UP-DATE: CHARLES SMITH; JUDGE FINDS DISGRACED PATHOLOGIST INTENTIONALLY MISLED COURT TO HELP SECURE CONVICTIONS; TROTTA CASE; TORONTO SUN REPORTS;

"THIS IS THE FIRST TIME A SUPERIOR COURT JUDGE HAS DECLARED THAT CHARLES SMITH INTENTIONALLY MISLED THE COURT TO HELP SECURE CONVICTIONS," SAID DEFENCE LAWYER PAULA ROCHMAN, WHO REPRESENTED ANISA TROTTA, WHO HAD HER CHARGES IN THE DEATH OF HER SON STAYED EARLIER THIS MONTH.

HER HUSBAND, MARCO TROTTA, WAS FOUND GUILTY OF MANSLAUGHTER AND ASSAULT CAUSING BODILY HARM IN THE MAY 1993 DEATH OF THE EIGHT-MONTH-OLD BABY.

"THE GOUDGE INQUIRY FOUND THAT MISTAKES WERE MADE BUT DIDN'T MAKE THE FINDING THESE MISTAKES WERE MADE INTENTIONALLY," ROCHMAN SAID.

REPORTER SAM PAZZANO; THE TORONTO SUN;

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"THE (SUPREME COURT OF CANADA) TROTTA DECISION FALLS CLOSELY ON THE HEELS OF THE ONTARIO COURT OF APPEAL DECISION ACQUITTING WILLIAM MULLINS-JOHNSON IN THE FIRST-DEGREE MURDER OF HIS 4-YEAR-OLD NIECE VALIN JOHNSON - WHICH WE NOW KNOW TO BE AN ALLEGED CRIME THAT NEVER OCCURRED.

SO NOW BOTH THE SUPREME COURT OF CANADA AND THE ONTARIO COURT OF APPEAL HAVE CLOSELY EXAMINED DR. SMITH'S WORK IN TWO CASES WHERE HE WAS THE CENTRAL CROWN WITNESS AND FOUND THAT THE EMPEROR WAS WEARING NO CLOTHES."

THE CHARLES SMITH BLOG; DECEMBER 08, 2007;

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The Toronto Sun reports that a Superior Court Judge has ruled that Dr. Charles Smith intentionally misled the court to get homicide convictions against the parents of abused child Paolo Trotta.

The story could not be published at an earlier time because of a publication ban.

This is said to be the first time a court has ruled that Smith's "mistakes" were intentionaL.

"Disgraced pathologist Dr. Charles Smith intentionally misled the court to get homicide convictions against the parents of abused child Paolo Trotta, a judge ruled in a motion that had been covered by a publication ban," the story by reporter Sam Pazzano, which ran earlier today under the heading, "Pathologist won convictions despite 'medical evidence to the contrary,' began.

""This is the first time a Superior Court judge has declared that Charles Smith intentionally misled the court to help secure convictions," said defence lawyer Paula Rochman, who represented Anisa Trotta, who had her charges in the death of her son stayed earlier this month," the story continued.

Her husband, Marco Trotta, was found guilty of manslaughter and assault causing bodily harm in the May 1993 death of the eight-month-old baby.

""The Goudge inquiry found that mistakes were made but didn't make the finding these mistakes were made intentionally," Rochman said.

BAN LIFTED

The publication ban on Justice Alexander Sosna's pre-trial finding against Smith was lifted after the father was found guilty.

The father, now 40, was convicted of second-degree murder in 1998 but those convictions were quashed by the Supreme Court of Canada.

It ordered new trials for both Trottas, because of the flawed testimony of Smith.

Marco was sentenced to time served (nine years) plus a year probation while his 36-year-old wife served three years out of a five-year sentence for criminal negligence.

The couple live in Peel region.

"Dr. Smith's discredited conduct and evidence cannot be viewed in the isolated prism of the Trotta case," stated Sosna in a judgment obtained by the Sun.

"Similar discredited and flawed medical findings were made by Dr. Smith, both before and after the Trotta case ... and subsequently in a number of pediatric death prosecutions, some of which have been determined to be unlawful convictions.

"Tragically, Dr. Smith's flawed evidence in all these cases mirrors his discredited evidence in the Trotta case.

"Therefore, contrary to the Crown's position, Dr. Smith's evidence in the Trotta case was not an anomaly, but consistent with the history of securing convictions in suspicious pediatric deaths, notwithstanding medical evidence to the contrary."

Two forensic pathologists, Dr. Michael Pollanen and Dr. Simon Avis, chief medical examiner for Newfoundland, dismissed Smith's findings in the Trotta case.

HEAD INJURY

Smith found that Paolo died because of a head injury or asphyxiation and Avis "found his diagnosis of manual strangulation to be irresponsible," Sosna stated.

"To examine Paolo Trotta's skull to see the fracture and to opine that the fracture is from 10 minutes to utmost two days old, simply boggles my mind," Avis testified.

"I am at a loss why an acute fracture was even a consideration in determining the cause of death in this case."

Pollanen found that the cause of Paolo's death was "unascertained."

Paolo's litany of injuries confirmed he "was an abused and battered child," said Crown attorney Paul Murray at Trotta's sentencing three weeks ago."

"During his short 81/2 months of life, Paolo Trotta suffered more injuries than most people suffer in their lifetime," he said."

http://www.torontosun.com/news/torontoandgta/2009/09/25/11108061-sun.html

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THE CHARELES SMITH BLOG: December 8, 2007;

"ESSENTIALLY THE FRESH EVIDENCE ...DISCREDITS THE EVIDENCE GIVEN AT TRIAL BY DOCTOR CHARLES SMITH."

SUPREME COURT OF CANADA JUSTICE MORRIS FISH;

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

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

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

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

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

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

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

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

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

(For an account of key forensic evidence misplaced by Dr. Smith in the Trotta case, see previous posting (October);Trotta: Another Smith case involving misplaced evidence.)

The toll in the just these two cases:

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

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

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

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

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

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

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

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

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

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

The ball is now in the prosecutor's court as they digest the Supreme Court decision as the determine what, if any of the charges, they will bring to trial - now that their prime witness (whose evidence was declared by the Supreme Court to be inter-twined with all of the charges) has been discredited by the Nation's highest court.

Stay tune for developments."

Harold Levy...hlevy15@gmail.com;

UP-DATE: MARCO AND ANISA TROTTA; CHARLES SMITH CASE; NEW TRIAL SET FOR OCTOBER; PRE-TRIAL MOTIONS UNDER WAY;

"THE RETRIAL WAS ORDERED IN LATE 2007 BY THE SUPREME COURT OF CANADA AFTER CONCERNS ABOUT TESTIMONY BY DISGRACED PATHOLOGIST CHARLES SMITH WERE RAISED. A REVIEW OF DR. SMITH'S FINDINGS AND EXPERT TESTIMONY LED TO A REVIEW OF SEVERAL CRIMINAL CASES INVOLVING THE DEATHS OF CHILDREN."

REPORTER JEFF SHULMAN: NEWSDURHAMREGION.COM;

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This brief report was published on June 1, 2009 on newsdurhamregion.com under the heading, "Motions begin in Whitby court."

"WHITBY -- Pretrial motions have begun as the retrial of two parents convicted in the 1993 death of their young son approaches," the story by reporter Jeff Mitchell begins;

"Among the issues to be considered by Superior Court Justice Alexander Sosna is a motion by defence lawyers for Marco and Anisa Trotta, an Oshawa couple convicted in 1998 on charges related to the death of their eight-month-old son Paolo, for a stay of proceedings," the story continues;

"The judge began hearing submissions Monday morning in a Whitby courtroom; arguments presented during the pretrial motions are subject to a publication ban.

A new trial for the couple is scheduled to begin in October.

The retrial was ordered in late 2007 by the Supreme Court of Canada after concerns about testimony by disgraced pathologist Charles Smith were raised. A review of Dr. Smith's findings and expert testimony led to a review of several criminal cases involving the deaths of children.

Paolo's death in 1993 was originally attributed to Sudden Infant Death Syndrome but a review of those findings by Dr. Smith several years later led to charges against the child's parents. After a sensational trial in 1998, Marco Trotta was convicted of second-degree murder and sentenced to life in prison with no possibility of parole for 15 years; Anisa Trotta was convicted of criminal negligence causing death and other offences and given five years in prison."

Harold Levy...hlevy15@gmail.com;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The toll in the just these two cases:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Other experts reviewed the case.

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

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

A proper review required expertise in forensic pathology.

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

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

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

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

Harold Levy...hlevy15@gmail.com;

Trotta: Supreme Court Discredits Smith: A Defining Moment;

"ESSENTIALLY THE FRESH EVIDENCE ...DISCREDITS THE EVIDENCE GIVEN AT TRIAL BY DOCTOR CHARLES SMITH."

SUPREME COURT OF CANADA JUSTICE MORRIS FISH;

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

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

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

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

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

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

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

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

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

(For an account of key forensic evidence misplaced by Dr. Smith in the Trotta case, see previous posting (October);Trotta: Another Smith case involving misplaced evidence.)

The toll in the just these two cases:

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

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

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

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

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

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

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

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

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

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

The ball is now in the prosecutor's court as they digest the Supreme Court decision as the determine what, if any of the charges, they will bring to trial - now that their prime witness (whose evidence was declared by the Supreme Court to be inter-twined with all of the charges) has been discredited by the Nation's highest court.

Stay tune for developments.

(See other previous Trotta postings:
Trotta: Supreme Court hearing set for October 12; (October);
Trotta: Smith-related case creates dilemma for Supreme Court; (October);)

Trotta: Another Smith Case Involving Misplaced Evidence;

"STATE ACTORS HAVE A DUTY TO PRESERVE EVIDENCE, AS A NECESSARY ELEMENT OF THE ACCUSED'S RIGHT TO MAKE FULL ANSWER AND DEFENCE AND THE RIGHT TO A FAIR TRIAL."
JUSTICE BRIAN TRAFFORD; KPORWODU AND VENO;

This blog has obtained disturbing information that there is yet another case - along with the William Mullins-Johnson and Brenda Waudby cases - in which key forensic exhibits sent to Dr. Charles Smith for analysis have gone missing.

It is the prosecution of Marco Trotta for the second-degree murder of his eight and a half year-old son Paolo.

Mullins-Johnson's lawyers had spent years trying to locate forensic exhibits from Valin Johnson's autopsy that had been sent to Dr. Smith Charles Smith at the Hospital For Sick Children in Toronto;

The disappearance of those exhibits posed dire consequences for Mullins-Johnson; (See earlier posting: Mullins-Johnson: A Troubling Tale of Missing Forensic Exhibits);

Without them he would never be in a position to show that he was innocent;

Without them he was doomed to spend much of his life in prison on his conviction for the first degree murder of his beloved niece Valin Johnson.

The missing forensic exhibits were ultimately found after in May, 2005 after then Ontario Chief Coroner Dr. Barry McLellan sent officials to the Smith's office at the Hospital for Sick Children to search for them.

But Mullins-Johnson's lawyers say that despite their request for information as to how the lost evidence came to be found years later, they have never been told why it was deemed necessary to essentially execute a search of Smith's office by members of Ontario chief coroner's office in order to locate them.

In fairness, it is important to acknowledge that occasionally people - even the most conscientious people - make mistakes.

Or, as the Latin philosopher Seneca noted, "It is human to err."

But that charitable view may not help Dr. Charles Smith, who has been shown to have kept forensic evidence in his personal possession for years in yet another case - the prosecution of Brenda Waudby of Peterborough, Ontario for the second-degree murder of her two and a half year old daughter, Baby Jenna;

The forensic evidence in the Waudby case was a curly, male, dark, pubic type hair taken removed from Jenna's vulva area which may have shown that Brenda Waudby was innocent if Smith had turned it over to the authorities.

Smith held on to this hair for several years after Waudby was charged with second-degree murder in Jenna's death on Sept. 18, 1997;.

The charge was subsequently withdrawn June 15, 1999 after a panel of defence and prosecution experts took issue with Smith's opinion as to the time at which the fatal blows were inflicted on Jenna and the prosecutor told court that, “certain medical evidence has shifted dramatically.”
A young man who was Jenna's baby-sitter on the night she died has since pled guilty to the crime.

Smith failed to perform a standard rape kit examination on Baby Jenna to determine if she had been sexually assaulted that night. (The babysitter was subsequently charged with sexual assault by police - but the charge was withdrawn on his plea to manslaughter as a young offender.)

Smith also failed to inform prosecutors that he had taken the hair - and Peterborough police are on record as saying that Smith failed to pass on that information to them.

Peterborough police are on record as saying that he didn't inform them.

Waudby's lawyer was unaware of the existence of this evidence which possibly pointed ot the killer - and at the very least would have raised a highly reasonable doubt.

Smith has acknowledged to an investigator of the College of Physicians and Surgeons of Ontario that he had the hair with him in court the day he testified for the Crown against Waudby at her preliminary hearing.

That being the case, his sworn testimony for the Crown against Waudby that day is extremely interesting:

A portion of the transcript of Waudby's lawyer's Cross-examination of Smith on Oct. 23, 1998, reads as follows;

"Hauraney: And then he (the emergency room physician) goes on to say "a curly hair around the vulva area"?

Smith: Um -hmm;

Hauraney: Do you see that? (Showing him the emergency room form filled out by the physician;

Smith: Yeah.

Hauraney: Would you expect this young girl to have a curly hair on her vulva?

Smith: No, No - I assume that's some pick-up - that's something which has landed there;

Hauraney: I understand in speaking with him (the emergency room physician) and it would be evidence later on...

Smith: Um hmmm.

Hauraney:... but I understand in speaking with him he was satisfied it was consistent with a dark pubic hair?

Smith: You know something I don't know.

Hauraney: No - and I appreciate that...

Smith: Yeah, yeah.

Hauraney: ...But does that - by that added...

Smith: Does that raise alarm bells?

Hauraney: Yes?

Smith: Yes, sure.

Hauraney: And I take it then, as far as you know, the police didn't bring any public hair to you for examination?

Smith: No.

Hauraney: And did they advise you there may have been a pubic hair found?

Smith: I can't. I can't remember.

Hauraney: Allright;

Smith: I don't know. I'm sorry;"

A Peterborough police officer seized the hair from Smith's office at the Hospital for Sick Children - where it had been kept in a desk drawer.

Although the hair did not test as belonging to the babysitter, the hair was stored in such a shoddy way that one cannot say for sure whether the hair he handed over to the police was the same hair he took from Jenna's vulva area during the autopsy.

If these two disturing cases are not enough, the Charles Smith Blog has learned that Smith may have misplaced key forensic evidence in the Trotta case.

The salient facts of this case are that Paolo Trotta died in hospital on May 29, 1993 at the age of eight and a half months.

Everything was fine in the Trotta household as Marco, his father, woke up in the morning, changed Paolo, given him a bottle, and put him back in his crib.

But Marco Trotta went back to the crib a half hour later and discovered that Paolo was blue.

Frantic attempts to resuscitate Paolo were futile.

The cause of Paolo's death death was certified to be “undetermined” in the nature of a Sudden Infant Death Syndrome (SIDS) finding.

Eleven months later, Paolo’s younger brother, Marco Jr., was admitted to hospital with a broken femur.

Paolo’s death was then re-investigated and his body exhumed by Dr. Smith who conducted a second autopsy at which he observed a skull fracture which he opined could have been inflicted ten minutes before Paolo's death.

A skull fracture had not been noted at the original autopsy.

Smith's opinion proved utterly wrong, when the Trotta case became one of forty-five suspicious child death cases in Ontario involving Smith.

It is somewhat ironic that the review was ordered by former Chief Coroner Dr. Barry McLellan as a result of Smith's misplacing of the forensic exhibits in the Mullins-Johnson case;

As lawyer Michael Lomer notes in a factum filed in the Supreme Court of Canada, "Dr. (Michael) Pollanen (Ontario's chief pathologist) was equally certain that the skull fracture visible at the exhumation was healing, or almost healed."

"He described the features of its healing, and testified that there was no question that the fracture was healed," Lomer told the Court. "It was, he testified, “readily apparent” to the naked eye."

In addition to the erroneous opinion - which sent Trotta to prison for eight years before being released pending his appeal in May, 2007, "The Charles Smith Blog" has learned that Smith lost all of the forensic exhibits sent to him from the original autopsy - including microscopic slides, paraffin blcoks and photographs.

A Police report dated 12 January, 1998, under the heading "Seized Property" indicates that, "On the 17th of June, 1994, nine (9) paraffin blcck tissue samples, Durham Regional Police seized property tag #70335 and nine (9) microscopic slides, Durham Regional Police seized property tag #70336 which had been seized under authority of a Coroner's warrant from the Oshawa General Hospital, were personally turned over to Doctor Charles Smith of the Pathology Department of the Sick Children's Hospital in Toronto""

"Dr. Smith retained the samples in his possession to conduct his examination. At some point after the conclusion of Dr. Smith's examination, the samples were misplaced," the report continues.

"Attempts to locate the samples have proven unsuccessful. I personally have attended at both the Oshawa General Hospital and the Sick Children's Hospital and searched the storage facilities for each location for the missing samples.

The samples were not located. Nor ddoes there appear to be any documentation to suggest that the samples may be anywhere else other than Sick Children's Hospital;

Dr. Smith advised that routinely, samples from other hospitals are returned by mail. He has no express recollection of what he did with these samples when he was finished with them."

(The report was prepared before Trotta's trial began);

Flash forward eight years to 2004 and we have Lawyer Lomer - armed at this point with considerable information about the havoc Smith has caused in numerous criminal cases - desperately attempting to locate the samples so they can be independently tested in connection with Trotta's appeal.

However Lomer, who fought valiantly for William Mullins-Johnson in the Ontario Court of Appeal and the Supreme Court of Canada, and assisted him as a private citizen on his application for a ministerial review, was informed by crown law officers that the exhibits were still missing and that it was not anticipated that they would ever be found.

The exhibits were not located during a search of all exhibits located at the Pediatric Forensic Pathology Unit at The Hospital For Sick Children ordered by former Chief Coroner Dr. Barry McLellan in 2005;

Lomer's dilemma is reflected in leter he sent to the Crown Law Office on March 8, 2004.

"We remain seriously concerned about the missing slides for two reasons," Lomer wrote.

"One: The slide of the strap muscle is the genesis of the opinion of Dr. Smith that it could be showing an injury to the neck. Smith was not at all certain in that opinion but nevertheless he did testify about it;

Two: Dr. Smith ruled out any disease process based in part on those slides."

"At the time he gave his opinion Dr. Smith was considered a competent pathologist. That is no longer the case," Lomer continued.

"In my view I have evidence that establishes serious concerns about both his competence and credibility. ..

I do however see a disturbing pattern with respect to Dr. Smith.

He was the last one to have the slides in this case (absent any evidence ot the contrary).

That is also the case of Mullins-Johnson..."

Lomer summarizes the impact Dr. Charles Smith had on Trotta's right to a just process in a "fresh evidence" document filed in the Supreme Court of Canada.

"The most material testimony at the Applicants’ trial, which was overwhelming expert evidence from a witness who seemed to be as good as you can get in his profession, and who admitted to no doubts of his own, was, to use Dr. Avis’s (0000) word, a “fiction,” Lomer told the Court.

Once the foundation of the evidentiary record at the trial dissolves, the trial itself becomes a miscarriage of justice.

The trial was likely impacted in other ways by Dr. Smith’s testimony.

For example, the Applicants (Trotta and his wife Anisa) did not testify in their own defence. Dr. Smith’s claims put them in a dreadful situation.

They could not account for the recent skull fracture and its associated bruising, the swollen brain, the damage to the dura, and the signs of manual strangulation.

To testify in those circumstances would have been disastrous for them – they would have been lambs for the slaughter in the hands of any effective cross-examiner.

Now it is known that none of these claims have any merit.

Under these circumstances, the Applicants’ decision not to testify could have been very different.

They would only have had to explain the injuries to Paolo during his life.

Because pathology could not explain the death, they would not have had to either."

Justice Maurice Fish asked rhetorically at Trotta's recent Supreme Court of Canada hearing whether repeated botches by an expert witness might indicate something about the reliability of the witness in general. (See previous postings: Trotta: Smith-Related Case Creates Dilemma For Supreme Court; "Trotta: Supreme Court Hearing Set for October 12);
Sadly, this trio of horrific cases in which Smith "misplaced" key forensic evidence (Trotta, Mullins-Johnson and Waudby) are very much in point - and bear some interesting similarities to each other;

Consider these:

In Trotta, prosecutors asked police to conduct an investigation into the location of the misplaced forensic exhibits;

In Waudby, a Peterborough police officer was dispatched to Smith's office at the Hospital For Sick Children where he located and seized the missing hair.

In Mullins-Johnson, officials from the Coroner's office had to be dispatched by the Chief Coroner to Smith's office where they located the missing exhibits.

More cases involving misplaced forensic evidence allegedly misplaced by Smith to follow on future postings of this blog.

Query: Could these three cases involving misplaced forensic evidence have something else in common? The possibility that they all involved evidence that may have helped the defence establish that teh accused persons were innocent - and that Dr. Smith's opinion was wrong?

Harold Levy;

Trotta: Smith-Related Case Creates Dilemma For Supreme Court;

Prosecutors have conceded that Marco Trotta's conviction for second-degree murder cannot stand in light of fresh evidence that Dr.Charles Smith's opinion that various injuries inflicted on 8-month old Paolo were linked to his death on May 29, 1993 were linked to his death was utterly flawed.

But the Supreme Court is struggling with the issue of whether to allow convictions on lesser and included offences to stand or to send them back for trial before a new jury.

Trotta was released from prison in May on the basis of the fresh evidence after serving nine years behind bars on his 1998 murder conviction.

The dilemma is well captured by Globe and Mail reporter Kirk Makin in report today on Friday's hearing, under the heading, "Bad autopsy shouldn't alter verdict, court told."

"Horrendous abuse that an eight-month-old boy suffered at the hands of his father, Marco Trotta, was so obvious that a botched autopsy conducted on the child should be
overlooked, the Supreme Court of Canada was told Friday" Makins's story begins.

"Ontario prosecutor Lucy Cecchetto conceded that, while disgraced pathologist Charles Smith made significant errors in the case, a jury had ample other evidence to conclude that baby Paolo was killed by his father.

“What is clear is that there was a lifetime of abuse,” Ms. Cecchetto said. “Bruising had been noted. Bite marks had been noted. Almost every person who came into contact with him was concerned.… On all the facts, this was an exceptionally strong case for murder.”

However, lawyers for Mr. Trotta and his wife, Anisa, argued that by misidentifying or fabricating injuries – and then overstating his evidence at the Trotta trial – Dr. Smith irredeemably poisoned the entire proceeding.

“It would be unfair to allow the Crown to take advantage of a trial that was really a miscarriage of justice as a whole,” lawyer James Lockyer said. “Really, we should start again and give them a proper trial on proper evidence on all counts.” ...

Mr. Trotta has appealed his convictions and 15-year sentence for second-degree murder, aggravated assault and assault causing bodily harm.

Ms. Trotta has appealed convictions for criminal negligence causing death and failing to provide her son with the necessities of life.

After several years of building doubts surrounding the accuracy of Dr. Smith's autopsy findings in child deaths, the Ontario government called an inquiry last spring to look into 20 potentially false charges or convictions.

In a handful of these cases, parents of deceased children have already been exonerated in their deaths. The Trotta case represents the flip side – cases where the degree of culpability of the individuals charged is murky. Authorities fear that in many of these cases, the Smith factor could effectively result in something akin to a wrongful acquittal.

Several judges Friday expressed discomfort at having to speculate which of the various convictions registered against the Trottas are validated by other, untainted evidence.

Mr. Lockyer and co-counsel Michael Lomer warned that it would be folly to simply lop off the murder conviction and keep the other convictions intact. They said the jury could not have helped taking Dr. Smith's findings into account each time they considered a charge.

“It has to have a ripple effect,” Mr. Justice Ian Binnie agreed.

Mr. Lockyer said Dr. Smith's “hugely impressive” credentials would inevitably have captivated the jury, and that his florid language and “highly unprofessional, highly prejudicial” conclusions had to have coloured their analysis of all the charges.

Mr. Lockyer and Mr. Lomer said that while there was sufficient evidence of ongoing abuse for a jury to potentially convict their clients of some of the lesser charges, the Supreme Court should not attempt to decide the question.

“We don't dispute that there is evidence to reach that conclusion, but whether it should be reached is another question,” Mr. Lockyer said. “That is the reason to send it back to be retried by a jury – not for this court to essentially put itself in a jury's shoes.”

Harold Levy;

Trotta: Supreme Court Hearing Set for October 12;

The Supreme Court of Canada will soon hear its second appeal of a case involving Dr. Charles Smith - an appeal launched by Marco and Louisa Trotta.

The first appeal, filed by William Mullins-Johnson, was curtly dismissed by the Court in a two-sentence decision on May 26, 1998.

Mullins-Johnson had to spend another another seven and a half-years behind bars on his conviction for first-degree murder before being freed from custody on bail pending consideration of his application for a ministerial review on September 21, 2005, after a prosecutor told Court that Mullins-Johnson was the victim of an apparent miscarriage of justice.

He had been already behind bars for more than for more than twelve years in the death of his beloved four-year-old niece who, as a result of Dr. Charles Smith's erroneous opinion opinion - later proven wrong by forensic testing - that his beloved niece Valin had been sexually assaulted and then strangled.

Defence Lawyer Michael Lomer had won a powerful dissenting judgment from Justice Steven Borins in the Ontario Court of Appeal which was highly critical of Smith's work on the case - but ran into an apparent wall of indifference from the Nation's highest court.

The second appeal involving Dr. Charles Smith is being brought by Marco and Anisa Trotta;

The synopsis of their appeal published on the Supreme Court of Canada site reads:

"In 1993, 8-month old Paulo Trotta died. Dr. Smith, a forensic pathologist, performed an autopsy and testified for the Crown. Based in part on Dr. Smith's testimony, Paulo's father was convicted of second degree murder, aggravated assault and assault causing bodily harm and his mother was convicted of criminal negligence causing death and failure to provide the necessaries of life. She was acquitted of manslaughter. After conviction, Dr. Smith began to come under criticism in the media and other cases. The Office of the Chief Coroner reviewed some of his past work. The Trottas appealed from their convictions and applied for disclosure of documents produced in the Chief Coroner's review. Their application for disclosure was denied and the Trottas' appeal from their convictions was dismissed. At issue is whether their request for disclosure was properly denied and issues arising from the charge to the jury."

The importance of "disclosure" in the case is powerfully set out in the Trotta's factum for the Supreme Court hearing.

"As a practical matter, if appellate (or trial) counsel had become fully aware of issues surrounding Dr. Smith’s credentials and competence/incompetence, they would have been able to undermine the accuracy and reliability of Dr. Smith’s opinions at trial, or on a fresh evidence application on appeal," the factum reads in part.

"It may be that counsel would have been in a position to be able to go so far as to attack Dr. Smith’s truthfulness.

It may also be that counsel would have undertaken a further review of Dr. Smith’s opinions in the death of Paolo Trotta.

Thus, it is now known, since the Court of Appeal’s decision in the case, that Paolo’s skull was kept after the exhumation and not re-buried, and that an examination of it reveals that it had an obviously healed fracture, not a fracture that could have occurred within “ten minutes, fifteen minutes, half an hour” of death as Dr. Smith testified.

If defence counsel or appellate counsel had known the true breadth of Dr. Smith’s failings, they might have realized the need to investigate such a seemingly fundamental and unchallengeable finding as whether a skull fracture was “recent” or not.

If Dr. Smith were to have been proven incompetent by the unproduced materials, the appeal court would likely have inferred that the defence would have consulted other experts on the myriad of opinions expressed by Dr. Smith during his trial testimony.

As well, it is apparent that Dr. (David) Chan, who conducted the original autopsy, was paying remarkable deference in his trial testimony to Dr. Smith’s opinions by acknowledging extraordinary incompetence on his own part.

Thus, as an example, Dr. Chan testified that he must have overlooked many features associated with brain edema:
Q ...first of all you didn’t notice any stretching or tenseness in the dura, and secondly, when you penetrated the dura with an incision there was no bulging of the brain through that incision?

A. I did not pay attention to that part.

Q. Okay. And the gyri, Your Honour, G-Y-R-I, the doctor has indicated he saw no sign of them being pale or flattened, correct?

A. I did – I did not pay attention to that.

In essence, Dr. Chan fell on his sword in his trial testimony. It may be that revelations about Dr. Smith’s competence or lack thereof could have caused Dr. Chan to maintain his original autopsy findings. (That Paolo's death was attributable to SIDS (Sudden Infant Death Syndrome);

A separate "fresh evidence document" filed with the Supreme Court sets out the dramatic revelations which flowed from the Ontario Chief Coroner's review.

"Dr. Chan, who conducted the original autopsy, observed “mild bruising” near Paolo’s left temple, “non-specific” petechial haemorrhages in the lungs and thymus, and noted that “no skull fracture is seen at autopsy," the document states.

He certified the cause of death as “no anatomical cause found”.

Eleven months later, Dr. Smith did the second autopsy after Paolo’s body was exhumed.

He made a number of findings suggestive of homicide, including what he reported as a recent skull fracture.

In his testimony, he listed probable causes of death which were exclusively homicidal in nature, despite having reported the cause of death as “Undetermined” in his July 20, 1994 Post Mortem Report.

Two pathologists, both highly regarded and in senior positions, one the Chief Pathologist for the Province of Ontario (Dr. Michael Pollanen H.L.), and the other the Chief Medical Examiner for the Province of Newfoundland and Labrador (Dr. Simon Avis), now challenge virtually all of Dr. Smith’s findings indicative of homicide, decisively refute the claim that Paolo’s skull fracture was “recent”, and certify the cause of Paolo’s death as “undetermined” or “unascertained”.

The fresh evidence document cites several paragraphs from an affidavit sworn by Dr. Avis which expresses bafflement at Smith's opinion in the case.

I am at a loss as to why an acute fracture was even a consideration in determining the cause of death in this case, and am particularly concerned as to how Dr. Smith, who had an opportunity to examine the skull, could opine in his testimony before the jury that the skull fracture was anywhere from minutes to a couple of days old...

To examine Paolo Trotta’s skull, to see the fracture and to opine that that fracture is from minutes to, at most, two days old, simply boggles my mind. I cannot see how anyone, particularly anyone with the status that Dr. Smith enjoyed at that time, could possibly reach that conclusion. It escapes me. I think if a panel of lay people were given that skull, they would find it just as difficult as me to understand how that conclusion was reached.

As I say, the day I came up here to examine the skull, I was very concerned when I left the Coroner’s Office. Even though I examined the skull inside, outside, up side, back side, I came out of that office thinking I must have missed something.

I can’t possibly believe that anyone with any knowledge of pediatrics, pediatric autopsies, of pathology of medicine, could reach the conclusion that that was a fracture that, at most, was two days and probably only two to three minutes or two to ten minutes."

I still to this day stand in wonder."

Harold Levy;