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.

-----------------------------------------------------------------------

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

-----------------------------------------------------------------------

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." 

-----------------------------------------------------

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."

—————————————————————

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;
  
  —————————————————————————————-
  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;

-----------------------------------------------------------------

GUELPH MERCURY EDITORIAL RAISES GOOD QUESTION: WHY WAS OTTAWA'S CONTRIBUTION TO STEVEN TRUSCOTT'S WRONGFUL CONVICTION COMPENSATION AWARD KEPT SECRET?

"THIS REMAINS A SENSITIVE POLITICAL FILE. THAT WOULD SEEM TO BE THE ONLY REASON WHY THE FEDERAL GOVERNMENT WOULD SEEK TO SETTLE THIS QUIETLY. IT WOULD ALSO SEEM TO BE THE REASON THAT THE ONTARIO PROVINCIAL POLICE SEEM UNWILLING TO EITHER APOLOGIZE TO TRUSCOTT, COMMENT ON WHAT WORK IT EVER DID ON OTHER SUSPECTS, OR ADMIT THAT IT BOTCHED THIS INVESTIGATION."

EDITORIAL: THE GUELPH MERCURY;
-------------------------------------------------------------------------------

Background: The Steven Truscott case is one of the most horrifying miscarriages of justice in Canadian history;

By way of brief Wikipedia introduction for those unfamiliar with the case - in which the fact that the pathologist who conducted the autopsy had changed his opinion as to the time of death was not disclosed to the defence:

"Steven Murray Truscott (born January 18, 1945 in Vancouver, British Columbia) is a Canadian man who was sentenced to death in 1959, when he was a 14-year old student, for the alleged murder of classmate Lynne Harper. His death sentence was commuted to life imprisonment, and he continued to maintain his innocence until 2007, when his conviction was declared a miscarriage of justice and he was formally acquitted of the crime.

On July 7, 2008, the government of Ontario awarded him $6.50 million in compensation.[1]

Truscott was scheduled to be hanged on December 8, 1959; however, a temporary reprieve on November 20, 1959 postponed his execution to February 16, 1960 to allow for an appeal. On January 22, 1960, his death sentence was commuted to life imprisonment.

Truscott was the youngest person to be sentenced to death in Canada, and his case gave major impetus toward the abolition of the death penalty in Canada.

On November 29, 2001, Truscott filed a section 690 Criminal Code application for a review of his 1959 murder conviction. Hearings in a review of the Truscott case were heard at the Ontario Court of Appeal.

On August 28, 2007, after review of nearly 250 fresh pieces of evidence, the court declared that Truscott's conviction had been a miscarriage of justice. As he was not declared factually innocent, a new trial could have been ordered, but this was a practical impossibility given the passage of time. Accordingly, the court acquitted Truscott of the murder."

-------------------------------------------------------------------------------

The Guelph Mercury raises this question today in an editorial which runs under the heading: "Payout to Truscott was oddly handled";

"The federal government should be commended for paying half of the compensation award issued to Steven Truscott over his wrongful 1959 murder conviction and the woeful odyssey that flowed from it," the editorial begins;

"It's disappointing, however, that it took Ottawa as long as it did to provide its financial share on this matter -- regardless of the fact that it didn't result in a delay in the funds paid to Truscott," the editorial continues;

"Shameful is that this step also came without bringing public attention to it. In being done covertly, it happened without the federal government formally taking responsibility for its role in this miscarriage of justice and in Truscott's profound suffering as a result.

Ottawa owns a measure of this sorry case. It also owes an apology to Truscott, his family, and to the relatives of Lynne Harper -- the 12-year-old Clinton girl he was so long alleged to have murdered.

This remains a sensitive political file. That would seem to be the only reason why the federal government would seek to settle this quietly. It would also seem to be the reason that the Ontario Provincial Police seem unwilling to either apologize to Truscott, comment on what work it ever did on other suspects, or admit that it botched this investigation.

Retired Ontario judge Sydney Robins studied the Truscott case for the province and the issue of compensating him prior to the province doing so -- for the $6.5 million Robins recommended.

His 57-page report is a thorough and powerful commentary on the justice system failures in the case, provincially and federally. It also shed light on harm caused to Truscott through that process that had only been previously hinted at.

It also liberally employed "innocent" as a word that should be applied to Truscott.

A year ago this week, the province made public it agreed with Robins and needed to compensate Truscott. It did so prominently and publicly.

It's startling the federal government opted for a quieter course."

Harold Levy...hlevy15@gmail.com;

OTTAWA SHARED RESPONSIBILTY FOR $6.5 MILLION COMPENSATION AWARDED TO STEVEN TRUSCOTT; GUELPH MERCURY REPORTS;

"WOLCH NOTED TRUSCOTT'S EXECUTION ORDER WOULD HAVE BEEN ADMINISTERED BY THE FEDERAL GOVERNMENT, AS WAS THE COMMUTATION SEVERAL MONTHS LATER TO LIFE IN PRISON. AS WELL THE FEDERAL GOVERNMENT, THROUGH THE SUPREME COURT, DENIED TRUSCOTT'S 1966 BID TO GET A NEW TRIAL."

REPORTER SCOTT TRACEY: THE GUELPH MERCURY;

-------------------------------------------------------------------------------

The Steven Truscott case is one of the most horrifying miscarriages of justice in Canadian history;

By way of brief Wikipedia introduction for those unfamiliar with the case - in which the fact that the pathologist who conducted the autopsy had changed his opinion as to the time of death was not disclosed to the defence:

"Steven Murray Truscott (born January 18, 1945 in Vancouver, British Columbia) is a Canadian man who was sentenced to death in 1959, when he was a 14-year old student, for the alleged murder of classmate Lynne Harper. His death sentence was commuted to life imprisonment, and he continued to maintain his innocence until 2007, when his conviction was declared a miscarriage of justice and he was formally acquitted of the crime.

On July 7, 2008, the government of Ontario awarded him $6.50 million in compensation.[1]

Truscott was scheduled to be hanged on December 8, 1959; however, a temporary reprieve on November 20, 1959 postponed his execution to February 16, 1960 to allow for an appeal. On January 22, 1960, his death sentence was commuted to life imprisonment.

Truscott was the youngest person to be sentenced to death in Canada, and his case gave major impetus toward the abolition of the death penalty in Canada.

On November 29, 2001, Truscott filed a section 690 Criminal Code application for a review of his 1959 murder conviction. Hearings in a review of the Truscott case were heard at the Ontario Court of Appeal.

On August 28, 2007, after review of nearly 250 fresh pieces of evidence, the court declared that Truscott's conviction had been a miscarriage of justice. As he was not declared factually innocent, a new trial could have been ordered, but this was a practical impossibility given the passage of time. Accordingly, the court acquitted Truscott of the murder."

Although Truscott has been vindicated by the Ontario Court of Appeal - and has received his compensation from the Ontario Government - it was not publicly known until today that the federal government - which would have executed the teenager - has contributed 50% of the compensation;

"The federal government has reimbursed the province for half of the more than $6 million wrongful conviction award given last year to Steven Truscott," the story, by reporter Scott Tracey, begins, under the heading: "Feds pay their share: Ontario reimbursed for half of the $6.5M awarded to Truscott as compensation for wrongful conviction in 1959 death."

"Brendan Crawley, a spokesperson for Ontario's Ministry of the Attorney General, said yesterday the feds earlier this year paid Ontario "for half of the total compensation, so it was split 50-50," the story continues;

One year ago yesterday, Attorney-General Chris Bentley announced the province would pay Truscott $6.5 million -- and his wife Marlene another $100,000 -- in compensation for Truscott's wrongful conviction in the 1959 death of his schoolmate near Clinton, Ont.

The announcement followed advice given by retired judge Sydney Robins, who had been retained by the province following Truscott's exoneration by the Ontario Court of Appeal in August 2007, to examine the compensation issue. In his 57-page report, Robins recommended the federal government cover half the costs.

"In the present case . . . I believe that the cost of this miscarriage of justice should be shared equally by each level of government," Robins wrote. "Both governments have been involved in this matter virtually since its inception in 1959 and I can see no reason why they should not share equally the costs of the compensation payable to Mr. Truscott and his wife."

Yesterday, Truscott lawyer Hersh Wolch said the feds' willingness to cover half of the award should not be seen as an admission of wrongdoing on the part of the government of Canada, though the legal team believes the federal government bore much of the responsibility for Truscott's conviction and difficulty in clearing his name.

"Obviously, they have responsibility," Wolch said. "We've always felt the federal government shared in the responsibility."

Wolch noted Truscott's execution order would have been administered by the federal government, as was the commutation several months later to life in prison. As well the federal government, through the Supreme Court, denied Truscott's 1966 bid to get a new trial.

As well, six of the 10 years Truscott was behind bars -- after his 18th birthday -- were spent in federal prisons, where he was "treated" with LSD and sodium Pentothal in a failed effort to get him to confess to killing 12-year-old Lynne Harper.

Wolch noted the federal government typically does contribute to wrongful conviction awards, but he said those amounts are generally negotiated between the levels of government and lawyers for the wrongly-convicted do not get involved.

"From our point of view, as long as the compensation comes in the proper amount we're done with it," Wolch said.

The Truscotts, who moved outside of Guelph after the compensation announcement, have avoided the spotlight for the past year.

In an email to supporters last weekend, they wrote that their youngest son Devon was recently married by the same minister who married Steve and Marlene nearly 40 years ago and that their fourth grandchild was born earlier this year.

The couple plan to do some travelling, including a trip to eastern Canada this fall.

In October, Marlene will resume work on a book about their lives.

Harold Levy...hlevy15@gmail.com

RECENT CONFERENCE LINKING FORENSIC "EXPERTS" AND "WRONGFUL CONVICTIONS" SPARKS EDITORIAL IN GUELPH MERCURY ON PATHOLOGY FAILURES IN TRUSCOTT CASE;

"THE TRUSCOTT CASE WAS MARRED BY EVIDENCE FITTING. AMONG THE WORST INSTANCES RELATED TO PATHOLOGY REPORTS THAT OFFERED CONFLICTING ESTIMATES OF HARPER'S TIME OF DEATH. THE PROSECUTION SEIZED ON A LATER-RECANTED ESTIMATE THAT SUPPORTED THE TRUSCOTT-AS-SUSPECT THEORY, AND SUPPRESSED OTHER REPORTS SO THEY WEREN'T SHARED WITH TRUSCOTT'S ORIGINAL TRIAL LAWYER."

EDITORIAL; THE GUELPH MERCURY;

-------------------------------------------------------------------------------
One of the many fascinating topics at the recent conference was the lessons to be learned from Ontario's Steven Truscott case. (Steven Truscott was charged with murdering Lynne Harper when he was 13-years-old and spent a period of time on death row in the days before the death penalty was abolished in Canada, prior to his exoneration decades later);

This panel has sparked an excellent editorial in the Guelph Mercury which focused on the failure of the pathology evidence to serve the best interests of justice in the case;

(It is encouraging to read an editorial about the precariousness of pathologist's opinions on issues such as the time of death in a mainstream Canadian newspaper;)

"Had the Tori Stafford case unfolded 50 years ago, investigation into it likely would have gone quite differently," the editorial begins, referring to a young girl who has been missing from her Woodstock, Ontario family home for several weeks;

"For one thing, the seemingly central clue in the case -- a snippet of surveillance video of the April 8 abduction -- would not have existed," the editorial continues;

"For another, there would be no computer records of interest to police investigators possessed by her family.

Wondering about a yesteryear approach to investigating the Stafford case arises from a look this weekend about things learned from the botched work that led to the wrongful murder conviction of Steven Truscott, in the 1959 death of Lynne Harper.

The Truscott case study was staged for jurists and forensic scientists by the Osgoode Hall Law School and the University of Toronto's Centre for Forensic Science and Medicine on Saturday.

The death of Harper, like the disappearance of Stafford, was a top priority for the responding police service. In both cases, investigators and their superiors would have felt enormous pressure to resolve these probes, to calm anxious communities and to begin to deliver justice to the most relevant stakeholders.

Obviously, investigating police in the Woodstock case have a theory of the crime. But they've seemingly avoided becoming so wedded to it that they would fall into what was labelled at the weekend Truscott review as "the Cinderella Syndrome." That's the mindset when law enforcement and justice officials make the evidence "fit" a suspect to support a theory of a case and help bring it to a close.

The Truscott case was marred by evidence fitting. Among the worst instances related to pathology reports that offered conflicting estimates of Harper's time of death. The prosecution seized on a later-recanted estimate that supported the Truscott-as-suspect theory, and suppressed other reports so they weren't shared with Truscott's original trial lawyer.

The Truscott case, however, has given rise to considerable learning. This review revealed an openness by experts in the field, with forensic scientists admitting to the tension between the justice system's desire for finality and the need to deliver objective scientific opinion.

There was also a recognition that such science has its limitations, and time and new technology often reveal them.

After the weekend's discussions, it seems all the more that Truscott is owed an apology by the OPP.

But perhaps it also means there is a greater likelihood for justice for Tori Stafford too.

Harold Levy...hlevy15@gmail.com;

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

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

NATIONAL POST; JANUARY 12, 2009;

-------------------------------------------------------------------------

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

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

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

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

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

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

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

He deserves at least that.

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

Their lives have been ruined by his incompetent quackery.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harold Levy...hlevy15@gmail.com;

Ron Dalton's Wise Words;

"BY NIGHTFALL, DALTON WAS CHARGED WITH SECOND-DEGREE MURDER, BASED ON THE FINDINGS OF A LOCAL PATHOLOGIST WHO PERFORMED AN AUTOPSY. HE WAS NOT ALLOWED TO ATTEND HIS WIFE'S FUNERAL.

IN THOSE DAYS, THE CROWN WAS NOT LEGALLY REQUIRED TO DISCLOSE ALL RELEVANT EVIDENCE TO THE DEFENCE. CLOSE TO HIS TRIAL, DALTON LEARNED THAT THE PATHOLOGIST, WHO HAD NO FORMAL TRAINING IN FORENSIC PATHOLOGY, CONCLUDED BRENDA DALTON HAD DIED FROM MANUAL STRANGULATION.

HE EVEN WENT SO FAR AS TO SAY HER KILLER HAD USED HIS RIGHT HAND. FOR EVIDENCE, HE POINTED TO THE INTERNAL SCRATCHES ON HER THROAT.

"HE THOUGHT HE WAS QUINCY, BASICALLY," DALTON SAID. HOWEVER, THERE WERE NO OTHER SIGNS OF INJURY CONSISTENT WITH STRANGULATION, SUCH AS EXTERNAL NECK BRUISING, FRACTURED CARTILAGE OR HEMORRHAGING IN THE EYES.

THE CROWN WOULDN'T SPEND THE MONEY TO GET A SECOND EXPERT OPINION, DALTON SAID.

AT HIS TRIAL, THE JURY PREFERRED THE TESTIMONY OF THEIR LOCAL DOCTOR OVER THE DEFENCE EXPERT, A FORENSIC PATHOLOGIST FROM PHILADELPHIA WHO HAD PERFORMED THOUSANDS OF AUTOPSIES, INCLUDING HUNDREDS INVOLVING DEATH BY STRANGULATION."

TORONTO STAR:

Newfoundlander Ron Dalton's views on expert witnesses like Dr. Charles Smith are worth considering.

They were published recently in the Ottawa citizen - and I will be repeating them in a moment for the benefit of our readers.

But first, it will be useful to read this familiar sounding account of how Dalton came to spend years in penitentiary for a murder that never happened.

It is written by Tracey Tyler, my former colleague at the Toronto Star.

The story appeared under the heading "High price to pay for justice" on Nov. 6, 2007.

A sub-heading read, "His biggest loss was time with his kids."

"Ron Dalton was a bank manager, but he was naive. He innocently believed that since he didn't kill his wife, he couldn't possibly be found guilty of murder," the story began.

"But Dalton was convicted — a mistake that stole 12 years from his life and led to two trials, an appeal, a lawsuit and a recent public inquiry into his case, as well as into two other wrongful convictions in Newfoundland," it continued.

"It's been a $20 million make-work project for lawyers," he said in an interview over the weekend in Toronto, where he spoke to members of the Criminal Lawyers' Association at their annual conference.

That high cost of injustice was largely due to the prosecution's refusal to admit to a possible weakness in its case, he said.

A Crown culture that insists on winning at all costs and stubbornly refuses to concede error was one of the biggest barriers to overturning his conviction, said Dalton, who was 32 when his wife died. Another was finding lawyers who were prepared to dedicate time to helping him, especially when he ran out of money.

Since he was charged, one organization in particular, the Association in Defence of the Wrongly Convicted, has gone to bat for victims of miscarriages of justice. The Innocence Project at York University has also entered the field.

But Canada should not be depending on volunteer groups to investigate and expose miscarriages of justice, Dalton said. It needs a publicly funded review body operating at arm's-length from government, similar to one in place in Britain, he said.

Defence lawyers at the conference had a rare opportunity to hear Dalton's story in chilling detail, a story not well-known outside Newfoundland.

It began on Aug. 15, 1988, the longest day of his life. Dalton, a bank manger in Gander, had stopped at the RCMP detachment to pick up tickets for the policemen's ball and made restaurant reservations to celebrate his upcoming 11th wedding anniversary.

When he arrived home, his three children were asleep upstairs. He joined his wife Brenda, who was on a loveseat watching the news and eating a bowl of cereal.

She began to choke. Dalton patted her on the back, but it didn't help. Her face turned "beet red." He went to the kitchen to get a glass of water, returning to find her unconscious.

"I ran my finger through her mouth and the top of her throat to see if anything was there," he said. "I blew a few breaths into her and her chest would rise."

Dalton called an ambulance and Brenda was rushed to hospital. An inexperienced resident was in charge of the emergency room and botched the resuscitation by sliding a breathing tube into her stomach instead of her lungs. The inside of her throat was inevitably scratched. She did not survive.

Dalton stayed up all night with the neighbours, "wondering how I was going to explain to a 6-year-old and a 9-year-old that their mother is dead." His youngest was 18 months old.

"I waited until the sun broke to do that. I went into my oldest son's bedroom, sat down on the edge of his bed and tearfully told him." The two of them later knelt by his daughter's bed and told her.

By nightfall, Dalton was charged with second-degree murder, based on the findings of a local pathologist who performed an autopsy. He was not allowed to attend his wife's funeral.

In those days, the Crown was not legally required to disclose all relevant evidence to the defence. Close to his trial, Dalton learned that the pathologist, who had no formal training in forensic pathology, concluded Brenda Dalton had died from manual strangulation.

He even went so far as to say her killer had used his right hand. For evidence, he pointed to the internal scratches on her throat.

"He thought he was Quincy, basically," Dalton said. However, there were no other signs of injury consistent with strangulation, such as external neck bruising, fractured cartilage or hemorrhaging in the eyes.

The Crown wouldn't spend the money to get a second expert opinion, Dalton said.

At his trial, the jury preferred the testimony of their local doctor over the defence expert, a forensic pathologist from Philadelphia who had performed thousands of autopsies, including hundreds involving death by strangulation.

Dalton spent two years languishing in a 5-by-7 ft. cell in Renous penitentiary in New Brunswick, waiting for a trial transcript to be typed so he could proceed with his appeal. His trial lawyer strung him along for another two years after that. Four years into his sentence, Dalton learned he hadn't done any work on the case.

Dalton found another lawyer, but the Newfoundland legal aid system took a year before deciding to fund the case. For the next two years, Dalton waited. His lawyer sent him letters regularly, updating him on the "progress" of the case.

"I was sitting in a little steel cage up in northern New Brunswick, maximum security, trying to hang onto this little box of correspondence, hoping the next tear gassing or flood doesn't take that down."

But once again, Dalton had been fed a story. Seven years into his sentence, he filed his own handwritten legal brief with the Newfoundland Court of Appeal.

"The catalyst for actually getting it to court was my filing a half-assed factum," he said. "I was on my third chief justice by the time we actually got it going. One had already retired and another had died."

Through sheer luck, a junior lawyer from Dalton's second lawyer's firm put him in touch with St. John's lawyer Jerome Kennedy, now a prominent advocate for the wrongly convicted. Kennedy pushed Dalton's case, winning him a retrial. That lasted nine months, ending with his acquittal in 2000.

New medical evidence overwhelmingly concluded that Dalton had been charged with a crime that never occurred. Brenda Dalton had choked on cereal and the marks on the inside of her throat were caused by attempts to save her life.

Earlier this year, in his report from a public inquiry into Dalton's case and the wrongful murder convictions of Newfoundlanders Gregory Parsons and Randy Druken, commissioner Antonio Lamer, a former chief justice of the Supreme Court of Canada, said the cases were largely the result of a dysfunctional Crown culture that was overzealous and blindly accepted police theories.

One day after the report was released in June, Dalton received a letter of apology from Newfoundland's chief justice, Clyde Wells. He's still waiting for one from the government.

Knowing his family was on the outside of the prison walls was how he survived his ordeal because it gave him a focus, he said.

"My daughter had just graduated from kindergarten when her mother died. When I was acquitted, she was about to graduate high school. For me, it was always the measure of how much time had been lost."

With this background, Dalton's comments in the Ottawa Citizen, under the heading "Unmasking the expert: Musings on the Goudge Inquiry" are all the more meaningful;

"As someone who suffered the unsubstantiated opinion of a self-proclaimed “expert” in forensic pathology in another province I am struck by the abundance of repetitious medical jargon and technical verbal camouflage found throughout the opinions of Dr. Charles Smith" wrote Dalton;

"Sadly it is the very same language found throughout the opinion and testimony which sent me to prison.

It is also, in many instances, the exact same words used to wrongly convict others in other jurisdictions in this country and elsewhere.

At first blush one is tempted to receive the august findings of experts with a certain degree of awe and respect and, to our collective dismay, the utterances of such individuals have historically been imbued with a veneer of authority.

As we are painfully witnessing at the Goudge inquiry that veneer is sometimes merely a thin cosmetic coating deflecting our intelligence away from the fact the emperor has no clothes.

Dr. Smith is but one extreme example of a problem long overlooked by our criminal justice system and the self-governing medical bodies which are supposed to be providing the necessary checks and balances on unbridled medical authority.

In hindsight even Dr. Smith now concedes his lack of training, inexperience, and gross over interpretation.

While hardly forgivable it is flawed human nature for an unrestrained overactive ego to run amok, unfortunately, with tragic consequences for those of us directly affected.

The larger issue is our societal failure to establish adequate training for those we entrust with the almost limitless influence we accord experts in the criminal justice system.

Likewise the demonstrated inability of the self-governing medical bodies to protect societal interests reflects a fundamental structural weakness in our overall social system.

The individual failings of Dr. Smith and others of his ilk bring home in vivid detail the horrible consequences of wrongful convictions and expose an unhealthy systemic inertia when faced with correcting such wrongs.

In the recently much publicized cases of Steven Truscott and William Mullins-Johnson we see the unwarranted arrogance of Dr. Smith mirrored on the legal side of the equation.

In each of those blatant wrongful convictions the Crown stubbornly resisted efforts to achieve long-overdue justice in the face of overwhelming evidence of innocence.

Here again the self governing legal profession appears to value a rigid adherence to finality of the criminal legal process over the inherent right to freedom we all theoretically enjoy.

Given the disastrous consequences of an unrestrained Dr. Smith style expert opinion, the lack of medical or judicial oversight currently in place and the intransigent Crown culture in respect to correcting its own mistakes the system needs to be changed.

Commissioner Goudge will undoubtedly address some of those issues regarding his review of the Dr. Smith debacle but we must demand further systemic change in light of the broader lessons.

In particular Canada should have an independent body with the authority to review claims of wrongful conviction and address the permanent damages such horrible systemic mistakes do to individuals as well as to our collective confidence in the integrity of our justice system."

hlevy15@gmail.com