Part Nine: Eight: Gaurov's Father; A Third Shocking Revelation From Inquiry; Brother collapsed Shortly Before Gaurov's Death: Hereditory Factor?

"THE HISTORY STATES THAT HE (GAUROV'S BROTHER SAUROB)WAS PLAYING WHEN HE SUDDENLY FELL ON THE GROUND - APPARENTLY THE FATHER GAVE HIM SOMETHING, AND COMPRESSIONS AND MOUTH TO MOUTH. AND THEN THERE'S A SUGGESTION THERE MAY HAVE BEEN A SIMILAR EPISODE LAST YEAR;"

LAWYER JAMES LOCKYER TO COMMISSIONER STEPHEN GOUDGE DURING CROSS-EXAMINATION OF PROFESSOR HELEN WHITWELL;

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"BUT IF WE ASSUME FOR A MOMENT THAT JUST DAYS BEFORE GAUROV DIED HIS ONE (1) YEAR OLD BROTHER, SAUROB HAD BEEN THROUGH, WHAT COULD BE DESCRIBED AS A SIMILAR EXPERIENCE TO GAUROV, WOULD THAT SUGGEST THAT THERE MIGHT BE ANY KIND OF -- OF HEREDITARY PROBLEM WITHIN FAMILY?

DR. HELEN WHITWELL: "I DON'T THINK I CAN REALLY ANSWER THAT. IT MAY OR MAY NOT. I MEAN, WE -- WE JUST DON'T KNOW."

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LAWYER JAMES LOCKYER AND PROFESSOR HELEN WHITWELL;

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

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

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

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

Now the third: It has been disclosed during the Goudge Inquiry that in March 1992, just a few days before Gaurov's death his brother Saurob, was seen at a walk-in clinic at the Hospital for Children for spells.

Lawyer James Lockyer told the Inquiry that he had "just obtained" Saurob's medical records through a request.

Lockyer said the the history states that he was playing when he suddenly fell on the ground - - and we don't quite know what -- and was cyanosed. Apparently the father gave him something, andC compressions and mouth to mouth. And then there's a suggestion there may have been a similar episode last year.

Lockyer began this portion of his cross-examination of Professor Helen Whitwell - the independent reviewer of Gaurov's case - by informing Commissioner Steven Goudge that, "Another document that we just obtained through a request is the medical records, or -- the medical records of Dinash's (phonetic) brother, Saurob.

And if we go to PFP302210 -- now it's -- it's the best we have so far, and we're trying to get a better copy of this document -- but if you look at this document, it's addressed to Dr. Rana, who was Saurob's -- and indeed still is -- Saurob's physician.

Saurob is now -- I think I'm right in saying -- seventeen (17) years old and, Mr. Commissioner, he -- he is with his parents, I'm glad to say.

Any event, it's a report from the Hospital for Sick Children.

If we go to the second page, you'll see this document.

I'm afraid you -- we don't know who it's from because you can't quite read it.

But if you look at this document on page 1 -- if you could show us page 1 again? There might a Dr. Bard, if there is such a doctor at the Hospital for Sick Children.

And you'll see -- and this is a matter of days before Gaurov's death.

If you could raise the page, give us the bottom of the page.

COMMISSIONER STEPHEN GOUDGE: Is there a date on it somewhere?

JAMES LOCKYER: Well, it's -- I think it's mark -- I'm right in saying we've worked it out as being March 1st, 1992. It might be March 11th or 21st.

it's -- it's -- there's a one (1) and we have reason to think it's March. And I think that becomes apparent.

CONTINUED BY MR. JAMES LOCKYER:

MR. JAMES LOCKYER: If you could give us the -- the -- to the bottom of this page, please.

Thank you. You'll see here that Saurob, in what's really just a matter of days before Gaurov's death, was seen in the walk-in clinic at the Hospital for Sick Children for these spells.

you see where I'm looking?

DR. HELEN WHITWELL: Yes.

MR. JAMES LOCKYER: The history states -- and -- and we can probably invent some of the lines -- some of the words that are missing -- the history states that he was playing when he suddenly fell on the ground - - and we don't quite know what -- and was cyanosed.

Apparently the father gave him something, and compressions and mouth to mouth.

And then there's a suggestion there may have been a similar episode last year.

And then if we go to the -- over the page, and there's -- you'll see in the last paragraph: "Difficult to elicit exactly what the problem is. In a consideration of the description of this spell, we feel it's worthwhile to do..." And I'm -- I'm sort of translating, Mr. Commissioner, to some extent. "...a reassessment of the patient after an EEG has been done."

We also -- I can also tell you that Gaurov's father used to be an ambulance attendant back in his home country.

DR. HELEN WHITWELL: Right.

MR. JAMES LOCKYER: And so had familiarity with resuscitation and mouth-to-mouth techniques.

DR. HELEN WHITWELL: Yes.

MR. JAMES LOCKYER: So if we -- and I appreciate this is a dreadful document, but it's all we've got at the moment, and as I say, we're trying to get a better copy of it.

But if we assume for a moment that just days before Gaurov died his one (1) year old brother, Saurob had been through, what could be described as a similar experience to Gaurov, would that suggest that there might be any kind of -- of hereditary problem within family?

DR. HELEN WHITWELL: I don't think I can really answer that. It may or may not. I mean, we -- we just don't know.

This Blogster has no doubt that there is no way - at this point of time - that Professor Whitwell, or anyone else could give a definitive answer to this question.

I am however troubled by the fact that the shocking disclosure appears to have merged for the first time almost two decades after Mr. Kumar pleaded guilty to criminal negligence in connection with Gaurov's death.

This is an important investigative fact which should have been discovered by both the corner and police investigators, relayed to the police, and then disclosed to defence counsel - if at that point of time the prosecution was determined to expose Mr. Kumar to criminal proceedings.

It is crucial to recollect that Mr. Kumar felt pressured to enter a plea to criminal negligence causing Gaurov's death shortly after it was offered by prosecutors in order to avoid the oppressive murder charge - while the family was still deeply in mourning.

His lawyers therefore never got down to the type of investigation which would have revealed this kind of information which may have offered a medical defence which indicated that Gaurov, like so many other infants in Dr. Charles Smith's cases, had died a tragic, but natural death.

Harold Levy...hlevy15@gmail.com;

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

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

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

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

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

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

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

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

It reads as follows:

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


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

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

DR. HELEN WHITWELL: Right.

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

DR. HELEN WHITWELL: Right.

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

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

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

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

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

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

How could our Canadian Justice system fall so low?

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

Harold Levy...hlevy15@gmail.com;

Part Seven: Gaurov's Father; Shocking Disclosure At Inquiry: Kumar Not Told By Crowns About Recent Decision Blasting Smith And Sick Kids SCAN Team;

"THIS WAS A MAN WITH NO RECORD -- A NEW IMMIGRANT TO THIS COUNTRY, A WIFE WITH A BRAIN TUMOUR, A JOB. HE WAS A CONTRIBUTING MEMBER OF SOCIETY, AND ALL OF THE SUDDEN AN ATOMIC BOMB GOES OFF IN HIS LIFE -- MURDER 2. YOU HAVE TO TELL HIM BECAUSE THEY ALWAYS ASK, WHAT'S THE PENALTY, AND YOU SAY, LIFE WITH A MINIMUM PENALTY OF TEN (10) YEARS -- TEN (10) YEARS. HE WOULD HAVE GOTTEN OUT OF JAIL HAD HE
GOTTEN TEN (10) YEARS, AND IF THE TRIAL HAD TAKEN TWO (2) YEARS, HE'S JUST BE OUT NOW FOR FOUR (4) YEARS, AND HIS WHOLE LIFE WOULD BE SHATTERED. NOW, I -- I SEE IN THESE NOTES THAT I'VE BEEN GIVEN FOR THE FIRST TIME TODAY, THE MEETING JANUARY 30TH OF 1992, THE WORDS "DAMAGE CONTROL" APPEAR DEALING WITH THE CASE FROM MR. JUSTICE DUNN. I CAN'T MAKE A CONNECTION BETWEEN THAT MEETING AND WHAT HAPPENED IN MY CASE, EXCEPT THAT IT HAPPENED JUST A FEW WEEKS LATER OUT OF THE SAME OFFICE. I'M STILL SHOCKED."

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LAWYER DAVID GORRELL IN RESPONSE TO QUESTIONS POSED IN CROSS-EXAMINATION BY JAMES LOCKYER;

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One of the most shocking revelations from the Goudge Inquiry is Dinesh Kumar's lawyer's evidence that he was not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

As we have seen in many previous posts, this decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN team.

As will be seen towards the end of this post, a lack of access to this decision had dire consequences for Mr. Kumar which he bears to this day.

By was of background information, here is a post I ran on Thursday, January 10, 2008, under the heading "Damage Control And Lost Opportunity: The Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) Unit;"

It describes how the Hospital for Sick Children resorted to "damage control" rather than to dissecting Dunn's decision in order to see what they could learn from it in order to avoid future debacles.

I did not realize the additional significance of the damage control meeting - the presence of a prosecutor - until I was later exposed to Gaurov's case at the inquiry.

Here is the earlier post as published:

""C.S. FEELS HE WAS MISUNDERSTOOD."

FROM HOSPITAL FOR SICK CHILDREN DAMAGE CONTROL DOCUMENT;

One would like to think of the Hospital For Sick Children as an institution that wants to learn from its mistakes.

This would especially apply to the serious medical errors made by Dr. Charles Smith and the hospital's Suspected Child Abuse and Neglect (SCAN) Unit that led to a 12-year old girl Timmins, Ontario girl being wrongfully charged with manslaughter.

However, a document has emerged at the Goudge inquiry which shows that the SCAN team reacted to Ontario Court Judge Judge Patrick Dunn's scathing criticisms of its work by holding a "damage control" meeting at which Smith defended his work, and Dunn was branded as "strange" and "from the bottom of the heap"

The handwritten document does not evidence any concern on the part of Smith or the members of the SCAN team that Judge Dunn's rejection of the hospital's opinion that baby Amber was a victim of "shaken-baby syndrome," as opposed to a fall down the stairs, may have been well-founded.

Nor does it evidence any desire to figure out what went wrong so that the risk of future wrongful prosecutions can be minimized.

Instead, after noting that the meeting was attended by the members of the SCAN team and several prosecutors, it goes on to describe Dunn as "strange" a member of the "family court" and "not used to criminal standards."

It goes on to express a concern that, "the judgment is likely to be passed around and (symbol for "therefore") damage control)";

(In retrospect, this prediction was right on the mark as Dunn's carefully structured judgement is resonating today at the core of the Goudge inquiry as one of the first alarm bells to sound over Smith's competence.)

But is is evident that the "damage control" ultimately failed as the hospital's failure to accept its responsibility and do something to remedy its mistakes is now available on the public record for all to see.

One of the most disturbing suggestions in the document is the comment that there is "no precedential value re medical evidence. Family court judge at bottom of heap. Error may be brought up in another case."

The reality is that if Dunn's criticisms - as set out in a beautifully structured decision - had been heeded back in 1991, so many other individuals would have been spared the torment of being wrongfully accused of killing their beloved children.

Instead, the consensus of the meeting appears to be that it is, "acceptable to say we disagree with judge's judgment."

The notes indicated that Smith defended his opinion in the case on the basis that "our standard is higher than theirs" - (an apparent reference to the large number of U.S. experts called by the defence) - "but still has to be held up to a higher standard."

He also attempts to deflect criticism from himself by saying that the case involved an "outside opinion" and that he "relied on police photos."

"C.S. feels he was misunderstood," the anonymous minute-taker wrote.

This is typical of Dr. Charles Randal Smith.

Evidence called at the Inquiry indicates that even his defenders at the highest levels of the Chief Coroner's Office observed toward the end of his career at the hospital that he was incapable of accepting responsibility for his actions and tended to blame others for his own mistakes.

During his questioning yesterday of Dr. Dirk Huyer, former head of the SCAN team and Dr. Katy Driver, who played a prominent role for that team in Amber's case, lawyer Louis Sokolov, who represents the Association in Defence of the Wrongly Convicted, (AIDWYC) suggested that the Hospital's damage control meeting represented, "a lost opportunity."

He sure got that right.

(See previous posting: "A glimmer of understanding: Part Three; A dangerous mix; Dr. Charles Smith and the Hospital For Sick Children SCAN team.)

Posted by Harold levy at Thursday, January 10, 2008;"

Goudge Inquiry Counsel Mark Sandler twigged to the fact that the prosecutor who was present at the damage control meeting played an active role in the Kumar investigation - just several weeks later;

Here is Sandler's examination of David Gorrell, Kumar's lawyer, on this connection:

(Bear with me: I prefer to give full stretched of evidence rather than to risk inadvertently distorting the substance through editing);

CONTINUED BY MR. MARK SANDLER:

MR. MARK SANDLER: Thank you. Mr. Gorrell, we know from the materials that have been filed here that -- that Gaurov died in Toronto on March the 20th, 1992, at the age of five (5) weeks. Due to suspicions about his death, his older brother was apprehended by CAS on that same date. We also know that on June the 16th of 1992, the report of post-mortem examination prepared by Dr. Smith was issued. I'm going to take you to the overview report if I may, which is at Tab 1 of your materials. And if you'd go to PFP143828, at paragraph 59, and you'll
see paragraph 59 is at page 32 of the overview report.

MR. DAVID GORRELL: Thank you.

MR. MARK SANDLER: And you'll see that on June the 26th of 1992, there was a meeting involving Dr. Smith, Constable Line, Detective Rolf Prisor, and -- Prisor, and Crown counsel, Mary Hall and Sandra Kingston. Just stopping there for a -- for a moment. First of all, what was Ms. Hall's position back in June
of 1992, as you understand it?

MR. DAVID GORRELL: I believe she was the -- either a Bureau Chief, or a Crown attorney, an independent Crown attorney. I'm not sure if Scarborough had been hived off yet, and made into a -- a jurisdiction for a separate Crown. But she was the head person. (Blogster's Note: Prosecutor Hall did not testify at the Inquiry. Her side of the story is not represented in this post.)

MR. MARK SANDLER: And were you aware of what, if any, role she played in the Gaurov case?

MR. DAVID GORRELL: Well, she would obviously supervise. She did participate in the -- in a judicial pretrial that we had on October 22nd of 1992, but that was simply because the assigned Crown, I believe, was not available.

MR. MARK SANDLER: And that was Ms. Koehl?

MR. DAVID GORRELL: Ms. Koehl, yes.

MR. MARK SANDLER: And you see from the overview report that that meeting involving the police and Crown counsel and Dr. Smith took place on June the 26th, and the overview report reflects that, according to a police report, Dr. Smith confirmed his diagnosis of Shaken Baby Syndrome, and added that the injuries probably resulted from continuous shaking as opposed to a single violent shake. We also know, Mr. Gorrell, that on June the 29th of 1992, Gaurov's father was arrested for second degree murder, some three (3) days later.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And the bail hearing took place on July the 10th -

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: -- and were you involved in the bail hearing?

MR. DAVID GORRELL: I became involved on July 2nd. The case first went to Dhamen Kissoon -- K-I- S-S-O-O-N, who had gone to the bar in 1989, and he retained me to lead on the defence. And I became involved on June 30th. And we worked on preparing the necessary affidavits and so on for the bail hearing from June 30th on.


MR. MARK SANDLER: All right.

MR. DAVID GORRELL: Until July 10th.

MR. MARK SANDLER: And we know from the materials that have been filed that the Crown consented to the release of your client on bail, pending trial. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And I want to ask you about a conversation that your dockets reflect took place with Rita Koehl on the same date of the bail hearing, June -- July the 10th.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Tell us what transpired.

MR. DAVID GORRELL: This is a -- a case that's sixteen (16) years ago, and therefore, I'm relying heavily on the notes that were found in Mr. Kissoon's file. My own file isn't -- is no longer available. According to the dockets and the notes that I have here, on the day of the bail hearing, Ms.
Koehl, with Sergeant Prisor, I think, present, discussed with me the possibility of a resolution by way of plea to something possibly for no time.

MR. MARK SANDLER: All right. And how did you react to the fact that on a murder case, the Crown had initiated a discussion with you that involved a
potential plea for -- for no time?

MR. DAVID GORRELL: I was surprised.

MR. MARK SANDLER: And did you have any explana -- or was any explanation given to you as to why the Crown was taking that position as -- that early and at that stage in the proceedings?

MR. DAVID GORRELL: Not that I recall, and I would not have asked. You don't look a gift horse in the mouth.

MR. MARK SANDLER: All right. And similarly, I see that, as you've indicated, there was a consent to your client's release on bail, pending trial.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Was that in your experience usual for a murder case?

MR. DAVID GORRELL: John would be better to ask. I haven't done nearly as many as he has, but you can get consent releases on murders, and I think this would have been a case where you could have.

MR. MARK SANDLER: All right. Now, just seeing what, if anything, we can figure out about -- about why the Crown was motivated to proceed in the way it did. I want to ask you about something that you may or may not know about, and that is, we've heard some evidence here, Mr. Gorrell, that on January -- in January of 1992, that same year -- a conference -- a case conference was conducted at the Hospital for Sick Children in connection with the Amber case, and it arose out of the comments that Justice Dunn had made about the Hospital for Sick Children witnesses, including Dr. Smith, at -- at that trial, and we also know that in January of 1992, Ms. Hall and Ms. Kingston participated in that conference.
Two (2) questions arising out of that. Did either Ms. Hall or Ms. Kingston, or anyone else from the Crown's office have any discussions with you about the Amber case and its impact upon the Gaurov case?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: Were you aware that -- that the Crowns, including Ms. Hall, had participated in a case conference in connection with the Amber case before the Gaurov case had taken place?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: All right.

MR. DAVID GORRELL: All right, let me rephrase that. I know that they met again, I think, on June the 26th about this case, about the -- the Gaurov case, but I was unaware of this meeting. I have the notes in front of me here. I've seen them today for the first time. I was unaware of this meeting on January 30th, 1992.

MR. MARK SANDLER: All right. And you've made reference to -- to the meeting that took place here and -- and I've made reference to the Crown, so just taking you to page 32, paragraph 59, that's the reference that I took you to a little bit earlier of the meeting that took place involving Dr. Smith, the police, Ms. Hall, and Ms. Kingston. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And were you aware that -- that that conference had taken place prior to the laying of the charges?

MR. DAVID GORRELL: I don't think so. It's been a long time ago, but I don't think I was aware of that meeting, and I don't think I had the police notes of it. I do have the original disclosure here from 1992, and the summary that is -- is available in these materials is not in that disclosure.

MR. MARK SANDLER: Okay, and leaving aside your awareness of the June 26th, 1992 meeting, you earlier indicated that you were the one that actually
gave Mr. Struthers a copy of the Amber decision, and this would be sometime later on.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Were you even aware of the Amber decision back in June of 1992 or during the currency of your involvement in the Gaurov file?

MR. DAVID GORRELL: No, I was not.

MR. MARK SANDLER: Was it something that you would have been like -- that you would have liked to have been aware of?

MR. DAVID GORRELL: Oh, yes;"

As the following transcript indicates, lawyer James Lockyer, who represents William Mullins-Johnson, Sherry Sherret-Robinson and at least seven unnamed persons at the Inquiry, was quick to zoom into this connection in his cross-examination of Gorrell;

MR. DAVID GORRELL: This was a man with no record -- a new immigrant to this country, a wife with a brain tumour, a job," Gorrell told Lockyer;

"He was a contributing member of society, and all of the sudden an atomic bomb goes off in his life -- murder 2. You have to tell him because they always ask, What's the penalty, and you say, Life with a minimum penalty of ten (10) years -- ten (10) years. He would have gotten out of jail had he gotten ten (10) years, and if the trial had taken two (2) years, he's just be out now for four (4) years, and his
whole life would be shattered. Now, I -- I see in these notes that I've been given for the first time today, the meeting January 30th of 1992, the words "damage control" appear dealing with the case from Mr. Justice Dunn. I can't make a connection between that meeting and what happened in my case, except that it
happened just a few weeks later out of the same office. I'm still shocked.

MR. JAMES LOCKYER: The same Crown, as a matter of fact --

MR. DAVID GORRELL: Well, no, -- well, no, Ms. Koehl wasn't on this case, but Mary --

MR. JAMES LOCKYER: Mary Hall --

MR. DAVID GORRELL: Mary Hall, the same Crown attorney.

MR. JAMES LOCKYER: -- was the common denominator to your case and their case, is that right?

MR. DAVID GORRELL: Yes, and the Scarborough courthouse --

MR. JAMES LOCKYER: Mm-hm.

MR. DAVID GORRELL: -- and Charles Smith, Of course. But --

MR. JAMES LOCKYER: I think Mary Hall was actually the Crown when you did the pretrial in October--

MR. DAVID GORRELL: Yes, she did.

MR. JAMES LOCKYER: -- on the Gaurov case, is that right?

MR. DAVID GORRELL: She was there. I think Ms. Koehl was unavailable for some reason, but...

MR. JAMES LOCKYER: Yes. And I -- as I recall, Mr. Koehl also said that any plea arrangement would be subject to the approval of Ms. Hall.

MR. DAVID GORRELL: That I don't remember, but I -- I wouldn't be surprised in any case.

MR. JAMES LOCKYER: It's in one (1) of the documents in the file you arrived with today.

MR. DAVID GORRELL: Really?

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: Fine, then I accept
that.
MR. JOHN STRUTHERS: It was the practice
at the time.

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: But the -- just -- just to continue with this, what -- I said, my heart went out to Gaurov's father. I don't know how I'd -- I'd act in this situation if I had someone like Mr. Struthers saying, Well, you can get ninety (90) days on weekends. After emission, that's sixty (60) days. That's a maximum of fifteen (15) weekends. The Mimico is jammed, so you'll wind up doing only three (3), or four (4), or five (5). You can do that, or you can sit in the courtroom and be judged by everybody with a risk, with Charles Smith up there with a mantle of Sick Kids on his shoulder. You can go to jail. You can go to jail on a
manslaughter. I really didn't think a murder was in the cards, but you can go to jail on a manslaughter. What decision would I make? I'm pretty sure I'd make the
decision he made even if I were not guilty. But as his lawyer, I'm the only person in the whole scenario that Doesn't judge him. The police judge him when they charge him. The Crown judges him when they prosecute him. The Judge judges him, the jury judges him, the press judges him. When he says, I want to plead guilty, and
I will sign on the dotted line, and I did it, I'm not going to tell him, No, sir, you're going to face the trial and if you get eight (8) years, that's for the
greater good of the justice. I took his instructions and I -- I would not be at all surprised, with the stress that man was under at the time, if he was doing it out of expediency.

MR. JAMES LOCKYER: And the instructions that you received from him by way of the form that you prepared, obviously the way it's typed up, it was -- the words were your words in that document, is that fair?

MR. DAVID GORRELL: Yes, they were my words.

MR. JAMES LOCKYER: And they were words designed to fit the notion of criminal negligence. Reckless is hardly a word an east Indian that doesn't
speak English is going to come up with.

MR. DAVID GORRELL: No, the -- this -- these were my words.

MR. JAMES LOCKYER: Yes. And, as Mr. Struthers was just saying, it was more a document for your protection than a document to assist Gaurov's
father, is that fair?

MR. DAVID GORRELL: I think that's probably fair. It's also a document that you would use to fix his mind as to what he's doing, so that he can't
come back and -- I guess to protect counsel, that's right. I(t) was thirteen (13) pages;"

Dear readers:

Imagine how the prosecutors must have felt to learn about Justice Dunn's troubling criticisms of the work performed by Dr. Charles Smith and the Hospital for Sick Children SCAN-TEAM in the then recent Amber case;

Would that not have raised serious questions as to whether or not there was a reasonable possibility of obtaining a conviction in the case?

At the very least, shouldn't the existence of the decision - which was not likely publicly available at that time - have been made to the defence lawyers?

At least, that way they could assess the strength of the Crown's case before putting the plea to criminal negligence causing his son Gaurov's death to his client whether or not the law relating to disclosure at the time required them to do so?

As a criminal lawyer, I suspect that after reading the Dunn decision I would have been in a position to more confidently advise the client to contest the murder charge - instead of having to go through the contortions involved in a criminal negligence plea where I would have so much doubt about my client's guilt?

Just imagine how much pain this mourning family would have been spared - let alone the need to bear the load of sixteen years of stigma in their tiny community - and having to fight for ultimate exoneration after sixteen years in the Ontario Court of Appeal;

Next: Part Seven; Gaurov's father: Another shocking revelation;

Harold Levy: hlevy15@gmail.com;

Part One: Gaurov's Father: Seeking Exoneration After Sixteen Years: Pleaded Guilty Because he Feared Smith;

"IN THE INTERVIEW, MR. KUMAR SAID THAT HE LONGS ONLY TO RESTORE HIS REPUTATION; THAT HE TRIES NOT TO THINK ABOUT THE PROFOUND EFFECT DR. SMITH'S CONCLUSIONS HAD ON HIS FAMILY.

"I DON'T NEED TO SAY ANYTHING ABOUT HIM," MR. KUMAR SAID. " HE IS GOING TO GET PUNISHED BY GOD."
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DINESH KUMAR TO JUSTICE REPORTER KIRK MAKIN; THE GLOBE AND MAIL;

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The Ontario Court of Appeal is once again confronting the chaos inflicted on Ontario's Justice system by Dr. Charles Smith.

As Justice reporter Kirk Makin set out in the Globe and Mail on May 26, 2008, the appeal has been brought by Dinesh Kumar who's son died sixteen years ago.

"After learning that the country's leading forensic pathologist - Charles Smith - was going to testify against him at his trial for murder in the death of his five-week-old baby, Dinesh Kumar realized his chances of an acquittal were minuscule," Makin's story begins.

"My lawyers told me that whatever he said, the court would make their decision because of it," Mr. Kumar said, in his first public statement since his 1992 conviction. "My lawyer told me that Dr. Smith was like a god in court. The whole thing was up to him,"" the story continues.

"Resigned to his fate, the 42-year-old man accepted an extraordinarily lenient plea offer from the Crown. He admitted to a crime that Mr. Kumar insists he did not commit - shaking his baby, Gaurov, to death. His sentence was 90 days in jail for criminal negligence causing death - a far cry from the term of life imprisonment he had faced.

Sixteen years later - with Dr. Smith's reputation reduced to ashes and many of his court findings in great doubt - Mr. Kumar is returning to court in search of exoneration. Tomorrow, he intends to tell an Ontario Court of Appeal judge that his guilty plea was the act of a desperate man who was terrified of spending his life behind bars.

"I want to show people that I didn't do anything to my son," Mr. Kumar said in an interview.

"This is always on my mind. I came to this country for its good opportunities - and then, this happened to me. I have felt a great sadness inside. Almost every night, I have been crying. It changed my life totally."

The Kumar case was among 20 cases Mr. Justice Stephen Goudge has scrutinized recently at an inquiry into errors Dr. Smith made during his two-decade reign as Ontario's top forensic pathologist.

As part of the application to reopen the case, Association in Defence of the Wrongly Convicted lawyers James Lockyer and Alison Craig intend to argue that Dr. Smith's theory - that baby Gaurov was a victim of shaken baby syndrome - is scientifically unsustainable.

"Some medical experts have gone so far as to suggest that the condition of shaken baby syndrome is a medical myth," the lawyers maintain in a brief to the court.

In his affidavit, Mr. Kumar states that his lawyer - David Gorrell - urged him to accept the Crown's extraordinary offer in 1992. He said that he was petrified at the prospect of being deported or having his other son, Saurob, taken away permanently.

"I could not allow my wife to bring up Saurob without me," he said in the affidavit. "I could not conceive of losing him too. I wanted to get everything over with. It was the hardest decision I ever had to make."

Mr. Kumar had emigrated from India just two years earlier. He married, and Gaurov was born shortly afterward. Just five weeks later, Gaurov screamed in his sleep one night. Mr. Kumar said he rushed over to the child's crib to find him gasping and bluish. Doctors determined later that night that Gaurov was brain-dead. A day later, on March 20, 1992, he was removed from life support.

There was little time for Mr. Kumar and his wife, Veena, to mourn. Based on Dr. Smith's autopsy conclusions, police quickly homed in on Mr. Kumar as a killer. On June 26, 1992, he was arrested.

Mr. Kumar said that after their ordeal he and his wife decided not to have any more children, for fear they might lose them. "We were completely devastated and dejected," Mr. Kumar said in his affidavit. "I carry a photograph of Gaurov everywhere I go. We cry for him. I think of him every day.

"I love him, cared for him, and would never have done anything to hurt him. I did not, as was claimed, shake him at all. I was a gentle, careful, loving father to him at all times without exception."

The real cause of Gaurov's death might never be solved. In their brief, Mr. Lockyer and Ms. Craig state that Dr. Smith ought to have realized that shaken baby syndrome was not even a legitimate diagnosis at the time, since one of three indicators that must be present for such a diagnosis - retinal hemorrhages - was absent.

They said that bleeding in Gaurov's brain lining at his autopsy could have been the result of a birth injury that reopened and bled again.

In the interview, Mr. Kumar said that he longs only to restore his reputation; that he tries not to think about the profound effect Dr. Smith's conclusions had on his family.

"I don't need to say anything about him," Mr. Kumar said. "He is going to get punished by God.""

Harold Levy...hlevy15@gmail.com;

Part Four: Who is Edward Charles Splatt? More On The Guy Paul Morin Connection?

On January 23, 1995, Guy Paul Morin's appeal of his conviction for murder was allowed based on the DNA report, his conviction was set aside, and a directed verdict of acquittal was entered.

(The connection between Edward Charles Splatt and Guy Paul Morin - although continents apart - is explained in the previous post: Part Three: Who is Edward Charles Splatt? The Guy Paul Morin Connection; May 2, 2008);

Guy Paul Morin was free at last.

But as Jack King, wrote in "Champion: Magazine of the National Association of Criminal Defence Lawyers, "The real shock was yet to come."

"As appalled as Canadians were that an innocent man could be convicted of such a heinous crime after such ample proceedings...the Commission on Proceedings Involving Guy Paul Morin shook the entire Canadian justice system to its roots," this section of King's article, which appeared in August, 1998, under the heading, "The Ordeal of Guy Paul Morin: Canada Copes With Systemic Injustice," began.

"Public hearings were held from February 10 to December 18, 1997," the article by the Association's Public Affairs director, continued.

"During the hearings, which were covered extensively by the print and broadcast media, especially Kirk Makin, a reporter with The Globe and Mail (Toronto), a number of problems were identified.

But none, perhaps, were so important to the Canadian and U.S. criminal justice systems than the problems of prosecutorial subornation of perjury, from jail house informants particularly and forensic fraud by police experts.

"My approach at this inquiry was to receive such evidence primarily where it related to systemic issues, rather than findings of personal or institutional misconduct," Judge Fred Kaufman said.

Yet the components comprise the system, and that was where the case of Regina v. Guy Paul Morin failed, as when the simultaneous failure of a few parts causes a plane to crash.

The difference here was that, until the results of the DNA tests, prosecutors and the courts insisted that the plane had landed safely at last with Guy Paul Morin's conviction, and that all was well that ended well!

Bloggist's note: I am leaving aside Mr. King's comments on the jailhouse informant evidence as it is not directly relevant to this Blog. What follows are his observations on the Crown's forensic testimony, under the heading: "Whistleblower exposes crime lab fraud."

"The Crown's forensic testimony, especially the hair and fiber analysis supposedly linking the Morin family car and the body of Christine Jessop, was abysmally flawed," this section of the article begins.

"Aside from revelations of disclosure (discovery) abuse which abounded in the spring of 1997, it became ever more clear during the hearings that assertions that the necklace hair "matched" Guy Paul Morin's and that several fibers supposedly proving that Christine had been in the Honda, teetered on the edge of perjury, with further exaggeration by the Crown in closing argument," it continues.

"But an anonymous letter written by a whistleblower in the Ontario Centre of Forensic Sciences (CFS) toppled it over that edge the last weekend of April 1997, when it revealed that contamination in the hair and fibers unit of the CFS was a source of constant gossip in the lab as far back as 1985, when the Jessop and Morin samples were analyzed.

According to The Globe and Mail, Stephanie Nyznyk, a former CFS examiner who did the examinations in the Jessop investigation, told the commission in early April 1997 that she was under pressure from police and prosecutors to overstate her evidence.

She admitted during the inquiry that sets of similar fibers on Christine's remains and in the Morins' Honda did not necessarily mean Christine had been in the vehicle.

At first she denied that she told the jury in no uncertain terms that the fibers "matched," then she admitted under intense questioning several days later that she never told the jury -- or Crown prosecutors -- that her evidence was of little value because no one ever asked her that.

"As far as I can recall, I don't think that type of question came up," Nyznyk testified.

But under pressure from lawyers at the inquiry, Nyznyk admitted that she may have misled authorities -- who then unwittingly misled the court -- about the value of the hair and fiber samples.

Shortly after Nyznyk gave police her conclusions about hairs and fibers linking the Honda to Christine's body, Morin was arrested.

(Former Durham Regional Police detective Bernie Fitzpatrick agreed, months later in July 1997, that it was the hair "match" that led him to finally arrest Morin.

He testified that examiner Stephanie Nyznyk even let him look at the hairs under the microscope in early 1985 and explained to him that they "matched.")

Around April 15, 1997, a senior forensic scientist testified that he would have been "shocked, to say the least," to learn that prosecutors in the Morin case intended to rely heavily on hairs and fibers supposedly linking Morin to the crime.

The evidence was weak, at best, testified Norman Erickson, retired head of CFS's biology section. (Hair and fiber samples will typically have points of similarity, dissimilarity, or both. The more they share similar characteristics, the theory goes, the more likely they came from the same source. But it is highly misleading and patently unfair to testify that two such exhibits "match" as though they are identical.)

The bomb dropped two weeks later when Erickson, confronted with a letter from the anonymous CFS whistleblower sent to the commission a few days earlier, admitted he may have known as far back as 1985 that samples from the Honda and Christine's body were contaminated with foreign fibers within his lab.

At Morin's 1986 and 1992 trials, the prosecution relied heavily on several red wool fibers purporting to link the car and Christine's body.

Lab employees were already gossiping about the microscopic red "animal fibers" showing up on microscope slides and adhesive sample mountings tapes.

They speculated about two lab examiners known to wear red wool sweaters who refused to wear lab coats as far back as 1985.

When the Morin evidence was re-examined in preparation for retrial in 1990, the problem could have been common knowledge for at least five years.

The anonymous whistleblower revealed that Erickson telephoned Lynn Sedgewick, an analyst who worked closely on the Morin case several years ago, to ask whether she owned a red wool sweater, The Globe and Mail reported.

Such a call would mean that Erickson was far more concerned than he previously testified about the red fibers that contaminated the sticky evidence tapes.

Acknowledging that he phoned Sedgewick about her clothing, Erickson added that he visited another analyst involved in the Morin case at her new job to ask the same question.

Erickson said that both denied possessing a red sweater -- but James Lockyer, Morin's lawyer, revealed that he had asked Sedgewick the same question the previous Sunday after being informed of the letter, and she told him that she did own a red sweater.

Lockyer "expressed astonishment" that both Erickson and Stephanie Nyznyk managed to testify at both Morin trials while suppressing their knowledge of the contamination problem, The Globe and Mail reported.

"I don't know about suppressing it," Erickson responded. "I just didn't make it available."

"Interesting linguistics," Lockyer said. "So the two of you testified at the 1992 trial while knowing this?"

"It would appear so," Erickson admitted.

Contamination and Cover-Up Continued for Years;

As the hearings ground on, refueled by the allegations of fraud in Canada's premier crime lab, Bruce Durno, President of Ontario's Criminal Lawyers Association, told the press that the lab scandal shakes the system to the core.

"The inquiry has cast enormous light -- in some cases, new light -- on the workings of the Centre. In terms of defenses at trial, is this going to be a new avenue? Absolutely."

Durno said that the revelations of cover-up were "shocking on a number of levels."

"When you appear in court presenting evidence, it's a matter of trust. The Centre has been presenting evidence for years. Judges, juries and police have accepted it as gospel -- the Centre of Forensic Sciences has spoken."

In fact, the lab touted its reputation on the "fact" that it was supposedly neutral.

Its reputation was that it was devoted to science, favoring neither the Crown nor the defense, but seeking only neutral scientific proof, and its examiners often testified to that reputation in court.

But privately, and sometimes publicly, defense lawyers had dismissed the lab's supposed neutrality for years, complaining that in the vast majority of cases, they would never use it because it made the results of defense tests available to the prosecution, sometimes even before the defense received them.

And as the Morin Commission found, it would suppress exculpatory results of Crown evidence testing when it suited the prosecutors, and the defense would never know of it.

Although Shirley Stefak protested to her boss, Norman Erickson, that the Morin samples were "frighteningly" contaminated in 1990, the first anyone outside the lab heard of it was when she testified before the commission, May 8, 1997.

Cases May Be Reopened;

In mid-May 1997, James Crocker, a senior manager of the CFS, said that in the wake of the lab scandal revealed at the commission's hearings, a "long list of criminal cases" would be re-examined.

"It would be time-consuming, but I don't think it would be particularly difficult," he told The Globe and Mail May 12, 1997.

The cases that may have to be thrown out involve the work of Stephanie Nyznyk and Norman Erickson, he said.

Moreover, Crocker said he recalled that while sitting in the courtroom during Morin's 1992 retrial he thought how weak the fiber evidence seemed to him.

In that respect, he said, the problem was not with the quality of the microscopic fibers purported to link Morin and Christine Jessop, but what few points of similarity he noticed they shared.

No Closure;

Last January, as the hearings were winding to a close, Guy Paul Morin received a full apology from Ontario Attorney General Charles Harnick, and a $1.25 million (U.S. $822,500) settlement payable to him and his parents.

There was a feeling by some following the inquiry, Kaufman said, that Morin's defense counsel in the second trial "contributed to the miscarriage of justice primarily by the ill-advised, sometimes hostile, approach taken to witnesses and the undue prolongation of the trial, resulting in jury alienation."

Such sentiments are not uncommon, particularly when it seems there is guilt and blame enough to go around.

After all, how could a competent lawyer allow an innocent man to go to prison?

Don't the Crown prosecutors depend on defense lawyers to test their evidence?

Any such notions of ineffective assistance are dispelled by the commission report.

Let it be noted: Morin's defense lawyers won an acquittal at the first trial February 7, 1986.

Errors by the court, which seem trivial in retrospect, enabled the Crown to take its successful appeal in June 1987 (upheld by the Supreme Court of Canada in May 1990 and March 1991).

Morin's new trial team litigated pre-trial motions over seven months of hearings (and 7000 pages of transcripts) from April 2 to November 13, 1991.

The second trial, with over 120 Crown witnesses, lasted from November 13, 1991 to July 30, 1992.

"However well or ill-founded this criticism [of the defense lawyers] might be," Kaufman found, ". . . there is no doubt that a disquieting number of witnesses for the prosecution in this case gave evidence which could justifiably be regarded as suspect."

Fully convinced of Morin's guilt and blind to ample available evidence to the contrary, the Crown confidently built a dubious case on coached and perjured testimony from police, experts, and citizens; and it expended a great deal of resources to convict an innocent man.

Unthinkable?

When prosecutors and police violate citizens' rights under the delusion that it is for a greater good, when the state itself becomes a lawbreaker, or uses lawbreakers to achieve an aim, the words of Supreme Court Justice Louis Brandeis take on new life: "The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning, but without understanding."

In a rush to judgment, there is equal danger that men of ill-will may never be brought to justice.

"The criminal proceedings against [Morin] represent a tragedy not only for Mr. Morin and his family, but also for the community at large: the system failed him -- a system for which we, the community, must bear responsibility," Kaufman writes.

"An innocent man was arrested, stigmatized, imprisoned and convicted. The real killer has never been found. The trail grows colder with each passing year. For Christine Jessop's family there is no closure.""

Bloggist's Note;

I have a reason for returning to this ugly blot on Ontario's criminal justice system.

Guy Paul Morin was arrested on April 22, 1985.

Dr. Charles Smith been working on suspicious death cases at the Hospital for Sick Children since 1981;

The Canadian Forensic Centre and the Chief Coroner's office were both under the jurisdiction of the Ministry of the Solicitor General;

It appears to me that the failure to reign in Dr. Charles Smith must be seen in the context of the prevailing political, bureaucratic and scientific culture that allowed Guy Paul Morin to be charged and convicted.

What if that whistleblower hadn't made the call?

Harold Levy... hlevy15@gmail.com;