EXPERT EVIDENCE? (1); DOES FAULTY FORENSIC ALSO CONTAMINATE THE CIVIL LITIGATION PROCESS? TORONTO SUN COLUMNIST ALAN SHANOFF ARGUES THAT IT DOES;

"WITH ORGANIZATIONS SUCH AS ASSOCIATION IN DEFENCE OF THE WRONGFULLY CONVICTED AND THE INNOCENCE PROJECT, AND WITH THE GOUDGE INQUIRY INTO THE WRONGDOING OF PATHOLOGIST DR. CHARLES SMITH, LIGHT HAS BEEN SHED ON THE MANY WRONGFUL CONVICTIONS THAT BRING DISCREDIT TO OUR CRIMINAL JUSTICE SYSTEM.".......

"BUT WE CAN TAKE STEPS TO IMPROVE THE QUALITY OF CIVIL JUSTICE RESULTS SO AS TO REDUCE THE INCIDENCE OF WRONGFUL CIVIL JUSTICE LITIGATION. SINCE EXPERT WITNESS TESTIMONY IS A COMMON FACTOR IN MANY WRONGFUL CRIMINAL CONVICTIONS IT SEEMS LOGICAL THAT EXPERT WITNESS TESTIMONY IS LIKELY A LARGE CONTRIBUTOR TO WRONGFUL CIVIL LITIGATION RESULTS. SO, A GOOD START WOULD INVOLVE A MASSIVE CHANGE TO PROCEDURES INVOLVING EXPERT WITNESSES.

WE MUST ELIMINATE THE HIRED-GUN MENTALITY OF EXPERT WITNESSES. JUDGES MUST BECOME BETTER GATE-KEEPERS OF EXPERT WITNESSES. LAWYERS MUST BE BETTER TRAINED TO CROSS-EXAMINE EXPERTS. EXPERTS MUST BE CONFINED TO GIVE TESTIMONY ONLY WITHIN THEIR SPHERE OF EXPERTISE."

ALAN SHANOFF: THE TORONTO SUN.

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

"Kyle Unger has joined a long list of the wrongfully convicted, now vindicated," Alan Shanoff's column began, under the heading "Cracking down on 'expert' witnesses is a civil saver."

"A Manitoba judge acquitted Unger last month after hearing DNA evidence could not link a hair found at the murder scene to Unger," the November 1, 2009 column continued.

"Indeed there was no forensic evidence to link Unger to the murder.

The case also involved a falsely induced confession through use of a scheme known as the "Mr. Big" technique. This is an odious scam where a suspect is drawn into lucrative criminal activity and then encouraged to confess to a murder or other serious crime to satisfy his boss that he is trustworthy.

With organizations such as Association In Defence of the Wrongfully Convicted and the Innocence Project, and with the Goudge Inquiry into the wrongdoing of pathologist Dr. Charles Smith, light has been shed on the many wrongful convictions that bring discredit to our criminal justice system.

Much of the discredit is due to false or overzealous expert testimony.

But let's not kid ourselves. If there have been many miscarriages of justice in the criminal justice system due to overzealous expert testimony, what makes anybody think there haven't been even more miscarriages of justice in the civil justice system? After all, the standard of proof in the civil justice system is much lower than the beyond a reasonable doubt standard of proof used in the criminal justice system.

Logic tells me there must be many more miscarriages of justice in the civil justice system.

So what are we doing about it? It is facile to say we have an appellate court system to prevent civil miscarriages of justice. Most of the famous wrongful convictions were unsuccessfully appealed to the way to the Supreme Court of Canada.

Maybe we shouldn't care about wrongful civil justice results. After all, nobody ends up in jail due to mistakes in civil cases. But make no mistake, lives can be ruined by wrongful civil justice results. A wrongful finding of liability can lead to bankruptcy, ruined marriages, ruined retirement and severe psychological harm.

Conversely, a wrongful dismissal of a civil action can lead to catastrophically injured people living out their lives in relative poverty or with a substantial diminishment of the quality of their lives.

FINALITY AND CERTAINTY

I have no magic answer to this vexing problem. We must have some finality and certainty to civil justice disputes. We can't expect people to live with the uncertainty of a lawsuit hanging over their heads indefinitely. Barring fraud, we should not allow a civil judgement to be attacked after conclusion of the appeal process.

But we can take steps to improve the quality of civil justice results so as to reduce the incidence of wrongful civil justice litigation. Since expert witness testimony is a common factor in many wrongful criminal convictions it seems logical that expert witness testimony is likely a large contributor to wrongful civil litigation results. So, a good start would involve a massive change to procedures involving expert witnesses.

We must eliminate the hired-gun mentality of expert witnesses. Judges must become better gate-keepers of expert witnesses. Lawyers must be better trained to cross-examine experts. Experts must be confined to give testimony only within their sphere of expertise.

All previous adverse comments, judicial findings and disciplinary proceedings concerning the expert must be disclosed to the court. The fees paid to the expert must be disclosed along with all communications and documents exchanged between the expert and the side that hired him. A list of all previous cases in which the expert has testified or provided an expert report should be disclosed.

Bluntly put, we must make it as easy as possible to discredit expert witnesses and bar them from becoming advocates.

By curbing false and overzealous expert testimony we will go a long way towards curbing wrongful civil justice awards."

The column can be found at:

http://www.torontosun.com/comment/columnists/alan_shanoff/2009/11/01/11594611-sun.html

Harold Levy...hlevy15@gmail.com

WHY IT IS SO IMPORTANT TO REVIEW WRONGFUL CONVICTIONS: THE KYLE UNGER CASE; (MANITOBA);

"FOURTEEN YEARS AFTER UNGER WAS SENT TO PENITENTIARY, DNA TESTS PROVED A HAIR FOUND ON A SWEATSHIRT WORN BY GRENIER THE NIGHT SHE DIED DID NOT COME FROM UNGER, CONTRADICTING TESTIMONY FROM AN RCMP HAIR ANALYST WHO TOLD THE JURY IT WAS "CONSISTENT" WITH THE CONVICTED MAN'S HAIR.

THE TESTS WERE PERFORMED IN CONJUNCTION WITH A REVIEW OF OLD MURDER CASES ORDERED BY THE MANITOBA GOVERNMENT AFTER DNA RESULTS DISCREDITED HAIR EVIDENCE THAT LED TO THE WRONGFUL CONVICTION OF ANOTHER MANITOBA MAN, JAMES DRISKELL, IN 1991."

TRACEY TYLER: TORONTO STAR;

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

The importance of thoroughly reviewing wrongful convictions - to point towards other possible miscarriages of justice- is illustrated in Toronto Star Legal Affairs reporter Tracey Tyler's report on the new trial ordered in the Kyle Unger case, which ran on March 12,2009, under the heading, "New trial ordered in 1990 slaying."

The story runs under the sub-heading: "Federal minister says wrongful conviction 'likely occurred' in Manitoba murder case."

"Nearly 20 years after the shocking murder of a teenage girl at a rock concert in rural Manitoba, Canada's justice minister has all but admitted the victim's former high school acquaintance was wrongly convicted of the crime," the story begins;

""I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred," Justice Minister Rob Nicholson said yesterday in ordering a new trial for Kyle Unger," it continues;

"Unger was convicted of first-degree murder in 1992 in the death of Brigitte Grenier, 16, who was sexually assaulted, beaten, strangled, bitten and impaled with sticks after attending a concert at a ski resort near Roseisle, a hamlet in south central Manitoba, on June 23, 1990. Her body was found the next day in a creek.

The case against Unger, 38, involved the classic ingredients of wrongful convictions. They included suspect hair comparison evidence, a jailhouse informant, a prosecutor with a history of convicting the wrong people and a controversial police technique known as a "Mr. Big sting."

Fourteen years after Unger was sent to penitentiary, DNA tests proved a hair found on a sweatshirt worn by Grenier the night she died did not come from Unger, contradicting testimony from an RCMP hair analyst who told the jury it was "consistent" with the convicted man's hair.

The tests were performed in conjunction with a review of old murder cases ordered by the Manitoba government after DNA results discredited hair evidence that led to the wrongful conviction of another Manitoba man, James Driskell, in 1991.

(James Driskell Driskell was found guilty in 1991 of the 1990 murder of Perry Harder in Winnipeg. He was sentenced to life imprisonment.

The RCMP said three hair samples found in Driskell's van were Harder's, and that evidence convicted him. Later test results from Forensic Science Services in the U.K. found none of the hairs belonged to Harder.

Driskell was granted bail in November 2003 while the Justice Department investigated the case.

The inquiry's final report, released Feb. 15, says the jury in Driskell's trial was "seriously misled" on issues including the reliability of a key Crown witness. The report also said the failure of the Crown to disclose information to the defence was "careless indifference.": CBC News files;)

When DNA cast doubt on Unger's case, Manitoba's attorney general asked the federal government to quash the conviction. That was nearly five years ago.

In ordering a new trial yesterday, Nicholson bypassed the more time-consuming route of ordering the province's appeals court to conduct a hearing into the case to determine if a new trial is warranted or if the conviction should be quashed. Such a process was used in the cases of Steven Truscott and Romeo Phillion in Ontario.

Meanwhile, the prosecutor in Unger's case is under scrutiny. In 2007, the Manitoba government asked a former Ontario judge, Roger Salhany, to review cases of former Crown attorney George Dangerfield, who prosecuted Driskell and Thomas Sophonow, wrongly convicted in the 1981 murder of a Winnipeg waitress.

In Unger's case, Dangerfield also relied on what Unger's lawyers say was a false confession provided during a "Mr. Big" operation.

The technique involves undercover police officers posing as organized crime figures and inviting a target – in this case Unger – to join them, as long as he can prove he has committed a major crime."

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;