WILLIAM MULLINS-JOHNSON CASE; PROSECUTOR SPEAKS OUT MORE THAN A DECADE AFTER HE SUCCESSFULLY PROSECUTED INNOCENT MAN FOR MURDER THAT NEVER OCCURRED;

""IT'S A TRAGEDY ALL ALONG THE LINE, FOR EVERYBODY. IN A SENSE WE ALL COULD BE VICTIMS OF IT, INCLUDING THE PROSECUTION AND THE JURY.''

WASYLINIUK SAYS HE FEELS FOR THE JURY, 12 PEOPLE FROM THE COMMUNITY, WHO LISTENED TO THE EVIDENCE AND ASSESSED WHAT THEY HEARD FROM BOTH THE PROSECUTION AND DEFENCE.

"HOW DO YOU THINK THEY FEEL? NOW 12 YEARS LATER, SHE WASN'T SEXUALLY ASSAULTED OR MURDERED.''

REPORTER LINDA RICHARDSON; THE SAULT STAR;"

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Background: (Wikipedia account); William Mullins-Johnson of Sault Ste. Marie was found guilty of the first-degree murder of Valin Johnson after a two and half week trial in September 1994.[4] He was convicted after a jury trial in which Smith’s evidence played a major role in determining the time of death, the cause of death and whether the girl had been sexually assaulted. Mullins-Johnson had babysat Valin, 4, and her 3-year-old brother on the evening of June 26, 1993.[4] When the girl's mother returned home, she did not check on her daughter. At 7 a.m. the next day she found Valin dead in bed. A local pathologist performed an autopsy on Valin. Then "consultation reports" were sought from Smith and four other specialists, based on tissue samples and other evidence from the autopsy. Smith was the only consultant to conclude Valin was sexually assaulted at the time of death. That contradicted the defence's point that Valin, who had a history of vomiting in bed, might have died of natural causes. The jury convicted, which the Ontario Court of Appeal upheld in 1996. The Supreme Court of Canada dismissed a further appeal in 1998. Attempts were made to clear his name based on available DNA technology, but the tissue could not be located by Smith, who was given the evidence by the pathologist who did the autopsy, until 2005, 11 years after the trial, when the missing tissue samples turned up in Smith’s office. William Mullins-Johnson was released on bail in 2006, pending review of his case. On July 16, 2007, a report by three expert pathologists (a report written unbeknownst to the lawyers working on his behalf) determined there was no evidence that the girl was sexually assaulted, and the Ontario Attorney General Michael Bryant, said that William Mullins-Johnson's conviction “cannot stand” and that he should be acquitted by the appeals court. On October 15, 2007 he was acquitted by the Ontario Court of Appeal.

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Reporter Linda Richardson's interview with prosecutor Glen Wasyliniuk appeared in the Sault Star earlier today under the heading: "'Everybody was wrong' about Mullins-Johnson — An interview with the Crown Attorney who prosecuted the case."

"William Mullins-Johnson, wrongfully convicted in the 1993 death of his young niece, was caught in a "perfect storm,'' says the now-retired Crown attorney who prosecuted the case," the story began;

""When you look at how everything came together, it was a perfect storm, to his obvious detriment,'' Glen Wasyliniuk said in a recent interview," it continued;

"Mullins-Johnson spent 12 years in prison for the rape and suffocation of his four-year-old niece Valin Johnson.

He was exonerated in October 2007, after a review sparked by the Association in Defence of the Wrong-fully Convicted discredited the medical evidence used to convict him.

Several experts found no evidence to support disgraced forensic pathologist Dr. Charles Smith's conclusion the girl had been sexually abused and asphyxiated.

"Knowing what we know now since the Goudge inquiry, since that examination, we probably wouldn't prosecute it,''Wasyliniuk said.

A 1,000-page report by Justice Stephen Goudge, released in 2008, slammed Smith, along with Ontario's former chief coroner and his deputy, for their roles in numerous wrongful convictions.

Looking back at the 1994 trial, one of many he successfully prosecuted in his nearly 30 years in the local Crown's office, Wasyliniuk said: "You work with what you've got.''

And at that time what the Crown had, was a young victim, believed by everyone to have been sexually assaulted, he said, listing some of events that came together to create such a fateful outcome.

Mullins-Johnson had been babysitting Valin the evening before she died, and his grandmother testified at trial that he told her something awful had happened and he had to leave the house, Wasyliniuk said.

There was forensic evidence of strangulation and sexual assault, and testimony from Smith, then considered the preeminent expert in the field of child abuse.

As well, experts called by the defence "agreed that she had trauma to her neck and agreed there was evidence of sexual assault,''Wasyliniuk said.

And when Mullins-Johnson's lawyer addressed the jury he said the girl obviously had been assaulted and killed, but argued that his client hadn't done it, the former Crown recalled.

Smith has since been exposed, but "no one has taken to task the defence experts,''Wasyliniuk said, adding "that's certainly not to defend Dr. Smith.''

"Everybody was wrong. Everybody certainly felt it was a sexual assault,'' he said.

Calling it "an awful thing,''Wasyliniuk added: "How bad do you feel when he's convicted on the evidence a person was wrong about, except his own defence presented that same type of evidence. That's never reported."

The Crown and police have been accused of proceeding with blinkers on, of perpetrating "another travesty of justice,'' he said, but "the defence has to take some responsibility for it.''

"It's a tragedy all along the line, for everybody. In a sense we all could be victims of it, including the prosecution and the jury.''

Wasyliniuk says he feels for the jury, 12 people from the community, who listened to the evidence and assessed what they heard from both the prosecution and defence.

"How do you think they feel? Now 12 years later, she wasn't sexually assaulted or murdered.''

The story can be found at:

http://www.saultstar.com/ArticleDisplay.aspx?e=1691817

UP-COMING POST: WILLIAM MULLINS-JOHNSON CASE; A NOTE FROM THIS BLOG'S PUBLISHER; THERE WAS ONLY ONE VICTIM HERE - ALONG WITH HIS FAMILY AND HIS COMMUNITY;"

Harold Levy...hlevy15@gmail.com;

CRUCIAL ROLE LATE JUSTICE STEPHEN BORINS PLAYED IN MULLINS-JOHNSON CASE; EARLIER POST;

"ALTHOUGH THE COURT DID NOT HAVE THE BENEFIT OF SUBSEQUENT TESTING OF AUTOPSY EXHIBITS WHICH SHOWED THAT DR. CHARLES SMITH'S OPINION WAS TERRIBLY WRONG, JUSTICE STEPHEN BORINS RULED THAT MULLINS-JOHNSON SHOULD HAVE A NEW TRIAL.

BORINS FOUND THAT THERE WAS NO EVIDENCE THAT MULLINS-JOHNSON HAD EVER ABUSED VALIN, SEXUALLY OR OTHERWISE, THERE WAS NO MOTIVE PROVEN, AND THE SCIENTIFIC EVIDENCE OF A RECENT SEXUAL ASSAULT ADDUCED BY SMITH WAS FLAWED."

THE CHARLES SMITH BLOG; DECEMBER 13, 2007;

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Justice Stephen Borins was the subject of a post which I published on Dec. 13, 2007 entitled: "Mullins-Johnson: Reference Set for Monday; Ontario Court of Appeal is Well Acquainted With Doctor Charles Smith;" (This was the reference which ultimately led to William Mullins-Johnson's exoneration);

"On Monday William Mullins-Johnson will seek an acquittal and exoneration from Ontario's highest court on a Reference from federal justice minister Rob Nicholson," the post began;

"The Reference will be heard by Justices Dennis O'Connor, Marc Rosenberg and Robert Sharpe," the post continued;

"It has been almost eleven years since December 19, 1996, when the Ontario Court of Appeal dismissed Mullins-Johnson's appeal of his first-degree murder conviction in the killing of his 4-year-old niece Valin Johnson- who we now know likely died after choking on her vomit.

Although the Court did not have the benefit of subsequent testing of autopsy exhibits which showed that Dr. Charles Smith's opinion was terribly wrong, Justice Stephen Borins ruled that Mullins-Johnson should have a new trial.

Borins found that there was no evidence that Mullins-Johnson had ever abused Valin, sexually or otherwise, there was no motive proven, and the scientific evidence of a recent sexual assault adduced by Smith was flawed.

In recent years. the Court of Appeal has become well exposed to the allegations that have been brought against Smith since it dismissed Mullins-Johnson's appeal.

On January 9, 2004, for example, Justices David Doherty, Robert Sharpe and Janet Simmons, issued a ruling relating to the Marco Trotta case.

The Court rejected Trotta's submission that he was entitled to disclosure of materials relating to Smith's work in other criminal cases - but became aware of the magnitude of the allegations being brought against Smith in numerous criminal cases.

Then, on April 18, 2005, the Court of Appeal upheld the decision of a Superior Court Justice to stay first degree murder charges against Anthony Kporwodu and Angela Veno on the basis of unreasonable delay which had been attributed to Smith.

Justices Michael Moldaver, Eileen Gillese, and Russell Juriansz stated in their unanimous decision that, "It is inescapable that the trial of this matter was delayed for the better part of two years because of the failings of the key crown witness, Dr. Charles Smith, the pathologist who performed the autopsy on Athena,”

The Court also noted that the couple’s son, Julius, had been seized by the Children’s Aid Society and was not likely to be returned unless they were cleared in Athena’s death. Fearing the same would happen again because of the intolerable delay, Veno decided to have an abortion after accidentally becoming pregnant while awaiting trial.

Superior Court Justice Brian Trafford, the trial judge, had faulted Smith in a decision released on June 23, 2003, for delay in preparation of the post-mortem report, delay in preparing a written supplement to the post-mortem report which significantly delayed completion of the police investigation, and delay in submitting items from Athena’s body to the Centre for Forensic Sciences;

Trafford found the delay by Smith to be "shocking” - “not only in its departure from the standards expected of him and the office of the Chief Coroner of Ontario in the circumstances of the case, but because of his knowledge of the importance of his work to the case.”

Trafford also noted that Smith was a witness “of critical importance to the prosecution.”

The Court of Appeal most recently dealt with Smith on Thursday, May 17, 2007, when, on Louise Reynold's appeal, he rejected the pathologists argument, upheld by two lower courts that he could not be sued because of a doctrine of witness immunity.

The appeal court's decision gave the green light to Reynolds and others who efforts to launch negligence law suits against Smith had been tied up for years while the issue of common law immunity was percolating slowly through the courts.

Justices Stephen Borins, James MacPherson and Russell Juriansz, ruled in their unanimous decision allowing people like Reynolds to recoup their legal costs part-way through "protracted litigation" is important because it improves access to justice.

"Ms. Reyolds has struggled for five years to win the right to proceed to trial. Dr. Smith has vigorously opposed her right to trial at every step of the way," the court said. "She was forced to come to this court simply to have her right to trial confirmed."

Looking ahead, there are signs that the Ontario Court of Appeal could be dealing with cases involving Dr. Smith for years to come.

Next on the horizon is the appeal of her conviction of infanticide launched by Sherry Sherritt.

Sherritt pleaded guilty to infanticide in the 1996 death of her 4-month old son Joshua, after Smith concluded there were signs consistent with homicide on Joshua's body such as a skull fracture and neck hemorrhages.

A second autopsy conducted in 2006 after Joshua's body was exhumed found no evidence of homicide.

The independent experts asked by Ontario Chief Coroner Barry McLellan to examine the case - along with 44 other suspicious death cases in which Smith had been involved -took issue with Smith's opinion.

Sherritt had served eight months of her one year sentence and went through the horror of having another son, now twelve, taken away from her when she was charged.

Over the past two decades other appeals involving Dr. Charles Smith have been brought to the Ontario Court of Appeal by both accused people and prosecutors.

This posting will be regularly updated as information on them is obtained."

Harold Levy...hlevy15@gmail.com;

STEPHEN BORINS PASSES AWAY; GREAT JUDGE; AUTHOR OF DISSENTING OPINION EXPOSING FORENSIC ERRORS IN NOTORIOUS MULLINS-JOHNSON MISCARRIAGE OF JUSTICE;

"AS AN APPELLATE JUDGE, JUDGE BORINS WAS NOT ONE TO JUMP ON BOARD A MAJORITY DECISION IF HE HARBOURED MISGIVINGS. PERHAPS THE BEST EXAMPLES OF THIS TENDENCY WERE HIS DISSENTING REASONS IN A CASE THAT WAS DESTINED TO EXPLODE INTO ONE OF THE COUNTRY'S MOST NOTORIOUS WRONGFUL CONVICTIONS;" - R. V. WILLIAM MULLINS-JOHNSON.

JUSTICE REPORTER STEVE BORINS: THE GLOBE AND MAIL;

Steve Borins is one of my heroes (as well as a friend): a consummate trial and appeal court judge with a brilliant mind and the ability to tackle the toughest issues;

As Justice Reporter Kirk Makin points out in today's Globe and Mail, Steve, or should I say Justice Stephen Borins of the Ontario Court of Appeal, was the author of the dissenting opinion in the William Mullins-Johnson case.

This dissent pointed the way to William Mullins-Johnson's exoneration for the first-degree murder of his 4-year-old niece Valin Johnson after spending more than twelve years behind bars;

When the forensic evidence from the autopsy was finally located on top of Dr. Charles Smith's desk in his office at the Hospital for Sick Children in Toronto after a lengthy search we ultimately learned that Valin had not been murdered at all - but had died a natural death;

Globe and Mail Justice Reporter Kirk Makin's story ran in today's paper under the heading: "Ontario judge loses fight to cancer."

"One of Ontario's longest-serving and most respected judges, Mr. Justice Stephen Borins of the Ontario Court of Appeal, died Saturday after a battle with leukemia," the story begins;

"Appointed to Ontario's County Court bench in 1975, Judge Borins' legal acumen was so highly regarded that in 1997, he was elevated to the province's top court," it continues;

""He knew the law inside out and backwards," said Patrick LeSage, former chief judge of the Superior Court of Ontario.

"I saw him as a very bright, knowledgeable, careful, thorough, caring person. There is no one I know who has written more significant judgments in the full breadth of the law than Steve Borins."

Frank Addario, president of the Criminal Lawyers' Association, said Judge Borins "was principled and intellectually curious. He had an inspiring willingness to stand up for the underdog. I felt he was a courageous judge."

As an appellate judge, Judge Borins was not one to jump on board a majority decision if he harboured misgivings. Perhaps the best examples of this tendency were his dissenting reasons in a case that was destined to explode into one of the country's most notorious wrongful convictions - R. v. William Mullins-Johnson.

In late 1996, the Court of Appeal dismissed Mr. Mullins-Johnson's appeal of his first-degree murder conviction in the killing of his four-year-old niece. Judge Borins alone ruled that Mr. Mullins-Johnson ought to be granted a new trial.

Eleven years later, as doubts swirled around the quality of pathology evidence given by Dr. Charles Smith, Mr. Mullins-Johnson was granted bail. Mr. Mullins-Johnson was fully exonerated last year.

Born in Toronto, on Oct. 3, 1934, Judge Borins graduated from the University of Toronto law school."

Harold Levy...hlevy15@gmail.com;

UP-DATED COMMENTS ON CBC DOCUMENTARY "A DEATH IN THE FAMILY; INCLUDING A LETTER FROM WILLIAM MULLINS-JOHNSON;

"THANK YOU TO THE FIFTHE ESTATE AND THE CURRENT FOR THE TREMENDOUS TREMENDOUS JOB THEY DID ON BOTH DOCS...

MY FAMILIY IS HEALING, ONE DAY AT A TIME....PLEASE DON'T FORGET THE OTHERS THAT HAVE LOST IN THIS....JEAN AND JOHN, VALIN'S SIBLINGS....FOR SO LONG JEAN WAS CONDITIONED TO BELIEVE THIS AND NOW...WELL...CHAOS FOR HER AGAIN AND JOHN....

ALSO OUR OTHER BROTHER'S LESLIE AND DARRELL...LESLIE IS THE OLDEST AND DARRELL THE YOUGEST....THEY TOO WERE MISLED BY THE "PROFESSIONALS" OF THAT TIME. THEY ARE PART OF THIS FAMILY TOO AND WERE AFFECTED AS MUCH AS ANYONE....THINGS ARE LOKING UP THOUGH...DURING CHRISTMAS OF 08 WE SPENT CHRISTMAS WITH MA (MOM)...THIS WAS THE FIRST CHRISTMAS IN OVER 25 YEARS WE SPENT ALL TOGETHER....IT IS NOW 09 AND JUST BEING HOME IS MAKING THE STRUGGLE THAT I FACE NOW WORTH WHILE;"

WILLIAM MULLINS-JOHNSON | | POSTED JANUARY 11, 2009 12:09 AM;

MESSAGE TO THE CBC FROM WILLIAM MULLINS-JOHNSON FOLLOWING BROADCAST OF "A DEATH ON THE FAMILY."

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A previous post contained some of the comments initially received by the CBC following broadcast of this fine television documentary; The CBC has received numerous more comments since then; Here are some of them:

COMMENTS
The Mullins-Johnson story raises so many questions:
How can the tunnel vision of a man like Dr. Rasaiah, who, for reasons of his own, thinks the worst, ever lead to a story that feeds on itself? This is not an isolated incident. Remember the Truscott story?
How and where were Dr. Rasaiah and the now infamous Dr. Smith trained? Do they need to go back to school? How responsible are those who hired them?
What is being done about the terrible judgements they made? What about the myth of "experts" over people with common sense in courts?
What help has been or can be given the victim and his family? Can one ever recover from a prison sentence of the worst kind?
Could the fact this family was aboriginal have accounted for justice having gone so terribly wrong? One only needs to look at the cases of Leonard Peltier and John Graham to know justice can very easily go very wrong for aboriginals. Even today I would wager from what I have seen that looking a bit Indian is never a great advantage in a court room in Canada.
Congratulations to Gillian Findlay and Fifth Estate researchers for a thought provoking - albeit shattering - piece of journalism.

J. A. Wade | | Posted January 13, 2009 12:38 AM


It's terrible that this program did all it could to try to take away all the credibilty of Dr. Rasaiah instead of showing both sides of the story. If you read Dr. Rasaiah's documents and letters that are found at the end of page 3 of the timeline (which for SOME reason seemed to be overlooked on the program), he shows how he supports his finding. His letters also show how "the expert" Dr. Knight (who by the way made his findings by pictures only) contradicts himself many times in his findings and his own past research and texts. How come none of this was brought up in the program?
Dr. Rasaiah did everything right, and did things the way he should have. He is an expert pathologist, and well respected in the medical community across Canada and the U.S. During the investigation he sought the advice of other experts such as abuse experts, ect...
To me, that is someone doing everything in his ability and using all available resources to get the proper result.
People should examine all the documents themselves instead of just watching a TV program intended to pull at people's heart. Dr. Rasaiah provided the facts that he found, and let the police and justice system take it from there, which is all you can ask of a man.
The best statement made in the whole TV program was when Gillian Findlay ambushed him at the hospital, and Dr. Rasaiah asked her "Who's looking out for little Valin?" Ms. Findlay had no answer to that, because she obviously didn't care about that side of the story!
Please people, read Dr. Rasaiah's letters, and form your own opinion rather than listening to a TV program!

Tim | | Posted January 12, 2009 09:35 PM


Like most of the other commenters, I was also deeply moved by this piece and can only wonder how many others are suffering a similar fate - locked up for crimes they did not commit. It also makes one wonder how he/she would react in a smilar situation - having a family member accused, and then convicted, of a crime against another family member. How can you take sides in that case? So awful.

My heart goes out to Bill and all involved in this tragedy. But I especially hope that Valin's sister, Jean, is or does participate in some sort of therapy to help her to accept the fact that her uncle is innocent and she certainly should not want him dead. This sentiment just seemed so illogical to me - yes, it is understandable that one would feel pain and trepidation in restoring this relationship, but to be unable to comprehend that the system failed and Bill did nothing wrong and to still wish him harm is just unbelievable.

s | Ottawa | Posted January 12, 2009 06:41 PM


I was very impressed on how the program was put together and also the photos , but one thing there is also 2 other people in the family that also suffered through this too, was not impressed with the niece's comment it sounds like that she does not understand how the system can fail and just convict someone for a crime that never happen, hopefully if she watch this program she will come to terms that her once a favorite uncle she will let him back into her life. Also i am very impressed that bill is going on with life i know that it is hard but he and his family are coping with this. There should be justice for the people who put an inocent man behind bars for 12yrs for a crime he never committed.I pray that the family can ALL find it in their hearts to put all the bad memories behind them. Remember - He Did Nothing Wrong! The system FAILED.It makes us wonder can we ever trust the SYSTEM ever.

Anonymous | ontario | Posted January 12, 2009 07:54 AM


I have always been aware of this story. And as i randomly flipped through the channels im glad i came across the fifth estate. Of course i cried, and all i want to do is give Bill a big hug. Family is so important and this case of wrongful conviction tore the family apart and cut an Innocent 22 year old's life short. And i feel for the whole family because i dont know what i would do without mine.
CBC, fifth estate. thank you for your programming and putting this very important story, that all Canadians should watch/hear, on air.

Hillary | Ontario | Posted January 12, 2009 12:13 AM


I enjoyed very much your program and, basically, if you change the names, the story of William Mullins Johnson is very similar to that of Michel Bérubé for whom I have fighting for more than 2 years now and who is still in prison for a crime he did not commit.

Michel Gauthier

Michel Gauthier | QC | Posted January 11, 2009 04:45 PM


your from my rez and l couldnt help crying seein it l dont know how u deal with ur family turning ur back on you and how u deal with it now my heart goes out to you l truly hope u and pauly can find each back together how it use to be ur bro been mess up since it happend l dont know how u deal with it after and now my wishes goes out to you and pauly plz keep ur head up and tell ur bro the same

lynn hodgson | | Posted January 11, 2009 02:46 AM


Thank you to the fifthe estate and the current for the tremendous tremendous job they did on both docs...

My familiy is healing, one day at a time....please don't forget the others that have lost in this....Jean and John, valin's siblings....for so long jean was conditioned to believe this and now...well...chaos for her again and john....

Also our other brother's Leslie and Darrell...Leslie is the oldest and Darrrell the yougest....they too were misled by the "professionals" of that time. they are part of this family too and were affected as much as anyone....Things are loking up though...During Christmas of 08 we spent Christmas with Ma (mom)...this was the first Christmas in over 25 years we spent all together....It is now 09 and just being home is making the struggle that i face now worth while


william mullins-johnson | | Posted January 11, 2009 12:09 AM



I heard the uncle say that the little girl went to bed early WITH A FEVER after falling asleep on the couch about 7:30 pm.

She was found dead in the morning with a purple face and covered with bruises inside and out.

A classic story which could also be case of a fatal meningococcal septicemia with the commonly associated widespread purpura [overwhelming infection and bruising due to multiple leaking blood vessels damaged by the bacteria and its toxins].

A baby from an aboriginal family in my practice died like this years ago in less than 8 or 10 hours inspite of all the best care of multiple specialists.....

Both heart breaking deaths for all left behind......

anonymous family physician | Ontario | Posted January 9, 2009 10:49 PM


For many years I have been involved in providing restorative practice process for families and persons who either as victims or offenders have experienced painful and destructive behaviours. The events of 'Death in the Family' cry out for a professionally guided circle to support and encourage all those involved to seek a healing resolution to their sitution.
Some effort should be made to address those to whom the Pathologist, Dr. Rasaiah, is responsible for his credentials to practice, in order that he might be invited to gain some insight into the closed nature of his attitude. He does not seem to be able to learn from his mistakes.
Thanks to those who produced a most worthwhile program.

Ron | Ontario | Posted January 9, 2009 07:41 PM


How many more innocents are in jail at this very moment and how many lawyers, police, pathologists and others know it?
Thanks for the story and for the reminder that not all the creeps are in jail.

John Willette | Ontario | Posted January 9, 2009 02:59 PM


what an incredible story of courage, by Bill and his family, this was a very emotional story that leaves you thinking can there ever be peace for this man and his family........hoping them all the best

alan greco | | Posted January 9, 2009 10:47 AM


I'm glad to know the brother Paul has finally come to believe Bill didn't commit any crime against his family, the scene at the grave site was so sad it brought me to tears.

As was the case with Guy Paul Morin, David Milgard and Steven Truscott, I hope Bill and his family are, at the very least financially compensated in an effort to assist in Bill's transition and the families healing.

Obviously, this will not bring the child back and may she rest in peace, unfortunately as a result of the blatant incompetence on so many levels, those involved need to be held accountable.

I pray that in time this family can come together and heal.
Thank you "The Fifth Estate" for bringing this event to light. Painful to watch but so very necessary.

Sincerely,

Patricia

Patricia Lauretti | | Posted January 9, 2009 09:04 AM


The Fifth Estate's documentary of " A Death in the Family " - A Tribute to a Fallen Angel - Valin Lynn Johnson - was deeply moving. What words, cases of miscarriages, or thoughts could one use to adequately articulate the devastation that this family has had to endure, and, yet, continues to have to deal with the most precious of losses - a child, a daughter, a sister, a niece, a granddaughter. I can only hope that the Creator will guide your family[s] and walk with you during your healing journeys!
My deepest condolences to Kim, Paulie, John Jr., and, mostly, to Jean. Billy, I wish you well and I hope that you can now resume your life with renewed hope & serenity. A sincerely hope that Leslie, Darryl and my hero, Laureena - MOM -, can rebuild their lives and their relationships! Lastly, to the extended family, I hope that you too can now begin your healing processes and move, positively, forward with your lives!

BAAMAAPII

Edward Agawa | | Posted January 9, 2009 01:12 AM


What an incredible miscarriage of the Justice System. The pain, humiliation and shock that this man had to endure is beyond imagination. I cried several times throughout this program in disbelief that anyone would have to suffer as much as Mr. Johnson did. I will light a candle tonight and say a prayer for Bill, Valin and this entire family for all the unnecessary pain they had to endure at the hands of the Justice System.

Brenda Wardell | | Posted January 8, 2009 10:48 PM


I agree that the system probably failed but we must all be very careful not to be led by emotion. There is no doubt that this is a very emotionally charged story; the loss of a child was just the beginning of the heartache this family faces. There is one thing that strikes me everytime I hear of a wrongful conviction and that is that the truth will now, never be known. That little girl's body carried evidence of the manner of her death & that evidence is now gone. If there had been more care, less ego, more accountability, there would not now be the doubt that plagues a family, a community & a nation. My heart aches for these people,but my primary emotion is anger. I am angry that Valin's death was used by certain people to further their own agenda. If her uncle was guilty or if he was not; if this was murder or if it was mishap, we will never now know with any certainy. The mishandling of the case by those who are in a false position of power, is criminal. There need to be checks, balances. Please, don't let this be in vain.

M. Davidson | | Posted January 8, 2009 10:35 PM


Thank you for broadcasting this story in such an open interesting way. I am glad that all sides of the family were allowed to share their feelings. What a tragedy. A beautiful family picking up the pieces of their lives that were so cruelly shattered wrongly. It is difficult to trust the system when something like this happens. Lorena my heart is with you and Bill you deserve peace now in your life. Paul peace will come to you and you have a lovely place to talk to Valin whenever you need to.. Kim my utmost respect for holding your family together in the roughest of times. Jean, Protect young Valin and take care of you beautiful babies knowing your sister is looking down and smiling at all that you have become in your life. You are an awesome mom. My condolences on the loss of your Valin. May her soul rest in peace until the rest of your family is reunited with her. She will be guiding you throughout your lives and looking down and loving all of you. Maybe her love for all of you will help with your healing journey. Stand tall we love you.

Marian | | Posted January 8, 2009 09:44 PM


I know we have a shortage of staff in our local hospital, and as well it is hard to retain doctors of all types here in the Sault, but we cannot afford to have such irresponsible people working in our hospitals. Why does Dr. Bhubendra Rasaiah still have a job at the hospital is what I would like to know. My best to Bill and the family for being so strong along this journey. I will pray for the healing of the entire family!!

Lisa | | Posted January 8, 2009 07:43 PM


I feel sorry for Mr Mullins-Johnson, for the long road he has travelled and which he will continue to travel as he struggles to recover from his wrongful conviction. I was especially moved when he admitted his drug abuse problem and his difficulty in facing the role of "wrongfully convicted poster boy". Know this Bill, we admire you for surviving the journey and always sticking to the truth that you did not kill your niece. Nothing more and nothing less.
As for his surviving niece, I hope she never finds herself in the wrong place at the wrong time as her uncle did, or she may finally come to realize that not all people who go to jail do so because they did something wrong.

R Dale | Ottawa | Posted January 8, 2009 02:11 PM


I cried too.
I sure admire Bill's strength in such incredibly bad circumstances, especially his resolve not to accept a bogus plea for a crime he did not commit. 12 years must seem like a lifetime.
I completely understand his comments at the end when he says the pressure to be a poster boy for the wrongly convicted is too much.
Give this man and his family any support they need, but otherwise, leave them in peace.
Peace to you and your whole family, Bill. Take care.

Rob | | Posted January 8, 2009 12:38 PM


How this family has suffered needlessly because of what I would term incompetent medical professionals.
I would like to see a full investigation into the doctor who is still practicing at the Sault St. Marie
hospital who performed the autopsy on the little girl Valin. Who knows how many other deaths have been wrongly
reported by him? Someone should be held accountable for the actions of this doctor.

Roberta Dalman | Winnipeg | Posted January 8, 2009 10:14 AM


This was a riveting documentary that brought me to tears and broke my heart. I'm not the praying type, but tonight I said a prayer for Bill. I hope that every pathologist, prosecutor and judge watches this piece to remind themselves that the work they do comes with awesome responsibility. Alas, the justice system is a human system, and it is bound to fail again; indeed, there are certainly many more like Bill in Canadian prisons at this very moment.

Anonymous | | Posted January 8, 2009 01:50 AM


It is truly heart breaking to see this kind of miscarriage of justice in our times. It hearkens back the lynch mobs in the south when a finger was pointed at a local black man for whatever crime might have been done by whom ever. It was wrong then and still is so difficult to comprehend. I would like to think it was a lack of skill on behalf of the expert witnesses but clearly it is just the opposite. Dr Smith was a man in love with the fame and the bright lights of the media attention he received for his testimonies. In all the aspects of this case it is the ego of many of the individuals that caused so much doubt to be put in the hearts and minds of so many. Why can't more be done for this family to help them find the healing and the quality of life the need and deserve. Forget financial compensation we have seen what that's does, let the payout be in helping these people find their way back of life. Therapists, educators, clergy whatever is needed to heal and help them find a new path NEEDS to be for Bill, Paul and the rest of those involved or truly the injustice will only continue for all.

Michael J Sturm | | Posted January 8, 2009 12:37 AM


What an incredibly moving and emotional story. All we can do is hope for the best of the family and everyone involved now and in the future. Good for the CBC and Fifth Estate to bring to light this and many other stories that deserve public attention.

PS - AG you make us all proud!

Stephanie | Alberta | Posted January 8, 2009 12:14 AM


Bill must possess exceptional inner strength to have been able to live through this nightmare and yet still act as honourably as he has.

The scene with Bill and Paul at Valin's gravesite was particularly touching, and provides some hope that these two brothers can recapture the special bond that they shared for so many years.

It was disappointing to view pathologist Dr. Bhubendra Rasaiah's attitude near the end of the program: not even the slightest hint of remorse for his role with the initial investigation.

Finally, that it took Dr. Charles Smith 2 full years to locate the tissue samples to allow for a re-examination of the findings is inexcusable. Fortunately those directing the appeal remained steadfast.

May the benefit of time allow the entire family to gain some measure of peace.

David Brethauer | Toronto | Posted January 7, 2009 11:56 PM


I cried along with probably everyone who watched "a death in the family". It was very hard to imagine what went wrong in the court system. I don't know if compensation would help this family but if i were the government i would compensate this family for the losses they incurred especially the uncle who was wrongly convicted. Can the medical practitioners be held liable for allowing all the mistakes? My heart goes out to the uncle and his family and little Valin.
sincerely;
susan

susan pryde | | Posted January 7, 2009 11:11 PM


The fifth estate did an excellent job of bringing to light how it's not just the convicted person who is affected by the court's decision. In this case an innocent man was convicted of a crime he did not commit and it tore a family apart.
While there are lots of good people in our criminal justice system I feel that they are often powerless as it seems our system is process driven as opposed to being driven by the pursuit of the truth.
I suppose our justice system shall always suffer from the frailties of being administered by humans who are often subjected to the emotionality of a tragic situation. But that's no reason not to work to bring about better methods to detect and resolve wrongful convictions. At present, if a person maintains their innocence against a conviction, there is very little help and those who do help are often inundated with requests for help.
Thank you, it's only through your efforts that society can see just how easy justice can be defeated and how such travesties can bring immense burden to innocent people.

James Balkwill | | Posted January 7, 2009 11:03 PM


I am so sorry for the losses of the Johnson family. Dr. Rasaiah will need his malpractice insurance and a forgiving god.

Bev Stevenson | Alberta | Posted January 7, 2009 10:29 PM


A death in the family was very well portrayed story. It was very compelling. The one item that should have been left out is the comment by the niece of this gentlemen.
She obviously has no respect for anyone but herself and doesn't deserve the two minutes of fame (or shame) she had. It must be a very upsetting thing to have happen in your life but he was exonerated and I can't understand why she can't see that.

ryan leppard | london | Posted January 7, 2009 10:05 PM

My heart is broken for this family and this gentleman who was soooooooooo easily put behind bars with "made up" evidence. How does something like this ever happen. Not only did they take away the life of a man, but the family will now never know how Valin really died.
I pray that the family can ALL find it in their hearts to put all the bad memories behind them. Remember - He Did Nothing Wrong! The system failed.

Wanda Coxon | Ontario | Posted January 7, 2009 09:59 PM;

Harold Levy...hlevy15@gmail.com;

"CHARLES SMITH'S LEGACY": POWERFUL NATIONAL POST EDITORIAL IN TODAY'S PAPER;

"THERE IS NO WAY TO COMPENSATE SMITH'S LEGAL VICTIMS IN ANY ADEQUATE FASHION. THEIR LIVES HAVE BEEN RUINED BY HIS INCOMPETENT QUACKERY."

NATIONAL POST; JANUARY 12, 2009;

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"Richard Brant may be no angel, but that is no reason he should continue to be known as a baby-killer. Brant, who is currently serving out the end of a robbery conviction at a halfway house in New Brunswick, was granted an extraordinary appeal on Tuesday of his 1995 conviction for killing his two-month-old son Dustin in 1992," the powerful National Post editorial begins;

"His is yet another case of a life ruined by the fraudulent testimony of disgraced Ontario pathologist Charles Smith," the editorial continues;

When Dustin died, the neuropathologist who first examined him ruled his death was natural, the result of a respiratory blockage caused by pneumonia.

But Smith, considered at the time "the king" of child death investigators in North America, insisted the attending doctor had erred and concluded Dustin's death was due to shaken baby syndrome.

Brant now insists he took the Crown's plea offer of six months for aggravated assault because of Smith's reputation.

But now that Smith -- who was the subject of a public inquiry last year and a review by an international panel of pathologists

A review commission would help win justice for the wrongfully convicted -- has been discredited, Brant, rightly, wants his 14-year-old conviction overturned.

He deserves at least that.

There is no way to compensate Smith's legal victims in any adequate fashion.

Their lives have been ruined by his incompetent quackery.

Consider, for instance, the case of William Mullins-Johnson of Sault Ste. Marie, who spent 12 years in prison for the sexual assault and first-degree murder of his four-year-old niece Valin in 1994 -- a crime he did not commit.

Smith insisted there were signs of strangulation on Valin's body and that Mr. Mullins-Johnson was the most likely culprit.

Yet after the pathology experts had reviewed his case, Mr. Mullins-Johnson was acquitted of both charges in 2007.

At last year's inquiry into Smith's misconduct, Mr. Mullins-Johnson stated that the pathologist's actions "destroyed my family, my brother's relationship with me and my niece that's still left and my nephew that's still living."

These relationships can never be put back the way they were before Smith wrongfully and negligently concluded a trusted uncle had assaulted and murdered his tiny niece.

Nor can the hellish years Mr. Mullins-Johnson spent in prison ever be returned to him. (An investigation by John Chipman of CBC Radio's The Current, aired this week, shows that the man's life is still a mess: He has fallen in with drugs, and is having difficulty with personal relationships.)

Nor are Smith's victims the only Canadians to spend long terms in prisons for crimes they did not commit.

There are, of course, famous cases such as that of David Milgaard, who spent 23 years in prison for a rape and murder he did not commit, and Donald Marshall, who was imprisoned for life for murdering Sandy Seale in 1971, a crime he always insisted he was innocent of, and for which he was acquitted in 1983.

Thomas Sophonow, Guy Paul Morin, Steven Truscott, James Driskell and others have all spent years behind bars or living with the stigma of crimes they did not commit because there is no effective method within our system to deal with wrongful convictions.

We are not implying that our court system generates miscarriages of justice as a matter of routine, nor that police officers, pathologists or Crown prosecutors set out to convict innocent people.

But even scattered instances of wrongful conviction are grounds for societal soul-searching: It is an unconscionable abuse of a citizen's right to freedom to send him to jail when he is innocent of wrongdoing.

The infringement is especially egregious because it cannot be remedied: There is no way to give someone time back that has been taken from him.

Ottawa and the provinces should consider an independent public body that can review complaints of wrongful conviction and recommend meritorious cases to provincial appeal courts.

The U. K. has such a body, the Criminal Cases Review Commission, which in its 14-year history has received more than 11,000 applications for review and referred just 395--fewer than 4% -- to an appellant court.

These numbers show that a panel could be structured in such a way that the truly guilty are not permitted to clog up the court system.

The advantage of such a review commission is that is takes the task of deciding who may have a legitimate grievance away from busy Cabinet ministers in charge of the justice system, and delivers it to experts with the time and resources to review them thoroughly.

Several royal commissions and inquiries in Canada have recommended such a body be formed. The case of Dr. Charles Smith serves to reinforce why one is essential.

Harold Levy...hlevy15@gmail.com;

DR. BHUBENDRA RASAIAH IS NAMED IN MULLINS-JOHNSON LAWSUIT; CANADIAN PRESS STORY;

Dr. Bhubendra Rasaiah, who is seen denying any personal responsibility for the wrongful conviction of William Mullins-Johnson in a recent CBC Fifth Estate documentary called, "A death in the family", is named in a $13M lawsuit.

Canadian Press reporter Colin Perkel reported the lawsuit on October 02, 2008.

(The statement of claim contains allegations against Dr. Bhubendra and other individuals which have not been proven in court;)

"An Ontario man who spent 12 years in jail after being wrongly convicted for the rape and murder of his four-year-old niece launched a lawsuit against six doctors Thursday, including a forensic pathologist excoriated this week by a judicial inquiry," the story began.

"In his statement of claim filed in Ontario Superior Court, William Mullins-Johnson seeks $13 million in general and punitive damages from Dr. Charles Smith, former chief coroner James Young and his deputy Jim Cairns," the story continued;

"The claim argues the defendants were negligent and reckless in their conduct.

"William has suffered loss of liberty, humiliation and disgrace," the statement of claim asserts.

"He is entitled to substantial damages."

None of the claims has yet been proven in any court.

Mullins-Johnson, 38, was arrested and charged within about 12 hours of the discovery of the body of his niece Valin in her bed in Sault Ste Marie, Ont., on the morning of June 27, 1993.

He was convicted of first-degree murder and spent a dozen years in prison before new evidence emerged to reveal that a crime had never occurred and Valin had died of natural causes.

At least two other lawsuits have already been launched by people who were wrongfully accused of crimes stemming from the forensic pathology scandal.

In quashing Mullins-Johnson's conviction in October 2007, the Ontario Court of Appeal concluded a "terrible miscarriage of justice" based on "flawed pathology evidence" had occurred.

On Wednesday, Justice Stephen Goudge cited the case in his scathing indictment of Smith - once considered the country's foremost child forensic pathologist - and his overseers, Young and Cairns.

Smith's dogmatic arrogance in giving poorly informed but life-altering medical opinions and the unwillingness of his supervisors to call him to account were at the heart of several wrongful accusations of baby and child killings in Ontario, Goudge concluded.

Despite those findings, Mullins-Johnson said he still wants those responsible for his wrongful prosecution to be held to further account.

His lawyer David Robins said Goudge's report will help prove the claim.

"Some of the evidence that was used at the inquiry will go a long way to assist in establishing liability for Mr. Mullins-Johnson," Robins said in an interview from Windsor, Ont.

The suit also names two doctors from Sault Ste. Marie, Bhubendra Rasaiah and Patricia Zehr, along with Smith's colleague at Toronto's Hospital for Sick Children, Dr. Marcellina Mian.

"They opined that Valin had been sexually assaulted throughout her lifetime, sodomized shortly before her death, and was murdered," the suit alleges.

"To avoid professional embarrassment, for the next 15 years, they did not revise or qualify their initial opinions even though they knew or ought to have known that their opinions were scientifically flawed."

The claim alleges that Rasaiah, a pathologist, and Zehr, a gynecologist, concluded they were dealing with a horrible case of child sexual abuse based on a superficial examination of the body.

After Zehr phoned for advice, Mian also decided Valin was a victim of chronic abuse, the suit alleges.

Smith would later decide Valin had been sodomized and suffocated.

The suit accuses Young and Cairns of serious misconduct that contributed to Mullins-Johnson's ordeal.

The men "intentionally and maliciously" directed pathologists to "think dirty" - to assume abuse had occurred in cases of suspicious child deaths, the suit claims.

They also "actively protected" Smith despite repeated complaints to avoid their own professional embarrassment.

The government declined to comment because the matter is before the courts."

Harold Levy...hlevy15@gmail.com;

DR. BHUBENDRA RASAIAH AND THE ONTARIO COURT OF APPEAL;

ONTARIO'S HIGHEST COURT DID, HOWEVER, USE STRONG LANGUAGE TO DRIVE HOME THE POINT THAT THERE IS NO EVIDENCE VALIN'S 1993 DEATH WAS A CRIME, SAYING THE ARREST WAS THE RESULT OF AN "INEXORABLE RUSH TO JUDGMENT" TRIGGERED BY SAULT STE. MARIE DOCTORS BHUBENDRA RASAIAH AND PATRICIA ZEHR – BOTH INVOLVED IN THE AUTOPSY ON VALIN'S BODY – AND TORONTO PEDIATRIC PATHOLOGIST DR. CHARLES SMITH.

"IT IS NOW CLEAR THAT THERE IS NOT AND NEVER WAS ANY RELIABLE PATHOLOGICAL EVIDENCE THAT VALIN WAS SEXUALLY ASSAULTED OR OTHERWISE ABUSED DURING HER SHORT LIFE AND CERTAINLY NOT ON THE EVENING OF HER DEATH," THE COURT SAID. "WHILE THE CAUSE OF VALIN JOHNSON'S DEATH REMAINS UNDETERMINED, THERE IS NOW NO EVIDENCE TO SUGGEST IT WAS THE RESULT OF ANY CRIME."

Reporter Tracey Tyler; Toronto Star;

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Sault Ste. Marie pathologist Dr. Bhubendra Rasaiah's refusal to take any personal responsibility for his role in the William Mullins-Johnson travesty must be considered in light of the Ontario Court of Appeal decision acquitting Mullins-Johnson after he had spent more that twelve years behind bars;

Toronto Star reporter Tracey Tyler's story on the exraordinary appeal court decision ran on October 20, 2007 under the heading "Court rejects 2 shades of innocence."

"The Ontario Court of Appeal appears to have closed the door on the concept of a third verdict in criminal trials to allow wrongly convicted persons to be declared "factually innocent," saying the move could degrade the meaning of the words "not guilty," Tyler wrote;

""There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent," said Associate Chief Justice Dennis O'Connor and Justices Marc Rosenberg and Robert Sharpe in a written judgment," the story continued;

"The "most compelling" reason, the judges said, is the impact it would have on other people found not guilty by the criminal courts – relegating them to a lesser class of persons who have benefitted from the presumption of innocence and the requirement that the Crown must prove its case beyond a reasonable doubt.

The panel confronted the thorny issue yesterday in the case of William Mullins-Johnson, 37, who spent 12 years in prison after being wrongly convicted of murdering his 4-year-old niece, Valin, on the basis of flawed pathological evidence.

The court acquitted Mullins-Johnson on Monday after an emotional hearing at Osgoode Hall. O'Connor expressed the court's profound regret for the Sault Ste. Marie native's ordeal.

The court went even further in its written reasons yesterday, saying the conviction was "wrong" and twice describing Mullins-Johnson as the victim of "a terrible miscarriage of justice."

James Lockyer, the exonerated man's lawyer, had requested that the court go beyond simply acquitting him.

He asked the panel to express in its written reasons that Mullins-Johnson, who had been accused of strangling and sodomizing his niece, is "actually innocent" and was convicted of a crime that simply did not occur.

Ontario's highest court did, however, use strong language to drive home the point that there is no evidence Valin's 1993 death was a crime, saying the arrest was the result of an "inexorable rush to judgment" triggered by Sault Ste. Marie doctors Bhubendra Rasaiah and Patricia Zehr – both involved in the autopsy on Valin's body – and Toronto pediatric pathologist Dr. Charles Smith.

"It is now clear that there is not and never was any reliable pathological evidence that Valin was sexually assaulted or otherwise abused during her short life and certainly not on the evening of her death," the court said. "While the cause of Valin Johnson's death remains undetermined, there is now no evidence to suggest it was the result of any crime."

"Nothing we have said in these reasons should be taken as somehow qualifying the impact of the fresh evidence," said the panel. "That evidence, together with other evidence, shows beyond question that the appellant's conviction was wrong and that he was the subject of a terrible miscarriage of justice."

For Mullins-Johnson, now a first-year student at the University of Toronto, it was more than enough.

"I'm as happy as can be," he said yesterday. "They came as close as they could, legally speaking, in terms of factual innocence. If you read it, that's actually what they're saying."

Lockyer was also gratified.

"I accept the court's judgment and I accept the decision they've come to," he said. "It doesn't trouble me, because they've made it abundantly clear that Mr. Mullins-Johnson is a victim of a terrible miscarriage of justice and they've said it twice in a short judgment. What more could I ask for?""

EARLIER CHARLES SMITH BLOG POST ON DR. BHUBENDRA RASAIAH WHO DENIED PERSONAL RESPONSIBILITY FOR MULLINS-JOHNSON TRAVESTY TO THE CBC;

The earlier post was published on this Blog on December 6, 2007, under the heading, "Conduct of other experts scrutinized by Mullins-Johnson's lawyers;"

Several experts who participated in the investigation of the death of Valin Johnson have come under scrutiny - along with Dr. Charles Smith - in a brief filed filed in court by lawyers representing William Mullins-Johnson.

One of those experts is Dr. Bhubendra Rasaiah, director of pathology at the General Hospital in Sault Ste. Marie, who performed the autopsy on Valin Johnson and determined a time of death at which only Mullins-Johnson had exclusive access to his niece.

"Dr. Rasaiah presented as an adversarial and defensive witness with outdated ideas of pathology," the brief reads.

"He was not a forensic pathologist although the significance of this was not brought to the jury’s attention. Dr. Rasaiah was often prepared to advocate in his own cause during his testimony:

● He discounted the authority of a textbook in pathology ‘Essentials of Forensic Medicine’ by Poulson, Gee and Knight14 which is viewed by forensic pathologists as one of the leading texts in the field. When questioned about statements in the book, Dr. Rasaiah responded:

A. Your Honour, there are many forensic text books out, but I wouldn’t regard this as being the most authoritative text book. One that I would refer to as a most authoritative text book is the Medicolegal Investigation of Death, which is the 3rd edition, published in 1993 by Spitz and Fisher, and is probably the major text book in the United States, Your Honour.

Mr. O’Hara: Q. Nonetheless, this is a recognized work?

A. Well, I don’t recognize it. Others would, I wouldn’t doubt that.

Q. Do you recognize the names of the authors?

A. Yes, I know they are forensic pathologists.

He later referred to Poulson, Gee and Knight’s book as a “primer”, and denied that it was an authoritative text. The book is decidedly not a ‘primer’.

● He relied on unreliable and outdated methods to fix a time of death with which all the other pathologists who testified disagreed.

● He criticized questions put to him, and addressed these criticisms to the trial judge. Following are two examples:

– when asked about passages from Medicolegal Investigation of Death by Spitz and Fisher, Dr. Rasaiah responded:

Your Honour, I don’t see the purpose of the defence reading something that I know, and something everyone knows.

And I mentioned quite clearly in my initial testimony that there is no accurate precise method of estimating the time of death in the present state of our scientific knowledge. ....So, really, I don’t see the purpose of you reading that text to me.

I thought, Your Honour, the purpose of him reading the text was to mention to me causes of cooling. Perhaps he could read me out the 24 causes of cooling from the text.

– When asked about part of Dr. Ferris’ opinion set out in a letter to counsel, Dr. Rasaiah replied:

A. I’m sorry, Your Honour, I’m afraid the expert contradicts himself in another section of the same letter.

THE COURT: Well, in answer to the question, I think you should answer to the question. If you wish to refer to - -

A. Yes,

THE COURT: ...the report, you can do this.

A. And I disagree with that but I want to show how the expert in fact says the reverse elsewhere in his letter.

THE COURT: Well do it. You are permitted to do that. I want your full answer to every question put to you.

A. Your Honour, I think that since this letter has come to the court, I think there are sections here, I think [Mr. O’Hara’s] selectively taking parts of it, and other areas that [Dr. Ferris] should be here to testify [about] and be cross-examined on it.

The factum also indicates that after Mullins-Johnson's application for ministerial review was presented to former Justice Minister Irwin Cotler in September, 2005: "The Respondent (The Ministry of the Attorney General) received a series of unsolicited opinions from Dr. Rasaiah in response to the ministerial review application.

Dr. Rasaiah considers that “to insist that natural causes should be considered [as a cause of death] is unjustifiable speculation.”

He was highly critical of the reports of Dr. Pollanen and Professor Knight. He did not budge from his previous opinions.

In May, 2007, the Respondent asked Dr. Rasaiah to comment on the more recent reports of Dr. Ferris, (a defence expert) Professor Milroy, Professor Crane and Dr. Butt. (the three independent reviewers);

Dr. Rasiah’s opinions remain unaltered and he urged “re-examination of the physical evidence” including further DNA analysis of vaginal and rectal swabs and other items.

Dr. Rasaiah’s competence has been further called into question as a result of a re-autopsy in a case (James Travette) in which Dr. Rasaiah had failed to observe multiple post-mortem burns on the deceased, including his face, described by Dr. Pollanen at the re-autopsy as “related to the application of the heated end of a cigarette lighter”, and missed two foreign objects, an 8 cm. screw and a piece of wood, found in the deceased’s rectum.

In a letter to the Crown describing the case, Dr. Pollanen wrote:

I am aware that expert opinions are key to both these cases (Mullins-Johnson and Travette), and I personally do not wish to treat Dr. Rasaiah improperly or unfairly.

But, Dr. Rasaiah’s mistakes in the Travette autopsy are factual errors, i.e., missing physical evidence, failing to notice injuries, and misinterpreting histological slides.

In my view, errors of this type challenge Dr. Rasaiah’s forensic capabilities.

Insofar as these issues may be relevant to the autopsy of Valin Johnson, I believe it was necessary for me to communicate them to you directly.

There was a recent e-mail exchange between the Crown and the Chief Coroner:

Dr. McLellan:
I understand that Dr. Rasaiah is no longer on the roster of pathologists used by OCCO. Is this correct and since when? Prior to that occurring (if I am correct) what would be the correct way to characterize his relationship with OCCO? i.e. Contract, on a roster, employed by ... Thank you for your ongoing assistance.. . . . .

[Reply]
Dr. Rasaiah is still conducting coroner’s autopsies at the Sault Area Hospital. Criminally suspicious cases and homicides are no longer autopsied in Sault Ste. Marie.

Dr. Rasaiah conducts these autopsies under Coroner’s warrant on a fee for service basis (as do all other pathologists who conduct coroner’s autopsies at Ontario hospitals).

I hope that this is the information you were looking for...

Harold Levy...hlevy15@gmail.com;

JUSTICE GOUDGE'S FINDINGS: PART NINE; PAOLO'S CASE;

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

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

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

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

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

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Since the Goudge Inquiry did not publish an overview of Paolo's case, here is a Blog I published on Thursday, November 8, 2007, under the heading, "Trotta: Supreme Court Discredits Smith: A Defining Moment";

"The Supreme Court of Canada has recognized the havoc caused by Dr. Charles Smith on Canada's criminal justice system," the post began.

"(The Globe and Mail got it right in an editorial following release of the results of the Chief Coroner's review when it described Dr. Smith as an "earthquake" that struck our justice system over and over again), it continued.

"This was the first time that the Supreme Court has delivered a judgment on a case in which Dr. Smith was the issue.

"Essentially the fresh evidence - mainly the expert opinions of Dr. Michael Pollanen and Dr. Simon Avis - discredits the evidence given at trial by Dr. Charles Smith, an expert called by the Crown," Justice Morris Fish wrote for the unanimous court. "And the evidence of a second Crown witness at trial, Dr. David Chan, has been rendered unreliable as a result..."

(The Supreme Court of Canada's description of the once-renowned Crown expert's evidence as "discredited" is akin to a General's epaulettes being pulled off in disgrace by the Commander-in-chief);

"We think it neither safe nor sound to conclude that the verdicts on any charges would necessarily have been the same but for Dr. Smith's successfully impugned evidence."

(Justice Fish explains that the Court cannot provide any more details than necessary about the fresh evidence because it directed a new trial on all counts);

The Trotta decision falls closely on the heels of the Ontario Court of Appeal decision acquitting William Mullins-Johnson in the first-degree murder of his 4-year-old niece Valin - which we now know to be an alleged crime that never occurred. (See earlier posting: Mullins-Johnson acquittal: Notable quotes);

So now both the Supreme Court of Canada and the Ontario Court of Appeal have closely examined Dr. Smith's work in two cases where he was the central crown witness and found that the Emperor was wearing no clothes.

The toll in the just these two cases:

Mullins-Johnson served more than twelve years of his first-degree sentence before being released from custody pending his application for a ministerial review;

Marco Trotta had served nine years of a life sentence with no chance of parole for fifteen years as his son's killer.

Anisa Trotta had completed serving her five year term for negligent homicide and failure to provide the necessaries of life;

And that's just the cost in terms of years.

All because of the once celebrated Dr. Charles Randal Smith.

Globe and Mail reporter Kirk Makin got it right yesterday in a report published on the Globe's Web-site shortly after the judgment was released:

"Thursday's ruling was a major victory for lawyers James Lockyer and Michael Lomer," wrote Makin.

"They had tried to persuade the court that, by misidentifying or fabricating injuries – and then overstating his evidence at the Trotta trial – Dr. Smith had poisoned the entire proceeding."

"The Supreme Court of Canada has now encapsulated what has become more and more clear in recent years - that Dr. Smith's mistakes have discredited him," Mr. Lomer said in an interview (with Makin).

For Dr. Smith, the light at the end of the tunnel is the train."

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Justice Goudge concludes that Deputy Chief Coroner, Dr. Jim Cairns, defended Dr. Smith's work in Paolo's case by providing an expert pathology opinion (which he did not have the expertise to provide) - in the same manner as Chief Coroner, Dr. James Young, had written a supportive letter (drafted by Smith's lawyers) to the College of Physicians and Surgeons of Ontario which was investigating Smith at the time;

"This time it was in relation to Dr. Smith's pathology opinion in Paolo's case," said Gouge.

"In so doing, Dr. Cairns exceeded his expertise, the effect was to shield Dr. Smith's opinion from further scrutiny."

Justice Goudge also concludes that Dr. Cairns made "three incorrect misrepresentations to Crown Law Officer Lucy Ceccheto about the nature of the 2001 review of Dr. Smith's work and Dr. Smith's status regarding coroner's cases, as follows:

0: that Dr Smith's work in approximately 20 cases had been reviewed, in 18 of those there was no difference of opinion with Dr. Smith, in the other two the difference of opinion was limited to where experts might reasonably agree;

0: that there was no suggestion from these reviews that Dr. Smith was incompetent or negligent in these cases;

0: that following the review, Dr. Smith was returned to the autopsy roster in June, 2001 and that, as far as the Chief Coroner's Office was concerned, Dr. Smith was competent to conduct any autopsy;

"None of Dr. Cairns three statements was correct," write Goudge, adding that Cairns did not take any steps to correct the misunderstandings.

"This failure to act had the effect of misleading Crown and defence counsel about the rigour of the Chief Coroner's Office process and the scope of Dr. Smith's practice after June 2001."

Justice Goudge also faults Cairns for confirming in a letter to Ms. Cecchetto in a letter that he had conducted a, "thorough review" of Dr. Smith's work in Paolo's case, including the autopsy report, photographs, and expert testimony at the trial - and he confirmed that, "he had no concerns regarding the opinion given by Dr. Smith and (saw) no reason what so ever for the Chief Coroner's Office or the Crown to hire another expert."

Once again, in the words of Justice Goudge: "Dr. Cairns was wrong."

"Other experts reviewed the case.

Dr. Smith's opinion was sufficiently discredited by other pathology experts that the Supreme Court of Canada ordered a new trial for Paolo's parents.

As with his affidavit in Nicholas' case, Dr. Smith did not have the expertise to provide this opinion.

A proper review required expertise in forensic pathology.

Moreover, at the time Dr. Cairns provided the unqualified opinion,he was fully apprised of the serious concerns about Dr. Smith's competence, integrity and judgment arising from cases such as Jenna's.

This incident provides yet another example of the importance about experts undertaking and respecting the limits of their expertise.

As he candidly acknowledged at the Inquiry, Dr. Cairns had absolutely no business offering this opinion."

In this Blogster's humble opinion, this incident provides yet another example of the axiom (Levy's law) that without basic honesty and a commitment to communicating the truth to other actors in the criminal justice system on the part of those who run our Coroner's system, you can make all the systemic changes in the world and nothing will ever change.

Harold Levy...hlevy15@gmail.com;

Part Fourteen: Think Dirty; Donna Anthony; The Consequences; Even Her Husband Believed She was Guilty;

"I NEVER CONVICTED DONNA ORIGINALLY. I ONLY THOUGHT THAT SHE HAD KILLED THE CHILDREN BECAUSE SHE WAS PROVEN GUILTY.

DEAN ANTHONY (DONNA ANTHONY'S HUSBAND) IN EXCLUSIVE INTERVIEW WITH THE WESTERN DAILY PRESS)";
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"YOU GET THESE POLICE OFFICERS, THESE DOCTORS SAYING THAT SHE HAD BEEN MOLESTED, SHE HAD BEEN STRANGLED. THEY'RE SUPPOSED TO BE THE PROTECTORS OF SOCIETY AND ALL THIS STUFF. SO, YES, I BELIEVE SHE WAS. BUT I KNEW IT WASN'T ME."

WILLIAM MULLINS-JOHNSON TO THE ONTARIO COURT OF APPEAL;
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I was horrified to read, in this exclusive interview, that Donna Anthony's husband actually believed his wife must be guilty of killing their two sons because the jury had found her guilty. (See previous posts: Think Dirty: Donna Anthony) Parts Thirteen and Fourteen;)

I immediately thought of William Mullins-Johnson's testimony at the Ontario Court of Appeal to the effect that he believed Valin had been molested and then strangled - when we now know, years later - that his niece had died a natural death.

Asked by his lawyer (James Lockyer) if he thought that Valin had been molested and murdered, Mullins-Johnson replied: "You get these police officers, these doctors saying that she had been molested, she had been strangled. They're supposed to be the protectors of society and all this stuff. So, yes, I believe she was. But I knew it wasn't me."



Worse, Mullins Johnson told the Court that the murder charge had disastrous implications within his family - as it turned brother against brother.

"It split my family," he testified. "It had my brother thinking that I had killed his little girl. It had me thinking that my brother had killed his little girl."

As will be seen from the interview, these cases are graphic examples of the hellish implications of "thinking dirty" when investigating the deaths of infants.

"The former husband of convicted child-killer Donna Anthony last night said that the pain of losing his two little angels had never ended," the story began.

"As Anthony, who has always insisted she was innocent, won the right to appeal against her conviction, her former husband spoke exclusively to the Western Daily Press," it continued.

"Last night, Dean Anthony, 36, said his thoughts were always with his "two little angels", daughter Jordan, who died aged 11-and-a-half months, on February 1, 1996, and son Michael, who died aged four-and-a-half months the following March.

Donna Anthony, 31, of Yeovil, Somerset, was jailed for life in 1998 at Bristol Crown Court for murdering Jordan and Michael.

The case against her relied on evidence from the now-discredited paediatrician Professor Sir Roy Meadow.

Anthony always claimed both children were victims of cot death, but her original appeal in June 2000 was dismissed.

However, the Criminal Cases Review Commission (CCRC) yesterday gave her cause for hope.

It said it was sending her case back to the Court of Appeal after considering "new expert medical evidence".

Sir Roy Meadow had argued that one sudden infant death in a family is a tragedy, two are suspicious and three are murder unless proved otherwise.

His theory was that some mothers killed their babies to draw attention to themselves, a condition dubbed Munchausen's Syndrome by Proxy.

But in January last year appeal judges dismissed his evidence in the case of Angela Cannings, from Wiltshire, who was jailed for life in 2002 for murdering her two baby sons.

Mrs Cannings, a shop assistant from Salisbury, saw her conviction quashed and, in the wake of her ruling, 297 other files were reviewed. Anthony's was among those given top priority.

Mr Anthony said: "There's not a moment I don't think about the children. You are always brought up to think your children will bury you. When you lose two, you think 'what's the point of living?'.

I never convicted Donna originally. I only thought that she had killed the children because she was proven guilty.

"Now if it is proven that the evidence that was given is incorrect then she has as much right as Angela Cannings to be released and to start a new life.

"Donna was like any other mum. Admittedly she suffered from the baby blues, but so do countless others.

"As far as I am concerned she took good care of the children, they were never without anything. I was away working a lot and I was not there when it happened.

"We were separated when Michael died, but I was shocked when Donna was arrested.

"At the beginning I would have liked to have asked her why, but all the way through Donna has insisted that she is innocent.

"They are saying now that Michael may have died of a chest infection -which would make one question whether Yeovil Hospital was negligent.

"Jordan was just at the stage of crawling and saying a couple of words when she died. I haven't experienced life with children more than a year old."

Mr Anthony, who is now single, added: "I would like to have more children, but that's in God's hands. It is a question of finding someone that I can tell about this and who will stand by me no matter what happens.

"The anniversary of Jordan's death was just yesterday. You can tell people what you are going through but you can't get comfort from that when you are crying in the night."

He said that if Donna wins the appeal he would only be in contact over family matters. "I was not allowed to contact her and I have no feelings for her," he added.

Anthony's solicitor George Hawks said: "I am very pleased for Donna, although it is only the beginning of the process, not the end.

"I don't expect she will be going overboard - I am sure she will be as relieved as I am, but she will recognise that we still have a major hurdle coming up with the appeal."

Anthony will be eligible to apply for bail, but last night no firm decision had been made on the matter."

Harold Levy...hlevy15@gmail.com;

Mullins-Johnson: Vows To Be A Thorn In The Side Of Justice;

William Mullins-Johnson has displayed his inspiring resilience in an address he recently gave to the Manitoulin-Northshore Victim Crisis Assistance and Referral Service conference.

Mullins-Johnson's address appears in today's Sudbury Star under the heading "Island group hears from MD's victim", as reported by Margo Little;

A Sault Ste. Marie man wrongfully convicted in the death of his four-year-old niece in 1993 pledges to be a thorn in the side of the Canadian justice system.

"William Mullins-Johnson spent more than a decade in prison before being acquitted in 2007," the story begins.

"I did go through 12 years of hell when I was in jail," he told delegates to the Manitoulin-Northshore Victim Crisis Assistance and Referral Service conference Friday. "And in many ways I'm still going through hell," it continues.

"Mullins-Johnson shared his traumatic ordeal with a gathering of community volunteers trained to assist victims of tragic circumstances. The theme of the 9th annual VCARS forum held April 17-18 was "Through the Eyes of a Victim."

His nightmare started on June 27, 1993, when Valin Johnson's lifeless body was found in her bed around 7 a.m. Mullins-Johnson had been staying at his brother Paul's place while attending school and working at an electrical equipment warehouse. By 6:30 p.m., Mullins-Johnson had been arrested and charged with first-degree murder.

The prosecutors relied heavily on expert witness Dr. Charles Smith, then regarded as Ontario's leading expert on child deaths.

Smith had conducted more than 1,000 autopsies at Toronto's Hospital for Sick Children. Eventually, a coroner's review of Smith's work would reveal questionable findings in 20 child autopsies. Thirteen of the 20 resulted in criminal convictions - including the Mullins-Johnson case.

Despite protestations of innocence, Mullins-Johnson was convicted in September 1994 after a two-week trial and sentenced to life imprisonment with no parole for 25 years. If prison authorities expected him to accept his fate, they would be proven wrong.

Since he had been labelled a child sexual offender, his life was in danger every moment. In prison hierarchy, child molesters, or "skinners," are viewed as "scum."

"Just the accusation destroys your life. It literally destroyed me," he said. "I went through an emotional breakdown in prison. I suffered insomnia, my head was churning and I couldn't sleep. I would have strung myself up or slit my wrists if it wasn't for a native elder I met there."

With the help of his spiritual advisor, he was able to shed some weight and set aside the pot and pills he had been taking. Through native sweat-lodge rituals, weight-training and exercise he grew strong enough to educate himself about his case and the inner workings of Canadian prisons.

Recognizing that knowledge is power, he started reading sociology and criminology. By January 2005, the association for the wrongly convicted took an interest in his battle for freedom.

"A major turning point came in February 2005 when the results of a review of the forensic file were released. The report authored by Dr. Michael Pollanen confirmed there was no positive medical evidence that Valin Johnson was murdered.

Also, there was no positive medical evidence that the child was sexually assaulted at any time.

The Pollanen conclusions were backed up by Dr. Bernard Knight of Wales as well. He confirmed there was no evidence of a homicide or of sexual injury."

Harold Levy...hlevy15@gmail.com;

Part Eight: Closing Submissions: Affected Families Group; Default Diagnosis; Assuming Sexual Abuse;

AS DR. MILROY STATED IN HIS EVIDENCE, SOME OF THE PEOPLE WHO DO CLINICAL CHILD PROTECTION WORK “SEE THEMSELVES AS ADVOCATES FOR THE CHILD”.

USING THE TERMINOLOGY OFFERED TO THE INQUIRY BY DR. POLLANEN, THE ADVOCACY ROLE IN THIS CONTEXT APPEARS TO HAVE RESULTED IN A “DEFAULT DIAGNOSIS” OF CHILD ABUSE.

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FROM CLOSING SUBMISSIONS: AFFECTED FAMILIES GROUP;
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This Blog is currently looking at the closing written submissions filed by various parties appearing at the Goudge Inquiry which is expected to report on September 30, 2008.

The current focus is on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;

The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;

Today's focus is on the Group's allegation that Dr. Smith, backed by the Chief Coroner's office, assumed sexual abuse by default in several of the cases being reviewed by the Inquiry;

"Dr. Cairns came to the job of Deputy Chief Coroner in 1991 after presiding over a controversial inquest regarding suspected child abuse," the section begins;

"Addressing this issue became a central feature in his professional work with the Chief Coroner's Office over the next decade," it continues.

"From the perspective of the Chief Coroner's Office, of particular concern to Dr. Cairns were those cases where the Children’s Aid Society had been involved in monitoring families prior to a child’s death:

"…the focus of the joint mortality task force was, what was happening to children when they were being monitored by a Children’s Aid Society. So the focus when we brought all these extra cases was we felt we needed to have a much closer scrutiny of the role that Children’s Aid Societies were playing in deaths of these children. Between 1996 and 1998 we did six systemic inquests all addressing children who had died while they were being supervised by a Children’s Aid Society.

In this work, Dr. Cairns found a ready and willing partner in Dr. Smith, who already worked closely with the SCAN team at the Hospital for Sick Children.

Dr. Cairns became a friend and supporter of Dr. Smith and defended him in the media;

As Dr. Milroy stated in his evidence, some of the people who do clinical child protection work “see themselves as advocates for the child”.

Using the terminology offered to the Inquiry by Dr. Pollanen, the advocacy role in this context appears to have resulted in a “default diagnosis” of child abuse.

Indeed, in the Kassandra case, Dr. Marcella Mian stated to the police that “all she deals with is child abuse, so naturally she would assume abuse.”

The default diagnosis in many of the cases that are before this Inquiry came to be expressed by Dr. Smith in the following terms:

Valin: “in the absence of a reasonable explanation by history, they indicate non-accidental trauma including sexual abuse”

Nicholas: “in the absence of a credible explanation, in my opinion, the post-mortem findings are regarded as resulting from non-accidental injury”

Tiffani: “…of note are the presence of bilateral healing rib fractures which, in the absence of a reasonable explanation, are considered to be non-accidental in nature.”

Amber: “…look for evidence which might prove the babysitter to be innocent”

Dr. Cairns did not appear to understand the dangers of such logic.

His explanation for the opinion in Nicholas was as follows: “Commissioner I think he was making that reasoning in that there was no satisfactory explanation given as to how it may be accidental”.

Yet that form of reasoning has no basis in science.

As Dr. Pollanen explained:

We don’t say ‘in the absence of evidence to the contrary this is cancer.’

What we say is, ‘the findings of the histology are not sufficient to come to a diagnosis; re-biopsy."

Do more investigations to find out."

Harold Levy...hlevy15@gmail.com;

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

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

CASSANDRA JARDINE: TELEGRAPH;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harold Levy...hlevy15@gmail.com