Canadian Pathologists (And Other Experts) Under Fire: Former Dr. Charles Smith; Dr. John Penistan: (The Guy Paul Morin Case): I dig into my archives to revisit the role played by Dr. Penistan in the Ontario Guy Paul Morin case and explore possible comparisons with the discredited former doctor Charles Smith………..Passage from Prof. James C. Morton. Ottawa Citizen…."Last week we were reminded daily of the miscarriages of justice caused by forensic pathologist Charles Smith -- the many parents and caregivers charged and some found guilty of murdering children, the scores of lives ruined, and families destroyed," it continues. "And in August, the Ontario Court of Appeal said that one of its main reasons for acquitting Steven Truscott had to do with the testimony of John Penistan, the pathologist in that long-ago case of rape and murder. Dr. Penistan's official autopsy report stated that 12-year-old Lynne Harper had died soon after Steven Truscott had been seen giving her a ride on his bike, at a time when he would have been by far the most likely killer. But in recent years researchers have found two earlier copies of the same report form, one of them filled out during the autopsy, both placing the girl's time of death much later, when Mr. Truscott absolutely could not have been the killer. Said the Court: "(The) nature of the changes in his opinion leaves Dr. Penistan's evidence reasonably open to the allegation that his opinion shifted to coincide with the Crown's case against the appellant."

PUBLISHER'S NOTE: When I recently began preparing for a 'talk' on wrongful convictions  that  I was graciously invited to deliver at the University of Toronto's Trinity College, I reviewed several of my Blogs on the Guy Paul Morin Case.  Guy Paul, who was ultimately exonerated,  had the woeful distinction of being the youngest person ever exonerated in Canadian history. One of these post particularly  caught my attention. It referred to Dr. John Penistan, the pathologist  in that long-ago case of rape and murder. whose official autopsy report stated that 12-year-old Lynne Harper had died soon after Steven Truscott had been seen giving her a ride on his bike, at a time when he would have been by far the most likely killer. In short he gave the prosecutors the time of Lynne Harper's death, which was necessary to send  Steven Truscott, who was ultimately exonerated,  to death row, where he faced the death penalty.  The one line in this post  that particularly caught my attention  is one in which The Ontario Court of Appeal ruled: "(The) nature of the changes in his opinion leaves Dr. Penistan's evidence reasonably open to the allegation that his opinion shifted to coincide with the Crown's case against the appellant." This, of course,  had me thinking of another Canadian pathologist who came under attack for autopsy reports allegedly designed to help the police lay the criminal charge and win  the case, The discredited former Dr. Charles Randal Smith.The role played by Dr. Penistan in the Morin case is beautifully described by Professor James Cooper Morton in an opinion piece,  headed,  'How to get just the facts' by James C, Morton,  described as, "a prominent litigation lawyer at Steinberg Morton Hope & Israel in Toronto and an adjunct professor and lecturer in evidence and advanced evidence at Osgoode Hall Law School, York University." Professor Morton, a profound observer of the criminal law, (as evidenced by The Ottawa Citizen opinion piece)   inspired me greatly.

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PROFESSOR MORTON'S OTTAWA CITIZEN COLUMN (As published by The Ottawa Citizen) ……….(As it appeared in the The Charles Smith Blog: February 8, 2008);

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PUBLISHER'S NOTE:  February 6, 2008;  Several of our readers have drawn my attention to an opinion piece published in today's Ottawa Citizen; (My thanks to them); It is called "How to get just the facts" - and written by James C. Morton who is described as "a prominent litigation lawyer at Steinberg Morton Hope & Israel in Toronto and an adjunct professor and lecturer in evidence and advanced evidence at Osgoode Hall Law School, York University." 

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PASSAGE OF THE DAY:  "First, to put things in some perspective, one reason the wrongful convictions associated with Charles Smith have made so many headlines is that such cases are rare in Canada. (Truscott was a rarity, too, but he made headlines for other reasons.) Our adversary system, where teams of prosecution and defence lawyers each put their case as strongly as possible, is meant to ensure that no evidentiary stone goes unturned and that impressive but weak evidence does not lead to false verdicts.  Usually that system works. When it does not, though, the human costs can be horrific: (As in the following Smith cases. HL)  the Grade 6 student wrongly accused of shaking a 16-month-old to death; (Publication ban; Timmins, Ontario),  the mother jailed for two years for stabbing her young daughter to death with scissors when in fact the girl had been mauled by a pit bull. Louise Reynolds; Kingston, Ontario; ; the uncle wrongly convicted of sodomizing and killing his four-year-old niece and only released from prison after 12 years.  (Bill Mullins-Johnson)  And there will be more; the Charles Smith files are not closed."

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STORY: "Expert witnesses seem a lot less expert these days," Morton's February 6, 2008 article,  published by The Ottawa Citizen, begins.

"Last week (during the course of the Goudge Inquiry into many  of Smith's cases; HL)  we were reminded daily of the miscarriages of justice caused by forensic pathologist Charles Smith -- the many parents and caregivers charged and some found guilty of murdering children, the scores of lives ruined, and families destroyed," it continues.

"And in August, the Ontario Court of Appeal said that one of its main reasons for acquitting Steven Truscott had to do with the testimony of John Penistan, the pathologist in that long-ago case of rape and murder. Dr. Penistan's official autopsy report stated that 12-year-old Lynne Harper had died soon after Steven Truscott had been seen giving her a ride on his bike, at a time when he would have been by far the most likely killer.

But in recent years researchers have found two earlier copies of the same report form, one of them filled out during the autopsy, both placing the girl's time of death much later, when Mr. Truscott absolutely could not have been the killer.

Said the Court: "(The) nature of the changes in his opinion leaves Dr. Penistan's evidence reasonably open to the allegation that his opinion shifted to coincide with the Crown's case against the appellant."

That sentence strikes at the heart of the expert witness problem, and implies an elegantly simple solution.

First, to put things in some perspective, one reason the wrongful convictions associated with Charles Smith have made so many headlines is that such cases are rare in Canada.

(Truscott was a rarity, too, but he made headlines for other reasons.) Our adversary system, where teams of prosecution and defence lawyers each put their case as strongly as possible, is meant to ensure that no evidentiary stone goes unturned and that impressive but weak evidence does not lead to false verdicts.

Usually that system works.

When it does not, though, the human costs can be horrific: the Grade 6 student wrongly accused of shaking a 16-month-old to death; the mother jailed for two years for stabbing her young daughter to death with scissors when in fact the girl had been mauled by a pit bull; the uncle wrongly convicted of sodomizing and killing his four-year-old niece and only released from prison after 12 years.

And there will be more; the Charles Smith files are not closed.

Still, as I say, such cases are rare.

One reason is that Canadian courts are relatively conservative about expert testimony.

We allow only experts with serious credentials to testify, and then only when their expertise is essential to understanding a case.

In Thunder Bay recently, for instance, a judge denied defence counsel permission to call a psychologist regarding false confessions, on the grounds that the psychologist's testimony was something the jury could figure out by itself.

Serious credentials, absolute necessity, those are high bars.

So where does the expert witness system break down? In the words of Watergate's Deep Throat: Follow the money.

Despite their implied objectivity, expert witnesses -- who are, after all, paid for their time and services -- are called to court by either the prosecution or the defence.

Where one side or the other has significantly more money, it will more likely find an expert who will say what it wants.

This is not because the expert will intentionally mislead the court, but both sides have a choice of experts to call, each looks for the experts most likely to favour its position, and the side with the deeper pockets has the wider choice.

The fact that such witnesses are routinely described as "defence" or "prosecution" experts indicates the problem.

The simple solution, it seems to me, is to make the expert witness system work the way it purports to work already, to recognize that expert witnesses are expected to offer impartial, unbiased views, and have the court itself call them in, rather than the parties to a case.

The courts could establish a roster of respected experts and either the Crown or the accused could request that the judge appoint one.

But the judge would choose.

Experts would be required to know their obligations to the court -- to disclose any conflicts of interest, for example, and recuse themselves in such cases.

More importantly, they would have to detach themselves from issues of guilt or innocence.

Pathologists already step over the line, for example, when they state that "this was murder"; that is not their conclusion to draw.)

Ideally, expert witnesses would not talk to either party in a case outside the courtroom, defence or prosecution, including the police.

Certainly they should not know anyone's "theory of the case."

As to who would pay, the fact is that in most criminal proceedings, anyway, the government already pays the experts, either through the attorney general's office or Legal Aid.

All that would change is who hires the expert and who signs the cheque.

In court, technical expertise should not come with a viewpoint.

The courtroom "battle of experts" was never a good idea.

It's time we put it to rest".

A few brief note:

I wish it would be as easy to fix the problems plaguing pediatric forensic pathology in Ontario.

Dr. Michael Pollanen, Ontario's chief forensic pathologist, has testified that the system of pediatric forensic pathology in Ontario is badly broken in many ways ranging from qualification and training to inadequate resources.

It needs sorely an overhaul and a massive infusion of funds - which will most likely be one of the recommendations of Commissioner Goudge.

But that's just a start.

Dr. Pollanen and other witnesses, including the independent experts who participated in the Ontario Chief Coroner's review of many of Dr. Smith's cases, said today's problems also relate to forensic pathology itself - which, on occasion. appears to be more of an art than a science and is rife with controversy.

Another serious problem: All too many players in the Ontario's criminal justice system - including judges, crown attornies, defence lawyers and police officers - lack an adequate technical grasp of forensic evidence and rely overly on the experts who testify before them.

That said, Mr. Morton's insightful article will hopefully spark some vigourous debate."

The entire post can be read at: 

1478952647706037126

PUBLISHER'S NOTE:  I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog.

• SEE BREAKDOWN OF  SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG,  AT THE LINK BELOW:  HL:
  
  
  https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
  
  ———————————————————————————————
  
  FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
  Lawyer Radha Natarajan:
  Executive Director: New England Innocence Project;
  
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  FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
  
  
  Christina Swarns: Executive Director: The Innocence Project;

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Part Three: Think Dirty: The Paul Bernardo Connection; A perspective;

DEXTER, WHO SERVES AS DIRECTOR OF THE REGIONAL FORENSIC UNIT IN KINGSTON, SAID THE WORDING OF THE PROTOCOL IS "ABSOLUTELY" PROBLEMATIC.

HE TOLD THE INQUIRY INTO PEDIATRIC FORENSIC PATHOLOGY THIS MORNING THAT HE THOUGHT THE PROTOCOL WAS INAPPROPRIATE BECAUSE IT COULD LEAD HIM DOWN THE WRONG PATH WHEN TRYING TO DETERMINE HOW A CHILD DIED.

"IT INFERS A BIAS, A BIAS THAT SOMETHING BAD HAS HAPPENED. YOU'VE GOT TO BE OPEN TO A VARIETY OF POSSIBILITIES. SO OBJECTIVE THINKING IS THE APPROACH," HE SAID.

DR. DAVID DEXTER: THERESA BOYLE, TORONTO STAR;

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"I THINK -- MY UNDERSTANDING OF "THINK DIRTY" IS THAT IT WAS INTENDED TO TELL THE MEMBERS OF THE DEATH INVESTIGATION TEAM AND THE PATHOLOGIST TO CONSIDER CHILD ABUSE, AND IN OTHER CIRCUMSTANCES, HOMICIDE. I THINK IT HAS GROWN TO MEAN SOMETHING MORE THAN IT WAS EVER INTENDED TO MEAN."

DR. MICHAEL POLLANEN; IN RESPONSE TO QUESTION POSED BY COMMISSIONER STEPHEN GOUDGE;

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In recent postings I have focused on the "think dirty" policy introduced by Dr. James Young, former Chief Coroner of Ontario, which has come under considerable scrutiny at the Goudge Inquiry.

I have three principle problems with this misguided policy - which fortunately was discarded by Dr. Barry McLellan when he headed the Chief Coroner's Office;

First - It was utterly unnecessary;

Second: It should never have been foisted on coroners throughout Ontario - with their minimum training in forensic science, and:

Third, it was developed for use in the context of so-called "femicides" - and then applied to infant deaths without any consideration given to the complexity of infant deaths and the consequences to innocent parents and caregivers.

Dr. Young's policy was not supported by all coroners and pathologists.

As my former Toronto Star colleague Theresa Boyle reported on Jan 17, 2008, under the heading, "pathologists directed to "think dirty," Dr. David Dexter chose to ignore it;

"A Kingston pathologist said he ignored a provincial directive to "think dirty" when conducting autopsies on children because doing so could have led him to conclude they'd died of abuse when they hadn't," Boyles's story began.

"When you're starting from that point of view, the sort of inference is that you've got to create a trail of evidence or logic ... that reflects back on something bad having happened," Dr David Dexter explained to a public inquiry this morning," it continued;

"So it's an issue of bias, it's an issue of tunnel vision.... It's the wrong approach," he added.

In 1995, former chief coroner Jim Young issued a new protocol for pathologists, coroners and chiefs of police to use in death investigations involving children. It stated:

"Unfortunately in this day and age child abuse is a real issue and it is extremely important that all members of the investigative team 'think dirty';

"They must actively investigate each case as potential child abuse and not come to a premature conclusion regarding the cause and manner of death until the complete investigation is finished and all members of the team are satisfied with the conclusion."

Dexter, who serves as director of the regional forensic unit in Kingston, said the wording of the protocol is "absolutely" problematic.

He told the Inquiry into Pediatric Forensic Pathology this morning that he thought the protocol was inappropriate because it could lead him down the wrong path when trying to determine how a child died.

"It infers a bias, a bias that something bad has happened. You've got to be open to a variety of possibilities. So objective thinking is the approach," he said.


The inquiry is looking at errors Dr. Charles Smith made in 20 cases in which people were charged, convicted or otherwise implicated in the deaths of children.

The difference between coroners and pathologists is that coroners oversee entire death investigations while pathologists conduct autopsies."

Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, clearly understood the danger posed by the "think dirty" policy.

Here is his testimony at the Goudge Inquiry in response to questions posed by Justice Stephen Goudge;

COMMISSIONER STEPHEN GOUDGE: Thanks. Before we leave this, there is a question that I have been meaning to ask you. It is a general question, Dr. Pollanen.
The evidence-based approach that you have eloquently put forward really has, as its goal, think truth, if I can put it that way, as opposed to "think dirty". Is that a fair juxtaposition?

DR. MICHAEL POLLANEN: Yes.

COMMISSIONER STEPHEN GOUDGE: Where does a heightened index of suspicion fit into that, if at all? Do you equate that with "think dirty", or is it somewhere in between, or --

(BRIEF PAUSE)

DR. MICHAEL POLLANEN: "Think dirty" is an unfortunate turn of phrase.

COMMISSIONER STEPHEN GOUDGE: Yeah. Yeah.

DR. MICHAEL POLLANEN: I think -- my understanding of "think dirty" is that it was intended to tell the members of the Death Investigation Team and the pathologist to consider child abuse, and in other circumstances, homicide.

I think it has grown to mean something more than it was ever intended to mean.

And I think the best way to say this in -- now -- where we -- where we sit now relative to "think dirty", is that if we think truth, if we think objectively, then there is no need to give specific advice about "thinking dirty", for example, or having high -- a high index of suspicion.

Because if -- if you're -- if you're allowing the facts to guide your thinking, they will guide you in the correct direction.

There needs to be no a priori set up for it.

Because if you are engaging the issues in a evidenced-based manner, you will get there.

But if it were so simple.

The -- the other competing variable is that we have, purely on an operation basis, and out of necessity, have identified a group of cases which are criminally suspicious and homicidal.

For the -- for the nature -- because we need to do -- to develop protocols and procedures to deal with those cases.

Because it's a -- it's an epidemiological situation that when you have undifferentiated cases -- this large number of undifferentiated cases, at some point in time before the pathologist gets involved, there has to be some type of streaming.

So the streaming happens essentially by the police, with some input by the coroner into this criminal -- this sort of amorphous category of criminally suspicious.

And that to some extent is "think dirty", unless you are making that decision, or those decisions are purely being made on the basis of evidence and fact.

So there's a lot of -- there's a lot of corollaries that come out of this discussion, but I think the best -- the best framework, or the best model to use to understand the methodology or the desirable process is the framework of an evidence based approach using as an a priori principle: think truth, think objectively, search for the truth.

I think that's the best platform because if you do that you don't need to think benign or malignant, the evidence will guide you.

COMMISSIONER STEPHEN GOUDGE: Okay. A couple of implications, I am sure more than a couple, have been read into the heightened index of suspicion notion.

One is the implication of presumption which you've spoken about; the other is an implication of more thorough investigation than one would have in a simple case.

Is that a fair kind of assertion of two (2) implications that might flow out of the notion of heightened index of suspicion?

DR. MICHAEL POLLANEN: You could think of it that way and I'll -- I'll give a concrete example. In the -- if you look at the protocol that -- the analysis that led to the '95 memo, six thirty-one (631) I think it was --

COMMISSIONER STEPHEN GOUDGE: Yes.

DR. MICHAEL POLLANEN: -- you'll notice that there was an analysis of how frequently x-rays were being done --

COMMISSIONER STEPHEN GOUDGE: Right.

DR. MICHAEL POLLANEN: -- on infants. And what this -- what they found when they did that analysis, which was a very good analysis, was that x-rays were not
being done frequently, or as frequently as would be desirable.

COMMISSIONER STEPHEN GOUDGE: Right.

DR. MICHAEL POLLANEN: And the reason that's significant is that we -- we know that one of the patterns of child abuse are, for example, multiple fractures.

COMMISSIONER STEPHEN GOUDGE: Fractures, yes.

DR. MICHAEL POLLANEN: So the -- the evidence base, to use that term, the -- the conclusion that came from the analysis in the document was "do x- rays".

It did not support the conclusion "think dirty".

COMMISSIONER STEPHEN GOUDGE: So if heightened index of suspicion means gather all the evidence you possibly can and follow it wherever it leads, you would say that's fine?

DR. MICHAEL POLLANEN: Correct. It -- it can include -- it necessarily includes that.

COMMISSIONER STEPHEN GOUDGE: Okay. If it was to mean start with an a priori presumption, you would say that's not fine?

DR. MICHAEL POLLANEN: Correct. And let me enlarge that one (1) other way and say, we've talked about petechia; well, if we see petechia in someone's eyes at autopsy then that is an indication that the neck will need to be dissected in a special way to determine if they have been strangled.

Well, are the petechia telling us to "think dirty"?

No.

The petechia have within their differential diagnosis, manual strangulation, and because of that we need to apply a technique to detect it if it's there.

So in a way both are achieving the same outcome, except one (1) has as its value a search for the truth platform.

COMMISSIONER STEPHEN GOUDGE: Right. Okay, that is a helpful exchange. Thank you.

Harold Levy...hlevy@15gmail.com;

Part Three: Think Dirty: The Paul Bernardo Connection; Some Perspectives;

"I THINK -- MY UNDERSTANDING OF "THINK DIRTY" IS THAT IT WAS INTENDED TO TELL THE MEMBERS OF THE DEATH INVESTIGATION TEAM AND THE PATHOLOGIST TO CONSIDER CHILD ABUSE, AND IN OTHER CIRCUMSTANCES, HOMICIDE. I THINK IT HAS GROWN TO MEAN SOMETHING MORE THAN IT WAS EVER INTENDED TO MEAN."

DR. MICHAEL POLLANEN; IN RESPONSE TO QUESTION POSED BY COMMISSIONER STEPHEN GOUDGE;

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In recent postings I have focused on the "think dirty" policy introduced by Dr. James Young, former Chief Coroner of Ontario, which has come under considerable scrutiny at the Goudge Inquiry.

I have three principle problems with this misguided policy - which fortunately was discarded by Dr. Barry McLellan when he headed the Chief Coroner's Office;

First - It was utterly unnecessary;

Second: It should never have been foisted on coroners throughout Ontario - with their minimum training in forensic science, and:

Third, it was developed for use in the context of so-called "femicides" - and then applied to infant deaths without any consideration given to the complexity of infant deaths and the consequences to innocent parents and caregivers.

Not all pathologists and coroners agreed with the "think dirty" policy.

As Theresa Boyle, my former colleague at the Toronto Star, wrote in a story published on Jan 17, 2008 under the heading "Pathologists directed to "think dirty, probe told," Dr. David Dexter, a Kingston, Ontario pathologist decided to ignore it;

"A Kingston pathologist said he ignored a provincial directive to "think dirty" when conducting autopsies on children because doing so could have led him to conclude they'd died of abuse when they hadn't," Boyle's story began.

"When you're starting from that point of view, the sort of inference is that you've got to create a trail of evidence or logic ... that reflects back on something bad having happened," Dr David Dexter explained to a public inquiry this morning," the story continued;

""So it's an issue of bias, it's an issue of tunnel vision.... It's the wrong approach," he added.

In 1995, former chief coroner Jim Young issued a new protocol for pathologists, coroners and chiefs of police to use in death investigations involving children. It stated:

"Unfortunately in this day and age child abuse is a real issue and it is extremely important that all members of the investigative team 'think dirty.'

"They must actively investigate each case as potential child abuse and not come to a premature conclusion regarding the cause and manner of death until the complete investigation is finished and all members of the team are satisfied with the conclusion."

Dexter, who serves as director of the regional forensic unit in Kingston, said the wording of the protocol is "absolutely" problematic.

He told the Inquiry into Pediatric Forensic Pathology this morning that he thought the protocol was inappropriate because it could lead him down the wrong path when trying to determine how a child died.

"It infers a bias, a bias that something bad has happened. You've got to be open to a variety of possibilities. So objective thinking is the approach," he said.

The inquiry is looking at errors Dr. Charles Smith made in 20 cases in which people were charged, convicted or otherwise implicated in the deaths of children.

The difference between coroners and pathologists is that coroners oversee entire death investigations while pathologists conduct autopsies."

Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, clearly understood the danger posed by the "think dirty" policy.

Here is his testimony at the Goudge Inquiry in response to questions posed by Justice Stephen Goudge;

COMMISSIONER STEPHEN GOUDGE: Thanks. Before we leave this, there is a question that I have been meaning to ask you. It is a general question, Dr. Pollanen.
The evidence-based approach that you have eloquently put forward really has, as its goal, think truth, if I can put it that way, as opposed to "think dirty". Is that a fair juxtaposition?

DR. MICHAEL POLLANEN: Yes.

COMMISSIONER STEPHEN GOUDGE: Where does a heightened index of suspicion fit into that, if at all? Do you equate that with "think dirty", or is it somewhere in between, or --

(BRIEF PAUSE)

DR. MICHAEL POLLANEN: "Think dirty" is an unfortunate turn of phrase.

COMMISSIONER STEPHEN GOUDGE: Yeah. Yeah.

DR. MICHAEL POLLANEN: I think -- my understanding of "think dirty" is that it was intended to tell the members of the Death Investigation Team and the pathologist to consider child abuse, and in other circumstances, homicide.

I think it has grown to mean something more than it was ever intended to mean.

And I think the best way to say this in -- now -- where we -- where we sit now relative to "think dirty", is that if we think truth, if we think objectively, then there is no need to give specific advice about "thinking dirty", for example, or having high -- a high index of suspicion.

Because if -- if you're -- if you're allowing the facts to guide your thinking, they will guide you in the correct direction.

There needs to be no a priori set up for it.

Because if you are engaging the issues in a evidenced-based manner, you will get there.

But if it were so simple.

The -- the other competing variable is that we have, purely on an operation basis, and out of necessity, have identified a group of cases which are criminally suspicious and homicidal.

For the -- for the nature -- because we need to do -- to develop protocols and procedures to deal with those cases.

Because it's a -- it's an epidemiological situation that when you have undifferentiated cases -- this large number of undifferentiated cases, at some point in time before the pathologist gets involved, there has to be some type of streaming.

So the streaming happens essentially by the police, with some input by the coroner into this criminal -- this sort of amorphous category of criminally suspicious.

And that to some extent is "think dirty", unless you are making that decision, or those decisions are purely being made on the basis of evidence and fact.

So there's a lot of -- there's a lot of corollaries that come out of this discussion, but I think the best -- the best framework, or the best model to use to understand the methodology or the desirable process is the framework of an evidence based approach using as an a priori principle: think truth, think objectively, search for the truth.

I think that's the best platform because if you do that you don't need to think benign or malignant, the evidence will guide you.

COMMISSIONER STEPHEN GOUDGE: Okay. A couple of implications, I am sure more than a couple, have been read into the heightened index of suspicion notion.

One is the implication of presumption which you've spoken about; the other is an implication of more thorough investigation than one would have in a simple case.

Is that a fair kind of assertion of two (2) implications that might flow out of the notion of heightened index of suspicion?

DR. MICHAEL POLLANEN: You could think of it that way and I'll -- I'll give a concrete example. In the -- if you look at the protocol that -- the analysis that led to the '95 memo, six thirty-one (631) I think it was --

COMMISSIONER STEPHEN GOUDGE: Yes.

DR. MICHAEL POLLANEN: -- you'll notice that there was an analysis of how frequently x-rays were being done --

COMMISSIONER STEPHEN GOUDGE: Right.

DR. MICHAEL POLLANEN: -- on infants. And what this -- what they found when they did that analysis, which was a very good analysis, was that x-rays were not
being done frequently, or as frequently as would be desirable.

COMMISSIONER STEPHEN GOUDGE: Right.

DR. MICHAEL POLLANEN: And the reason that's significant is that we -- we know that one of the patterns of child abuse are, for example, multiple fractures.

COMMISSIONER STEPHEN GOUDGE: Fractures, yes.

DR. MICHAEL POLLANEN: So the -- the evidence base, to use that term, the -- the conclusion that came from the analysis in the document was "do x- rays".

It did not support the conclusion "think dirty".

COMMISSIONER STEPHEN GOUDGE: So if heightened index of suspicion means gather all the evidence you possibly can and follow it wherever it leads, you would say that's fine?

DR. MICHAEL POLLANEN: Correct. It -- it can include -- it necessarily includes that.

COMMISSIONER STEPHEN GOUDGE: Okay. If it was to mean start with an a priori presumption, you would say that's not fine?

DR. MICHAEL POLLANEN: Correct. And let me enlarge that one (1) other way and say, we've talked about petechia; well, if we see petechia in someone's eyes at autopsy then that is an indication that the neck will need to be dissected in a special way to determine if they have been strangled.

Well, are the petechia telling us to "think dirty"?

No.

The petechia have within their differential diagnosis, manual strangulation, and because of that we need to apply a technique to detect it if it's there.

So in a way both are achieving the same outcome, except one (1) has as its value a search for the truth platform.

COMMISSIONER STEPHEN GOUDGE: Right. Okay, that is a helpful exchange. Thank you.

Harold Levy...hlevy@15gmail.com;

Part One: "Shaken Baby" And "Head Injury" Cases Cry Out For Review; AIDWYC and Mullins-Johnson Closing Submissions;

"DR. SMITH WAS NOT THE ONLY PATHOLOGIST IN ONTARIO WHO MADE DIAGNOSES OF SHAKEN BABY SYNDROME.

DR. POLLANEN NOTED IN HIS JANUARY, 2007 MEMORANDUM THAT “MANY OF DR. SMITH’S VIEWS ON SHAKEN BABY SYNDROME WERE SIMILAR TO A PREVAILING VIEW IN THIS CONTROVERSIAL AREA OF FORENSIC PATHOLOGY AT THE TIME HE GAVE TESTIMONY ON THE ISSUE”.

INEVITABLY, MANY OTHER PATHOLOGISTS, WORKING FROM THE SAME ASSUMPTIONS, DREW SIMILAR CONCLUSIONS."

CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;

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The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.

For this reason, I wil be devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:

Today's focus is on a section in which the two parties point out the now proverbial elephant that has been made its presence known throughout the inquiry: the “Shaken Baby” and Head Injury Cases not just in Canada but elsewhere in the world - which Resulted in Criminal Convictions.

"Miscarriages of justice have surely occurred in cases other than those involving Dr. Smith where the diagnosis or cause of death was attributed to shaken baby syndrome or head injury," this section begins;

"According to Dr. Pollanen, “apropos of the results of the Smith and the Goldsmith reviews, there is a reasonable basis to believe that problems could exist with other fatal infant head injury cases, including cases certified as Shaken Baby Syndrome" it continues.

"As Dr. Pollanen and others have made clear throughout this inquiry, infant head injury cases are viewed very differently today than in the past, due to advances in research and scientific understanding.

In the United Kingdom, the Court of Appeal’s authoritative and detailed judgment, R. v. Harris and Others, summarized the state of the science now and the implications for criminal prosecutions based on earlier opinions

Following the release of that decision, the Right Honourable Lord Goldsmith ordered a review of all cases in England in which a parent had been convicted of killing a child under 2.

A total of 297 cases were reviewed, and 28 were found to raise concerns; a further three cases that were still before the courts were immediately withdrawn by the prosecution.

Of those. three cases of “shaken baby syndrome” were reviewed by Lord Goldsmith, resulting in ten that were determined to require further investigation. Of those, three were recommended for referral to the Criminal Cases Review Commission.

Ultimately, a total of 39 cases were referred either to the Criminal Cases Review Commission or the Court of Appeal.

There is no reason to imagine that Ontario is now, or has ever been, immune to this disturbing pattern of scientific and judicial error.

Indeed, it appears that pathologists here have been applying the same diagnostic criteria as their British counterparts in cases raising the same issues; it would be difficult to explain how they had avoided the same tragic errors in an appreciable number of cases.

The expert evidence heard at the Inquiry made it apparent that there is no assurance we have not replicated those mistakes in some cases, and, indeed, gave every reason to believe we have.

These errors are not the result only of “rogue” pathologists such as Dr. Smith – they are a predictable product of incomplete scientific knowledge and a judicial climate ill-equipped to recognize them.

Dr. Smith was not the only pathologist in Ontario who made diagnoses of shaken baby syndrome.

Dr. Pollanen noted in his January, 2007 memorandum that “many of Dr. Smith’s views on Shaken Baby Syndrome were similar to a prevailing view in this controversial area of forensic pathology at the time he gave testimony on the issue”.

Inevitably, many other pathologists, working from the same assumptions, drew similar conclusions.

Several witnesses throughout the inquiry, including several pathologists, were of the view that a review similar to the Goldsmith review is necessary in Ontario to restore public confidence in the system9. In the words of Dr. Lucas:

… with the vision of hindsight and our current state of knowledge applying current day approaches, standards, and expectations for how the conclusion would be drawn in these cases to those cases in – in retrospect… conclusions of the pathologist my be different, and as a consequence the conclusions in the criminal justice system may in fact be different.

To assure the people of Ontario that no one else has been convicted of a crime that did not occur, a similar review must be carried out here.

Further, the Commissioner should go so far as to suggest that a review should be conducted of cases in which infant head injury and shaken baby syndrome have resulted in criminal convictions (albeit in a manner that does not exceed his limited territorial mandate), as was done in the Goldsmith Review.

The system has, as Dr. Lauwers testified, a “moral and ethical” obligation to examine each case to make sure “there isn’t some family that’s come to some significant harm as a result of information which has changed over a period of time”".

The two parties make the following recommendations:

0: Further reviews of the continuing validity of expert pathology opinions that contributed to a criminal prosecution beyond the review of Dr. Smith's cases which has been completed.

0: Based on the evidence heard at this Inquiry, the Commissioner should recommend that the Province of Ontario undertake an immediate review of all “shaken baby” and fatal pediatric head injury cases which have resulted in criminal convictions in the province.

That message should resound not only in Ontario, but in all other Canadian provinces, and wherever else in the world prevailing notions of pathology - now proven wrong - led to the prosecution and conviction of innocent people, some who may still be behind bars.

This injustice cries out to be fixed.

harold Levy...hlevy15@gmail.com;

Part Two: Dr. Ernest Cutz's Recommendations: Thinking Dirty V. Scientific Objectivity When It Comes To Sudden Unexpected Death of Children;

"FURTHERMORE, IT IS MY VIEW THAT RESEARCH SCIENTISTS ARE DISCOURAGED FROM PURSUING BASIC RESEARCH INTO SUDDEN INFANT DEATH SYNDROME SINCE IT REMAINS UNDER A CLOUD OF SUSPICION AND SUBJECT OF CRIMINAL INVESTIGATION."

Dr. ERNEST CUTZ: SUBMISSIONS TO THE GOUDGE INQUIRY;

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Dr. Ernest Cutz, a distinguished pathologist at the Hospital for Sick Children in Toronto, has drafted his personal recommendations for the Goudge Inquiry, which have been posted on the Inquiry's Web-site.

Dr. Cutz's views are well worth considering because he has been at the Hospital for several decades and is steeped in all aspects of the Pathology Department -including the Ontario Forensic Pediatric Pathology Unit.

This Blog continues our series on Dr. Cutz's submissions with his thoughts on the need to emphasize research aimed at preventing Sudden Infant Death Syndrome - rather then criminalizing parents and caregivers on the base of unsound sound.

Dr. Cutz addresses this recommendation to three of the systemic factors being explored by the Goudge Commission:

0: What is the approach that best balances the objective that no individual be wrongly accused of child abuse with the objective that children be protected from abuse?

0: What are the relative merits of “thinking dirty” or “thinking truth” or other alternatives? and,

0: How is scientific objectivity best maintained throughout the examination to avoid “tunnel vision” that merely seeks support for an a priori conclusion?

(In an earlier Blog, I recorded Dr. Cutz's disagreement with the controversial "think dirty" protocol released by then Chief Coroner Dr. James Young to all of Ontario's coroner's, pathologists and chiefs of police, on April 10, 1995. I have repeated this post below for the benefit of our readers who did not have the opportunity to peruse it; It ran under the heading: "Think Dirty"; Part One: Two Words At The Heart Of The Inquiry;")

"The (above) objectives can be achieved by the provision of correct pathologic diagnoses based on solid scientific foundations," recommendation begins;

"The acquisition of and advances in medical knowledge are dependent on robust scientific research that constantly evolves and progresses over time," it continues;

"The Inquiry has seen how this evolution in thinking occurs through exposure to the debate and recent changes in attitude with respect to the interpretation of findings relating to Shaken Baby Syndrome.

Similar changes in attitude and thinking have occurred in the areas of Sudden Unexpected Infant Death, Sudden Infant Death Syndrome, and related conditions.

For example, during the 1990s a prevalent, early view was that Sudden Unexpected Infant Death and Sudden Infant Death Syndrome occurred due to “positional asphyxia”, overlaying caused by co-sleeping, or homicide.

These views have not been substantiated by solid scientific evidence.

Now, the prone sleeping position and co-sleeping are recognized as risk factors but are not the actual cause of death in sudden Infant Death Syndrome;

Today we know that Sudden Infant Death Syndrome is a pediatric disease recognized by the World Health Organization as a distinct pediatric medical disease entity.

In addition, Sudden Infant Death Syndrome is not a uniform entity but rather a heterogeneous multifactorial disorder with variable triggering and potentiating factors.

This is as exemplified by the so-called “triple risk model”, i.e. Sudden Infant Death Syndrome occurs as a result of interactions involving (1) a vulnerable infant who possesses some underlining biological abnormality; (2) a critical period of development; and (3) an exogenous stressor such as maternal smoking, mild infection or an unsafe sleeping position.

Current thinking in this area, which reflects recent advances in molecular medicine, indicates that an underlining biological abnormality in large proportion of Sudden Unexpected Infant Deaths and Sudden Infant Death Syndrome cases may, in fact, be due to genetic or molecular disorders (i.e. defects in cardiac or neuronal ion channels, etc.) that are now detectable by modern techniques of molecular pathology.

Notwithstanding these changes, confusion between what are risk factors for Sudden Infant Death Syndrome and what is the actual cause of death in Sudden Infant Death Syndrome persists in certain forensic circles.

Individuals in these circles continue to identify the cause of death in Sudden Infant Death Syndrome cases as being, for example, co-sleeping, which is inaccurate and misleading.

If Sudden Infant Death Syndrome was due to this simple explanation, how could one explain the fact that babies have slept in these situations for many years, but only some die while many do not?

Identifying a baby’s sleep environment as the sole factor responsible for the infant’s death gives only part of the explanation and leads to feelings of guilt and, potentially, to wrongful accusations of parents and caregivers.

Given the importance of accurately identifying and describing cause of death, it is problematic that there is currently very limited or non-existent scientific research on Sudden Unexpected Infant Death and Sudden Infant Death Syndrome;

This is partly due to the fact that the mandate of the Chief Coroner's Office which oversees all pediatric forensic cases, does not include research into medical diseases and because the current legislation and all agreements between the Chief Coroner's Office and the Hospital for Sick Children (including the most recent Ontario Pediatric Forensic Unit agreement)... explicitly forbid the use of tissues for medical research.

Furthermore, it is my view that research scientists are discouraged from pursuing basic research into Sudden Infant Death Syndrome since it remains under a cloud of suspicion and subject of criminal investigation.

To overcome the obstacles surrounding the use of tissues for research individual parental consent can be obtained or a legislative change, similar to that of the State of California, which authorizes and mandates research into Sudden Unexpected Infant Death and Sudden Infant Death Syndrome could be made.

Consequently an “Ontario Center for the study of Sudden Infant Death Syndrome/Sudden Unexpected Infant Death, based on the San Diego Sudden Infant Death Syndrome/Sudden Unexpected Infant Death Research Project database model, should be established at HSC with collaboration projects that include other Ontario pediatric academic centers that perform autopsies on Sudden Infant Death Syndrome/ Sudden Unexpected Infant Death cases.

Funding for the Center should be provided by the Ministry of Long Term Health;

Further, to encourage research in Sudden Unexpected Infant Death and Sudden Infant Death Syndrome, targeted, competitive, peer-reviewed research grants into Sudden Unexpected Infant Death and Sudden Infant Death Syndrome in a form of “Request for Application” should be issued by the Government of Ontario and by the Federal Government through Canadian Institute of Health Research/Institute of Child Health.

The resulting research is important because it would define protocols and methods for molecular diagnoses of disorders underlying Sudden Unexpected Infant Death and Sudden Infant Death Syndrome (for example, the specific channelopaties affecting the cardiovascular or nervous systems).

These new diagnostic tests could provide objective scientific evidence that would be exculpatory in contentious cases of infant death.

The tests would be analogous to DNA tests used currently in the criminal justice system.

When, if at all, should the terms “Sudden Infant Death Sndrome" and "Sudden Unexpected Infant Death" be used in a post mortem report?

These terms are well established and widely accepted in Pediatric clinical and pathology practice.

There is no compelling reason to not to use them in a post-mortem report.

The definition and terminology related to Sudden Infant Death Syndrome and Sudden Unexpected Infant Death has been the subject of a recent review and update by an international panel of experts comprised of paediatric and forensic pathologists with extensive experience in Sudden Unexpected Infant Death Syndrome;

The panel also included pediatricians and an epidemiologist.

It is important to use the correct terminology with respect to Sudden Unexpected Infant Death and Sudden Infant Death Syndrome so that accurate statistics are generated to monitor the incidence and trends of Sudden Unexpected Infant Death and Sudden Infant Death Syndrome as well as to ensure that well-defined groups of cases are used in research studies.

My recommendation is to adopt the use the criteria and definitions outlined in the above publication in Ontario.

c) With advances in Sudden Infant Death Syndrome research it will be possible in the future to render specific pathological diagnoses which will have the effect of removing ambiguity as to the cause and manner of death.

This will reduce the number of cases that today are designated as “undetermined” or “unascertained”.

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Here is the earlier Blog on which articulates Dr. Cutz's disagreement with the controversial "think dirty" protocol released by then Chief Coroner Dr. James Young to all of Ontario's coroner's, pathologists and chiefs of police, on April 10, 1995:

"UNFORTUNATELY, IN THIS DAY AND AGE, CHILD ABUSE IS A REAL ISSUE, AND IT IS EXTREMELY IMPORTANT THAT ALL MEMBERS OF THE INVESTIGATIVE TEAM THINK DIRTY."

FROM PROTOCOL ISSUED BY DR. JAMES YOUNG TO ALL CORONERS, PATHOLOGISTS, AND CHIEFS OF POLICE IN ONTARIO ON APRIL 10, 1995.

Two words, containing only three syllables lie at the heart of the Goudge Inquiry: "Think Dirty."

They are contained in a protocol issued by former chief coroner Dr. James Young to all coroners, pathologists, and chiefs of police in Ontario on April 10, 1995.

The policy was ultimately dropped by Dr. Barry McLellan, Dr. Young's successor, after he became Chief Coroner in April, 2004;

The protocol read:

"Unfortunately, in this day and age, child abuse is a real issue, and it is extremely important that all members of the investigative team "Think Dirty."

They must actively investigate each case as potential child abuse, and not come to a premature conclusion regarding the cause and manner of death until the complete investigation is finished, and all members of the team are satisfied with the conclusion."

During the nine years the protocol remained in effect, these words communicated through "think dirty" slides that were used in presentations to coroners throughout the province and other members of the death investigation teams.

The obvious danger of the new policy was that it could be interpreted as requiring local coroners and pathologists to act like police officers instead of as impartial doctors and scientists.

There was also a risk that it could encourage pathologists and prosecutors to feel that they were required to search for criminality behind every death of a child.

A risk that it could turn most innocent death of a child into a murder with all of the horrific consequences, to loving parents, families and caregivers that we have seen thus far at the Goudge Inquiry - especially since Dr. Young's new policy was introduced at a time of heightened public fear over child abuse and pressure on the authorities to do something about it.

At the very least, this Bloggist wonders if the new policy may have validated Dr. Charles Smith's suspicious approach to his work in his own mind - when he still had years of work to accomplish.

In fact, Dr. Young testified that he got the idea from a cop, adopted it, and used it in his own presentations.

Dr. Young told the Inquiry that the "Think Dirty" approach was formulated during a period of world-wide concern "that pediatric deaths weren't being properly investigated."

"(We) were very aware and there were discussions, again, at any forensic meeting about the difficulties in investigating pediatric deaths, and the fact that they -- children died of different things than adults did; and the very difficult job of sorting out metabolic disorders, SIDS, cases of Shaken Baby, cases of
subtle -- suffocation, of subtle child abuse, and dating of injuries, you know, to make sure that what was attributed to the death was -- was relevant," he told Commissioner Goudge.

Young testified that the new protocol was simply intended to remind people to look out for signs of criminality during the course of their investigations.-

Young stressed that, " It was not -- absolutely not, and it was never contemplated or discussed at any meeting I ever attended where the phrase was used, to mean that make cases -- make cases criminal matters when they aren't.

But he agreed with Commission Counsel Mark Sandler that, "with the benefit of -- of what we've learned since, it might be advisable for the Chief Coroner's Office to -- to develop another phrase to communicate the same sentiment."

The new policy troubled Dr. Ernest Cutz, a distinguished pathologist and researcher at the Hospital for Sick Children.

Dr. Cutz is one of the world's leading authorities on the Sudden Infant Death Syndrome (SIDS);

Cutz told the Inquiry he found the concept of "thinking dirty" inappropriate because he interpreted as saying, "you are implying guilt up front, and, you know, until proven otherwise."

"I use the balanced approach," he said. "Looking at the facts and evidence, you know, regardless of what the motto is."

Cutz said that it made sense to be alert to the possibility of criminality in those relatively few cases where there had been a history with law enforcement or involvement with a Children's Aid Society.

However, he objected to the protocol because, "too heavy on the side of the forensic" as contrasted with the function of "Looking (at) what is the cause of death and...what what are the diseases and mechanism underlying it."

Doctor Cutz noted that he had voiced his objections to the protocol to the late Dr. Larry Becker, Head of the Pathology Department, but was not aware if Dr. Becker passed his objections on to the Chief Coroner's Office.

He said, however, that he had seen reference in correspondence to a meeting at ended by senior officials of the Chief Coroners Office, including Dr. Bernard Chiasson, at which Dr. Becker raised his own concerns about the policy.

On January 21, 1997, Dr. Cutz wrote a letter to Dr. Chiasson at the Chief Coroner's Office requesting a meeting to discuss information he had received from Dr. Becker that the Coroner's office was considering removing himself and a colleague from the rotation for performing medico-legal autopsies at the hospital.

The transcript of Dr. Cutz's testimony on this subject reads as follows:

MS. JENNIFER MCALEER: (Commission Counsel); And what -- what else did Dr. Becker tell you?

DR. ERNEST CUTZ: Well, you know, he said that, you know, if -- if I want any -- any sort of explanation as to the reasons and/or, you know, what -- what -- how can one mediate the situation, I have to -- to see Dr. Chiasson.

MS. JENNIFER MCALEER: And did you, in fact, meet with Dr. Chiasson --

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: -- to discuss this issue?

DR. ERNEST CUTZ: Yeah.

MS. JENNIFER MCALEER: And what -- what was your recollection of those discussions?

DR. ERNEST CUTZ: Well, I sort of outline in my letter here that, you know, the -- my experience at doing these cases at the Hospital for Sick Children and
outlining my, you know, experience in the different kinds of conditions which include, you know, natural deaths as well as -- as well as cases of child maltreatment or suspected homicide. And I bring to his attention one (1)
particular illustrated case to show that I have the same level of concern and erudition in carrying out pathology investigations, and I give -- give him example of it.

MS. JENNIFER MCALEER: Well, did Dr. Chiasson explain to you why -- well, first of all, did he verify what Dr. Becker had told you, that there was a
prospect that you and Dr. Wilson would be removed from the roster doing medicolegal work? Did he tell you that was something they were considering?

DR. ERNEST CUTZ: Well, when I asked for the meeting I said, This is what I'd like to discuss with him. So he didn't sort of say, you know, You're going to
be removed. But, you know, we were discussing the -- the situation.

MS. JENNIFER MCALEER: And what was your understanding as a result of your letter and your meeting with Dr. Chiasson? Did you continue to perform
medicolegal autopsies?

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: And was your performance of those medicolegal autopsies restricted in any way?

DR. ERNEST CUTZ: No, it wasn't restricted. I continued, as before, doing the non- homicide cases. You know, when I asked as to what the reasons were for removing me, it was sort of very vague. Something saying I was soft on crime, and I didn't collab-- or cooperate with the police which came to me as a 1 total surprise.

MS. JENNIFER MCALEER: Okay. So who said you were soft on crime?

DR. ERNEST CUTZ: Dr. Chiasson. Or there was a perception of.

MS. JENNIFER MCALEER: And do you know what the basis of that perception was?

DR. ERNEST CUTZ: He didn't explain, didn't give examples.

MS. JENNIFER MCALEER: And -- and the second reason was because you had difficulty communicating with the police?

DR. ERNEST CUTZ: No, that I did not cooperate with the police, which came as a total surprise, as I don't recall any incident. I was most cooperative at all instances with the police. I had no reason to -- so it came as a total surprise to me.

MS. JENNIFER MCALEER: And did Dr. Chiasson explain to you what the basis of that concern was --

DR. ERNEST CUTZ: He said he has -- he has no specific examples.

MS. JENNIFER MCALEER: Okay. Did you discuss this issue with Dr. Smith?

DR. ERNEST CUTZ: No.

MS. JENNIFER MCALEER: And after -- after this point in time, Dr. Cutz, you did continue to do medicolegal autopsies?

DR. ERNEST CUTZ: That's right. I thought the meeting with Dr. Chiasson was useful because we cleared the air, you know, this -- this -- to see what
the problems were. And, you know, actually I -- I -- part of the letter was -- you know, I gave him the breakdown of all the cases I did in the past five (5)
years, which was two hundred, twenty-five (225) cases, and -- and show him that, you know, it -- major portion were pediatric disease, which is no way anybody would have diagnosis outside of a pediatric centre. Okay. So -- so we -- we rendered a very valuable service to -- to making the right diagnosis for
the families. Okay. And then I show him the percentage of cases which went to inquests, which went to -- okay, which -- in every instance I was involved, a correct diagnosis was made, the crime was pursued, the crime was prosecuted and the person was jailed for -- for the crime.

For his part, Dr. Chaisson testified at the Inquiry that he had concerns about Dr. Cutz's and his colleague's "attitude over forensics."

Pressed by Commissioner Goudge over what he meant by their "attitude over forensics" Dr. Chiasson replied:

"From a pediatric pathology perspective, they were not insignificant, and -- and it wasn't simply the number of -- of cases as -- as much as my perception that when it came to cases they -- they weren't really as apprised at looking at injuries and the potential significance of -- of injuries as, was my view of, Dr. Smith, who was clearly interested in pediatric forensic pathology and -- and, you know, whose focus was in that - - that area."

The good news is that Dr. Barry McLellan put the "think dirty" protocol to rest when he became chief Coroner.

"(My) own teaching in recent years has been that it's important to keep an open mind. But, I can tell you that "think dirty" slides and the phrase "think dirty" was removed from many of the standard presentations that we were giving to members of the death investigation team".

"When I redid the presentation that the coroner's office gives as part of the major case management course, that was taken out of the course," McLellan explained.

"So, I can't say that there has been a specific effort to send out a communication saying, Don't think dirty, but the approach has been different through our educational courses, through our new courses for coroners, and the emphasis is to keep an open mind. And, as such, you know, we'll end up with the best quality of death investigation."

I will give the last word for this posting to Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, who told the Ontario Court of Appeal in the Mullins-Johnson case that new guidelines effectively tell Ontario's pathologists and coroners: "Don't think dirty; Think objectively. Think truth."

Harold Levy...hlevy15@gmail.com;

Affected Families Group Response to Dr. Charles Smith's Closing Submissions On The "Sharon" and "Jenna" Cases: An Enlightening Document;

In his closing Submissions, Dr. Charles Smith responded to allegations made against him by lawyers for the Affected Families Group in connection with the "Sharon" and "Jenna" cases;

Lawyers Peter Wardle and Julie Kirkpatrick reply to Smith's defence of his conduct int these two cases in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."

"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the Affected Families response begins:

Sharon;

"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;

"For the reasons set out below, it is submitted that these arguments are fallacious.

(i) limited experience

As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!

The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.

That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.

(ii) dog attack theory never seriously raised;

First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.

Rather, it was based on the pathology of the wounds on Sharon’s body, such as:

0: the distribution of the injuries;

0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;

0: the photograph of markings highly suspicious of a dog’s arch;

the scalp wound, which he described as being “torn or ripped away”;

0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.

Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.

Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.

Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.

When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.

For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.

In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.

As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.

The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.

Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.

(iii) others reached a similar opinion

Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.

However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:

Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.

Dr. Bechard is not a pathologist, and he did not view the body.

Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.

In any event, Dr. Wood now accepts that his opinion was wrong.

Dr. Chiasson did not view the body.

He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.

Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.

Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Sharon's mother by referring to the circumstantial evidence suggesting she was guilty of a murder.

Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.

Jenna;

In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17

He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.

In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.

He also says that he did not testify that the injuries all occurred at once.

Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.

This reasoning, however, is superficial.

The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.

As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”

As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.

Indeed, as Dr. Milroy put it:

“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”

The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.

Dr. Smith’s suggestion to the contrary is illogical and unreasonable.

The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.

Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:

MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?

MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.

MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?

MR. LARRY CHARMLEY: Yes.

MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?

MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.

MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?

MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.

Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.

This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."

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

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

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

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

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

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

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

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

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

And that's just for a start;

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

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

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

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

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

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

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

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

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

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

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

Each needed each other to fulfill their pursuits.

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

The overview reports provide some detail to their experiences.

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

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

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

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

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

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

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

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

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

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

Next Posting:

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

Harold Levy...hlevy15@gmail.com;

"Think Dirty"; Part One: Two Words At The Heart Of The Inquiry;

"UNFORTUNATELY, IN THIS DAY AND AGE, CHILD ABUSE IS A REAL ISSUE, AND IT IS EXTREMELY IMPORTANT THAT ALL MEMBERS OF THE INVESTIGATIVE TEAM THINK DIRTY."

FROM PROTOCOL ISSUED BY DR. JAMES YOUNG TO ALL CORONERS, PATHOLOGISTS, AND CHIEFS OF POLICE IN ONTARIO ON APRIL 10, 1995.

Two words, containing only three syllables lie at the heart of the Goudge Inquiry: "Think Dirty."

They are contained in a protocol issued by former chief coroner Dr. James Young to all coroners, pathologists, and chiefs of police in Ontario on April 10, 1995.

The policy was ultimately dropped by Dr. Barry McLellan, Dr. Young's successor, after he became Chief Coroner in April, 2004;

The protocol read:

"Unfortunately, in this day and age, child abuse is a real issue, and it is extremely important that all members of the investigative team "Think Dirty."

They must actively investigate each case as potential child abuse, and not come to a premature conclusion regarding the cause and manner of death until the complete investigation is finished, and all members of the team are satisfied with the conclusion."

During the nine years the protocol remained in effect, these words communicated through "think dirty" slides that were used in presentations to coroners throughout the province and other members of the death investigation teams.

The obvious danger of the new policy was that it could be interpreted as requiring local coroners and pathologists to act like police officers instead of as impartial doctors and scientists.

There was also a risk that it could encourage pathologists and prosecutors to feel that they were required to search for criminality behind every death of a child.

A risk that it could turn most innocent death of a child into a murder with all of the horrific consequences, to loving parents, families and caregivers that we have seen thus far at the Goudge Inquiry - especially since Dr. Young's new policy was introduced at a time of heightened public fear over child abuse and pressure on the authorities to do something about it.

At the very least, this Bloggist wonders if the new policy may have validated Dr. Charles Smith's suspicious approach to his work in his own mind - when he still had years of work to accomplish.

In fact, Dr. Young testified that he got the idea from a cop, adopted it, and used it in his own presentations.

Dr. Young told the Inquiry that the "Think Dirty" approach was formulated during a period of world-wide concern "that pediatric deaths weren't being properly investigated."

"(We) were very aware and there were discussions, again, at any forensic meeting about the difficulties in investigating pediatric deaths, and the fact that they -- children died of different things than adults did; and the very difficult job of sorting out metabolic disorders, SIDS, cases of Shaken Baby, cases of
subtle -- suffocation, of subtle child abuse, and dating of injuries, you know, to make sure that what was attributed to the death was -- was relevant," he told Commissioner Goudge.

Young testified that the new protocol was simply intended to remind people to look out for signs of criminality during the course of their investigations.-

Young stressed that, " It was not -- absolutely not, and it was never contemplated or discussed at any meeting I ever attended where the phrase was used, to mean that make cases -- make cases criminal matters when they aren't.

But he agreed with Commission Counsel Mark Sandler that, "with the benefit of -- of what we've learned since, it might be advisable for the Chief Coroner's Office to -- to develop another phrase to communicate the same sentiment."

The new policy troubled Dr. Ernest Cutz, a distinguished pathologist and researcher at the Hospital for Sick Children.

Dr. Cutz is one of the world's leading authorities on the Sudden Infant Death Syndrome (SIDS);

Cutz told the Inquiry he found the concept of "thinking dirty" inappropriate because he interpreted as saying, "you are implying guilt up front, and, you know, until proven otherwise."

"I use the balanced approach," he said. "Looking at the facts and evidence, you know, regardless of what the motto is."

Cutz said that it made sense to be alert to the possibility of criminality in those relatively few cases where there had been a history with law enforcement or involvement with a Children's Aid Society.

However, he objected to the protocol because, "too heavy on the side of the forensic" as contrasted with the function of "Looking (at) what is the cause of death and...what what are the diseases and mechanism underlying it."

Doctor Cutz noted that he had voiced his objections to the protocol to the late Dr. Larry Becker, Head of the Pathology Department, but was not aware if Dr. Becker passed his objections on to the Chief Coroner's Office.

He said, however, that he had seen reference in correspondence to a meeting at ended by senior officials of the Chief Coroners Office, including Dr. Bernard Chiasson, at which Dr. Becker raised his own concerns about the policy.

On January 21, 1997, Dr. Cutz wrote a letter to Dr. Chiasson at the Chief Coroner's Office requesting a meeting to discuss information he had received from Dr. Becker that the Coroner's office was considering removing himself and a colleague from the rotation for performing medico-legal autopsies at the hospital.

The transcript of Dr. Cutz's testimony on this subject reads as follows:

MS. JENNIFER MCALEER: (Commission Counsel); And what -- what else did Dr. Becker tell you?

DR. ERNEST CUTZ: Well, you know, he said that, you know, if -- if I want any -- any sort of explanation as to the reasons and/or, you know, what -- what -- how can one mediate the situation, I have to -- to see Dr. Chiasson.

MS. JENNIFER MCALEER: And did you, in fact, meet with Dr. Chiasson --

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: -- to discuss this issue?

DR. ERNEST CUTZ: Yeah.

MS. JENNIFER MCALEER: And what -- what was your recollection of those discussions?

DR. ERNEST CUTZ: Well, I sort of outline in my letter here that, you know, the -- my experience at doing these cases at the Hospital for Sick Children and
outlining my, you know, experience in the different kinds of conditions which include, you know, natural deaths as well as -- as well as cases of child maltreatment or suspected homicide. And I bring to his attention one (1)
particular illustrated case to show that I have the same level of concern and erudition in carrying out pathology investigations, and I give -- give him example of it.

MS. JENNIFER MCALEER: Well, did Dr. Chiasson explain to you why -- well, first of all, did he verify what Dr. Becker had told you, that there was a
prospect that you and Dr. Wilson would be removed from the roster doing medicolegal work? Did he tell you that was something they were considering?

DR. ERNEST CUTZ: Well, when I asked for the meeting I said, This is what I'd like to discuss with him. So he didn't sort of say, you know, You're going to
be removed. But, you know, we were discussing the -- the situation.

MS. JENNIFER MCALEER: And what was your understanding as a result of your letter and your meeting with Dr. Chiasson? Did you continue to perform
medicolegal autopsies?

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: And was your performance of those medicolegal autopsies restricted in any way?

DR. ERNEST CUTZ: No, it wasn't restricted. I continued, as before, doing the non- homicide cases. You know, when I asked as to what the reasons were for removing me, it was sort of very vague. Something saying I was soft on crime, and I didn't collab-- or cooperate with the police which came to me as a 1 total surprise.

MS. JENNIFER MCALEER: Okay. So who said you were soft on crime?

DR. ERNEST CUTZ: Dr. Chiasson. Or there was a perception of.

MS. JENNIFER MCALEER: And do you know what the basis of that perception was?

DR. ERNEST CUTZ: He didn't explain, didn't give examples.

MS. JENNIFER MCALEER: And -- and the second reason was because you had difficulty communicating with the police?

DR. ERNEST CUTZ: No, that I did not cooperate with the police, which came as a total surprise, as I don't recall any incident. I was most cooperative at all instances with the police. I had no reason to -- so it came as a total surprise to me.

MS. JENNIFER MCALEER: And did Dr. Chiasson explain to you what the basis of that concern was --

DR. ERNEST CUTZ: He said he has -- he has no specific examples.

MS. JENNIFER MCALEER: Okay. Did you discuss this issue with Dr. Smith?

DR. ERNEST CUTZ: No.

MS. JENNIFER MCALEER: And after -- after this point in time, Dr. Cutz, you did continue to do medicolegal autopsies?

DR. ERNEST CUTZ: That's right. I thought the meeting with Dr. Chiasson was useful because we cleared the air, you know, this -- this -- to see what
the problems were. And, you know, actually I -- I -- part of the letter was -- you know, I gave him the breakdown of all the cases I did in the past five (5)
years, which was two hundred, twenty-five (225) cases, and -- and show him that, you know, it -- major portion were pediatric disease, which is no way anybody would have diagnosis outside of a pediatric centre. Okay. So -- so we -- we rendered a very valuable service to -- to making the right diagnosis for
the families. Okay. And then I show him the percentage of cases which went to inquests, which went to -- okay, which -- in every instance I was involved, a correct diagnosis was made, the crime was pursued, the crime was prosecuted and the person was jailed for -- for the crime.

For his part, Dr. Chaisson testified at the Inquiry that he had concerns about Dr. Cutz's and his colleague's "attitude over forensics."

Pressed by Commissioner Goudge over what he meant by their "attitude over forensics" Dr. Chiasson replied:

"From a pediatric pathology perspective, they were not insignificant, and -- and it wasn't simply the number of -- of cases as -- as much as my perception that when it came to cases they -- they weren't really as apprised at looking at injuries and the potential significance of -- of injuries as, was my view of, Dr. Smith, who was clearly interested in pediatric forensic pathology and -- and, you know, whose focus was in that - - that area."

The good news is that Dr. Barry McLellan put the "think dirty" protocol to rest when he became chief Coroner.

"(My) own teaching in recent years has been that it's important to keep an open mind. But, I can tell you that "think dirty" slides and the phrase "think dirty" was removed from many of the standard presentations that we were giving to members of the death investigation team".

"When I redid the presentation that the coroner's office gives as part of the major case management course, that was taken out of the course," McLellan explained.

"So, I can't say that there has been a specific effort to send out a communication saying, Don't think dirty, but the approach has been different through our educational courses, through our new courses for coroners, and the emphasis is to keep an open mind. And, as such, you know, we'll end up with the best quality of death investigation."

I will give the last word for this posting to Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, who told the Ontario Court of Appeal in the Mullins-Johnson case that new guidelines effectively tell Ontario's pathologists and coroners: "Don't think dirty; Think objectively. Think truth."

Harold Levy...hlevy15@gmail.com...