 2001.

Gagnon's 11-month-old son Nicholas died in December 1995. She has always maintained he hit his head on a table and stopped breathing shortly thereafter.

The case was reviewed by a pathologist and a coroner and was investigated by the local police, but no charges were laid.

Eighteen months later, in came Smith.

He concluded - incorrectly - that the child had multiple injuries and that Gagnon likely killed her son.

Gagnon, then a 21-year-old Laurentian University student, was subjected to a grueling interrogation by local police, her conversations with intimate friends were eavesdropped twice and her son's body was disinterred.

Despite all this, police concluded after a second six-month investigation that there was no case for criminal charges.

Yet Smith went ahead and contacted the Children's Aid Society, telling officials he was "99-per cent sure" Gagnon killed her son.

The CAS then decided to take custody of Gagnon's second child.

No one can imagine the anguish the Gagnon family went through, dealing with the death of a child and the merciless legal pursuit that followed.

Smith now says he was simply incompetent, tearfully offering apologies to his victims during an inquiry last week.

The police say they were led down the wrong path by a respected pathologist.

But the only real innocent one here is Gagnon.

The lessons involved include the medical community, police and child-welfare authorities. How did Smith, without training in pediatric forensic pathology, achieve virtual star status in that field?

How were his mistakes missed for a decade?

The medical community must become better accustomed to scrutinizing their own.

Even the Ontario College of Physicians and Surgeons didn't stop Smith's carnage.

Why were the Sudbury police so quick to ignore the conclusions of the two initial doctors and their own investigation on the presumption that Smith was so much better?

Do they grant anyone else infallibility status? Are the police subject to tunnel vision once they've made up their minds, the characteristic that is known to lead to wrongful convictions?

In Gagnon's case, though no charges were laid, lead investigator Insp. Bob Keetch, who was then a sergeant, testified the police chief at the time, Alex McCauley, was adamant that Gagnon was guilty even after the second investigation resulted in no charges. (McCauley has denied this.)"

These are all good questions;

Kudos to the Sudbury Star - and reporter Denis St. Pierre - for asking them.

See this Blog's series: Interrogation of an innocent mother: Parts one to fourteen; January, 2008.

Harold Levy...hlevy15@gmail.com;

Part Fourteen: Interrogation Of An Innocent Woman: Last Installment Of Ground-Breaking Fifth Estate Documentary: "Diagnosis: Murder";

(A CBC Fifth Estate investigation appropriately called "Diagnosis: Murder" exposed the enormous harm Dr. Charles Smith caused to innocent parents and caregivers within Ontario's criminal justice system.

The police probe of Lianne Gagnon - after Smith turned an accidental bump on the head into a suspected homicide - comes under intense scrutiny in the documentary, which ran on November, 10, 1999.

This Blogster would love to see the CBC re-run this powerful program before Dr, Smith enters the witness box at the Goudge Inquiry on Monday under compulsion of a subpoena. (This transcript was filed as an exhibit at the Goudge Inquiry);

It makes us look directly at the human cost imposed on innocent people by Dr. Smith - and those who looked the other way as the evidence of his incompetence mounted - as contrasted with the more abstract systemic issues being explored by the Inquiry.)

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

"It would be comforting to think that Lianne's ordeal was an isolated case, but it's not. Another occurred in the early nineties in the Northern Ontario lumber town of Timmins. In this case another report by Dr. Charles Smith led to a 12-year-old girl being charged with manslaughter following the death of 16-month-old toddler she was babysitting. The doctor alleged a case of baby-shaking. The baby-sitter swore the child struck its head when it fell down a small flight of stairs.

From the outset the case was embroiled in controversy. Dr. Smith allowed the body to be buried without an autopsy even though he admitted he already had suspicions that the death may not have been accidental. But it turned out that Dr. Smith did have to do an autopsy, and the newly buried body had to be exhumed. Once the autopsy was done, more problems.

Dr. Floyd Gilles, head of Pediatric Neuropathology at the Children's Hospital in Los Angeles testified at the Timmins trial.

Dr. Floyd Gilles: (head of Paediatric Neuropathology Children's Hospital Los Angeles); It's the kind of autopsy that I would report, that I would not allow out of my training program which I had for many years in Boston. It was too lacking in specific detail.

Malarek: According to Dr. Gilles, standard autopsy practices were neglected.

Gilles: For instance, one strips all of the dura form inside the skull and looks for cracks. As far as I could tell from the pictures obtained at the time of the autopsy, the dura had not been stripped, so he could not adequately look for fractures.

Malarek: Dr. Smith said that even if he had found a linear fracture, he still would have concluded death by shaking;

Gilels: Well, I think that's an error. I think that's wrong.

Malarek: Dr. Gilles wasn't the only one who thought Dr. Smith got it wrong. During the trial, numerous medical experts appeared on behalf of the defence, testifying that this wasn't a baby-shaking death. And in his acquittal, the judge was harsh on Dr. Smith. He criticized him for not seriously considering possibilities other than shaking. He was concerned that Dr. Smith's assumptions might "colour his approach to the facts". And he concluded, "For these reasons I am not inclined to put much weight on Dr. Smith's opinion".

(To Dr. Gilles): How serious are the above criticisms? This is what the judge is saying.

Gilles: These are very serious. These are very serious because someone has been charged here and faces a serious outcome. And one has to be very careful about making these statements without adequate evidence.

Malarek: But according to Deputy Coroner James Cairns the judge simply got it wrong.

Cairns: I, with due respect, feel that the medical evidence was confusing and that the judge may not have clearly understood all the evidence that was being given.

Malarek: Although the 12-year-old babysitter was acquitted, (indecipherable)...(suggesting that there is no recourse against incompetent pathologists in an atmosphere where some critics are saying forensic pathology in Canada is in serious trouble.)

Dr. James Ferris: forensic pathologist, Vancouver): It's basically rather unhealthy;

Malarek: Dr. James Ferris is a forensic pathologist working in Vancouver. He was trained and certified through the Royal College of Pathologists in Britain and has worked on many high profile cases.

Ferris: We are short of forensic pathologists, we have really no formal training programs, and there is no such thing as certification in forensic pathology in this country.

Malarek: Although sine Canadian pathologists have gone through the rigorous certification process in the U.S. or Britain, it's not the norm. Most, like Dr Charles Smith, are pathologists who pick up forensic training and experience along the way. Often these pathologists are called in court as so-called experts in areas outside their field of expertise.

(To Dr. Ferris); When pathologists cross their area of expertise what problems can that cause?

Ferris: First of all they may be talking about something they know nothing about, but because the court(s) have qualified them as an expert, they are given authority to talk that is really not justified. And I suppose the danger is that they may be completely wrong.

Malarek: (To Dr. Cairns); So when someone says that the situation in Canada is unhealthy, you're saying in Ontario it's what?

Cairns: I'm saying in Ontario we have recognized for quite a number of years that there needed to be an upgrade in forensic pathology, and we are doing all in our power to, in fact, accomplish that.

Malarek: No formal training, no accreditation, no peer review - it's a worrisome combination when you realize that these people are making crucial decisions in cases where innocent people could end up being dragged through the court system or sent to prison.

Malarek: Today Dr. Smith is at the centre of another controversial case. It involves the death of 7-year-old Sharon Reynolds in Kingston, Ontario. She was found in the basement of the family home with eighty-two (82) wounds to her body; What has aroused attention is another heated debate over medical pathology: Dr. Smith says the injuries are eighty-two (82) stab wound inflicted by the child's mother, Louise. Dr. Ferris has looked at the autopsy results and concludes they weren't stab wounds at all.

Ferris: Well, I believe that all the injuries on (Sharon's) body are consistent with being caused by a dog.

Malarek: Dog bites;

Ferris: Dog bites, because all of those injuries are associated with extensive crushing and splitting and damage to the tissues that you simply do not get in stabbing.

Malarek: Adding to the mystery, a pit bull was seen in and around the house with red stains on its mouth. For now, however, the Louise Reynold's case boils down to a difference of opinion between Dr. Ferris and Dr. Smith. It is schedules to go to trial in the middle of (indecipherable). By then Louise Reynolds will have spent three years in some form of custody, and if the court agrees with Dr. Smith's version, she can face the rest of her life in prison."

(Next posting: Smith takes the stand: The doctor and the judge; Truth or Fantasy? Part One);

(See previous postings:

Lawyers warned "to guard" against Dr. Smith's testimony back in 1993; (October, 2007);

Dr. Smith's "mistakes": The Timmins case: Independent reviewers fond a litany of errors; (November, 2007);

Sharon's Case: Part One: Notable quotes from expanded medico-legal report; (November, 2007);

Sharon's case: Part two: More revelations: Smith claims Solicitor General agrees, "to back me." November, 2007;

Sharon's case: Part three: Kingston police defended Dr. Charles Smith after murder charge withdrawn;

Sharon's case: Part Four: Prosecutor's explanation why murder charge withdrawn; November, 2007;

Sharon's case: Part Five: The Crown's withdrawal statement: A tale of two missing paragraphs; November, 2007;

Sharon's case: Part Six: Kingston police lose bid to keep out documents; November, 2007;

Sharon's case; Part Seven; Police and pathologists and dirt; November, 2007;

Sharon's case: Part Eight; The unravelling of an expert; November, 2007;)

Harold Levy: hlevy15@gmail.com...

Part Thirteen: Interrogation of an Innocent Woman; Third Installment Of Fifth Estate Documentary: "Diagnosis: Murder";

(A CBC Fifth Estate investigation appropriately called "Diagnosis: Murder" exposed the enormous harm Dr. Charles Smith caused to innocent parents and caregivers within Ontario's criminal justice system.

The police probe of Lianne Gagnon - after Smith turned an accidental bump on the head into a suspected homicide - comes under intense scrutiny in the documentary, which ran on November, 10, 1999.

This Blogster would love to see the CBC re-run this powerful program before Dr, Smith enters the witness box at the Goudge Inquiry on Monday under compulsion of a subpoena. (This transcript was filed as an exhibit at the Goudge Inquiry);

It makes us look directly at the human cost imposed on innocent people by Dr. Smith - and those who looked the other way as the evidence of his incompetence mounted - as contrasted with the more abstract systemic issues being explored by the Inquiry.)

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

The transcript continues at the point where the Children's Aid Society has placed Lianne's name on a child abuse registry and put a plan into motion to seize the baby right after it was born - and Maurice Gagnon decides to fight back.

"When Maurice got wind of the plan, he was furious and vowed there was no way he would let strangers take away his daughter's baby.

Maurice: I knew nothing about the Children's Aid. When I started looking into it and started talking to lawyers that anger turned to fear. I didn't realize the power that these people have.

Malarek: And power it was: Lianne was not allowed to take her baby home.

Lianne: It was a nightmare. The hospital was a police zone. All the nurses were on call and they were notified that I was coming in and that I was never to be left alone with my daughter.

Malarek: Lianne's parents managed to get temporary custody of the new baby, but Lianne was only allowed to see her daughter during supervised visits. Lianne and Pierre returned to their apartment, where their lovingly prepared nursery stood empty.

Maurice realized that the only way Lianne was going to get her baby back was to prove her innocence once and for all. He dipped heavily into his retirement funds, and with The best lawyer he could find, searched for an expert; an experienced neuropathologist to review Dr. Smith's findings.

Dr. William Halliday. now head of Neuropathology at Toronto Western Hospital was that expert. Dr. Halliday concluded that Nicholas did not die from severe brain swelling and he was highly critical of Dr. Smith's methods. He noted that although Dr. Smith said the sutures were "widely" split, the radiologist's report said they were actually (indecipherable). He said that Dr. Smith's failure to consult a specialist in neuropathology was a "serious deficiency", and his conclusion of "non-accidental" went "far beyond the boundaries of scientific and forensic facts." And as for that large head, well. Nicholas was born with a large head.

Yet despite Dr. Halliday's criticisms, the Ontario Coroner's Office initially backed Dr. Smith. It took three highly critical reports before Dr. James Cairns finally took action.

Cairns: At that stage we indicated that we were going to hire an independent forensic pathologist from the United States, a Dr. Mary Case from St. Louis, Missouri. She's also an associate professor of pathology and an expert on child abuse deaths. She reviewed Dr. Smith's report.

Dr. Mary Case (expert on child abuse deaths); I disagreed with it. His conclusion was that the child had died from blunt injury to the head, and my conclusion was that I could see no head injury, so I could not make that diagnosis. To make a diagnosis of head injury, you must see something in addition to brain swelling.

Malarek: According to Dr. Case, the amount of brain swelling Nicholas suffered was only as much as occurs normally from the process of dying.

Case: In my profession as a forensic pathologist, to find that - maybe three to four per cent of all the autopsies we do at any age, we can't determine why the person has died. And if you can't tell why a person has died, the best thing to do is to say, I don't know, because if you call it abuse and it's not, somebody may lose their freedom. It's a very serious problem.

(Dr. Case, speaking at a lecture); The child was autopsied, and there were no findings, other than a very significantly swollen brain. There was no blood in the head.

Malarek: Dr. Case feels so strongly about her findings in this matter that she recently raised it during a lecture in Washington.

Case: (Lecturing): Now, he has made another statement and that was, Well, if it's not head injury, it was asphyxiation by strangulation, but one of those things happened. I consider this in the area of irresponsible testimony.

Malarek (to Dr. Case); Dr. Smith said that in the absence of a credible explanation, the post-mortem findings are regarded as resulting from non-accidental injury. What's he saying here?

Case: I'm not sure exactly what he is saying, other than this is a child that you don't expect to die. It's a child that has no reason that we can find to be dead, and, in his opinion, lacking that, then somebody must have killed that child. But that is , in my opinion, that's not always true. There are children of this age that die that we never know why they have died.

Malarek: Ultimately, it took three experienced pathologists to finally knock down Dr. Smith's opinion of how Nicholas died. On March 24th of this year, after receiving Dr. Case's report, the Children's Aid Society informed Lianne by letter that they were returning her baby and removing her name from the Child Abuse Registry. They expressed their sympathies, but no one has ever offered an apology. So finally, after four torturous years, Lianne's ordeal was over. Today, it's her parents she feels sorry for.

Lianne: My parents supported me through and through, and although they supported me financially and emotionally, financially it killed them. My father's retired, my mother's soon to retire, and they spent their retirement fund.

Maurice: And what really gets me is that they're using the full resources of government to do it to you, which is essentially my tax dollars to really make my life miserable.

Malarek: And then you have to use your savings ... your retirement savings...

Maurice: Then I've got to use my retirement savings to defend against the full forces of the government. I feel sorry for the poor single mother, the young single mother that has no resources, no emotional resources, no support, no financial resources - they're railroaded. They're gone.

Malarek: Deputy Chief Coroner, Dr. James Cairns;

(To Dr. Cairns): You've got one very angry father. He spent well over $100,000 to defend his daughter and to make sure that his daughter would get the new baby back.

Cairns: I think his concerns have been dealt with in the manner in which they could only be dealt with given the mandate of investigating deaths.

Malarek: In his autopsy report on Nicholas' death,Dr. Smith concluded "in the absence of a credible explanation, in my opinion the post-mortem findings are regarded as resulting from non-accidental injury."

(To Dr. Cairns) What do you think of Dr. Smith taking that position?

Cairns: He took that position after he reviewed all the material. We are all aware that, unfortunately, children die as a result of abuse - and I'm talking in general now - and that when we have no explanation for it, we have to consider the possibility that foul play is involved.

Malarek: But you don't charge into the fray holding that assumption, because it would colour the way you would investigate.

Cairns: I don't think it would colour your investigation. I think it will make it a thorough investigation.

Malarek: We wanted to ask Dr. Smith about specific cases, but despite repeated requests for an interview, he was unavailable for this program";

See previous postings related to Nicholas' case:

Nicholas' Case: Questions going to the heart of Dr. Charles Smith's credibility; October, 2007;

Nicholas' Case: Smith accused of "uncivilized conduct" for bringing 11-year-old son to exhumation of 11-month-old baby boy."

Smith and the media: Part Four; Fifth Estate probe triggers plea to Premier Mike Harris for inquiry into Smith cases; Deaf ears; November, 2007;

Goudge Inquiry: Thinking Dirty; Dr. Cairns defends the indefensible; November, 2007;

Interrogation of an innocent woman series: January, 2008;

Next posting: "Diagnosis: Murder"; Last installment; There were others.

Harold Levy; hlevy15@gmail.com...

Part Twelve; Interrogation of an Innocent Woman; Second Installment Of Fifth Estate Documentary: "Diagnosis: Murder";

(A CBC Fifth Estate investigation appropriately called "Diagnosis: Murder" exposed the enormous harm Dr. Charles Smith caused to innocent parents and caregivers within Ontario's criminal justice system.

The police probe of Lianne Gagnon - after Smith turned an accidental bump on the head into a suspected homicide - comes under intense scrutiny in the documentary, which ran on November, 10, 1999.

This Blogster would love to see the CBC re-run this powerful program before Dr, Smith enters the witness box at the Goudge Inquiry on Monday under compulsion of a subpoena. (This transcript was filed as an exhibit at the Goudge Inquiry);

It makes us look directly at the human cost imposed on innocent people by Dr. Smith - and those who looked the other way as the evidence of his incompetence mounted - as contrasted with the more abstract systemic issues being explored by the Inquiry.)

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

"Malarek: Hearing that Lianne had been taken in for questioning, her father Maurice, jumped into his truck and headed for the police station. Then a senior civil servant not used to taking no for an answer, he wanted to know exactly what was going on.

Maurice: (Lianne's father): Their reply was that the top pediatric pathologist in the province decided this was a homicide and they have to go with it;

Interrogation: You have to understand that these people, they're professionals who...the head pathologist of Ontario...I mean, this is a man who is not making idle speculation. This is a man who knows and who imparted that knowledge to us, that his death was not natural. That's the reality of it.

What had happened was the Ontario Coroner's Office wanted an examination into what caused the baby's death and hired Dr. Charles Smith to look into it. He's the director of the Ontario Pediatric Forensic Pathology Unit at the Hospital For Sick Children/ Although he is not a certified forensic pathologist, Dr. James Cairns, the Deputy Chief Coroner of Ontario, considers Dr. Smith top notch.

Dr. James Cairns: Deputy Chief Coroner of Ontario: He's got his fellowship in pathology, he has his American Fellowship in pediatric pathology - he's only one of four people in Canada who has that. And that particular sub-specialty exam. a considerable amount of it deals with forensic pathology. And he's been doing forensic pathology since 1990.

Malarek: After reviewing the original autopsy report, Dr. Smith came to a chilling conclusion: murder. He based his opinion on an enlarged head, and split skull fractures, which he felt were caused by brain swelling. A possible jaw fracture was further evidence that the boy had been assaulted. Dr. Smith concluded that, in the absence of another explanation, Nicholas' death was attributed to blunt head injury. In other words, it wasn't an accident. Liannes's family was outraged. What they found really odd was the connection Dr. Smith made between brain swelling and Nicholas' head size.

Maurice: Every time we took Nicholas in for his check-up and his inoculations, of course the doctor measured his head. And his head measurements, projected to eleven (11) months old, were forty-nine (49) centimetres - that was the size of the boy's head. It was in the top ninety-eight (98) percentile.

Malarek: So had Dr. Smith checked with the family doctor, he would have found out that the boy had a large head.

Maurice: That was the size of the boy's head in life.

Malarek: The day after the police interrogation of Lianne, Dr. Smith arrived in town to supervise the exhumation of Nicholas' body so he could perform another autopsy. His original concern over a possible jaw fracture turned out to be a mark on bad quality copies of X-rays. Nevertheless, Dr. Smith stood by his conclusion that Nicholas' death was not an accident. He again backed up his theory by the large head, split-skull sutures, and now noted what he thought was a strange discolouration on the boy's skull. For Dr. Smith, this amounted to evidence of foul play.

Chief Alex McCauley was in charge of the police investigation.

Chief Alex McCauley (investigated Nicholas' death); The police obviously didn't have a lot of expertise in dealing with pathology in the medical sense, and so if there's a disagreement amongst the medical evidence that comes forward, then we rely on the Coroner's office to be able to give us their opinion as to which is the more conclusive argument.

Malarek: Armed with Dr. Smith's theory, the police went to the crown attorney. But the theory wasn't enough. Without a confession, the crown knew they wouldn't get a conviction.

McCauley: Well, from our findings, from our investigation, and then from our discussions with the assistant crown attorney, we felt there would not be enough information that would be able to sustain a prosecution.

Malarek: So two years after Nicholas death in December, 1997, Lianne's father was told no charges would be laid.

Malarek: To Maurice: And you thought then, it's all over.

Maurice: But it wasn't. And at that point I think we would've sat back and said, OK, it was a misfortune, an unfortunate incident, sanity finally prevailed and everything is settled. But it wasn't over. It wasn't over by a long shot.

Malarek: When we come back, the troubles get worse.

Pierre: (Lianne's husband): They kept saying that you can be a parent to this child, you can be a parent to this child. Without directly saying it, she was telling me, in my opinion, that if I left my wife, I could have my daughter.

Commercial Break;

Voice-Over Announcer; And now we return to the Fifth Estate;

In August, 1997, Lianne and Pierre got married, and soon she was pregnant. For the first time in what seemed an eternity, Lianne was happy. But that happiness would soon be shattered.

Lianne: About six weeks before the baby was born, my husband got a phone call at work from a Children's Aid worker.

Pierre: She started talking about how the CAS was going to apprehend my daughter the day she was born. And then they kept saying that, you can be a parent to this child, you can be a parent to this child. Without directly saying it. she was telling me, in my opinion, that if I left my wife, I could have my daughter. Otherwise, I could not be a parent to the child.

Lianne: They had received my file from the police, and even though they were unable to lay a charge, that the Children's Aid did not need as much evidence as the police did, and they had enough evidence to apprehend my child when she was born.

Malarek: Despite the fact that there was not enough evidence to charge Lianne, the police had not been prepared to let it drop. They informed the local Children's Aid Society of their suspicion that Nicholas had met with foul play at the hands of his mother. By law, the Children's Aid Society had no choice but to do something about it. They placed Lianne's name on a child abuse registry and put a plan into motion to seize the baby right after it was born."

See previous postings related to Nicholas' case:

Nicholas' Case: Questions going to the heart of Dr. Charles Smith's credibility; October, 2007;

Nicholas' Case: Smith accused of "uncivilized conduct" for bringing 11-year-old son to exhumation of 11-month-old baby boy."

Smith and the media: Part Four; Fifth Estate probe triggers plea to Premier Mike Harris for inquiry into Smith cases; Deaf ears; November, 2007;

Goudge Inquiry: Thinking Dirty; Dr. Cairns defends the indefensible; November, 2007;

Interrogation of an innocent woman series: January, 2008;

Next posting: Maurice Gagnon fights back.

Harold Levy; hlevy15@gmail.com...

Part Eleven: Interrogation Of An Innocent Woman: First Installment Of Ground-Breaking Fifth Estate Documentary: "Diagnosis: Murder";

(A CBC Fifth Estate investigation appropriately called "Diagnosis: Murder" exposed the enormous harm Dr. Charles Smith caused to innocent parents and caregivers within Ontario's criminal justice system.

The police probe of Lianne Gagnon - after Smith turned an accidental bump on the head into a suspected homicide - comes under intense scrutiny in the documentary, which ran on November, 10, 1999.

This Blogster would love to see the CBC re-run this powerful program before Dr, Smith enters the witness box at the Goudge Inquiry on Monday under compulsion of a subpoena. (This transcript was filed as an exhibit at the Goudge Inquiry);

It makes us look directly at the human cost imposed on innocent people by Dr. Smith - and those who looked the other way as the evidence of his incompetence mounted - as contrasted with the more abstract systemic issues being explored by the Inquiry);

------------
Host Victor Malarek's opening words were gripping.

"Good evening," Malarek began.

"Your young child has died in a household accident.

You've grieved, vowed to keep your memories alive, and for 18 months you've tried to rebuild your life.

And then there's a knock on the door.

Out of nowhere, on the say so of someone you've never met, you're suspected of murdering that beloved child, and from there, although you think they never could, things get far worse.

Couldn't happen?

It could and did, in Ontario, because of a chain of events surrounding a pathologist who's been at the heart of other highly controversial cases;

For legal reasons we can't tell you where our story takes place or the full names of some of those involved, whose lives were turned down by the diagnosis murder."

"Diagnosis: Murder" continues as follows:

"This is Nicholas and his mother Lianne. It's a home video taken four years ago during a happier times. Back then, Lianne was a single mother, living at home with her parents and studying English and history at university, while caring for her baby.

Lianne: What a happy baby.As soon as people were over, he was a clown and showing off, very quick to crawl, to walk.

Malarek: Then one day there was panic.

Lianne: He was playing in the family room and I was sitting on the couch doing some cross stitching. He went to the corner of the room where he had always gone - there was a sewing machine there and a bunch of Windows and he liked to look out the window underneath the sewing machine - and he went under and bumped his head and let out a cry.

Malarek: Lianne rushed over and picked him up.

Lianne: When I took a look at him, his eyes had rolled back, his eyes were closed and he wasn't breathing. Immediately I just thought, OK I've got to get him to somebody who knows how to do CPR;

Malarek: Lianne grabbed Nicholas and ran across the road to a murder. The boy was given CPR and then transported by ambulance to hospital. But a short while later she got the news: Nicholas was dead.

Lianne: Everyone broke down: I was extremely angry and screaming and crying, and I wanted to see him. I didn't believe it. No one believed it. I think, until we just...saw him.

Malarek: Lianne was desperate to find out why her baby died.

Lianne: When they cam back with the autopsy report there was nothing. They came back a few weeks later with a toxicology report - again nothing. We had no closure, we had nothing, we didn't know why he died.

Malarek: The autopsy was done by Dr. Teh-Chun Chen a local pathologist. He's performed close to 3,000 autopsies, including 100 murder cases.

To Dr. Chen (pathologist): My final cause of death was consistent with Sudden Infant Death Syndrome.

Malarek: Dr. Chen's report said there were no bone fractures and the boy's skull was normal. although there was mild brain swelling. He couldn't determine the cause of death and felt it was just one of those unexplained things that happen sometimes.

Lianne grieved deeply, but slowly moved on. She met her new partner Pierre and, a year and a half later, was making arrangements for her bridal shower when there was a knock on the door.

Lianne: The two police officers showed up at my door and told me they wanted me to come in to close the case officially, is what they told us. They just wanted me to come in to reiterate my story, just tell them everything had told them initially at the hospital the day of Nicholas' death and everything would be closed. That's what they told us.

Malarek: At the police station Lianne found herself in the middle of a murder investigation where she was the only suspect.

Interrogation: You know what your rights are, your legal rights? OK, I'll go over them with you then and you'll probably recognize some of them.

Lianne: Until we got into the interrogation room, I had no idea, and when we got into the room I noticed That they were setting up a video camera. I told them the story, how he bumped his head and died that night, and when all was said and done, they came out and told us, Well, we don't believe your story and we believe that you had a hand in Nicholas' death, and we need you to tell us the truth.

Interrogation; This is a case of someone who's been pushed further than they can stand, and then in a moment, you snap and do something that you wish you hadn't done. In a very short period of time, you've done something that you can't turn back and undo. But you know it, and the pathologist knows it, and Nicholas knows it.

Malarek: With very little to go on, the police knew the only way to make the murder charge stick was to try to get Lianne to confess.

Interrogation: ...somewhere, and you're at a turning point here where you can talk to us and explain to us how it happened, and we are here to listen...

Lianne: But you're asking me to say something I didn't do."

Next posting: Part Twelve: Interrogation of an innocent woman; Transcript of "Diagnosis: Murder" continues as Dr. Charles Smith gets involved in the investigation of Nicholas' death;

See previous postings related to Nicholas' case:

Nicholas' Case: Questions going to the heart of Dr. Charles Smith's credibility; October, 2007;

Nicholas' Case: Smith accused of "uncivilized conduct" for bringing 11-year-old son to exhumation of 11-month-old baby boy."

Smith and the media: Part Four; Fifth Estate probe triggers plea to Premier Mike Harris for inquiry into Smith cases; Deaf ears; November, 2007;

Goudge Inquiry: Thinking dirty; Dr. Cairns defends the indefensible; November, 2007;

Interrogation of an innocent woman series: January, 2008;

Harold Levy: hlevy15@gmail.com;

Part Eight: Interrogation Of An Innocent Woman: Comparison with Mullins-Johnson case; Reference To Smith To Extract Confession;

The police interrogations of Lianne Gagnon and Bill Mullins-Johnson (an innocent man) had one thing in common: In each of them the police used the fact that Dr. Charles Smith and other "experts" had been involved in the case in their bid to extract a confession.

In Nicholas' case, for example, Sergeant West tells Lianne:

"That's the end of it – you have to understand that these people, they’re professionals who – the pathologist, the head pathologist for Ontario.

I mean this is a man who’s not making idle speculation, this is a man who knows and who has empowered that knowledge to us that his death was not natural.

That’s the reality of it.

And I – I mean, I don’t ant to sit here and have, you know, endless rounds of speculation of what kind of natural things we both know that’s not true.

It wasn’t a natural death."

Similarly, the following exchange occurs during the post-arrest interrogation of Mullins-Johnson:

"Detective WELTON - Someone put too much pressure on her neck and chest, she couldn’t breathe and she died.

BILL - I didn’t do it.
. . . . .
Detective WELTON - Doctors are experts".

Later in the interrogation, Detective Welton returns to the same theme that experts are infallible(so why not confess?), as follows:

"Detective WELTON - Sometimes these things happen.

BILL - I didn’t do it, I didn’t do it.

Detective WELTON - More and more points to you.

BILL - I didn’t do it, I didn’t do it.

Detective WELTON - The experts are pointing towards you.

BILL - Could there be a small error in [the time of her] death? (There turned out to be a huge error in the expert's calculation of the time of Valin's death. H.L.);

Detective WELTON - Very small, it’s between 8:00 and 10:00 pm.

BILL - Could be wrong.

Detective WELTON - They can narrow it down pretty good. They can’t pinpoint exactly, but pretty close. They do it by taking her temperature. (If only that was the case! H.L.)

BILL - All I know is I didn’t do it, I didn’t do it.

For the benefit of the readers of this Blog, here is a portion of the interrogation of Bill Mullins-Johnson - an innocent man - by Sault Ste. Marie police.

To this Blogster it is notable that Mullins-Johnson does not at any time ask for a lawyer.

How many people in police custody after being charged with first-degree murder would allow the police to question them without the protection of a lawyer?

Likewise, Lianne Gagnon allows the police to question her thoroughly without either a lawyer or her parents being present - until the point where the two officers lean on her a bit too hard.

By way of context, at 6:30 p.m. Sgt. Welton arrested the Appellant for the first degree murder and aggravated sexual assault of Valin.

Mullins-Johnson called to his brother Paul (Valin's father) to find him a lawyer, and kept repeating “I didn’t do nothing”.

Once in the police car, he was described by the officers as crying, sobbing and hysterical.

En route to the police station, police notes indicate that he said:
– I didn’t do it

– I wouldn’t hurt that little girl

– You got nothing, you got fuck all, what have you got on me man, nothing, you got fuck all

– I didn’t touch her, she went to bed and that’s that.

At 6:40 p.m., in the booking room, the Appellant was told how Valin died, and at what time.

He replied:

I was doing dishes, watching TV. I put John to bed at 8:00.

Valin went to bed by herself. I was the only other person in the house.

He was then allowed to speak to his lawyer on the telephone.
At 7:07 p.m., Mr. Mullins-Johnson was spoken to by Sgt. Welton and P.C. Martynuck in an interview room.

Unfortunately, neither this interview nor any of the later ones were taped in any way.

Rather, as P.C. Martynuck wrote in her willsay, she recorded them “in her notebook to the best of [her] ability”.

Throughout this interview the Appellant continually protested his innocence.

Here is a portion of the transcript:

Detective WELTON - Could you help us in who did it?

BILL - Wasn’t me, wasn’t me, didn’t do it, didn’t do it. (pause) I just want to go to sleep.
. . . . .
Detective WELTON - Did you ever touch Valin?

BILL - Thought never crossed my mind.

Detective WELTON - Is there anything you want to ask me?
BILL - No.

Detective WELTON - Was Valin a good kid?

BILL - Sometimes, she had a zest for life.

Detective WELTON - Do you understand why you’re here?

BILL - Yeah, but I don’t want to be here.
. . . . .
Detective WELTON - What are you thinking?

BILL - Police force is a disgrace.

Detective WELTON - Why?

BILL - Cause it’s a disgrace. I’m innocent, I’m innocent.

Detective WELTON - But you don’t want to help us in who did it if it wasn’t you?
BILL - I’m innocent, I didn’t do anything

. . . . .
Detective WELTON - You live there Bill, why would anyone do this?

BILL - Sick, deranged.

Detective WELTON - Someone like that probably needs help.

BILL - (whispers) - Yeah

Detective WELTON - Do you get along with Kim?

BILL - Yeah;

Detective WELTON - What about Paul?

BILL - I live there don’t I. I wouldn’t live there if we didn’t get along.

The interview concluded at 7:34 pm. ..


At 10:26 p.m., the two officers tried again. The interview began:

Detective WELTON - How do you feel?

BILL - I didn’t do it.24
. . . . .
Detective WELTON - We know you did it.

BILL - I didn’t do it.

Detective WELTON - You know the sexual assault stuff happened.

BILL - I didn’t do it, I didn’t do it, I could be doing life for something I didn’t do.
Detective WELTON - If you didn’t do it, who did?

BILL - I put John to bed, went by Valin and shut the door, went down, did dishes.
. . . . .
Detective WELTON - Did you take a shower today?

BILL - Yeah.

Detective WELTON - I just asked, that’s all. What are you thinking?

BILL - Why this is happening. I didn’t do it man, I didn’t do it.

Detective WELTON - You know Valin has passed away.

BILL - Yeah, I know. I don’t know how.

Detective WELTON - What were you wearing last night?

BILL - This and this (indicating clothes he had on).

Detective WELTON - Who got the kids in bath and pyjamas?

BILL - Kim did.

Detective WELTON - If I told you Bill, that ah, someone has been sexually assaulting Valin for a long time, who would I talk to?

BILL - It wasn’t me.

I didn’t do it.

I don’t know.
I never ever sexually touched those kids in anyway.

The thought never crossed my mind.

I lost a niece man.

I know for a fact I didn’t do it, I didn’t do it, didn’t do it.

If you said someone’s been assaulting her I want to know.

Detective WELTON - We don’t know the family.


BILL - I don’t know. Valin is precious. Valin was, she is, how would I say this, Valin would go with anyone, she loved everyone. She’d go off with strangers.

. . . . .
Detective WELTON - Valin is a tiny girl.

BILL - She loved her Uncle Bill, she loved me because she loved me for me, she’d see me down the road, run up to me and say she loved me.

And all of that is gone?

People are saying I did it.

I’ll go to court for it. I didn’t do it.

I didn’t fuckin do it. I’ve been to court for 2 years, I’ll fuckin do it (Bill is very irate and upset at this point).

BILL - I’d never hurt a child.

Detective WELTON - If you want to tell me about you, go ahead.

BILL - Kids love me unconditionally. I love being around kids. I watch TV with them, especially Valin. She loved cartoons. I don’t know how she died.

Detective WELTON - She died of suffocation.

BILL - Kim told me she died when she puked.

Detective WELTON - Someone put too much pressure on her neck and chest, she couldn’t breathe and she died.

BILL - I didn’t do it.
. . . . .
Detective WELTON - Doctors are experts.

BILL - I don’t know. If she died between 8:00 p.m. and 10:00 p.m. (20:00 - 22:00 hours) I would have heard something.

I was there, left between 1:30 and 3:00 a.m. (01:30 and 03:00 hours).

Detective WELTON - Don’t get upset.

BILL - I didn’t do it.

Detective WELTON - Is it possible or have you ever done something and not remembered it?

BILL - No possibility, never happened.

Detective WELTON - Never blacked out?

BILL - Never, I’ll tell the Crown to fuck off.

If you want me to go to court and jail for society I will.

I loved her unconditionally. I’ll go to jail for her, but I didn’t do it. You’ve got to fuckin prove it.

I didn’t do it. I didn’t do it.

This hurt[s] too much.

Detective WELTON - I know it.

BILL - I dreamt about Valin.

She was at the cell door.

I just want whoever did this to be where I am, because I didn’t do it.
. . . . .
Detective WELTON -Black out, didn’t black out?

BILL - No, I put John to bed, shut Valin’s door, went downstairs, watched TV and did the dishes.

The Appellant asked Sgt. Welton:

BILL - Do you think this could be crib death?

Detective WELTON - No.

BILL - Freak accident?

Detective WELTON - No, this was someone using force.

BILL - I didn’t do it, I didn’t do it. I’m scared man, I don’t want to go to Kingston, I don’t want P.C. I don’t want no wacko ward.

Detective WELTON - Sometimes these things happen.
BILL - I didn’t do it, I didn’t do it.

Detective WELTON - More and more points to you.

BILL - I didn’t do it, I didn’t do it.

Detective WELTON - The experts are pointing towards you.

BILL - I didn’t do it, I didn’t do it. I don’t know what happened to her, if I knew, I would tell you. I wouldn’t go down for this for someone else. I want to go to bed. ..

The Appellant, who at this point was crying and, as was apparent to the police, very upset, was asked to review the interview that he had given to Sgt. Welton that morning. He did so and added:

BILL - When Valin was on the couch she covered up herself with a blanket.

She got it from the corner.

Detective WELTON - One of those ones you’d use [on] kids.

BILL - It was the one she was wrapped in, I used it on the couch. She was tired and walked up staggering. She was that tired.

P.C. Martynuck recorded that the Appellant “started crying softly when reading about finding Valin’s body”.

The Appellant reiterated that no one went upstairs while he was babysitting. The conversation continued:

BILL - Could there be a small error in [the time of her] death?

Detective WELTON - Very small, it’s between 8:00 and 10:00 pm.

BILL - Could be wrong.

Detective WELTON - They can narrow it down pretty good. They can’t pinpoint exactly, but pretty close. They do it by taking her temperature.

BILL - All I know is I didn’t do it, I didn’t do it.

At 11:17 pm. Sgt. Welton confronted the Appellant with the allegation that he had sexually assaulted Valin’s sister Jean.

The Appellant vehemently denied this as well.

Finally, at 11:47 pm, the officers gave up their questioning of him.

On Monday morning, Sgt. Welton and P.C. Martynuck spoke to the Appellant again:

Detective WELTON - We thought we’d give you opportunity to tell us.

BILL - I didn’t do it, I know I didn’t do it.

Detective WELTON - Well we talked about it.

BILL - I didn’t do it man, you know I didn’t.

Detective WELTON - All the evidence says you did it.

BILL - I didn’t do it.

The officers left the cell are at 7:35 a.m. and as they did so the Mullins-Johnson yelled at them:

"I didn’t do it."

In these two cases, the police played Smith and the "experts" who backed up his opinions like a trump card when they questioned their suspects;

There is a serious question as to how many others may have decided to plead guilty to lesser offences in relation to their dead children after their lawyer's warned them that they would likely be convicted of murder - and go to prison for life - after the judge or jury heard evidence from the renowned Dr. Smith.

Who could blame them?

Harold Levy...hlevy@gmail.com;