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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An overview report prepared by Commission staff on Tyrell's case reads, in par, as follows;
Tyrell was born in Toronto on February 1, 1994;
Tyrell was the child of Janette and Garth;
Tyrell was almost four years old at the time of his death;
Criminal proceedings were initiated against Tyrell's caregiver, Maureen.
The criminal proceedings concluded on January 22, 2001, when the Crown stayed the second-degree murder charge against Maureen for the stated reason of preventing a miscarriage of justice
(Even though the Crown took the highly unusual move of withdrawing a second-degree murder charge in the face of opinions from highly respected experts which contradicted Dr. Smith's opinion, Justice Goudge notes that, "Dr. Cairns concluded that this was simply another one where reasonable experts could differ."
Justice Goudge's comment is particularly interesting in light of the fact that the charge against Maureen in Tyrell's case was stayed on January 22, 2001 - and the highly publicized withdrawal of the murder charge faced by Louise Reynolds in Sharon's case occurred merely three days later, on January 25, 2001;)
Surely, the timing of the two significant reverses to police prosecutors in cases involving Charles Smith should have give given Dr. Cairns significant pause.)
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Failure to disregard irrelevant and prejudicial information;
This is one of the cases where Justice Goudge found that Smith had allowed irrelevant or prejudicial information to affect his decision making in an individual case.
Justice Goudge was referring to the note Smith made in his autopsy report that Tyrell's mother had left him in Jamaica when he was young and that his father was in jail at the time, having killed a bystander during a shootout.
"If Dr. Smith relied on this information, he should not have done so," ruled Goudge.
"None of the information set out above should have been included ina final autopsy report because it leaves the impression that somehow it played a part in Dr. Smith's thinking;
Diagnosing head injury
Dr. Charles Smith's record in head injury cases - where he tended to find shaken baby syndrome - and Tyrell's case was no exception.
"Dr. Smith made serious errors in the diagnosis of head injury in several of the cases before me," Justice Goudge ruled.
"In some instances, his diagnosis, which today would be considered unreasonable, was acceptable given the knowledge at the time.
"In others. however, Dr. Smith's diagnosis was unreasonable then and would be unreasonable now.
More specifically, Tyrell's caregiver reported that he had been jumping on the couch, had slipped, and had fallen backwards, hitting his head on the marble coffee table or on the tiled floor.
Goudge said that although Smith rightly concluded that Tyrell had died of a head injury, "he failed to recognize that the pathology findings supported the position that Tyrell had suffered a contre coup brain injury, which is classically associated with a backward fall."
"Moreover, in 2000, when he testified for the Crown at the preliminary hearing of Tyrell's caregiver, Dr. Smith wrongly asserted that the caregiver's explanation could not account for Tyrell's injuries," Goudge added.
He went as far as telling the court that the literature suggested that children do not die from a fall of less than three or four storeys.
That was clearly wrong.
By 2000, there had already been a number of anecdotal reports of small household falls causing serious injury and even deaths in infants and children.
Dr. Smith's unequivocal opinion failed to reflect the state of the knowledge in 2000."
Use of default diagnosis;
Justice Goudge criticizes Smith for using default diagnosis in Tyrell's case - as he had also done in the several other cases;
Goudge says a default diagnosis is one that is assumed to be correct because the evidence does not exclude it.
"His reasoning is contrary to the evidence-based approach to forensic pathology," Goudge ruled.
Under an evidence-based framework, forensic pathologists begin from a position of objectivity, have an open mind, and consider all the possibilities before arriving at a decision.
They do not assume a diagnosis in the absence of another explanation and do not place the onus on others to locate contradictory evidence...."
The expert and evidence beyond his expertise:
During the course of the preliminary hearing Dr. Smith gave inappropriate evidence that was far removed from his expertise - such as his opinion that blunt force, shaking and abdominal injuries were more likely to be inflicted by men, whereas asphyxial deaths were more likely caused by women.
But Justice Goudge notes that Smith gave evidence that extended far beyond interpretation of pathological evidence in response to questions from the Court and from counsel - who both should have known better.
"Although experts must always recognize the limits of their expertise and stay within those limits, judges and counsel also play an important role in ensuring that those boundaries are respected.
In other words - my words - the judge and the lawyers did not do their job of protecting the accused and the criminal justice process;
Harold Levy...hlevy15@gmail.com;
Showing posts with label tyrell. Show all posts
Showing posts with label tyrell. Show all posts
Friday, November 7, 2008
Sunday, May 11, 2008
Part Two: Work Of Other Pathologists Who Conducted Pediatric Autopsies in Ontario Must Also Be Reviewed; Closing Submissions; AIDWYC And M.J. Group;
"THROUGHOUT HIS TENURE, THERE WAS VIRTUALLY NO OVERSIGHT OR PEER REVIEW OF POST MORTEM REPORTS IN THE PROVINCE.
IT IS REASONABLE TO CONCLUDE, THEREFORE, THAT ERRORS ARE LIKELY TO HAVE OCCURRED BY OTHER PATHOLOGISTS DURING DR. SMITH’S TENURE.
A REVIEW MUST THEREFORE BE UNDERTAKEN OF ALL PEDIATRIC AUTOPSIES CONDUCTED IN ONTARIO SINCE 1981 IN CASES THAT RESULTED IN CRIMINAL CONVICTIONS."
CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;
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The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.
For this reason, I am devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:
Today's focus is on a section in which the two parties point out that the Inquiry has raised doubts about the opinions of other pathologists in Ontario who conducted pediatric autopsies over the years - and recommends a review of all pediatric autopsies in the Province of Ontario Since 1981
(This would include, at a minimum, a review of all of Dr. Smith’s work from 1981 to 1991);
"While efforts have already begun to identify pre-1991 cases, that project must continue," this section of the closing submissions begins.
"There have been consistent problems in Dr. Smith’s cases," it continues;
"His forensic pathology was dreadful, his evidence was over-stated and emotive, and his conclusions were wrong.
Dr. Smith’s own evidence - that his education and training in forensic pathology was ‘woefully inadequate’, that he was ‘profoundly ignorant’ of the role of an expert witness in the courts, and that he did not understand the importance of, nor the procedures for, maintaining the continuity of evidence – suggests that those problems undoubtedly plagued his earlier work.
Again, quoting Dr. Smith’s own words, he had “extraordinarily limited… knowledge or expertise” and it was “potentially dangerous” for him to work on some cases.
His testimony in these cases nonetheless betrayed no uncertainty; he himself described it as “defensive or dogmatic or adversarial”.
Dr. Pollanen has said the reviews of Dr. Smith’s pathology opinions established there “is a reasonable basis to believe that problems might exist with Dr. Smith’s cases prior to 1991”.
All cases which relied on pathology opinions rendered by Dr. Smith require review.
Dr. Smith was not, however, working in isolation; he was the Director of the Ontario Pediatric Forensic Pathology Unit for over two decades.
Several forensic pathologists worked under his influence and administration.
He provided countless consultations (many of them undocumented) to pathologists across the province and across the country, and was viewed as an “icon” by pathologists in the field.
Throughout his tenure, there was virtually no oversight or peer review of post mortem reports in the province.
It is reasonable to conclude, therefore, that errors are likely to have occurred by other pathologists during Dr. Smith’s tenure.
A review must therefore be undertaken of all pediatric autopsies conducted in Ontario since 1981 in cases that resulted in criminal convictions.
Dr. Smith was accorded unparalleled respect and deference by his peers.
They were unwilling to challenge him.
For example, in the case of Valin, Dr. James Ferris, a respected forensic pathologist who had been retained by the defence at trial, admitted in a recent report that:
"…there’s no doubt that, at that time, my opinions were unduly influenced by the apparent authoritative opinions given by Drs. Smith and Mian… I was concerned, at that time, with the opinions expressed by Dr. Smith in the case and, since that time, I found myself disagreeing with his forensic pathology opinion expressed in several cases."
He continued:
"I’m now aware that his professionalism is being questioned by others, and I was clearly in error to accept, so readily, his opinions in the case.
Finally, his report concluded:
"Having reviewed all the evidence and materials referred to, it’s clear that my opinions were unduly influenced by my instructions from [defence counsel] and my ready acceptance of the opinions of Doctors Zehr, Mian, and Smith.
It is now clear to me that these influences reduced the level of objectivity of my opinions that would normally be expected from a Forensic Pathologist of my experience."
In the case of Baby M, a pathologist consulted by defence counsel who testified at the Inquiry indicated that Dr. Smith was the foremost expert in forensic pathology, and that she would not be prepared to challenge his findings.
If independent pathologists retained by the defence were unwilling to challenge Dr. Smith and allowed their judgment to be clouded by his celebrated status, it is a reasonable inference that physicians working beneath him did too.
A particularly disturbing example of this pattern is the meeting that took place regarding Sharon’s case between Dr. Smith, Dr. Wood, Dr. Cairns, Dr. Chiasson, Mr. Blenkinsop and Dr. Queen, not long after the autopsy.
Each expert at the meeting deferred to Dr. Smith’s contention that the wounds were not caused by dog bites, except for Dr. Queen, who believed they might, indeed, have been caused by a dog.
He did not advance these views forcefully, however, likely because he was a relatively junior member of Dr. Smith’s staff.
Dr. Cairns, the Deputy Chief Coroner and Dr. Smith’s superior at the time, now belatedly admits that he “put undue faith in Dr. Smith”, and that he believed that Dr. Smith was ‘the’ pathologist, an opinion shared by many in his office, the media, the Crown and defence bar, and the judiciary.
It took him “a long time to come to the realization (that there was a problem)… because he had put him on such a pedestal”.
Dr. Smith was widely consulted by other pathologists around the country, and was seen as the ‘go-to guy' in pediatric forensic pathology.
Pathologists were advised to call him for a consultation during the course of an autopsy, which may well have affected their conclusions.
It appears that many of those consultations were unlikely to have been recorded, and therefore identifying only the cases in which Dr. Smith was definitively involved would be impossible.
This inability to trace Dr. Smith’s influence is one of the factors which demands a comprehensive review.
There was no adequate supervision of Dr. Smith during his tenure, or of any other pathologist conducting medicolegal autopsies under the auspices of the Chief Coroner.
Dr. Smith had no proper training in forensic pathology.
Yet, he was the one who reviewed every report that came out of the unit.
In a telling exchange, Maxine Johnson, the Hospital for Sick Children Pathology Unit’s administrative coordinator, described the process:
"Commissioner: There was no practice for the CF12 to be reviewed by another pathologist before it was signed out to the Chief Coroner's Office;
A: Not for Dr. Smith. But the other pathologists had to give theirs to Dr. Smith because he was the Director of the Unit. So the pathologists would, you know, do their case. We’ll give it to Dr. Smith. He would review it, you know, make any suggestions to those pathologists –
Q: Right.
A: - and – but as far as Dr. Smith –
Q: So the practice was it would not be signed out by the case pathologist until the CF12 had been reviewed by Dr. Smith?
A: Most of the times, yes."
Until 1994, there was absolutely no formal review mechanism for post-mortem reports issued by pathologists working on behalf of the Chief Coroner’s Office.
In 1995, Dr. Chiasson instituted a bare-bones review process which consisted of simply ensuring the report itself met a basic standard, and attaching a ‘checkmark form’ - as it came to be known - to each completed report.
There was no review of photographs, slides, or underlying histology.
As Dr. Chiasson acknowledged, a review of this nature would not have identified a flawed analysis involving a misinterpretation of an injury or pathological conclusions from microscopic or histologic findings.
Dr. Chaisson had the sole responsibility for reviewing all 1,500 reports each year, which allowed for no more than a cursory scan of the report.
In cross examination by Mr. Campbell, Dr. Chiasson acknowledged that his review process would not have caught many of Dr. Smith’s mistakes:
Q: Knowing now what you didn’t know then, it would be fair to say that you needed a bit more insight into the factual substratum of the – the autopsies to identify some of the things that we now know were in error. Is that – would you accept that?
A: I would accept that, yes. A lot of the issues revolve – specific questions relating to circumstances of a death that were not information that wasn’t provided in the PM reports, yes.
Dr. Chiasson also acknowledged that his own lack of expertise with pediatric cases may have contributed to his inability to provide effective oversight.
He paid little attention to the reports of pathologists whom he knew and respected. As he candidly explained in his testimony:
“I was reviewing pathologists who I got to know very quickly. And – and a review in that case may have been simply looking at the bottom line, looking at the summary, and thank you very much”.
This admission, while commendable, does not inspire public confidence that no other miscarriages of justice occurred during his tenure.
Dr. Smith’s errors went undetected by the only review process in place, and common sense dictates that the errors of others did as well.
The work of Dr. Brian Johnston, who was, and still is, the Director of the Eastern Ontario Regional Forensic Unit is now the subject of controversy.
For over a decade, alarm bells were ringing regarding his competence and his propensity to reach critical conclusions that were not supported by medical or scientific evidence.
In one particularly shocking example, which parallels some of Dr. Smith’s cases, the natural death of an adult was attributed to strangulation causing an innocent person to be held in custody for some time.
Nevertheless, he was allowed for years to continue conducting the majority of criminally suspicious autopsies at the Eastern Ontario unit simply because there was nobody to take his place.
Dr. Chiasson identified persistent problems with the validity of Dr. Johnston’s conclusions and his administrative capabilities.
He made efforts to engage Dr. Johnson in remedial steps, without success, and his repeated pleas to have him removed as Director were ignored by Dr. Young.
It was not until February, 2007 that Dr. Johnston and the rest of the Ottawa staff were formally notified that they were no longer permitted to do homicide or criminally suspicious cases for the Chief Coroner's Office;
This provides one more reason for a Province-wide review.
As well, the lens of the “think dirty” regime that pervaded the death investigation system after the release of “Memo 631” on April 10, 1995 must have tainted the objectivity of pathologists throughout the Province.
As Dr. Chiasson and others acknowledged, pathologists would have been vulnerable to pressure from the police to make findings consistent with their pre-existing theory of the case.
Recommendations from this Inquiry will help to solve these kinds of problems in the future, but future improvements will not uncover past mistakes.
Several highly qualified and knowledgeable witnesses at the Inquiry supported an examination of other cases.
Dr. Crane supported it.
Dr. Butt suggested that it would be “a prudent thing to do”.
Dr. Cairns considered a further review to be an ‘ethical duty’.
Dr. Pollanen, the Chief Forensic Pathologist of Ontario, agreed that to restore public confidence in pediatric forensic pathology, a range of cases much broader than those of Dr. Smith needed to be examined.
There are relatively low numbers of pediatric homicides in Ontario each year.
45 of them have already been examined.
A review of the remaining cases is unlikely to be a great deal more demanding than the review that led to this inquiry.
The number of pediatric homicides and criminally suspicious deaths in Ontario each year can be estimated at between 10 and 20, with 5 to 15 of these occurring in children under the age of five.
Of those, only a fraction would have resulted in criminal convictions.
The number of criminally suspicious pediatric deaths since 1981 therefore falls into a range of approximately to 200 to 300 at the very most, 45 of which have already been reviewed.
In the Goldsmith Review, almost 300 cases were studied within the span of approximately 10 months.
This effort has significant systemic value beyond the obvious utility of correcting errors and doing justice in individual cases.
The evidence heard at the Inquiry suggests that the Chief Coroner's Office has not, until recently, acknowledged, confronted, and worked to correct possible errors resulting from their pathologists' work.
This Inquiry heard evidence about a litany of circumstances that ought to have sparked an earlier, comprehensive review of Dr. Smith's work, including the following:
0: the judgment delivered by Justice Dunn in 1991 acquitting Amber's babysitter of homicide, which seriously criticized Dr. Smith's work and his lack of objectivity;
0: the 1999 abandonment of the Children's Aid Society child protection application after the investigation of Nicholas' death and the receipt of sharply conflicting expert opinions, followed by Maurice Gagnon's litany of complaints between 2000 and 2003 to those whom he hoped would listen;
0: the 1999 withdrawal of homicide charges against Jenna's mother once substantial expert evidence emerged that challenged Dr. Smith's opinion, and,
0: the College of Physicians and Surgeons investigations of Dr. Smith which commenced in 1999.
Instead, in January 2001, after the withdrawal of criminal charges against Tyrell's caregiver and Sharon's mother, an internal review of the pathology in only those two cases was conducted.
A broader, external review of Dr. Smith's work was aborted.
51 Dr. Smith wrote to Chief Coroner Dr. Young and requested he be removed from the roster of pathologists doing medico-legal autopsies.
(He later started again.)
James Lockyer, as a Director of AIDWYC, requested a review following the revelations about these two cases.
Dr. Young responded that no comprehensive review would be performed.
Two articles were published in Maclean's Magazine in May 2001, "Dead Wrong" and "The Babysitter Didn't Do It," which set out some of the history.
No review followed this adverse publicity; Dr. Cairns' comments quoted in the articles were supportive of Dr. Smith.
In December 2001, David Bayliss, as a Director of AIDWYC, wrote to Dr. Cairns to request a review of the pathology in William Mullins-Johnson's case; this would not follow for several years58.
Another internal review of pathology, later supplemented by an external consultation, at the request of the investigating police service, confirmed difficulties in Jenna's case.
It was not until intensifying media scrutiny of the lengthening list of problematic cases in 200360, with the stay of proceedings ordered by Justice Trafford in Athena's case in June of that year, that Dr. Smith resigned from all coroner's autopsy and committee work, and in July 2004, from his position entirely.
A tissue audit was prompted by materials missing in Mullins-Johnson's case, and the media attention and public pressure relating to this and controversy over Jenna's case led to the Chief Coroner's June 2005 announcement of his decision, finally, to review and scrutinize Dr. Smith's cases for errors in pathology opinions.
A decade and a half had passed since Justice Dunn's ruling.
Part of this Commission's mandate is to make recommendations that will assist to "restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings."
Public confidence will be restored not only by changes made to improve the system in the future to avoid the repetition of errors, but also by a scrupulously fair and penetrating review of past cases where those errors may have occurred.
The press releases from the Chief Coroner's Office in 2005 and 2007, as the review of Dr. Smith's work started and finished, explicitly make this connection.
The Chief Coroner's Office stated at the outset that, "Conducting this review is an essential step in maintaining the public confidence in all of the important work that is done, day in and day out, by coroners and pathologists who provide service for the Office of the Chief Coroner and the public," and at the conclusion that, "maintaining public confidence in the Ontario Coroner's System was an underlying reason for conducting this review."
The same holds true for a more comprehensive review.
Even if a difficult or time-consuming process, these reviews are essential to demonstrate to the public that the Chief Coroner's Office has successfully combated the culture of avoidance which created the environment to allow errors to be made and to stand uncorrected."
Harold Levy...hlevy15@gmail.com;
IT IS REASONABLE TO CONCLUDE, THEREFORE, THAT ERRORS ARE LIKELY TO HAVE OCCURRED BY OTHER PATHOLOGISTS DURING DR. SMITH’S TENURE.
A REVIEW MUST THEREFORE BE UNDERTAKEN OF ALL PEDIATRIC AUTOPSIES CONDUCTED IN ONTARIO SINCE 1981 IN CASES THAT RESULTED IN CRIMINAL CONVICTIONS."
CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;
-------------------------------------------------------------------------------
The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.
For this reason, I am devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:
Today's focus is on a section in which the two parties point out that the Inquiry has raised doubts about the opinions of other pathologists in Ontario who conducted pediatric autopsies over the years - and recommends a review of all pediatric autopsies in the Province of Ontario Since 1981
(This would include, at a minimum, a review of all of Dr. Smith’s work from 1981 to 1991);
"While efforts have already begun to identify pre-1991 cases, that project must continue," this section of the closing submissions begins.
"There have been consistent problems in Dr. Smith’s cases," it continues;
"His forensic pathology was dreadful, his evidence was over-stated and emotive, and his conclusions were wrong.
Dr. Smith’s own evidence - that his education and training in forensic pathology was ‘woefully inadequate’, that he was ‘profoundly ignorant’ of the role of an expert witness in the courts, and that he did not understand the importance of, nor the procedures for, maintaining the continuity of evidence – suggests that those problems undoubtedly plagued his earlier work.
Again, quoting Dr. Smith’s own words, he had “extraordinarily limited… knowledge or expertise” and it was “potentially dangerous” for him to work on some cases.
His testimony in these cases nonetheless betrayed no uncertainty; he himself described it as “defensive or dogmatic or adversarial”.
Dr. Pollanen has said the reviews of Dr. Smith’s pathology opinions established there “is a reasonable basis to believe that problems might exist with Dr. Smith’s cases prior to 1991”.
All cases which relied on pathology opinions rendered by Dr. Smith require review.
Dr. Smith was not, however, working in isolation; he was the Director of the Ontario Pediatric Forensic Pathology Unit for over two decades.
Several forensic pathologists worked under his influence and administration.
He provided countless consultations (many of them undocumented) to pathologists across the province and across the country, and was viewed as an “icon” by pathologists in the field.
Throughout his tenure, there was virtually no oversight or peer review of post mortem reports in the province.
It is reasonable to conclude, therefore, that errors are likely to have occurred by other pathologists during Dr. Smith’s tenure.
A review must therefore be undertaken of all pediatric autopsies conducted in Ontario since 1981 in cases that resulted in criminal convictions.
Dr. Smith was accorded unparalleled respect and deference by his peers.
They were unwilling to challenge him.
For example, in the case of Valin, Dr. James Ferris, a respected forensic pathologist who had been retained by the defence at trial, admitted in a recent report that:
"…there’s no doubt that, at that time, my opinions were unduly influenced by the apparent authoritative opinions given by Drs. Smith and Mian… I was concerned, at that time, with the opinions expressed by Dr. Smith in the case and, since that time, I found myself disagreeing with his forensic pathology opinion expressed in several cases."
He continued:
"I’m now aware that his professionalism is being questioned by others, and I was clearly in error to accept, so readily, his opinions in the case.
Finally, his report concluded:
"Having reviewed all the evidence and materials referred to, it’s clear that my opinions were unduly influenced by my instructions from [defence counsel] and my ready acceptance of the opinions of Doctors Zehr, Mian, and Smith.
It is now clear to me that these influences reduced the level of objectivity of my opinions that would normally be expected from a Forensic Pathologist of my experience."
In the case of Baby M, a pathologist consulted by defence counsel who testified at the Inquiry indicated that Dr. Smith was the foremost expert in forensic pathology, and that she would not be prepared to challenge his findings.
If independent pathologists retained by the defence were unwilling to challenge Dr. Smith and allowed their judgment to be clouded by his celebrated status, it is a reasonable inference that physicians working beneath him did too.
A particularly disturbing example of this pattern is the meeting that took place regarding Sharon’s case between Dr. Smith, Dr. Wood, Dr. Cairns, Dr. Chiasson, Mr. Blenkinsop and Dr. Queen, not long after the autopsy.
Each expert at the meeting deferred to Dr. Smith’s contention that the wounds were not caused by dog bites, except for Dr. Queen, who believed they might, indeed, have been caused by a dog.
He did not advance these views forcefully, however, likely because he was a relatively junior member of Dr. Smith’s staff.
Dr. Cairns, the Deputy Chief Coroner and Dr. Smith’s superior at the time, now belatedly admits that he “put undue faith in Dr. Smith”, and that he believed that Dr. Smith was ‘the’ pathologist, an opinion shared by many in his office, the media, the Crown and defence bar, and the judiciary.
It took him “a long time to come to the realization (that there was a problem)… because he had put him on such a pedestal”.
Dr. Smith was widely consulted by other pathologists around the country, and was seen as the ‘go-to guy' in pediatric forensic pathology.
Pathologists were advised to call him for a consultation during the course of an autopsy, which may well have affected their conclusions.
It appears that many of those consultations were unlikely to have been recorded, and therefore identifying only the cases in which Dr. Smith was definitively involved would be impossible.
This inability to trace Dr. Smith’s influence is one of the factors which demands a comprehensive review.
There was no adequate supervision of Dr. Smith during his tenure, or of any other pathologist conducting medicolegal autopsies under the auspices of the Chief Coroner.
Dr. Smith had no proper training in forensic pathology.
Yet, he was the one who reviewed every report that came out of the unit.
In a telling exchange, Maxine Johnson, the Hospital for Sick Children Pathology Unit’s administrative coordinator, described the process:
"Commissioner: There was no practice for the CF12 to be reviewed by another pathologist before it was signed out to the Chief Coroner's Office;
A: Not for Dr. Smith. But the other pathologists had to give theirs to Dr. Smith because he was the Director of the Unit. So the pathologists would, you know, do their case. We’ll give it to Dr. Smith. He would review it, you know, make any suggestions to those pathologists –
Q: Right.
A: - and – but as far as Dr. Smith –
Q: So the practice was it would not be signed out by the case pathologist until the CF12 had been reviewed by Dr. Smith?
A: Most of the times, yes."
Until 1994, there was absolutely no formal review mechanism for post-mortem reports issued by pathologists working on behalf of the Chief Coroner’s Office.
In 1995, Dr. Chiasson instituted a bare-bones review process which consisted of simply ensuring the report itself met a basic standard, and attaching a ‘checkmark form’ - as it came to be known - to each completed report.
There was no review of photographs, slides, or underlying histology.
As Dr. Chiasson acknowledged, a review of this nature would not have identified a flawed analysis involving a misinterpretation of an injury or pathological conclusions from microscopic or histologic findings.
Dr. Chaisson had the sole responsibility for reviewing all 1,500 reports each year, which allowed for no more than a cursory scan of the report.
In cross examination by Mr. Campbell, Dr. Chiasson acknowledged that his review process would not have caught many of Dr. Smith’s mistakes:
Q: Knowing now what you didn’t know then, it would be fair to say that you needed a bit more insight into the factual substratum of the – the autopsies to identify some of the things that we now know were in error. Is that – would you accept that?
A: I would accept that, yes. A lot of the issues revolve – specific questions relating to circumstances of a death that were not information that wasn’t provided in the PM reports, yes.
Dr. Chiasson also acknowledged that his own lack of expertise with pediatric cases may have contributed to his inability to provide effective oversight.
He paid little attention to the reports of pathologists whom he knew and respected. As he candidly explained in his testimony:
“I was reviewing pathologists who I got to know very quickly. And – and a review in that case may have been simply looking at the bottom line, looking at the summary, and thank you very much”.
This admission, while commendable, does not inspire public confidence that no other miscarriages of justice occurred during his tenure.
Dr. Smith’s errors went undetected by the only review process in place, and common sense dictates that the errors of others did as well.
The work of Dr. Brian Johnston, who was, and still is, the Director of the Eastern Ontario Regional Forensic Unit is now the subject of controversy.
For over a decade, alarm bells were ringing regarding his competence and his propensity to reach critical conclusions that were not supported by medical or scientific evidence.
In one particularly shocking example, which parallels some of Dr. Smith’s cases, the natural death of an adult was attributed to strangulation causing an innocent person to be held in custody for some time.
Nevertheless, he was allowed for years to continue conducting the majority of criminally suspicious autopsies at the Eastern Ontario unit simply because there was nobody to take his place.
Dr. Chiasson identified persistent problems with the validity of Dr. Johnston’s conclusions and his administrative capabilities.
He made efforts to engage Dr. Johnson in remedial steps, without success, and his repeated pleas to have him removed as Director were ignored by Dr. Young.
It was not until February, 2007 that Dr. Johnston and the rest of the Ottawa staff were formally notified that they were no longer permitted to do homicide or criminally suspicious cases for the Chief Coroner's Office;
This provides one more reason for a Province-wide review.
As well, the lens of the “think dirty” regime that pervaded the death investigation system after the release of “Memo 631” on April 10, 1995 must have tainted the objectivity of pathologists throughout the Province.
As Dr. Chiasson and others acknowledged, pathologists would have been vulnerable to pressure from the police to make findings consistent with their pre-existing theory of the case.
Recommendations from this Inquiry will help to solve these kinds of problems in the future, but future improvements will not uncover past mistakes.
Several highly qualified and knowledgeable witnesses at the Inquiry supported an examination of other cases.
Dr. Crane supported it.
Dr. Butt suggested that it would be “a prudent thing to do”.
Dr. Cairns considered a further review to be an ‘ethical duty’.
Dr. Pollanen, the Chief Forensic Pathologist of Ontario, agreed that to restore public confidence in pediatric forensic pathology, a range of cases much broader than those of Dr. Smith needed to be examined.
There are relatively low numbers of pediatric homicides in Ontario each year.
45 of them have already been examined.
A review of the remaining cases is unlikely to be a great deal more demanding than the review that led to this inquiry.
The number of pediatric homicides and criminally suspicious deaths in Ontario each year can be estimated at between 10 and 20, with 5 to 15 of these occurring in children under the age of five.
Of those, only a fraction would have resulted in criminal convictions.
The number of criminally suspicious pediatric deaths since 1981 therefore falls into a range of approximately to 200 to 300 at the very most, 45 of which have already been reviewed.
In the Goldsmith Review, almost 300 cases were studied within the span of approximately 10 months.
This effort has significant systemic value beyond the obvious utility of correcting errors and doing justice in individual cases.
The evidence heard at the Inquiry suggests that the Chief Coroner's Office has not, until recently, acknowledged, confronted, and worked to correct possible errors resulting from their pathologists' work.
This Inquiry heard evidence about a litany of circumstances that ought to have sparked an earlier, comprehensive review of Dr. Smith's work, including the following:
0: the judgment delivered by Justice Dunn in 1991 acquitting Amber's babysitter of homicide, which seriously criticized Dr. Smith's work and his lack of objectivity;
0: the 1999 abandonment of the Children's Aid Society child protection application after the investigation of Nicholas' death and the receipt of sharply conflicting expert opinions, followed by Maurice Gagnon's litany of complaints between 2000 and 2003 to those whom he hoped would listen;
0: the 1999 withdrawal of homicide charges against Jenna's mother once substantial expert evidence emerged that challenged Dr. Smith's opinion, and,
0: the College of Physicians and Surgeons investigations of Dr. Smith which commenced in 1999.
Instead, in January 2001, after the withdrawal of criminal charges against Tyrell's caregiver and Sharon's mother, an internal review of the pathology in only those two cases was conducted.
A broader, external review of Dr. Smith's work was aborted.
51 Dr. Smith wrote to Chief Coroner Dr. Young and requested he be removed from the roster of pathologists doing medico-legal autopsies.
(He later started again.)
James Lockyer, as a Director of AIDWYC, requested a review following the revelations about these two cases.
Dr. Young responded that no comprehensive review would be performed.
Two articles were published in Maclean's Magazine in May 2001, "Dead Wrong" and "The Babysitter Didn't Do It," which set out some of the history.
No review followed this adverse publicity; Dr. Cairns' comments quoted in the articles were supportive of Dr. Smith.
In December 2001, David Bayliss, as a Director of AIDWYC, wrote to Dr. Cairns to request a review of the pathology in William Mullins-Johnson's case; this would not follow for several years58.
Another internal review of pathology, later supplemented by an external consultation, at the request of the investigating police service, confirmed difficulties in Jenna's case.
It was not until intensifying media scrutiny of the lengthening list of problematic cases in 200360, with the stay of proceedings ordered by Justice Trafford in Athena's case in June of that year, that Dr. Smith resigned from all coroner's autopsy and committee work, and in July 2004, from his position entirely.
A tissue audit was prompted by materials missing in Mullins-Johnson's case, and the media attention and public pressure relating to this and controversy over Jenna's case led to the Chief Coroner's June 2005 announcement of his decision, finally, to review and scrutinize Dr. Smith's cases for errors in pathology opinions.
A decade and a half had passed since Justice Dunn's ruling.
Part of this Commission's mandate is to make recommendations that will assist to "restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings."
Public confidence will be restored not only by changes made to improve the system in the future to avoid the repetition of errors, but also by a scrupulously fair and penetrating review of past cases where those errors may have occurred.
The press releases from the Chief Coroner's Office in 2005 and 2007, as the review of Dr. Smith's work started and finished, explicitly make this connection.
The Chief Coroner's Office stated at the outset that, "Conducting this review is an essential step in maintaining the public confidence in all of the important work that is done, day in and day out, by coroners and pathologists who provide service for the Office of the Chief Coroner and the public," and at the conclusion that, "maintaining public confidence in the Ontario Coroner's System was an underlying reason for conducting this review."
The same holds true for a more comprehensive review.
Even if a difficult or time-consuming process, these reviews are essential to demonstrate to the public that the Chief Coroner's Office has successfully combated the culture of avoidance which created the environment to allow errors to be made and to stand uncorrected."
Harold Levy...hlevy15@gmail.com;
Sunday, April 20, 2008
Part Five: Case Studies; Systemic Factors; The "Tyrell" Case; As presented by the Affected Families Group;
Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The third case has been identified by the Inquiry as the "Tyrell" case;
-----------------------------------------------------------------------------
By way of brief background:
Tyrell was born in Toronto on February the 1st of 1994.
Tyrell died on on January the 23rd, 1998 in Toronto.
He was almost four (4) years old at the time of his death.
Criminal proceedings were initiated against his caregiver.
The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.
-------------------------------------------------------------------------------------
"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;
"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;
"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.
It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.
Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.
The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.
He immediately got up and tried to run forward but fell and struck his forehead”).
However, this report contains highly prejudicial information about Tyrell’s father.
It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.
In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.
Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.
No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.
As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.
He was drawn into testifying outside his expertise.
He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.
Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.
According to Dr. Smith, “...with the newer studies, the literature is on my side”.
One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.
Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to Tyrell...is in any way accurate...”).
He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).
He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).
He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.
Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”
It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.
There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.
The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.
At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.
Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.
Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.
Harold Levy...hlevy15@gmail.com;
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The third case has been identified by the Inquiry as the "Tyrell" case;
-----------------------------------------------------------------------------
By way of brief background:
Tyrell was born in Toronto on February the 1st of 1994.
Tyrell died on on January the 23rd, 1998 in Toronto.
He was almost four (4) years old at the time of his death.
Criminal proceedings were initiated against his caregiver.
The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.
-------------------------------------------------------------------------------------
"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;
"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;
"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.
It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.
Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.
The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.
He immediately got up and tried to run forward but fell and struck his forehead”).
However, this report contains highly prejudicial information about Tyrell’s father.
It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.
In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.
Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.
No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.
As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.
He was drawn into testifying outside his expertise.
He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.
Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.
According to Dr. Smith, “...with the newer studies, the literature is on my side”.
One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.
Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to Tyrell...is in any way accurate...”).
He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).
He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).
He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.
Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”
It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.
There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.
The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.
At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.
Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.
Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.
Harold Levy...hlevy15@gmail.com;
Friday, April 18, 2008
Part Five: Case Studies: The "Tyrell" Case; Presented by the Affected Families Group;
Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The third case has been identified by the Inquiry as the "Tyrell" case;
------------------------------------------------------------------------------------
By way of brief background:
Tyrell was born in Toronto on February the 1st of 1994.
Tyrell died on on January the 23rd, 1998 in Toronto.
He was almost four (4) years old at the time of his death.
Criminal proceedings were initiated against his caregiver.
The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.
-------------------------------------------------------------------------------------
"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;
"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;
"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.
It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.
Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.
The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.
He immediately got up and tried to run forward but fell and struck his forehead”).
However, this report contains highly prejudicial information about Tyrell’s father.
It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.
In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.
Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.
No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.
As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.
He was drawn into testifying outside his expertise.
He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.
Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.
According to Dr. Smith, “...with the newer studies, the literature is on my side”.
One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.
Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to Tyrell...is in any way accurate...”).
He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).
He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).
He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.
Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”
It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.
There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.
The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.
At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.
Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.
Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.
Harold Levy...hlevy15@gmail.com;
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The third case has been identified by the Inquiry as the "Tyrell" case;
------------------------------------------------------------------------------------
By way of brief background:
Tyrell was born in Toronto on February the 1st of 1994.
Tyrell died on on January the 23rd, 1998 in Toronto.
He was almost four (4) years old at the time of his death.
Criminal proceedings were initiated against his caregiver.
The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.
-------------------------------------------------------------------------------------
"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;
"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;
"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.
It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.
Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.
The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.
He immediately got up and tried to run forward but fell and struck his forehead”).
However, this report contains highly prejudicial information about Tyrell’s father.
It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.
In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.
Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.
No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.
As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.
He was drawn into testifying outside his expertise.
He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.
Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.
According to Dr. Smith, “...with the newer studies, the literature is on my side”.
One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.
Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to Tyrell...is in any way accurate...”).
He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).
He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).
He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.
Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”
It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.
There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.
The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.
At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.
Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.
Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.
Harold Levy...hlevy15@gmail.com;
Saturday, April 5, 2008
Part Ten: Closing Submissions; Affected Families: Crossing The Line: From Coroner's Investigator To Police Agent;
The current focus is on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;
The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;
Today's focus is on the section in which the Group alleges that Dr. Smith - and others involved in death investigations for the Chief Coroner's Office - crossed the line from impartial death investigator to active participant in a police investigation;
"With the assumption of an advocacy role, there is a danger that medical professionals will “cross the line” into participating in the police investigation," this section begins;
"Dr. Smith admitted that in the early years he considered himself to be supporting the Crown and that in later years he understood the concept of impartiality but was poor in the execution," it continues;
"But it was not just Dr. Smith who fell into this line of thinking.
In the Tyrell case, the Court considered the admissibility of statements made by Tyrell’s caregiver to Dr. Mian and Elaine McLaughlin of the SCAN team.
The trial judge clearly found that they were “persons in authority” and was scathing in his remarks on this point:
"I would reject the statement because of the dramatically unsatisfactory nature of the SCAN (Suspected Child Abuse and Neglect) team evidence, which makes it impossible to know with any degree of certainty what [Tyrell’s caregiver] was told about the purpose of the interview and equally impossible to know what was in fact the real purpose of the interview and also the dramatic and startling contradiction between Dr. Mian and Ms. MacLachlan about the so-called protocol averred by Ms. MacLachlan and also because of the apparent lack of any protocol of system or set of standard procedures or organizational guidelines to ensure that the role of the SCAN team is clear and fairly brought home, not only to interviewees, but also that the very members of the SCAN team itself have some consistent understanding of what its true purpose and function is."
Dr. Dirk Huyer candidly advised the Commission that when reflecting on this possibility of assuming an inappropriate investigatory role in a case, he recognized that “theoretically people would be more willing to tell me that because I’m a physician and I’m in a helping environment.”
In the Tiffani case, police investigators arranged a joint interview of the parents with the investigating coroner present, meeting to “discuss the method of the interview” in advance.
According to the notes of the investigating officer, the discussion was as follows:
Coroner will ask medical background of mother in form used for medical history…will mention interview is taped and get consent….
If at any time interview shows criminality, Coroner will stop… Officer will [issue?] caution and continue interview. Same procedure to follow with husband.
Reference to Dr. Smith’s stature was used as an investigative tool by the police during the interrogation of Nicholas’ mother:
you have to understand that there people, they’re professional who, the pathologist, the head pathologist for Ontario – I mean, this is a man who’s not making idle speculation. This is a man who knows and who has empowered that knowledge to us that his death was not natural. That’s the reality of it.
The evidence suggests that the Ontario Chief Coroner's Office saw itself as “a resource to the system”, meaning the prosecution side of the criminal justice system.
Nowhere is this more evident that in the Barrie case referred to in the course of this Inquiry.
The Affidavit of Staff Sergeant Mark Holden, sworn January 28, 2008, raises significant concerns as set out below:
There were two case conferences with police prior to Dr. Smith meeting with the mother;
"There was communication between Inspector McNeill and Dr. Smith about the fact the house was wire-tapped;
There was a meeting between Inspector McNeill and Dr. Smith immediately before the meeting; and
Dr. Smith immediately reported back to Inspector McNeill, describing the mother’s demeanour as follows: “it was like talking to her about a load of gravel”.
A February 7, 2008 affidavit sworn by Dr. Cairns confirms that he was aware that Dr. Smith’s meeting with the mother was going to be wiretapped and that he didn’t see a problem with it at the time although he does now)."
Harold Levy...hlevy15@gmail.com;
The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;
Today's focus is on the section in which the Group alleges that Dr. Smith - and others involved in death investigations for the Chief Coroner's Office - crossed the line from impartial death investigator to active participant in a police investigation;
"With the assumption of an advocacy role, there is a danger that medical professionals will “cross the line” into participating in the police investigation," this section begins;
"Dr. Smith admitted that in the early years he considered himself to be supporting the Crown and that in later years he understood the concept of impartiality but was poor in the execution," it continues;
"But it was not just Dr. Smith who fell into this line of thinking.
In the Tyrell case, the Court considered the admissibility of statements made by Tyrell’s caregiver to Dr. Mian and Elaine McLaughlin of the SCAN team.
The trial judge clearly found that they were “persons in authority” and was scathing in his remarks on this point:
"I would reject the statement because of the dramatically unsatisfactory nature of the SCAN (Suspected Child Abuse and Neglect) team evidence, which makes it impossible to know with any degree of certainty what [Tyrell’s caregiver] was told about the purpose of the interview and equally impossible to know what was in fact the real purpose of the interview and also the dramatic and startling contradiction between Dr. Mian and Ms. MacLachlan about the so-called protocol averred by Ms. MacLachlan and also because of the apparent lack of any protocol of system or set of standard procedures or organizational guidelines to ensure that the role of the SCAN team is clear and fairly brought home, not only to interviewees, but also that the very members of the SCAN team itself have some consistent understanding of what its true purpose and function is."
Dr. Dirk Huyer candidly advised the Commission that when reflecting on this possibility of assuming an inappropriate investigatory role in a case, he recognized that “theoretically people would be more willing to tell me that because I’m a physician and I’m in a helping environment.”
In the Tiffani case, police investigators arranged a joint interview of the parents with the investigating coroner present, meeting to “discuss the method of the interview” in advance.
According to the notes of the investigating officer, the discussion was as follows:
Coroner will ask medical background of mother in form used for medical history…will mention interview is taped and get consent….
If at any time interview shows criminality, Coroner will stop… Officer will [issue?] caution and continue interview. Same procedure to follow with husband.
Reference to Dr. Smith’s stature was used as an investigative tool by the police during the interrogation of Nicholas’ mother:
you have to understand that there people, they’re professional who, the pathologist, the head pathologist for Ontario – I mean, this is a man who’s not making idle speculation. This is a man who knows and who has empowered that knowledge to us that his death was not natural. That’s the reality of it.
The evidence suggests that the Ontario Chief Coroner's Office saw itself as “a resource to the system”, meaning the prosecution side of the criminal justice system.
Nowhere is this more evident that in the Barrie case referred to in the course of this Inquiry.
The Affidavit of Staff Sergeant Mark Holden, sworn January 28, 2008, raises significant concerns as set out below:
There were two case conferences with police prior to Dr. Smith meeting with the mother;
"There was communication between Inspector McNeill and Dr. Smith about the fact the house was wire-tapped;
There was a meeting between Inspector McNeill and Dr. Smith immediately before the meeting; and
Dr. Smith immediately reported back to Inspector McNeill, describing the mother’s demeanour as follows: “it was like talking to her about a load of gravel”.
A February 7, 2008 affidavit sworn by Dr. Cairns confirms that he was aware that Dr. Smith’s meeting with the mother was going to be wiretapped and that he didn’t see a problem with it at the time although he does now)."
Harold Levy...hlevy15@gmail.com;
Saturday, February 23, 2008
Part Two: Dr. Smith's C.V. The Dumbing Down of Dr. Charles Randal Smith;
As will be seen, he presented himself at the Inquiry as a pathologist who decided to do some forensic work that no one else wanted to do, taught himself a few things about forensic science, and did his best given his lack of training.
But in his C.V., which he prepared for use in Court, Dr. Smith portrays himself as a well-qualified forensic scientist, who has great understanding of science, as well as the justice system, and who is widely published and steeped in research.
What is going on here?
Here is my theory:
Dr. Smith's testimony is geared towards the barrage of lawsuits that are piling up against him with a potential liability of millions of dollars to the medical insurer.
There are currently at least three lawsuits before the court - those launched by Brenda Waudby, Sharon's mother, and Tyrell's mother.
A fourth lawsuit will ultimately be launched by William Mullins-Johnson, who spent more than twelve years in penitentiary as a result of Smith's opinion which turned a natural death into first-degree murder.
Others are bound to follow suit
Now that the Ontario Court of Appeal has rejected that he cannot be sued because of a common law principle of absolute witness immunity, Dr. Smith's lawyers - and his insurers - must be thinking about the standard of care which he was expected to adhere to during the performance of his duties.
If he can successfully argue that the standard of care is minimal - because it was not uncommon for pathologists such as himself to dabble in forensic work at the time - the ultimate to the insurers will be minimal.
(Dr. Smith's oft-repeated refrain that he has committed errors" and "mistakes" - rather than out right negligent acts - also seems to this humble Blogster to be part of a damage control operation in contemplation of civil suits).
It might be useful to examine Dr. Smith's testimony at the Inquiry, while bearing this theory in mind.
First, his responses to questions posed by Jane Langford, his lawyer;
MS. JANE LANGFORD:
Dr. Smith, over the course of your ten (10) or so years of medical training, did you ever have occasion to work with a certified forensic pathologist?
DR. CHARLES SMITH: No.
MS. JANE LANGFORD: And in that time, Dr. Smith, did you receive any training or participate in any discussions about the role of an expert witness in Court proceedings?
DR. CHARLES SMITH: No...
MS. JANE LANGFORD: You joined the staff of the Hospital for Sick Children as a full-time pathologist in 1981?
DR. CHARLES SMITH: I did.
MS. JANE LANGFORD: And, so Dr. Smith, am I right that by the time you joined the staff of the Hospital for Sick Children as a full-time pathologist, you had had virtually no exposure to criminally suspicious death investigations?
DR. CHARLES SMITH: That's correct.
MS. JANE LANGFORD: And you had virtually no exposure to certified forensic pathologists?
DR. CHARLES SMITH: I had no exposure to certified forensic pathologists.
MS. JANE LANGFORD: Do you recall this being a concern of yours at the time?
DR. CHARLES SMITH: No.
MS. JANE LANGFORD: Why not?
DR. CHARLES SMITH: I was -- I was following the practice pattern of -- of the more senior colleagues in my department, and, so my -- my experience was the same as -- as theirs. It was the same as -- as I understood, of the other pediatric pathologists in Ontario who were doing coroner's cases. I had no knowledge or understanding that there was any value added in forensic pathology. That thought didn't cross my mind, and certainly no one suggested it did.
MS. JANE LANGFORD: Did you know any forensically-trained pathologists practising in a pediatric setting at that time?
DR. CHARLES SMITH: No...
MS. JANE LANGFORD: And as your career progressed, Dr. Smith, and you became more focussed on pediatric forensic pathology, why did you not pursue any more specific forensic training?
DR. CHARLES
SMITH: It never occurred to me that it was of value.
MS. JANE LANGFORD: Did anyone suggest to you that you ought to pursue more specific forensic training?
DR. CHARLES SMITH: No.
MS. JANE LANGFORD: And sitting here today, Dr. Smith, with the benefit of hindsight, how would you describe your forensic pathology education and training?
DR. CHARLES SMITH: It was self-taught. It was minimal. And retrospectively, I realize it was woefully inadequate...
Dr. Smith; My experience in the 1970s and 1980s, which Dr. Pollanen wouldn't have had, would indicate to me that that statement was equally correct then. There was seemingly no recognition that, within pediatric forensic pathology, there was a significant input or value from the -- or to consider cases from the perspective of forensic pathology. The emphasis was on the pediatric side; the pediatric diseases and understanding pediatric disorders that could cause sudden death, for instance.
MS. JANE LANGFORD: And prior to the publication of the results of the review conducted by the Office of the Chief Coroner, Dr. Smith, did you recognize that there were significant gaps in your basic forensic pathology knowledge?
DR. CHARLES SMITH: Well, I knew there were gaps, but those gaps I didn't believe were of concern. For instance, I knew that I didn't know gunshot wounds, but gunshot wounds are not a problem in pediatric pathology here. I knew that I didn't know the toxicology of drug abuse, but that, again, is not a topic of -- of relevance, and so while I understood that there were areas I didn't know, I didn't understand that there were areas of ignorance that -- that bore on the pediatric forensic work.
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Now take a look at his response to a question posed by Commission Counsel Linda Rothstein:
MS. LINDA ROTHSTEIN:
The thing that you've fastened on mostly, as I hear it, sir, is the lack of expertise and formal training; the extraordinary gaps in your knowledge -- as you just put it to your counsel -- in forensic pathology; that would be one (1) of the main reasons you would see that explains what went wrong here, is that fair?
DR. CHARLES SMITH: I believe -- I believe that's a very significant factor, yes.
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Finally, it may be useful to consider Dr. Smith's response to a question posed by lawyer Peter Wardle as to why he did not tell court that there was "controversy" among pathologists over the subject matter in question - and that an expert must fully present the judge or jury with the fact that there is "another side."
DR. CHARLES SMITH: But, excuse me, Mr. Wardle, the -- the start of your question was: Did I not appreciate that? I think it -- did I not appreciate that it
1 was my role to bring the controversy forward? And the -- and so I don't want to walk away from this, because I think this may be helpful, not only in understanding this case, but maybe more globally. Was -- in fact, no I did not understand that role. No one ever -- had ever told me. It had not crossed my mind at all. I admit that that was -- that that expresses a position of ignorance about -- about my role in the -- in the judicial system, but the reality is no, I had no idea, and no one every told me. None of my colleagues told me. I'm not aware that my colleagues als(o) -- did that either. As I -- as we discussed testimony after trials were over and
1tried to sort of help understand from each other what went on, none of us, to the best of my recollection, ever went into court with papers that represented both sides of the controversy. So I plead ignorance on it. I realize it wasn't helpful, but -- but that is -- I was doing what I thought was to be done.
Let's pause now and contrast Dr. Smith's professed "ignorance" of the most basic his testimony in court - where his testimony could send an innocent parent or caregiver to jail for life as the murderer of their child.
At William Mullins-Johnson's trial for the first-degree murder of his 4-year-old niece Valin, for example, Dr. Smith was asked about the forensic work he did at the Hospital For Sick Children;
"Okay. At the Hospital there are three (3) of us. I do the majority of the work, and if I'm not there someone has to stand in my place, so I do that," he replied.
"The Pediatric Forensic Pathology Unit is unique. We're not aware, or the Chief Coroner isn't aware that there's an existence anywhere in North America, such a unit. So because of that I probably do a little bit more of this
kind of work than anyone else in the country."
We can see how he has placed himself at the top level of forensic pathology in North America with this testimony.
As the case against Mullins-Johnson rested entirely on the scientific evidence, faced with this evidence - so contrary to the way in which he portrayed himself to the Goudge Inquiry - Mullins-Johnson was doomed.
(In Kenneth's case, Smith told the jury that, "The vast majority of my work is in
pediatric forensic pathology)."
It is also useful to compare Smith's professed ignorance of all things forensic to the way in which other participants in the criminal justice system saw him.
For example, the prosecutor involved in an Ohio murder case where Dr. Smith testified, latter praised Smith in a letter he sent him, saying, "I along with my colleagues, found your work in this case to be truly outstanding. I can well imagine that pediatric forensic pathology must rank among the most unpleasant fields of medicine in which to practice, but society is indeed fortunate that a man of your calibre has chosen to do so."
Also consider a senior officer's description of Dr. Smith's delivery of his evidence to the court in the Ohio case;
"He was great in front of the jury," recalled (Detective John) Nethers, who was stunned to learn yesterday that Smith is now the subject of an inquiry,"...when Dr. Smith was on the stand, everybody in the courtroom seemed interested in what he was saying and was paying attention."
I will leave it to our readers to contrast Dr. Smith's self-deprecating testimony to the inquiry with his description of himself in his C.V. which was prepared for use in Court and his evidence in court as to his lofty qualifications;
To this Blogster, his testimony wreaks of damage control and self interest.
It is exactly the kind of testimony one would expect from a man who would sue the Saskatoon Regional Health Board for wrongful dismissal for emotional stress - so that the Board's resources can be spent on him - rather than on the patients it serves.
A final note: That Board, under Chair person Darlene Eberle - did its job to protect the public from Dr. Charles Randall Smith (for which it got sued!) and deserves praise for its efforts - unlike the Ontario institutions such as the Hospital For Sick Children and the Chief Coroner's Office, which left the public at risk.
Harold Levy...hlevy15@gmail.com;
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