Expert Witnesses; Part Four: "Noble Cause Corruption" And Dr. Charles Smith;

THE 'CHALLENGE' FOR DR. SMITH, HOWEVER, AT LEAST IN SOME OF HIS CASES, WAS TO 'PROVE' SHAKEN BABY SYNDROME EVEN WHEN IT DIDN'T EXIST.

THE BRITISH CALL THIS "NOBLE CAUSE CORRUPTION."

AND HE WAS OBVIOUSLY SUCCESSFUL IN HIS EMBRACE OF THE "NOBLE CAUSE" - SO MUCH SO THAT IT CAUSED THE CATALOGUED AND COURT-DOCUMENTED RUINATION OF MORE THAN JUST A FEW INNOCENT LIVES.

MARK BONOKOSKI; SUN MEDIA;

Journalist Mark Bonokoski introduced three powerful words in the search for an explanation of Dr. Charles Smiths' motivation, in his Sun Media column discussed in a recent posting. (Expert Witnesses; Part Three; The Quest For Impartiality);

"Noble cause corruption."

These three words join other powerful descriptors that have entered the Charles Smith lexicon during the couse of the Goudge Inquiry, such as "thinking dirty" and "tunnel vision";

Alhough I was initially skeptical that "noble cause corruption" could explain Dr. Smith's self-admitted biased testimony for the prosecution, a research paper commissioned by the Inquiry has me indulging in some second thoughts.

The paper, "entitled "Wrongful Convictions: The Effect of Tunnel Vision and
Predisposing Circumstances in the Criminal Justice System", is by Professor Bruce A. MacFarlane, and can be found on the Inquiry's Web-site.

"The phenomenon often referred to as “noble cause corruption” is an ends-based investigative culture that prompts investigators to blind themselves to their own
inappropriate conduct, and to perceive that conduct as legitimate in the belief that they are pursuing an important public interest," the relevant section begins.

“Noble cause corruption” probably emerged publicly with the publication of Edwin
Delattre’s influential book, Character and Cops: Ethics in Policing, released in
1989," it continues.

"The term, and a growing understanding of the problem, subsequently spread to Canada,
the United States, and Australia.

Noble cause corruption covers a broad range of investigative and testimonial conduct
that masquerades as legitimate, including: the use of excessive force; racial profiling; suppressing adverse forensic reports; deceptive testimony in court; and the selective presentation of evidence in court.

So described, noble cause corruption gives great weight to the end to be achieved,
compared to the means chosen to achieve that objective.

Dr. David F. Sunohara, writing for the Canadian Police College in 2006, argued that investigators who engage in noble cause corruption “are motivated by their sense of mission.”

He continued: “[T]he pursuit of ideals may help to explain the problem of noble cause corruption in policing.”

Viewed in this light, noble cause corruption does not necessarily involve
corruption in the classic “dirty cop accepts a bribe and lies in Court.”

Rather, it is the sense of mission—the often dogged pursuit of a laudable goal in the public interest at the expense of professional ethics and personal morality—that sets it apart from the corrupt investigator who seeks a personal advantage by deliberately performing a criminal act in favour of a criminal justice system target.

This also explains why noble cause corruption is so difficult to discover.

On the surface, the conduct seems lawful and appropriate: there is no paper trail evidencing corruption, and the “mission”—which invariably is in the public interest—lies deep in the psyche of the investigator.

For this reason, it has the potential to affect if not infect the work of individual investigators, the work of investigative teams, and a significant
number of cases over an extended period of time.

Indeed, some scholars have suggested that the term “noble cause corruption” is a bit
misleading.

There is merit to this suggestion.

Corruption is not a necessary element here.

We are not talking about corrupt investigators; rather, we are talking about
investigators who truly believe that they are pursuing justice, but who adopt methods
that are inappropriate if not, in come cases, unconstitutional or criminal.

It is probably more a case of “noble cause distortion” than noble cause corruption. However, for ease of reference, I will continue to use the established term “noble term corruption” for the purpose of this paper.

There are clear dangers associated with this investigative philosophy, by whatever
name it goes.

Innocent persons can easily become enmeshed in public allegations or court proceedings based on nothing more than a firmly held moral value or investigative theory.

In the context of the current Inquiry, it is significant to note that there is some Canadian research supporting the proposition that investigators dealing with child and elder abuse tend to be more tolerant of noble cause corruption in the workplace, and, more importantly, are probably more willing themselves to engage in noble cause
corruption:

Frequent exposure to operational stressors such as conflict with the public,
dealing with unsolvable problems and observing children and the elderly being
victimized caused officers to become more tolerant of noble cause corruption.

Over a third of the officers (36%) reported that they experienced these
operational stressors daily.

This figure rises to 58% when we examine the experience of constables, the officers most likely to experience such events.

Officers with this kind of history were more disinclined to condemn the use of
corrupt means than were officers less frequently exposed to operational stressors.

On the basis of this research, it would appear that those who are regularly exposed to the trauma if not horror of child deaths may be more vulnerable to noble cause
corruption.

Finally, it should be observed that there is a close linkage between noble cause
corruption and tunnel vision, a form of cognitive bias that can impede accuracy in what we perceive and how we interpret what we perceive.

Investigators can become emotionally attached to their theory of the case, including which suspect is most likely the offender.

When that occurs, the object of the investigation often shifts from an open-ended search for the truth to proving that the theory of the case is accurate.

Tunnel vision and noble cause corruption become mutually reinforcing: once convinced
that a suspect is the perpetuator, the investigator may decide to use questionable
methods to further substantiate the operational theory, rationalizing these steps on the basis that they are “merely helping the truth along.”

When I finished reading this material I was left with a nagging question: Could Dr. Charles Smith have continued putting innocent parents and caregivers away for so many years if his superior's in the Chief Coroner's Office were not motivated by an element of "noble cause corruption" as well?

More grist for the Charles Smith mill!

Harold Levy...hlevy15@gmail.com;

Expert Witnesses: Part Three: The Quest For Impartiality;

My thanks to a reader for bringing to my attention a column entitled: "Experts must be impartial" by Mark Bonokoski of Sun Media.

"Susan" whet my appetite to read the entire column with the note she she left on the Blog following an earlier posting on expert witnesses(Expert Witnesses: Part One), which read:

"There's a well-written editorial (dash of black humour) in the Daily Observer today:

"An expert is someone who knows more and more about less and less, until eventually he knows everything about nothing." - Nicholas Murray Butler, President, Columbia University, 1902-1945 Dr.

Charles Smith is one of those Butler-defined experts, all right - an expert witness (supposedly) in forensic pathology who lied, invented, forgot, pretended, withheld, dismissed, neglected, guessed - and, as a result, sent many people to jail for crimes that never happened.

Not to jail for murders they did not do, or for manslaughter cases in which they had no hand, but for murders and manslaughters that never occurred.

"Dr. Smith. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?"

Uh, maybe.

Don't know. Can't say. Perhaps.

Dr. Charles Smith, now described rightfully as "disgraced pathologist Dr. Charles Smith," was so expert at being an expert that he routinely forgot he had no authoritative expertise, and so he gave lectures to colleagues on how to be an expert witness.

And he did this for years and years and years, with his true abilities falling tragically and intellectually short of his pay grade."

So here is the entire column:

"An expert is someone who knows more and more about less and less, until eventually he knows everything about nothing." - Nicholas Murray Butler, President, Columbia University, 1902-1945", the Bonokoski column begins.

"Dr. Charles Smith is one of those Butler-defined experts, all right - an expert witness (supposedly) in forensic pathology who lied, invented, forgot, pretended, withheld, dismissed, neglected, guessed - and, as a result, sent many people to jail for crimes that never happened," it continues;

"Not to jail for murders they did not do, or for manslaughter cases in which they had no hand, but for murders and manslaughters that never occurred.

"Dr. Smith. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?"

Uh, maybe.

Don't know. Can't say. Perhaps.

Dr. Charles Smith, now described rightfully as "disgraced pathologist Dr. Charles Smith," was so expert at being an expert that he routinely forgot he had no authoritative expertise, and so he gave lectures to colleagues on how to be an expert witness.

And he did this for years and years and years, with his true abilities falling tragically and intellectually short of his pay grade.

Toronto lawyer Daniel Brodsky, one of the founders of the Association in Defence of the Wrongfully Convicted, opined in one newspaper that police should consider laying perjury charges against Smith, all as the public inquiry into his shenanigans prepared to wrap up its proceedings before the Goudge commission.

Then, when all is said and done, Mr. Justice Stephen Goudge will sit down and write his report on how Dr. Charles Smith was able to keep himself at the top rung of Ontario's forensic pathology ladder for approximately two decades, when his litany of autopsy misfindings and courtroom hyperbole were regularly getting innocent people charged with the murder of babies, particularly for shaken baby syndrome.

About which Dr. Smith once had this to say in a published article: "Defence counsel love to make mincemeat of witnesses, and some experts become paid mouths, so the challenge is to prove there is such a thing as shaken baby syndrome."

The 'challenge' for Dr. Smith, however, at least in some of his cases, was to 'prove' shaken baby syndrome even when it didn't exist.

The British call this "noble cause corruption."

And he was obviously successful in his embrace of the "noble cause" - so much so that it caused the catalogued and court-documented ruination of more than just a few innocent lives.

Expert testimony, even when the expert is truly an expert, is often a mug's game. In a slide presentation on wrongful convictions delivered to the International Centre for Criminal Law Reform and Criminal Justice Policy Convention in Toronto in July of 2006, Daniel Brodsky noted that the adversary court system is "probably the best tool we have in Canada for detecting over-confidence, self-deception and dishonesty.

"Ironically, though," said Brodsky, "(the adversary system) itself is responsible for one common defect - namely the expert's temptation to overly identify with the cause of his 'side.'"

According to Brodsky, this is exacerbated by the fact that science is becoming more complex; witnesses remain forever fallible; the run-of-the-mill lawyer, while seemingly affordable to his client, lacks the tools to evaluate and challenge; opinion may have a weight and authority that is undeserved (ie: Dr. Smith); the language of medicine and law are seldom the same; and, courts/juries often lack the skills to render a proper decision in complicated trials.

None of this is new, of course, but it is rarely debated outside the closed confines of the legal and academic community.

Then there is the phenomenon of what has been called "junk pathology" and/or "junk science" - something that legal scholars claim is becoming a "scourge" of courtrooms.

Think, for example, of social-science scenarios that, prior to 1980, had never been heard of in the court system, and their impact on both criminal and civil litigation - battered woman syndrome, shaken baby syndrome (see Dr. Charles Smith), post traumatic stress disorder, child sexual abuse accommodation (CSAA), post-partum psychosis, repressed memory syndrome, and hypnotically refreshed testimony, just to name a few of the headliners.

All are relatively new. But is their credence tried and true and immune to manipulation? The answer, of course, is hardly.

According to Brodsy, "junk pathology" and "junk science" have played a role in many wrongful convictions, and not just in the cases in which Dr. Smith was the lead pathologist.

"When junk pathology is introduced to a jury by a so-called expert, the jurors immediately have blinders put on," he said. "And once those blinders have them looking at junk pathology as fact, then the game is over for the defence.

"Using Dr. Smith's blinders, jurors were able to see homicide where no homicide existed. And how dangerous is that?"

From Brodsky's perspective, and from the perspective of the Association in Defence of the Wrongfully Convicted, if Mr. Justice Goudge's eventual report focuses solely on Dr. Smith, then it will be a huge opportunity lost in critiquing the system.

And it will be lost, too, if the Ontario College of Physicians and Surgeons fails to take reasonable steps to ensure that other forensic scientists do not see themselves purely as an integral part of the prosecution's collective team.

"In fact, if those issues are not dealt with, the inquiry will have been a total waste of time," said Brodsky. "Today Dr. Smith; tomorrow who? Dr. Jones?

"We must ask ourselves, are forensic pathologists the equipment of the prosecution, or of justice?

"Certainly, forensic pathologists are thought to be impartial, and therefore making use of scientific means of finding the truth. But the reality is that they work in a prosecutorial milieu.

"Closely tying the forensic scientist to the prosecutorial apparatus may increase the likelihood of junk or scandalous science," he said. "Pathologists may feel that in order to get promoted they need to provide the evidence that makes a conviction," said Brodsky.

"And that, in the end, tends to morph them into what has been termed 'cops in lab coats.'"

Harold Levy...hlevy15@gmail.com;