"THE REPORT SAYS THAT “MISSING EVIDENCE IS OCCURRING IN MAJOR CASES.” SOME OF THOSE CASES WERE DEATH PENALTY CASES. ACCORDING TO THE REPORT, A FREEZER BREAKDOWN CONTAMINATED EVIDENCE FROM HUNDREDS OF CASES. THE REPORT ALSO SAID THAT BLOOD ANALYSIS FILES FROM THREE ENTIRE YEARS - 1980, 1981, AND 1990 - WERE MISSING, AND THAT RAPE EVIDENCE WAS SYSTEMATICALLY BEING DESTROYED AFTER ONLY TWO YEARS"
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"WILSON SAYS THAT THE ENTIRE SYSTEM IS TO BLAME FOR ALLOWING GILCHRIST TO CONTINUE WORKING. “I THINK YOU HAVE TO LOOK AT THE PROSECUTOR’S OFFICE, THAT THEY HAVE TO UNDERSTAND WHAT’S BEEN GOING ON. THEY HAVE TO HAVE SEEN ALL THE FLAGS THAT HAVE BEEN WAVED. THE JUDGES ARE NO DIFFERENT. THEY’VE SEEN THE APPELLATE COURT DECISIONS COME BACK. IT’S NOT JUST THE POLICE, IT’S NOT JUST THE PROSECUTORS, IT’S EVERYONE IN THE ENTIRE SYSTEM.”
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"I THINK JOYCE GILCHRIST MAY HAVE FALLEN INTO AN INTERNAL FEELING THAT SHE WAS ON THE POLICE TEAM, SHE WAS ON THE PROSECUTION TEAM,” HE SAYS. “AND WHAT SCIENTISTS SHOULD ALWAYS FEEL LIKE IS THEY ARE ON THE SIDE OF SCIENCE.”
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ALL QUOTES FROM CBS DOCUMENTARY: "UNDER THE MICROSCOPE: FORENSIC SCIENTIST ACCUSED OF MISHANDLING CASES;
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The growing international notoriety of Dr. Charles Smith is evident in a post on a Blog called "TalkLeft: The Politics of Crime" published out of Denver, Colorado.
The post was published on Dec. 10, TalkLeft, 2007 under the heading, "Suffer the Little Children To Come Unto Me - The Latest Forensic Stalker."
"The Latest Forensic Stalker" is the description given by the author to Dr. Charles Smith, who has admitted "errors" and "mistakes" but has consistently denied allegations made during the Goudge Inquiry that he deliberately set out to harm to any of the individuals who were affected by his flawed opinions.
The author of the post compares Dr. Smith to Joyce Gilchrist, a forensic scientist in the State Of Oklahoma, who has been implicated in death penalty cases;
"While Joyce Gilchrist of Oklahoma apparently still holds the world's record for systematically framing the largest number of people over a period of years, the Toronto Star reports today, December 10,2007, that Canada boasts a forensic expert who, in duration of his service(if not in the number of his victims) can at least equal Gilmore's achievement," the author says;
This is the same Joyce Gilchrist was the subject of a CBS: Sixty Minutes presentation on July, 24, 2002, under the heading: "Under the Microscope: Forensic Scientist Accused of Mishandling Cases;"
"DNA testing in old criminal cases is doing more than freeing dozens of innocent people from prison. It is also pointing the finger of blame at a legal system that has sometimes relied on bad science, and gotten bad results," the CBS story begins;
"That is the case in a growing legal scandal in Oklahoma City where one innocent man has been freed after 15 years in prison, triggering an investigation into the police chemist whose work put him and hundreds of other people behind bars," the story continues;
"The scientist's name is Joyce Gilchrist. Now she finds herself under the microscope and every case she worked on is in question.
For 20 years, Gilchrist examined crime scenes, looking for clues linking suspects to evidence she said she found. Often, her testimony in court meant the difference between innocence and guilt.
When 60 Minutes II first brought you this story last year, questions were just beginning to be asked. Joyce Gilchrist is the target of lawsuits and investigations, and there are concerns that she may have put people in prison with more sorcery than science.
In Oklahoma City, Gilchrist was considered so good at getting conviction that police had given her the nickname "black magic." She says it started with one particular case: “It was in reference to a homicide case where the defense attorney referred to me in his closing statements as a sorcerer - someone who conducted black magic, and stated that I seemed to be able to do things with evidence that nobody was else able to do.”
Now, she is the target of several investigations, and there are growing concerns that she may have put people in prison with more sorcery than science.
According to her critics, Gilchrist has a history of seeing things in the lab that other scientists can’t, and saying things in court that other scientists won’t.
But for nearly two decades, her work has been helping Oklahoma City police and prosecutors win convictions - whether the defendant was guilty or innocent.
Among the cases that Gilchrist handled was that of Jeff Pierce. Fifteen years ago, Gilchrist was the police chemist on his case. Pierce had been arrested for rape.
“I voluntarily gave them hairs and blood,” says Pierce. “And they said, if this comes back and it doesn’t match, you can go home. And I voluntarily gave it to them. And they came back five minutes later and said, ‘Oh, it all matches... you’re going to prison.’”
Gilchrist used her microscope to match Pierce’s hair and blood to evidence found at the crime scene and on the victim. At trial, her testimony was devastating. She told jurors that the dozens of hairs she found were microscopically “consistent” with Pierce’s, and were a means of “positive” identification.
Pierce had a clean record, alibi witnesses and character references. In the end, though, he was found guilty. But three weeks ago, a DNA test proved he did not commit the rape that put him in prison.
Gilchrist says she did the best she could in the Pierce case: “Using the technology we had at the time, I did the best job I could and I presented the facts to the court and let the jury decide what they believed.”
But there are questions about Gilchrist’s lab work in the Pierce case. A few months ago, when Pierce’s defense team requested DNA testing, chemists pulled out the 15-year-old evidence and found that Gilchrist’s testimony didn’t match the facts. The FBI was sent in to investigate Gilchrist’s work in the Pierce case, and seven other controversial cases.
The official report found that in five cases, including Pierce's, there are “errors in identification,” and that lab notes were “incomplete or inadequate” In one case, the matches Gilchrist made “fall far below the acceptable limits of the science of hair comparisons.” The FBI suggested a review of all cases where her work was significant to the outcome of the trial.
Gilchrist herself isn’t sure about the FBI tests. “Let’s submit that evidence for DNA analysis and see,” she says. “I look forward to that. And if I’m wrong, you know, I would accept responsibility if I’m wrong. But I’ve never intentionally done anything wrong in a case I’ve ever been involved in.”
In 1985, she was named the police department’s Employee of the Year. But a more recent police memo paints a far different picture, suggesting that the lab Gilchrist supervised was chaotic.
The report says that “missing evidence is occurring in major cases.” Some of those cases were death penalty cases. According to the report, a freezer breakdown contaminated evidence from hundreds of cases. The report also said that blood analysis files from three entire years - 1980, 1981, and 1990 - were missing, and that rape evidence was systematically being destroyed after only two years.
“My administrators are the ones who make the decisions about the operation of the laboratory,” says Gilchrist. “I don’t make that decision. I just carry out those orders. That’s why I can’t comment right now.”
In going over Gilchrist’s notes, chemists found she had a wildly inappropriate way of jogging her memory about cases, repeatedly referring to victims or defendants as “fags” and “faggots.”
She admits to using those terms, and says she regrets it now. “At the time though, that’s the slang that was used,” she says.
In March, Gilchrist was suspended from her job by police chief M.T. Berry. “My biggest concern is that in my life as a law enforcement officer, I would rather let a guilty man go free than send an innocent man to the penitentiary. And my biggest fear is that may have happened in this case,” Berry says.
Gilchrist was part of thousands of police investigations. She testified in hundreds of cases. She helped send 23 people to death row. Eleven have already been executed. Now all of her felony cases are under review.
Over the years, Gilchrist’s testimony has been repeatedly criticized by appellate court judges, who have described her testimony as “misleading,” “untruthful,” and “inexcusable.”
“I don’t agree with (that characterization),” Gilchrist says. “Because I’ve never lied in court. I’ve always told the truth. I’ve never lied to anyone about anything. If you don’t want to know the truth, don’t ask me because I’m not going to sugarcoat anything for you. I’m going to tell it to you. I’ll tell it to you just the way it is.”
Gilchrist has been reprimanded by one professional forensic association, and expelled from another for unethical behavior.
John Wilson, chief chemist at the Kansas City police lab, filed an ethics charge against Gilchrist 15 years ago. “I’m not the only forensic scientist who has reviewed her work and said this is bad work,” he says. “The whole criminal justice system has failed. It has absolutely failed.”
Wilson says that the entire system is to blame for allowing Gilchrist to continue working. “I think you have to look at the prosecutor’s office, that they have to understand what’s been going on. They have to have seen all the flags that have been waved. The judges are no different. They’ve seen the appellate court decisions come back. It’s not just the police, it’s not just the prosecutors, it’s everyone in the entire system.”
Gilchrist says that Wilson is a sore loser. "He has come into Oklahoma County, in district court, to testify against me on several occasions... expert witness for the defense. But the juries did not believe his testimony. And I don't think he's been back since."
Gilchrist agreed to talk to us only if we would agree to talk to her old boss Dave McBride. Ten years ago, he was Oklahoma City's police chief. Asked if he had any reason to suspect that she was not doing her job well, McBride says: "No one ever raised the issue." He says that no one mentioned to him that there was a problem with the crime lab: "Never. Not one time, not ever."
McBride believes that what has happened in Oklahoma City could happen anywhere that a forensics lab is attached to a police agency, and that is the case in most large American cities. He says it creates scientists who consider themselves cops in lab coats.
“I think there’s an inherent potential conflict there,” he says. “And I don’t know that that’s always healthy for the criminal justice system. But I certainly think that the investigators liked working with her. And I know that the district attorney loved having her as a witness.”
“I think Joyce Gilchrist may have fallen into an internal feeling that she was on the police team, she was on the prosecution team,” he says. “And what scientists should always feel like is they are on the side of science.”
After Pierce was convicted, Gilchrist received an honorary citation from the Oklahoma City police and a commendation from the district attorney, for her “skillful work in the careful analysis of the forensic evidence.”
Pierce says that he is still outraged at Gilchrist: “She’s ruined me and countless lies. They lost their kids, lost their wives, lots their families.”
When Pierce last saw his sons, they were 1 year old. He and his wife decided they didn’t want prison to be part of their children’s lives. So the boys and their mother moved out of state. They grew up without knowing their father, or even where he was. Pierce didn’t want them to know he was in prison.
Last night, Pierce was released from prison. He was asked what he wanted to say to Gilchrist. “Why? Why did you do this?” he said.
Hundreds of cases that Gilchrist handled are now under review. The worry in Oklahoma City is that Pierce isn’t the only innocent person Gilchrist helped send to prison - just one of the lucky few to get out.
July 2002 Update:
Since his release, Jeff Pierce has been getting reacquainted with his ex-wife and twin sons in Michigan. In April, he filed a $75 million federal lawsuit against the state of Oklahoma and Oklahoma City, Also named in the lawsuit is former prosecutor Bob Macy and Joyce Gilchrist.
Gilchrist was fired from her job in September. She is suing the city demanding her job back."
Bloggist's Note: Sound familiar?
Next posting: "Part Two: "Forensic Stalker:" Former Oklahoma Forensic Scientist Gilchrist Accused of Hiding Or Destroying Hairs Sought For DNA Testing;"
Harold Levy...hlevy15@gmail.com;qwq
Showing posts with label waudby. Show all posts
Showing posts with label waudby. Show all posts
Sunday, April 27, 2008
Monday, April 21, 2008
When Innocent Parents Plead Guilty: The Aftermath Of Dr. Charles Smith's Intrusion In Their Lives;
In a previous posting, I reported Brenda Waudby's lawyer's allegation that prosecutors would not would not withdraw a charge of murdering her daughter, Baby Jenna, unless she first pleaded guilty to a Family Court allegation that had previously physically assaulted her; (See Part Three; Case Studies' Systemic Factors; The "Jenna" Case; April 17, 2008);
Two problems:
First problem; The prosecutors were withdrawing the charge because they had received evidence indicating that Waudby could not possibly have committed the crime. (Jenna's babysitter later admitted killing Baby Jenna and sexually assaulting her);
Second problem: Waudby had never physically assaulted Baby Jenna - (another flawed opinion of Dr. Charles Smith. She only pleaded guilty - with all of the consequences relating to her family vis @ vis the local Children's Aid Society that the guilty plea would entail - to get rid of the horrific murder charge.
Sadly, Waudby is not the only one of Dr. Smith's victims who felt compelled to plead guilty to an offence they did not commit in a prosecution involving Dr. Charles Smith;
Previous postings to this Blog have shown how an innocent mother named Sherry Sherrett felt she had no choice but to agree to be convicted of infanticide in connection with the death of her beloved son Joshua in order to avoid being found guilty of murdering him - and going to prison for life - because of Dr. Charles Smith's celebrated prowess over jurors.
This Blog has also looked at the the direct consequences to Sherrett - including a year spent in prison and the collateral damage caused to her family. (See recent posting: Collateral damage; Part One and Part Two;)
I was absolutely stunned to hear defence lawyer Bruce Hillyer's account at the Goudge Inquiry as to how he had to assist Sherrett with an unusual "nolo contendere" plea - in which there is no acknowledgment of guilt - even though he was confident that the medical evidence he would call pointed to her innocence;
Hillyer made clear to Commission Counsel Mark Sandler that Sherrett never ever admitted guilt to him, that she insisted she had never hurt Joshua or done anything unlawful to him, and that she believed Joshua died because of mould or the unconventional bed she had recently put him in.
A loving, utterly innocent mother, mother spent a year in prison following her pragmatic plea;
Outrageous;
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By way of brief introduction:
Joshua died in January of 1996 at the age of four (4) months in Trenton.
At the time of Joshua's death, Sherry, his mother, was twenty (20) years old.
On March the 27th of 1996, she was charged with first degree murder.
She was committed on that charge after a preliminary inquiry.
That committal was subsequently quashed and a charge of second degree murder substituted.
On January the 4th of 1999, a new indictment charging infanticide was placed before the Court.
She entered a plea of not guilty.
The Crown read into the record certain agreed facts.
The defence called no evidence in response to those facts and did not dispute them.
As a result, he was convicted of infanticide and sentenced to a one
(1) year custodial term followed by probation.
Related Children's Aid proceedings involving Joshua's brother and another child, a daughter, that was born to Sherry in September of 2005.
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The following excerpts from the transcript paint an excellent picture of what Hellyer faced as defence counsel in this case - and of Sherrett's brutal predicament:
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Excerpt One: Hillyer's view of the merit's of the Crown's case:
MR. MARK SANDLER: So when you look at the merits of the case, here you were at the end of the preliminary inquiry, and I'll -- I'll take you to the end of the period where you successfully brought a certiorari to -- to quash the first degree charge, and the second degree charge was substituted. How did you feel about the strength of the defence case?
MR. BRUCE HILLYER: On the medical side, I -- well it -- it -- the problem was from my experience as a jury trial lawyer, you know, the -- the unknown is there. I mean, I -- I had -- it was going to come down to my client's word against a fellow like Smith who, s Mr. Struthers says, was very articulate, well spoken, good posture; would quickly, as you can see from the transcript, go off on tangents, and talk about other issues with some purported degree of expertise.
And, you know, that was -- it was going to be -- I was troubled by -- by it, but I was -- academically, I wasn't worried about the medicine, assuming I had a trier of fact that could cut the wheat from the chaff. I guess I was worried a jury might not be able to do that.
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Excerpt Two: The Judges's out of court view of Dr. Smith's reputation:
MR. MARK SANDLER: All right. Did you have any dialogue with Dr. Smith outside of the courtroom prior to, during, or after the preliminary inquiry?
MR. BRUCE HILLYER: I don't think so.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But I did with the -- with the preliminary hearing judge.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: The only reason I mention that is that he was -- he took me aside afterwards, and it's a very small town; very small
courtroom; and said, You know, Dr. Smith's a very good witness, and they were -- he was very proud of him. I guess Dr. Smith -- I don't whether he'd done any -- any
of his work down in the Belleville area, but they -- he was certainly well known down there. And you know, it was just more information to assimilate. He was -- the judge was encouraging me to enter into plea negotiations with -- with the Crown.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: Who I understood he was -- he jogged with.
MR. MARK SANDLER: All right. I mean, you're not suggesting anything improper --
MR. BRUCE HILLYER: No, not at all. No, no. I have high regard for Ms. Walsh. She handled herself very well.
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Ecerpt Three: How the Crown initiated plea discussions: -
MR. MARK SANDLER: And it reflects that on October 15th of 1998, Ms. Walsh sent a memorandum to Staff Sergeant MacLellan in which she stated: "Since our last conversation, I've spoken to Bruce Hillyer about our offer of a plea of guilty to infanticide. Today, he agreed to give a firm answer by November 15. By that time, he should be able to have arranged for a psychiatric evaluation of Sherry to canvass the issues relevant to infanticide which will hopefully also
address sentencing issues and to meet ith her." Were discussions taking place as between you and Sheila Walsh about a potential resolution to infanticide?
MR. BRUCE HILLYER: Well, how that all ar -- we'd already had a pretrial -- a judicial pretrial -- where we were talking about the length of the trial, whether there would be challenge for cause. I think challenge for cause was more -- more liberal then, than it is now. There was a window of time where it was, anyway. And we may have had discussions then, but I indicated there would be no plea being offered. And as we got closer to -- to the trial date, I think Sheila called me, and asked me to -- I think her first -- asked me to consider was manslaughter, and I -- I just -- I said I'll pass it on, but I don't -- I'm sure the answer will be no, and it was. And then she called back, and surprisingly said, Well you gotta give me something. She was very uneasy about -- about prosecuting the case. And I said, Well, I don't know what it could be. And, so I said, But I'll have a look, which was sort of -- I sort of didn't think that it would amount to anything. And then I started wandering through the - the criminal code, and the charge of infanticide caught my attention, because I'd never dealt with it before.
And the only way I could even think that it would possibly be an appropriate charge would be on the basis that my client had -- was well aware of the health problems the child was having, and she, in fact, had gone out of her way to report the matter to the landlord, to the local health authorities, but she was a
single -- single mother on, I believe, social assistance, you know, very -- very -- not very -- no resources. And then we got to the -- and in discussions with the bedding, she was concerned that .. all these loose sleeping bags and blanket was --
wasn't an appropriate way to deal with -- to deal with bedding for such a young child, because I think the baby had just moved from a -- from a crib setting into this -- into this more unconventional setting. And, you know, she was communicating to me, if only I had gotten up in the night or whatever, and
-- and that was the only way I could -- I could even justify it in my own mind, and without speaking to my client, I communicated that to Ms. Walsh.
MR. MARK SANDLER: And just stopping there for a moment. What I -- what I'm hearing you saying is that a plea of guilt based upon omission as
opposed to commission.
MR. BRUCE HILLYER: Right.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Yes. And Ms. Walsh came back and said, No, she would insist on -- on commission, and so I -- I just said, Well, is -- are you
saying you'll do that? And she said she would, so I said, Well, I'll put it to -- I'll put it to my client.
MR. MARK SANDLER: Now, just stopping there for a moment. Just to be clear, who had initiated this discussion as to possible resolution?
MR. BRUCE HILLYER: The Crown.
MR. MARK SANDLER: And you said that she had some discomfort or expressed some concern about -- about the case. Did she tell you what it was that --
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: -- caused that --
MR. BRUCE HILLYER: I mean I didn't -- I didn't understand what was going on then, what -- what I've seen here now. I just assumed it was -- well, I
hoped, I guess, in a perfect world that she thought that the medical evidence was not going to go very far. There were some evidentiary issues that were going to get revisited at the trial with respect to the KGB statements that we had -- we had spent all our time on at the preliminary hearing, virtually, anyway, or was she just was feeling sorry for my client; I didn't know -- I didn't know what it was.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But it was just a desire to -- to find a resolution that was nowhere near manslaughter or murder.
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Excerpt Four: Hellyer puts the Crowns's plea offer to Sherrett:
MR. MARK SANDLER: So, could -- could you give the Commissioner a sense, first of all, of -- of how the conversation then went with your client that
ultimately resulted in what transpired in Court?
MR. BRUCE HILLYER: Yeah, well, this is - I know it was -- it was re -- I think it was recorded somehow, but it was done in Mr. Bonn's office. I asked
that -- that my client and -- and her parents go into Mr. Bonn's office in Trenton and that --
MR. MARK SANDLER: Mr. Bonn was who?
MR. BRUCE HILLYER: He was the lawyer whose office had asked me to help.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: For lack of a better description, the solicitor. And I was on the line at the other end and I put to -- I put them -- I put the options to my client, discussed the -- what -- what the -- what
could happen. And I'm assuming she made the decision right away, but I'm not sure, but she made it clear that she would not plead guilty to anything. And so -- and I
don't know whether it was during that phone call or whether it was later -- I assume it was during that phone call because I've -- I've done a lot of work in the
states. I'm a member of the Board of Governors of the American Trial Lawyers Association, which is now the American Association for Justice. And I've par -- taken part in their -- not only their civil sections, but their criminal sections,
as well, and I was always interested in this nolo contendere or whatever they call it down there, nolo pros. And I ran it by my partner of the day, who's now Justice Forsyth, who actually wrote a paper on -- on the need for -- in the Criminal Lawyers Quarterly, I think, on the need for a nolo pros procedure, because, of course, I had to face -- I had to look myself in the mirror when -- at the end of the day and hope I had done the right thing. And -- and then I called -- I think I must have gotten instructions that if -- if we can do it that way, she would do it, and then I contacted Ms. Walsh and put that proposal to her which she accepted.
MR. MARK SANDLER: All right. Had -- throughout the process, up to and including the time that the case was dealt with in Court, did the client ever
admit guilt?
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: And did you have a sense of the factors that informed her decision to proceed by way of nolo contendere rather than to proceed
to trial?
MR. BRUCE HILLYER: Could you say that again, please?
MR. MARK SANDLER: Did you have a sense or did you discuss with her what factors informed her decision to take that offer?
MR. BRUCE HILLYER: I guess it would just be a fear of going to trial and being found guilty of second or manslaughter and having an extensive period of -- a far more lengthy period of time in jail.
MR. MARK SANDLER: Okay. Now, if you go to -- well, I'll ask you this. It's probably implicit, if not explicit, in what you've already said, but you had consulted Dr. Plunkett; you'd consulted Dr. Jaffe. We've heard what Dr. Jaffe had had to say about the case. What level of confidence did you have in ultimate success on the murder trial, had it proceeded to trial?
MR. BRUCE HILLYER: I had a good level of confidence on the medical evidence. What I didn't have a good level of confidence on was in my client. She was extremely stressed and upset over the events surrounding
the death of Joshua. She -- you've got to appreciate the -- this is a small town. The Children's Aid had -- first of all, the fact that anyone would think that -- that she killed her child; second of all, the Children's Aid had taken away her -- her other child. She was -- I won't say irrational, but she was -- she was difficult. It was very difficult to sort of communicate effectively with her in a very logical -- logical sense, because she was consumed with -- with all the emotional, whether it was guilt in her mind for not having gotten up that night or whether the way the bed was made, or whether it was the social pressure that she
was -- she was getting from the community. She was telling me stories about people
making fun of her and speaking unkindly of her. She was really in a mess intellectually and emotionally, in terms of making decisions which is why I insisted that she have her parents there and Mr. Bond, the solicitor, to hopefully, effectively communicate what the options were. I mean, if -- at the end of the day,
looking forward in the crystal ball, you don't know how a jury is going to perceive something. I've got Doctor -- or I've got Judge Hunter telling me what a great witness this guy is; Jaffe is telling me what a great witness he is. I hadn't -- I didn't dance with him at the preliminary because -- I was ready to. If you see in the material, I had a whole pile of medical stuff I was ready to go at him with, but he didn't -- he didn't hurt me in- chief. I just drew a circle around him and left him alone. So I was reasonably confident, but it's not me that has to do the time, so I wasn't prepared to recommend that she gamble.
MR. MARK SANDLER: All right. If you go to page 100 of the overview report, we see that paragraph 199, that on September the 7th of 2005 you drafted a letter on Sherry's behalf to assist her with the family law proceedings. And you reflected: "I was quite perplexed in representing her about whether or not the Crown could establish that her child had, indeed, died as a result of an unlawful
act. The Crown's case rested primarily on the opinion of Dr. Smith, the forensic pathologist with the Centre of Forensic Sciences in Toronto, who, at the time, had a very high reputation in his field. In preparing the defence, I had commissioned opinions from Dr. Jaffe, a forensic pathologist from Toronto, and I also consulted with American doctors who I spoke with on the telephone. They were all deeply troubled by what Dr. Smith reported but, in essence, they deferred to him,
with the exception of Dr. Jaffe, with respect to his conclusions and findings." Just stopping there for a moment. Does hat assist in refreshing your memory as to what you ight have received from -- from those other than Dr. Jaffe about the case?
MR. BRUCE HILLYER: Not really.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Don't forget, I wrote that letter in '05, so. Yeah, I'm not so sure that that comment is correct; it may be but I don't know.
MR. MARK SANDLER: And then you reflect: "Faced with the prospect of a conviction and all that flows from that, I vigorously represented Sherry, and at the eleventh hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide on the basis that at the time, Sherry was suffering from post partum depression. The compromise was seen as a way out for both sides. The Crown fearing they couldn't get a conviction of any kind, and the defence fearing a conviction for murder, while not justified, would result in a lengthy period of incarceration." And then you reflect some of the
psychological or psychiatric opinions that were rendered, and then you say:
"Some cases come back to haunt you, and this is one (1) of them." Ad then you reflect certain -- more recent information that have cau -- that has called into
question Dr. Smith's testimony, and you say: "It's far to late to ever know what
happened -- really happened with respect to the death of Sherry's child, but I'd like to think in all the circumstances, and in particular, with respect to the reports that I have enclosed and were commissioned so many years, that one (1) shouldn't have any concerns now. In my view, even then with respect to Sherry's ability to ook after a child and to be a lovingand caring mother." And did that represent your views of the case?
MR. BRUCE HILLYER: It certainly did.
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Excerpt Five: How to reconcile Sherrett's unbending denial with the opinions of other experts? (Doctors and psychologists);
MR. MARK SANDLER: Now, one (1) of the things I just want to ask you about very briefly, and I won't take you to all the documentation, but it would
appear that -- that the various psychologists, or psychiatrists weighed in on Sherry's case, gave some conflicting views on -- on how to analyze her situation. And -- and am I right that one (1) of the factors that appears to explain some of the different views is -- is how to reconcile what it was that she had been found guilty with, with her continuing denial that she had committed the offense?
MR. BRUCE HILLYER: I -- yeah. I -- yeah, it -- it's hard for me to answer that question. I mean, it -- I suspect the -- the doctors must have
assumed that -- that she smothered her child and that they were sort of working with that as part of their hypothesis. With -- and -- and they were struggling
with coming up with a -- with a diagnosis. This --
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Excerpt Six: The lack of remorse conundrum:
MR. MARK SANDLER: And we also see that the presiding justice appeared to rely upon the absence of remorse in determining what the appropriate sentence was. Am I right?
MR. BRUCE HILLYER: Yes. In fairness to Justice Byers, she was very -- I don't know whether you know this, but once this became known about Dr. Smith and this -- and this case has been back in the news, was -- I'm told publically commented on it in the local media down in Trenton, and sort of regretted the way that it had all unravelled.
Harold Levy...hlevy15@gmail.com;
Two problems:
First problem; The prosecutors were withdrawing the charge because they had received evidence indicating that Waudby could not possibly have committed the crime. (Jenna's babysitter later admitted killing Baby Jenna and sexually assaulting her);
Second problem: Waudby had never physically assaulted Baby Jenna - (another flawed opinion of Dr. Charles Smith. She only pleaded guilty - with all of the consequences relating to her family vis @ vis the local Children's Aid Society that the guilty plea would entail - to get rid of the horrific murder charge.
Sadly, Waudby is not the only one of Dr. Smith's victims who felt compelled to plead guilty to an offence they did not commit in a prosecution involving Dr. Charles Smith;
Previous postings to this Blog have shown how an innocent mother named Sherry Sherrett felt she had no choice but to agree to be convicted of infanticide in connection with the death of her beloved son Joshua in order to avoid being found guilty of murdering him - and going to prison for life - because of Dr. Charles Smith's celebrated prowess over jurors.
This Blog has also looked at the the direct consequences to Sherrett - including a year spent in prison and the collateral damage caused to her family. (See recent posting: Collateral damage; Part One and Part Two;)
I was absolutely stunned to hear defence lawyer Bruce Hillyer's account at the Goudge Inquiry as to how he had to assist Sherrett with an unusual "nolo contendere" plea - in which there is no acknowledgment of guilt - even though he was confident that the medical evidence he would call pointed to her innocence;
Hillyer made clear to Commission Counsel Mark Sandler that Sherrett never ever admitted guilt to him, that she insisted she had never hurt Joshua or done anything unlawful to him, and that she believed Joshua died because of mould or the unconventional bed she had recently put him in.
A loving, utterly innocent mother, mother spent a year in prison following her pragmatic plea;
Outrageous;
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By way of brief introduction:
Joshua died in January of 1996 at the age of four (4) months in Trenton.
At the time of Joshua's death, Sherry, his mother, was twenty (20) years old.
On March the 27th of 1996, she was charged with first degree murder.
She was committed on that charge after a preliminary inquiry.
That committal was subsequently quashed and a charge of second degree murder substituted.
On January the 4th of 1999, a new indictment charging infanticide was placed before the Court.
She entered a plea of not guilty.
The Crown read into the record certain agreed facts.
The defence called no evidence in response to those facts and did not dispute them.
As a result, he was convicted of infanticide and sentenced to a one
(1) year custodial term followed by probation.
Related Children's Aid proceedings involving Joshua's brother and another child, a daughter, that was born to Sherry in September of 2005.
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The following excerpts from the transcript paint an excellent picture of what Hellyer faced as defence counsel in this case - and of Sherrett's brutal predicament:
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Excerpt One: Hillyer's view of the merit's of the Crown's case:
MR. MARK SANDLER: So when you look at the merits of the case, here you were at the end of the preliminary inquiry, and I'll -- I'll take you to the end of the period where you successfully brought a certiorari to -- to quash the first degree charge, and the second degree charge was substituted. How did you feel about the strength of the defence case?
MR. BRUCE HILLYER: On the medical side, I -- well it -- it -- the problem was from my experience as a jury trial lawyer, you know, the -- the unknown is there. I mean, I -- I had -- it was going to come down to my client's word against a fellow like Smith who, s Mr. Struthers says, was very articulate, well spoken, good posture; would quickly, as you can see from the transcript, go off on tangents, and talk about other issues with some purported degree of expertise.
And, you know, that was -- it was going to be -- I was troubled by -- by it, but I was -- academically, I wasn't worried about the medicine, assuming I had a trier of fact that could cut the wheat from the chaff. I guess I was worried a jury might not be able to do that.
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Excerpt Two: The Judges's out of court view of Dr. Smith's reputation:
MR. MARK SANDLER: All right. Did you have any dialogue with Dr. Smith outside of the courtroom prior to, during, or after the preliminary inquiry?
MR. BRUCE HILLYER: I don't think so.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But I did with the -- with the preliminary hearing judge.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: The only reason I mention that is that he was -- he took me aside afterwards, and it's a very small town; very small
courtroom; and said, You know, Dr. Smith's a very good witness, and they were -- he was very proud of him. I guess Dr. Smith -- I don't whether he'd done any -- any
of his work down in the Belleville area, but they -- he was certainly well known down there. And you know, it was just more information to assimilate. He was -- the judge was encouraging me to enter into plea negotiations with -- with the Crown.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: Who I understood he was -- he jogged with.
MR. MARK SANDLER: All right. I mean, you're not suggesting anything improper --
MR. BRUCE HILLYER: No, not at all. No, no. I have high regard for Ms. Walsh. She handled herself very well.
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Ecerpt Three: How the Crown initiated plea discussions: -
MR. MARK SANDLER: And it reflects that on October 15th of 1998, Ms. Walsh sent a memorandum to Staff Sergeant MacLellan in which she stated: "Since our last conversation, I've spoken to Bruce Hillyer about our offer of a plea of guilty to infanticide. Today, he agreed to give a firm answer by November 15. By that time, he should be able to have arranged for a psychiatric evaluation of Sherry to canvass the issues relevant to infanticide which will hopefully also
address sentencing issues and to meet ith her." Were discussions taking place as between you and Sheila Walsh about a potential resolution to infanticide?
MR. BRUCE HILLYER: Well, how that all ar -- we'd already had a pretrial -- a judicial pretrial -- where we were talking about the length of the trial, whether there would be challenge for cause. I think challenge for cause was more -- more liberal then, than it is now. There was a window of time where it was, anyway. And we may have had discussions then, but I indicated there would be no plea being offered. And as we got closer to -- to the trial date, I think Sheila called me, and asked me to -- I think her first -- asked me to consider was manslaughter, and I -- I just -- I said I'll pass it on, but I don't -- I'm sure the answer will be no, and it was. And then she called back, and surprisingly said, Well you gotta give me something. She was very uneasy about -- about prosecuting the case. And I said, Well, I don't know what it could be. And, so I said, But I'll have a look, which was sort of -- I sort of didn't think that it would amount to anything. And then I started wandering through the - the criminal code, and the charge of infanticide caught my attention, because I'd never dealt with it before.
And the only way I could even think that it would possibly be an appropriate charge would be on the basis that my client had -- was well aware of the health problems the child was having, and she, in fact, had gone out of her way to report the matter to the landlord, to the local health authorities, but she was a
single -- single mother on, I believe, social assistance, you know, very -- very -- not very -- no resources. And then we got to the -- and in discussions with the bedding, she was concerned that .. all these loose sleeping bags and blanket was --
wasn't an appropriate way to deal with -- to deal with bedding for such a young child, because I think the baby had just moved from a -- from a crib setting into this -- into this more unconventional setting. And, you know, she was communicating to me, if only I had gotten up in the night or whatever, and
-- and that was the only way I could -- I could even justify it in my own mind, and without speaking to my client, I communicated that to Ms. Walsh.
MR. MARK SANDLER: And just stopping there for a moment. What I -- what I'm hearing you saying is that a plea of guilt based upon omission as
opposed to commission.
MR. BRUCE HILLYER: Right.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Yes. And Ms. Walsh came back and said, No, she would insist on -- on commission, and so I -- I just said, Well, is -- are you
saying you'll do that? And she said she would, so I said, Well, I'll put it to -- I'll put it to my client.
MR. MARK SANDLER: Now, just stopping there for a moment. Just to be clear, who had initiated this discussion as to possible resolution?
MR. BRUCE HILLYER: The Crown.
MR. MARK SANDLER: And you said that she had some discomfort or expressed some concern about -- about the case. Did she tell you what it was that --
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: -- caused that --
MR. BRUCE HILLYER: I mean I didn't -- I didn't understand what was going on then, what -- what I've seen here now. I just assumed it was -- well, I
hoped, I guess, in a perfect world that she thought that the medical evidence was not going to go very far. There were some evidentiary issues that were going to get revisited at the trial with respect to the KGB statements that we had -- we had spent all our time on at the preliminary hearing, virtually, anyway, or was she just was feeling sorry for my client; I didn't know -- I didn't know what it was.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But it was just a desire to -- to find a resolution that was nowhere near manslaughter or murder.
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Excerpt Four: Hellyer puts the Crowns's plea offer to Sherrett:
MR. MARK SANDLER: So, could -- could you give the Commissioner a sense, first of all, of -- of how the conversation then went with your client that
ultimately resulted in what transpired in Court?
MR. BRUCE HILLYER: Yeah, well, this is - I know it was -- it was re -- I think it was recorded somehow, but it was done in Mr. Bonn's office. I asked
that -- that my client and -- and her parents go into Mr. Bonn's office in Trenton and that --
MR. MARK SANDLER: Mr. Bonn was who?
MR. BRUCE HILLYER: He was the lawyer whose office had asked me to help.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: For lack of a better description, the solicitor. And I was on the line at the other end and I put to -- I put them -- I put the options to my client, discussed the -- what -- what the -- what
could happen. And I'm assuming she made the decision right away, but I'm not sure, but she made it clear that she would not plead guilty to anything. And so -- and I
don't know whether it was during that phone call or whether it was later -- I assume it was during that phone call because I've -- I've done a lot of work in the
states. I'm a member of the Board of Governors of the American Trial Lawyers Association, which is now the American Association for Justice. And I've par -- taken part in their -- not only their civil sections, but their criminal sections,
as well, and I was always interested in this nolo contendere or whatever they call it down there, nolo pros. And I ran it by my partner of the day, who's now Justice Forsyth, who actually wrote a paper on -- on the need for -- in the Criminal Lawyers Quarterly, I think, on the need for a nolo pros procedure, because, of course, I had to face -- I had to look myself in the mirror when -- at the end of the day and hope I had done the right thing. And -- and then I called -- I think I must have gotten instructions that if -- if we can do it that way, she would do it, and then I contacted Ms. Walsh and put that proposal to her which she accepted.
MR. MARK SANDLER: All right. Had -- throughout the process, up to and including the time that the case was dealt with in Court, did the client ever
admit guilt?
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: And did you have a sense of the factors that informed her decision to proceed by way of nolo contendere rather than to proceed
to trial?
MR. BRUCE HILLYER: Could you say that again, please?
MR. MARK SANDLER: Did you have a sense or did you discuss with her what factors informed her decision to take that offer?
MR. BRUCE HILLYER: I guess it would just be a fear of going to trial and being found guilty of second or manslaughter and having an extensive period of -- a far more lengthy period of time in jail.
MR. MARK SANDLER: Okay. Now, if you go to -- well, I'll ask you this. It's probably implicit, if not explicit, in what you've already said, but you had consulted Dr. Plunkett; you'd consulted Dr. Jaffe. We've heard what Dr. Jaffe had had to say about the case. What level of confidence did you have in ultimate success on the murder trial, had it proceeded to trial?
MR. BRUCE HILLYER: I had a good level of confidence on the medical evidence. What I didn't have a good level of confidence on was in my client. She was extremely stressed and upset over the events surrounding
the death of Joshua. She -- you've got to appreciate the -- this is a small town. The Children's Aid had -- first of all, the fact that anyone would think that -- that she killed her child; second of all, the Children's Aid had taken away her -- her other child. She was -- I won't say irrational, but she was -- she was difficult. It was very difficult to sort of communicate effectively with her in a very logical -- logical sense, because she was consumed with -- with all the emotional, whether it was guilt in her mind for not having gotten up that night or whether the way the bed was made, or whether it was the social pressure that she
was -- she was getting from the community. She was telling me stories about people
making fun of her and speaking unkindly of her. She was really in a mess intellectually and emotionally, in terms of making decisions which is why I insisted that she have her parents there and Mr. Bond, the solicitor, to hopefully, effectively communicate what the options were. I mean, if -- at the end of the day,
looking forward in the crystal ball, you don't know how a jury is going to perceive something. I've got Doctor -- or I've got Judge Hunter telling me what a great witness this guy is; Jaffe is telling me what a great witness he is. I hadn't -- I didn't dance with him at the preliminary because -- I was ready to. If you see in the material, I had a whole pile of medical stuff I was ready to go at him with, but he didn't -- he didn't hurt me in- chief. I just drew a circle around him and left him alone. So I was reasonably confident, but it's not me that has to do the time, so I wasn't prepared to recommend that she gamble.
MR. MARK SANDLER: All right. If you go to page 100 of the overview report, we see that paragraph 199, that on September the 7th of 2005 you drafted a letter on Sherry's behalf to assist her with the family law proceedings. And you reflected: "I was quite perplexed in representing her about whether or not the Crown could establish that her child had, indeed, died as a result of an unlawful
act. The Crown's case rested primarily on the opinion of Dr. Smith, the forensic pathologist with the Centre of Forensic Sciences in Toronto, who, at the time, had a very high reputation in his field. In preparing the defence, I had commissioned opinions from Dr. Jaffe, a forensic pathologist from Toronto, and I also consulted with American doctors who I spoke with on the telephone. They were all deeply troubled by what Dr. Smith reported but, in essence, they deferred to him,
with the exception of Dr. Jaffe, with respect to his conclusions and findings." Just stopping there for a moment. Does hat assist in refreshing your memory as to what you ight have received from -- from those other than Dr. Jaffe about the case?
MR. BRUCE HILLYER: Not really.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Don't forget, I wrote that letter in '05, so. Yeah, I'm not so sure that that comment is correct; it may be but I don't know.
MR. MARK SANDLER: And then you reflect: "Faced with the prospect of a conviction and all that flows from that, I vigorously represented Sherry, and at the eleventh hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide on the basis that at the time, Sherry was suffering from post partum depression. The compromise was seen as a way out for both sides. The Crown fearing they couldn't get a conviction of any kind, and the defence fearing a conviction for murder, while not justified, would result in a lengthy period of incarceration." And then you reflect some of the
psychological or psychiatric opinions that were rendered, and then you say:
"Some cases come back to haunt you, and this is one (1) of them." Ad then you reflect certain -- more recent information that have cau -- that has called into
question Dr. Smith's testimony, and you say: "It's far to late to ever know what
happened -- really happened with respect to the death of Sherry's child, but I'd like to think in all the circumstances, and in particular, with respect to the reports that I have enclosed and were commissioned so many years, that one (1) shouldn't have any concerns now. In my view, even then with respect to Sherry's ability to ook after a child and to be a lovingand caring mother." And did that represent your views of the case?
MR. BRUCE HILLYER: It certainly did.
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Excerpt Five: How to reconcile Sherrett's unbending denial with the opinions of other experts? (Doctors and psychologists);
MR. MARK SANDLER: Now, one (1) of the things I just want to ask you about very briefly, and I won't take you to all the documentation, but it would
appear that -- that the various psychologists, or psychiatrists weighed in on Sherry's case, gave some conflicting views on -- on how to analyze her situation. And -- and am I right that one (1) of the factors that appears to explain some of the different views is -- is how to reconcile what it was that she had been found guilty with, with her continuing denial that she had committed the offense?
MR. BRUCE HILLYER: I -- yeah. I -- yeah, it -- it's hard for me to answer that question. I mean, it -- I suspect the -- the doctors must have
assumed that -- that she smothered her child and that they were sort of working with that as part of their hypothesis. With -- and -- and they were struggling
with coming up with a -- with a diagnosis. This --
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Excerpt Six: The lack of remorse conundrum:
MR. MARK SANDLER: And we also see that the presiding justice appeared to rely upon the absence of remorse in determining what the appropriate sentence was. Am I right?
MR. BRUCE HILLYER: Yes. In fairness to Justice Byers, she was very -- I don't know whether you know this, but once this became known about Dr. Smith and this -- and this case has been back in the news, was -- I'm told publically commented on it in the local media down in Trenton, and sort of regretted the way that it had all unravelled.
Harold Levy...hlevy15@gmail.com;
Monday, February 25, 2008
Dr. Smith's Character: The Nasty Side: Part Two; How Low CanYou Go?
Previous postings relating to Dr.Smith's character detailed the famed pathologists attempt to intimidate an Ontario Provincial Police Officer who pulled him over for speeding not to give him a ticket - and his denigration of the work of experts who disagreed with his opinion from the witness box.
But to this Blogster nothing demonstrates Dr. Smith's nasty nature as much as the message he communicated to the Kawartha Children's Aid Society in the context of the Waudby case on May 6, 1999;
Here is some background.
Brenda Waudby had been charged with second-degree murder in connection with the death of her two and a half year-old daughter Jenna based on Dr. Smith's opinion that Waudby had exclusive access to the child at the time the fatal injuries were inflicted.
However, numerous experts consulted by both the Waudby's defence lawyer and prosecutor Brian Gilkinson - including Dr. Sigmund Ein, a staff surgeon at the Hospital for Sick Children) - concluded, to the contrary that the injuries had been inflicted on Jenna shortly before her death, while she was under the exclusive control of J.D. her teenage male babysitter.
An Overview Report on Jenna's case prepared by Goudge Inquiry staff, notes that around the time Smith spoke to the Childrens Aid Society official, Gilkinson had begun thinking, after meeting with Ein, that the murder charge should be withdrawn
(During that meeting Ein had told Gilkinson that he was ninety-nine percent certain, based on the autopsy findings, that the fatal injuries occurred after five o'clock on
the day of Jenna's death - on the babysitter's watch);
The Overview Report also indicates that at the time of what lawyer Peter Wardle referred to as the "famous" meeting with Dr. Ein, Brenda Waudby was about to have another child , and that she did, in fact, gave birth to a son, who immediately became the subject of an apprehension proceeding.
Under cross-examination by Wardle, Smith acknowledged that he was was aware that Gilkinson was considering withdrawing the murder charge when he spoke with the Children's Aid official - after the baby had been born and there had been a first court appearance on the child apprehension proceedings.
Wardle's cross-examination proceeds as follows:
MR. PETER WARDLE: So let me just read (the note on Kawartha Children's Aid letterhead H.L.) it to you, sir. It -- it says:
"Addendum to B.B. note, re. telephone call with Dr. C. Smith on May 6."
You can just see that faintly above the word "Smith".
DR. CHARLES SMITH: Yes.
"When Dr. Smith was advised that there was a possibility of [and this is Ms. Waudby's baby] returning home, he replied, 'Well, I guess I'll be doing his autopsy too'."
Let's stop here for a second.
Brenda Waudby has been charged with murder based on Dr. Smith's now suspect opinion of the time when the fatal injuries were inflicted.
It must be apparent to Dr. Smith that he may have caused a wrongful prosecution in which an innocent mother has been arrested for murdering her very own baby daughter, has been put through utter hell, and now the authorities are contemplating seizing her new-born child.
However, instead of reflecting on where he went wrong and how all this could have been avoided, he continues to characterize her as a murderer and is doing his best to convince the Children's Aid Society that Brenda's newly born son is at risk.
It gets worse.
We know now, based on evidence called at the Inquiry, at the moment he was passing on his ugly message to the Children's Aid Society, he had in his possession a dark, curly, male-type hair which he had removed from Jenna's sexual organs during the autopsy and kept untested in his personal possession.
Since he is now aware that Brenda Waudby may be innocent, surely he must have recognized that someone else must have committed the brutal crime - and that person (most likely J.D. the teenager who had exclusive access to Jenna at the time the injuries were inflicted) is still at large.
(The Overview Report indicates that J.D. ultimately was arrested, charged with murdering Jenna and sexually assaulting her, and ultimately pleaded guilty to manslaughter in connection with the brutal crime);
What was going on in Dr. Smith's mind at the time?
Did he lash out against Waudby during his conversation with the Children's Aid official, because he was a sore loser - and could not tolerate his opinion being contradicted successfully by other experts, who he undoubtedly perceived as his inferiors?
Could it have been that he continued to believe Waudby was guilty - in spite of the contrary opinions - because, as his notes filed at the Inquiry suggest, he believed Waudby, a single mother, lived a life-style which pre-disposed her to the crime?
Lawyer Wardle had some pointed questions for Smith about his conversation with the Children's Aid Society official;
MR. PETER WARDLE: Now just pausing there, sir, does that give us some sense of the inner Dr. Charles Smith and your approach to these kinds of cases?
DR. CHARLES SMITH: No. I'm -- I have no recollection of this, and I'm -- and -- and I'm embarrassed by this.
MR. PETER WARDLE: Well, would -- would it be fair to say that you're embarrassed by it, because it suggests that not only had you pre-judged the criminal charge that was before the court --
DR. CHARLES SMITH: No, I had never pre-judged the criminal charge on that case. Never.
MR. PETER WARDLE: But you were also --
DR. CHARLES SMITH: Never.
MR. PETER WARDLE: -- you were also making a sweeping characterization about what would happen to this newborn baby?
DR. CHARLES SMITH: The -- the comment is a -- is -- is one that I shouldn't have made. There are other comments in there which -- which may adequately reflect some of my concerns about -- about a child.
The comment that I made in quotes is -- is one that I shouldn't have made. But I never -- never pre-judged any -- any possible person in Jenna's death...
I always recognized that there was a range of possibilities in which the fatal injury could have occurred, and I never ruled out the possibility of an
earlier injury on pathologic grounds."
Embarrassed?
What does that mean?
To this Blogster it suggests that Dr. Smith is embarrassed that someone kept a record of his ugly remarks, that he was caught, and that it gives the public a glimpse into his dark soul.
Embarrassed?
Why couldn't he have just said: "I'm sorry Mrs. Waudby."
Harold Levy: hlevy15@gmail.com;
But to this Blogster nothing demonstrates Dr. Smith's nasty nature as much as the message he communicated to the Kawartha Children's Aid Society in the context of the Waudby case on May 6, 1999;
Here is some background.
Brenda Waudby had been charged with second-degree murder in connection with the death of her two and a half year-old daughter Jenna based on Dr. Smith's opinion that Waudby had exclusive access to the child at the time the fatal injuries were inflicted.
However, numerous experts consulted by both the Waudby's defence lawyer and prosecutor Brian Gilkinson - including Dr. Sigmund Ein, a staff surgeon at the Hospital for Sick Children) - concluded, to the contrary that the injuries had been inflicted on Jenna shortly before her death, while she was under the exclusive control of J.D. her teenage male babysitter.
An Overview Report on Jenna's case prepared by Goudge Inquiry staff, notes that around the time Smith spoke to the Childrens Aid Society official, Gilkinson had begun thinking, after meeting with Ein, that the murder charge should be withdrawn
(During that meeting Ein had told Gilkinson that he was ninety-nine percent certain, based on the autopsy findings, that the fatal injuries occurred after five o'clock on
the day of Jenna's death - on the babysitter's watch);
The Overview Report also indicates that at the time of what lawyer Peter Wardle referred to as the "famous" meeting with Dr. Ein, Brenda Waudby was about to have another child , and that she did, in fact, gave birth to a son, who immediately became the subject of an apprehension proceeding.
Under cross-examination by Wardle, Smith acknowledged that he was was aware that Gilkinson was considering withdrawing the murder charge when he spoke with the Children's Aid official - after the baby had been born and there had been a first court appearance on the child apprehension proceedings.
Wardle's cross-examination proceeds as follows:
MR. PETER WARDLE: So let me just read (the note on Kawartha Children's Aid letterhead H.L.) it to you, sir. It -- it says:
"Addendum to B.B. note, re. telephone call with Dr. C. Smith on May 6."
You can just see that faintly above the word "Smith".
DR. CHARLES SMITH: Yes.
"When Dr. Smith was advised that there was a possibility of [and this is Ms. Waudby's baby] returning home, he replied, 'Well, I guess I'll be doing his autopsy too'."
Let's stop here for a second.
Brenda Waudby has been charged with murder based on Dr. Smith's now suspect opinion of the time when the fatal injuries were inflicted.
It must be apparent to Dr. Smith that he may have caused a wrongful prosecution in which an innocent mother has been arrested for murdering her very own baby daughter, has been put through utter hell, and now the authorities are contemplating seizing her new-born child.
However, instead of reflecting on where he went wrong and how all this could have been avoided, he continues to characterize her as a murderer and is doing his best to convince the Children's Aid Society that Brenda's newly born son is at risk.
It gets worse.
We know now, based on evidence called at the Inquiry, at the moment he was passing on his ugly message to the Children's Aid Society, he had in his possession a dark, curly, male-type hair which he had removed from Jenna's sexual organs during the autopsy and kept untested in his personal possession.
Since he is now aware that Brenda Waudby may be innocent, surely he must have recognized that someone else must have committed the brutal crime - and that person (most likely J.D. the teenager who had exclusive access to Jenna at the time the injuries were inflicted) is still at large.
(The Overview Report indicates that J.D. ultimately was arrested, charged with murdering Jenna and sexually assaulting her, and ultimately pleaded guilty to manslaughter in connection with the brutal crime);
What was going on in Dr. Smith's mind at the time?
Did he lash out against Waudby during his conversation with the Children's Aid official, because he was a sore loser - and could not tolerate his opinion being contradicted successfully by other experts, who he undoubtedly perceived as his inferiors?
Could it have been that he continued to believe Waudby was guilty - in spite of the contrary opinions - because, as his notes filed at the Inquiry suggest, he believed Waudby, a single mother, lived a life-style which pre-disposed her to the crime?
Lawyer Wardle had some pointed questions for Smith about his conversation with the Children's Aid Society official;
MR. PETER WARDLE: Now just pausing there, sir, does that give us some sense of the inner Dr. Charles Smith and your approach to these kinds of cases?
DR. CHARLES SMITH: No. I'm -- I have no recollection of this, and I'm -- and -- and I'm embarrassed by this.
MR. PETER WARDLE: Well, would -- would it be fair to say that you're embarrassed by it, because it suggests that not only had you pre-judged the criminal charge that was before the court --
DR. CHARLES SMITH: No, I had never pre-judged the criminal charge on that case. Never.
MR. PETER WARDLE: But you were also --
DR. CHARLES SMITH: Never.
MR. PETER WARDLE: -- you were also making a sweeping characterization about what would happen to this newborn baby?
DR. CHARLES SMITH: The -- the comment is a -- is -- is one that I shouldn't have made. There are other comments in there which -- which may adequately reflect some of my concerns about -- about a child.
The comment that I made in quotes is -- is one that I shouldn't have made. But I never -- never pre-judged any -- any possible person in Jenna's death...
I always recognized that there was a range of possibilities in which the fatal injury could have occurred, and I never ruled out the possibility of an
earlier injury on pathologic grounds."
Embarrassed?
What does that mean?
To this Blogster it suggests that Dr. Smith is embarrassed that someone kept a record of his ugly remarks, that he was caught, and that it gives the public a glimpse into his dark soul.
Embarrassed?
Why couldn't he have just said: "I'm sorry Mrs. Waudby."
Harold Levy: hlevy15@gmail.com;
Tuesday, February 5, 2008
Dr. Smith's Loss Of His Own Child: Does it Explain His Twisted Opinions?
The National Post suggests that Dr. Charles Smith's loss of his own infant child may have a bearing on his judgment in dealing with many of his cases, in a powerful opinion piece published today.
As reported earlier in this Blog, Smith mentioned the his child's death in an interview he gave reporter Christie Blatchford after completing his testimony in a notorious murder trial. (See Smith And the Media: Part One; Why media share some of the blame; October, 2007);
"Dr. Smith is a gentle man, and a religious one", wrote Blatchford.
"God loves the little children," he whispered to me on his way out of court. "As a Christian, I wondered, how did the love of God ever penetrate that bedroom?"
Once, on his way to the downtown courthouse from the farm north of the city where he raises beef cattle, Dr. Smith thought of his own baby son, who died years ago of birth defects.
"I remembered how my wife and I willed him to live," he said. "If only I could have transferred some of that here."
Dr. Smith reference to the loss of his child - during his testimony at the Goudge Inquiry - is noted in a National Post opinion piece which appears in today's paper under the heading "The Disgrace of Charles Smith."
(Smith made this reference after Commission Counsel Linda Rothstein questioned him about his professed "frustration" at having to participate in the court process,
"The downside was Court, but Court wasn't every day," Smith replied.
"The upside was, the work is extraordinarily challenging.
It's absolutely fscinating; rewarding beyond that which I can express to you.
How -- let me be personal here. My own experience with the death of a child gave me a certain sense of the -- of the pain that a parent can know and I saw, as well, some value in trying to give parents the best information possible."
The National Post opinion analysis begins with the assertion that, "That Dr. Charles Smith was professionally unfit in his former capacity as a forensic pathologist has now been clear for months."
"An Ontario coroner's inquiry into his practices, released last April, found that Dr. Smith had come to questionable, or downright incorrect, conclusions in 20 of the 45 cases reviewed by the coroner's office," it continues.
"On 13 occasions, his testimony was key to wrongful convictions. And in some cases, his expert evidence led to children being taken away from parents falsely accused of foul-play or homicide.
But what originally appeared to be a simple -- if appalling -- case of an incompetent medical practitioner took a bizarre twist this week when Dr. Smith spoke before an Ontario government-sponsored public inquiry into his actions.
Explaining how and why he came so often to such incorrect conclusions, Dr. Smith offered a panoply of excuses:
He lacked proper training; he was under the impression that his role was to support Crown prosecutors, not offer impartial testimony; the loss of his own infant child clouded his judgment in dealing with cases.
These admissions may help explain some of the more disturbing of Dr. Smith's botched cases.
In January, 1997, for instance, Dr. Smith testified that Brenda Waudby had beaten her two-year-old daughter to death.
Five years later, a crucial piece of forensic evidence (described in news reports as a "pubic-like hair") that had gone missing during the investigation turned up in his desk drawer.
In another case, an autopsy done by Dr. Smith led prosecutors to charge Louise Reynolds with second-degree murder for having killed her seven-year-old daughter.
Ms. Reynolds was held in jail for two years, until further investigation revealed that the child had been mauled to death by a pit bull.
In 1996, Sherry Sherret was convicted of infanticide in the death of her four-month-old son on the basis of Dr. Smith's testimony that the boy had a skull fracture and had been smothered.
Ms. Sherret was jailed and another of her children was sent to Children's Aid and eventually adopted by another family.
In 2006, the boy's body was exhumed and a new autopsy showed that there had been no skull fracture and that Dr. Smith himself had been the cause of marks on the boy's neck.
These "errors" are so extraordinary that they suggest Dr. Smith may actually have wilfully obstructed justice.
His repeated apologies during his Monday testimony and later in the week offer no solace to the families whose lives he shattered.
Indeed, some of the victims may well suspect that behind his contrition is a conscience rendered guilty by truly dark -- and not just accidental-- actions.
The public inquiry into Dr. Smith's record must now dig deeper -- both into what Dr. Smith did, and the reasons that such a pitiful specimen would be entrusted with the fate of those accused of some of the most horrible crimes imaginable."
Well said!
I couldn't agree more.
Harold Levy...hlevy15@gmail.com;
As reported earlier in this Blog, Smith mentioned the his child's death in an interview he gave reporter Christie Blatchford after completing his testimony in a notorious murder trial. (See Smith And the Media: Part One; Why media share some of the blame; October, 2007);
"Dr. Smith is a gentle man, and a religious one", wrote Blatchford.
"God loves the little children," he whispered to me on his way out of court. "As a Christian, I wondered, how did the love of God ever penetrate that bedroom?"
Once, on his way to the downtown courthouse from the farm north of the city where he raises beef cattle, Dr. Smith thought of his own baby son, who died years ago of birth defects.
"I remembered how my wife and I willed him to live," he said. "If only I could have transferred some of that here."
Dr. Smith reference to the loss of his child - during his testimony at the Goudge Inquiry - is noted in a National Post opinion piece which appears in today's paper under the heading "The Disgrace of Charles Smith."
(Smith made this reference after Commission Counsel Linda Rothstein questioned him about his professed "frustration" at having to participate in the court process,
"The downside was Court, but Court wasn't every day," Smith replied.
"The upside was, the work is extraordinarily challenging.
It's absolutely fscinating; rewarding beyond that which I can express to you.
How -- let me be personal here. My own experience with the death of a child gave me a certain sense of the -- of the pain that a parent can know and I saw, as well, some value in trying to give parents the best information possible."
The National Post opinion analysis begins with the assertion that, "That Dr. Charles Smith was professionally unfit in his former capacity as a forensic pathologist has now been clear for months."
"An Ontario coroner's inquiry into his practices, released last April, found that Dr. Smith had come to questionable, or downright incorrect, conclusions in 20 of the 45 cases reviewed by the coroner's office," it continues.
"On 13 occasions, his testimony was key to wrongful convictions. And in some cases, his expert evidence led to children being taken away from parents falsely accused of foul-play or homicide.
But what originally appeared to be a simple -- if appalling -- case of an incompetent medical practitioner took a bizarre twist this week when Dr. Smith spoke before an Ontario government-sponsored public inquiry into his actions.
Explaining how and why he came so often to such incorrect conclusions, Dr. Smith offered a panoply of excuses:
He lacked proper training; he was under the impression that his role was to support Crown prosecutors, not offer impartial testimony; the loss of his own infant child clouded his judgment in dealing with cases.
These admissions may help explain some of the more disturbing of Dr. Smith's botched cases.
In January, 1997, for instance, Dr. Smith testified that Brenda Waudby had beaten her two-year-old daughter to death.
Five years later, a crucial piece of forensic evidence (described in news reports as a "pubic-like hair") that had gone missing during the investigation turned up in his desk drawer.
In another case, an autopsy done by Dr. Smith led prosecutors to charge Louise Reynolds with second-degree murder for having killed her seven-year-old daughter.
Ms. Reynolds was held in jail for two years, until further investigation revealed that the child had been mauled to death by a pit bull.
In 1996, Sherry Sherret was convicted of infanticide in the death of her four-month-old son on the basis of Dr. Smith's testimony that the boy had a skull fracture and had been smothered.
Ms. Sherret was jailed and another of her children was sent to Children's Aid and eventually adopted by another family.
In 2006, the boy's body was exhumed and a new autopsy showed that there had been no skull fracture and that Dr. Smith himself had been the cause of marks on the boy's neck.
These "errors" are so extraordinary that they suggest Dr. Smith may actually have wilfully obstructed justice.
His repeated apologies during his Monday testimony and later in the week offer no solace to the families whose lives he shattered.
Indeed, some of the victims may well suspect that behind his contrition is a conscience rendered guilty by truly dark -- and not just accidental-- actions.
The public inquiry into Dr. Smith's record must now dig deeper -- both into what Dr. Smith did, and the reasons that such a pitiful specimen would be entrusted with the fate of those accused of some of the most horrible crimes imaginable."
Well said!
I couldn't agree more.
Harold Levy...hlevy15@gmail.com;
Wednesday, January 23, 2008
Goudge Inquiry: Why Didn't The Prosecutors Sound The Alarm On Dr. Smith? Another Lost Opportunity;
"AND WHAT ABOUT YOU MS. REGIMBAL?," WARDLE ASKED. "YOU GO ON TO YOUR NEXT CASE, DO YOU LEAVE THE AMBER DECISION AND THAT'S REALLY ALL YOU HAVE TO DO AT THIS POINT? YOU STEP OUT OF THE -- OF THE SCENE, SO TO SPEAK?"
LAWYER PETER WARDLE TO PROSECUTOR TERRI REGIMBAL;
One of the troubling questions that has been raised at the Goudge inquiry is why prosecutors who personally became aware of Dr. Smith's serious deficiencies during trials did not sound the alarm to their colleagues.
Lawyer Peter Wardle, who represents several families affected by Dr. Smith at the Inquiry , put this question directly to Terri Regimbal, the Crown Attorney who prosecuted the 12-year-old baby-sitter for Manslaughter in the Timmins case.
"And what about you Ms. Regimbal?," Wardle asked. "You go on to your next case, do you leave the Amber decision and that's really all you have to do at this point? You step out of the -- of the scene, so to speak?"
Regimbal responded that she sent a copy of Judge Patrick Dunn's searing critique of Dr Smith's evidence to the hospital and attended a meeting of the hospital's Suspected Child Abuse and Neglect (SCAN) team that had been called to discuss the case.
"I had taken the time -- it's not a short jaunt from Timmins to Toronto," she told Commissioner Steven Goudge. "I'd taken the time to come to Toronto for this meeting to assist them in assessing it and to try to improve the process."
"Apart from that, that was the end of my obligation as I saw it...but that was pretty well all I did."
(See previous posting: Damage control and lost opportunity: The Hospital For Sick Children Suspected Child Abuse And Neglect
(In addition to deflecting the responsibility to deal with Dr. Smith to the hospital, as his employer, Regimbal, also passed the buck to the the babysitter's defence lawyer and to unnamed criminal lawyers.
"I assumed that he (the defence lawyer) would circulate it (Dunn's decision) with friends," and, "I assumed that the criminal lawyers have their network of communication," she told the Inquiry.")
Wardle's probing examination of Regimbal as to whether she should have done more in the circumstances is worth repeating.
MR. PETER WARDLE: But you would have realized, presumably, that Dr. Smith would also, just like you, he'd go onto his next case, right?
MS. TERRI REGIMBAL: Yes.
MR. PETER WARDLE: And you knew he was running this Unit, did you know that, at the Hospital for Sick Children?
MS. TERRI REGIMBAL: I don't know.
MR. PETER WARDLE: All right. You knew he was an expert on Shaken Baby Syndrome.
MS. TERRI REGIMBAL: Certainly.
MR. PETER WARDLE: You knew he would be called by the Crown in the next case that came along.
MS. TERRI REGIMBAL: Presumably.
MR. PETER WARDLE: And did you think you had any obligation to raise any alarm bells about him?
MS. TERRI REGIMBAL: No, I don't think I felt I had an obligation at that point.
I mean, I could assume safely that this reasonable professional man would read this judgment over, that he may take it to heart, and that he may pull up his socks on some of the areas ...
"I suppose had I heard an alarm, I would have possibly written a colleague and said, Now wait a minute, you better ha -- make sure you have this judgment, but I had no reason in January of 1992 -- sixteen (16) years ago -- to think that he wouldn't take this to heart.
There had been, as far as I was aware, no criticisms of him up to this point.
He seemed to be someone who, on the exterior, was -- was willing to learn from this.
He seemed like a reasonable individual that could take criticism."
In fairness to Ms. Regimbal, in January, 1992, Dr. Charles Smith was an icon who was lavished with praise by both his Colleagues at the Hospital for Sick Children's Hospital, and by the top ranks of the Chief Coroner's office.
In her own words to the Inquiry:
MS: TERRI REGIMBAL: "And up to that point, I hadn't really heard any criticisms of Charles Smith. All I'd heard, even from the Deputy Chief Coroner of the Province, was this man's the foremost Canadian expert in pediatric pathology. And I noticed that the doctors even deferred to him, someone even like a ju -- Dr. Jeff Barker --
MR. PETER WARDLE: Mm-hm.
MS. TERRI REGIMBAL: -- who I had so much respect for because he was so experienced and so well respected internationally. He -- it was obvious he
deferred to and had respect to Charle -- for Dr. Charles Smith.
Regimbal wasn't the only prosecutor was not to buy into the myth of Dr. Charles Randal Smith's greatness.
In response to Commissioner Goudge's question as to whether he had a sense of Smith's reputation as a forensic pediatric pathologist during the prosecution of Brenda Waudby in the Jenna case, Crown Attorney Brian Gilkinson, replied:
"(Well), Dr. Smith was accepted to be, I don't know whether you call it the cream of the crop, but he was very, very highly thought of ...and I had no reason to think that Dr. Smith wasn't competent..."
At one point in her testimony, Regimbal suggested that she was unaware of any complaints about Smith from her colleagues.
Could that have been because none of them, like her, were speaking up?
Harold Levy...hlevy15@gmail.com;
LAWYER PETER WARDLE TO PROSECUTOR TERRI REGIMBAL;
One of the troubling questions that has been raised at the Goudge inquiry is why prosecutors who personally became aware of Dr. Smith's serious deficiencies during trials did not sound the alarm to their colleagues.
Lawyer Peter Wardle, who represents several families affected by Dr. Smith at the Inquiry , put this question directly to Terri Regimbal, the Crown Attorney who prosecuted the 12-year-old baby-sitter for Manslaughter in the Timmins case.
"And what about you Ms. Regimbal?," Wardle asked. "You go on to your next case, do you leave the Amber decision and that's really all you have to do at this point? You step out of the -- of the scene, so to speak?"
Regimbal responded that she sent a copy of Judge Patrick Dunn's searing critique of Dr Smith's evidence to the hospital and attended a meeting of the hospital's Suspected Child Abuse and Neglect (SCAN) team that had been called to discuss the case.
"I had taken the time -- it's not a short jaunt from Timmins to Toronto," she told Commissioner Steven Goudge. "I'd taken the time to come to Toronto for this meeting to assist them in assessing it and to try to improve the process."
"Apart from that, that was the end of my obligation as I saw it...but that was pretty well all I did."
(See previous posting: Damage control and lost opportunity: The Hospital For Sick Children Suspected Child Abuse And Neglect
(In addition to deflecting the responsibility to deal with Dr. Smith to the hospital, as his employer, Regimbal, also passed the buck to the the babysitter's defence lawyer and to unnamed criminal lawyers.
"I assumed that he (the defence lawyer) would circulate it (Dunn's decision) with friends," and, "I assumed that the criminal lawyers have their network of communication," she told the Inquiry.")
Wardle's probing examination of Regimbal as to whether she should have done more in the circumstances is worth repeating.
MR. PETER WARDLE: But you would have realized, presumably, that Dr. Smith would also, just like you, he'd go onto his next case, right?
MS. TERRI REGIMBAL: Yes.
MR. PETER WARDLE: And you knew he was running this Unit, did you know that, at the Hospital for Sick Children?
MS. TERRI REGIMBAL: I don't know.
MR. PETER WARDLE: All right. You knew he was an expert on Shaken Baby Syndrome.
MS. TERRI REGIMBAL: Certainly.
MR. PETER WARDLE: You knew he would be called by the Crown in the next case that came along.
MS. TERRI REGIMBAL: Presumably.
MR. PETER WARDLE: And did you think you had any obligation to raise any alarm bells about him?
MS. TERRI REGIMBAL: No, I don't think I felt I had an obligation at that point.
I mean, I could assume safely that this reasonable professional man would read this judgment over, that he may take it to heart, and that he may pull up his socks on some of the areas ...
"I suppose had I heard an alarm, I would have possibly written a colleague and said, Now wait a minute, you better ha -- make sure you have this judgment, but I had no reason in January of 1992 -- sixteen (16) years ago -- to think that he wouldn't take this to heart.
There had been, as far as I was aware, no criticisms of him up to this point.
He seemed to be someone who, on the exterior, was -- was willing to learn from this.
He seemed like a reasonable individual that could take criticism."
In fairness to Ms. Regimbal, in January, 1992, Dr. Charles Smith was an icon who was lavished with praise by both his Colleagues at the Hospital for Sick Children's Hospital, and by the top ranks of the Chief Coroner's office.
In her own words to the Inquiry:
MS: TERRI REGIMBAL: "And up to that point, I hadn't really heard any criticisms of Charles Smith. All I'd heard, even from the Deputy Chief Coroner of the Province, was this man's the foremost Canadian expert in pediatric pathology. And I noticed that the doctors even deferred to him, someone even like a ju -- Dr. Jeff Barker --
MR. PETER WARDLE: Mm-hm.
MS. TERRI REGIMBAL: -- who I had so much respect for because he was so experienced and so well respected internationally. He -- it was obvious he
deferred to and had respect to Charle -- for Dr. Charles Smith.
Regimbal wasn't the only prosecutor was not to buy into the myth of Dr. Charles Randal Smith's greatness.
In response to Commissioner Goudge's question as to whether he had a sense of Smith's reputation as a forensic pediatric pathologist during the prosecution of Brenda Waudby in the Jenna case, Crown Attorney Brian Gilkinson, replied:
"(Well), Dr. Smith was accepted to be, I don't know whether you call it the cream of the crop, but he was very, very highly thought of ...and I had no reason to think that Dr. Smith wasn't competent..."
At one point in her testimony, Regimbal suggested that she was unaware of any complaints about Smith from her colleagues.
Could that have been because none of them, like her, were speaking up?
Harold Levy...hlevy15@gmail.com;
Monday, January 21, 2008
Part Nine: Interrogation of An Innocent Woman: Part Nine; How Far Will Police Go To Convict The Innocent?
In previous postings in this series we saw how the Sudbury police were so desperate to find evidence against Lianne Gagnon to back up the Chief Coroner's Office's suspicions that she was responsible for her 11-month-old son's death that they obtained a warrant to seize a farewell letter that she had left in Nicholas' casket.
This is not the only example of the extraordinary length that police officers went to in bid to get evidence against Dr. Smith's victims: The Peterborough police force planted an undercover officer in a bid to get a confession from Brenda Waudby after Smith came up with a time of death (later proven wrong) that implicated her.
(Waudby was arrested and charged with murdering Baby Jenna; Years later the teenage male babysitter pleaded guilty to killing her. Brian Gilkinson, Waudby's prosecutor, will testify at the Goudge Inquiry later today);
Here is the story my colleague Peter Edwards and I wrote on the excess of police power in the Waudby case.
It backs up a comment by Rubin Hurricane Carter - former Executive Director of the Association In Defence of the Wrongly Convicted, as to how hard the authorities have to work to convict an innocent person.
It appeared in the Toronto Star on April 12, 2002;
Brenda Waudby badly needed a friend, and the woman with the
blonde, scraggly hair who sat next to her at her Narcotics
Anonymous meeting seemed to fill the bill.
Waudby was trying to cope with the sudden death of her
21-month-old daughter, Jenna, who died just hours after Waudby
dropped her off at a babysitter.
She was also fighting to shake a cocaine addiction, and she
and her common-law husband were breaking up.
So Waudby desperately needed someone to confide in during the
spring of 1997, and the woman who introduced herself at the
meeting as Ramona Speigel seemed to need her, too.
"I felt sorry for her," Waudby recalled. "She was an addict.
She was in the same boat as everybody else. She was genuine. She
was a nice woman."
Waudby grew to value her as a trusted friend, close enough to
bring to her mother's home and baby Jenna's grave.
It was not until five months later that Waudby discovered that
her friend, who had attended Narcotics Anonymous meetings off
and on during that time, wasn't Ramona Speigel at all.
She was really Maja Schlegel, a Toronto undercover officer
sent to Narcotics Anonymous to gather information on her
regarding Jenna's death.
Waudby found herself staring at Schlegel in disbelief as she
was charged with second-degree murder.
She also found herself wondering how police could be allowed
to infiltrate a closed-doors therapy group that she thought was
confidential, and to confiscate counselling records.
"I just shook my head," Waudby recalled.
"She apologized to me. She said she was sorry that she had to
do it."
A crown attorney threw out the charge against Waudby as
unfounded before it reached trial, after reviewing medical
reports indicating she was not with her daughter at the time the
fatal injuries were inflicted.
Peterborough police Chief Terry McLaren declined to comment,
saying the case is still under investigation.
Requests for interviews with Toronto police Chief Julian
Fantino and Schlegel were referred to Staff Inspector Bruce
Smollet, who said the undercover operation at Narcotics
Anonymous would have been approved by Peterborough police, who
headed the case.
Smollet said Toronto police have no written policy against
undercover operations in counselling groups, and would not
comment on whether they have infiltrated other Narcotics
Anonymous or Alcoholics Anonymous meetings.
"You've got to be really careful on this one," Smollet said.
"Maja ... didn't go into these groups looking into the groups
themselves. She was in there as an undercover officer with the
subject, so that the actual content of the group was not a
concern of hers."
This winter, five years after Jenna's death, there was finally
a break in the case.
The new evidence had nothing to do with Waudby and her
counselling files.
It was a single dark, curly strand of hair or fibre - which
was never tested or used as evidence - that fell into police
hands when they removed it from the office of Toronto
pathologist Dr. Charles Smith last December.
Yesterday, after the strand was examined at the Centre of
Forensic Sciences in Toronto, the case was reviewed in
Peterborough by a group that included a group that included
McLaren, Ontario deputy chief coroner Dr. James Cairns, centre
director Dr. Ray Prime, and prosecutor Brian Gilkinson.
Cairns declined to comment on the results of forensic testing
on the strand, citing the ongoing investigation.
Meanwhile, the undercover operation at Narcotics Anonymous -
dubbed Project Jenna by investigators - has driven at least
three recovering drug addicts besides Waudby out of the
counselling group, according to the woman who was her NA
sponsor.
"I was shocked, angry and disillusioned," said Waudby's
sponsor, a professional woman and recovering drug addict.
"It's (police infiltrating meetings) never been an issue
before, and I've never heard of it happening."
Narcotics Anonymous is modelled on Alcoholics Anonymous.
A spokesperson for Alcoholics Anonymous North America said he
has never heard of undercover police officers planted in an AA
meeting.
The Narcotics Anonymous Web page said the group uses
"confidential self-disclosure" to help wean addicts from
drugs.
"NA has only one mission: to provide an environment in which
addicts can help one another stop using drugs and find a new way
to live," it states.
Waudby said she was further shocked to read a newspaper report
that the officer who posed as her friend for five months was
honoured as the city's Police Officer of the Year for 1998, in a
gala ceremony sponsored by the Toronto Board of Trade.
A police news release on the award stated:
"The officer maintained contact with the suspect every day,
gaining her confidence, and a month later, the suspect confessed
to the murder of her child."
After The Star questioned police about the operation, the Web
site carrying the news release was altered this week to delete
the text, "the suspect confessed to the murder of her child."
Smollet said the deletion was made because it would be
"absolutely unfair" to Waudby to leave the impression that
she had confessed to murdering her daughter.
Reports and transcripts of the undercover operation refer to
Waudby repeatedly arguing that she was innocent and that she
suspected the child's babysitter of the killing.
On Sept. 5, 1997 - the day Waudby received a copy of the
coroner's report on Jenna's death - a police bugging device in
the undercover officer's apartment recorded Waudby repeatedly
stating she didn't beat her daughter.
Ironically, it also recorded Waudby saying that she thought
she was going to be wrongly charged with murder.
Waudby: I have this funny feeling I'm going down for murder,
eh.
Schlegel: What happened then?
Waudby: Wednesday morning?
Schlegel: Um hum.
Waudby: Got her up out of the crib. Cuddled up with her. Found
that she was tired. Put her back to down and let her cry herself
to sleep ...
Schlegel: (unintelligible) You didn't shake her?
Waudby: Nope.
On Sept. 7, 1997, Waudby was riding in the undercover
officer's green Chevrolet Corsica, which had been bugged as
well. Waudby complained that she thought people from her old
drug-taking days were out to get her.
Waudby: (Expletive) man. I wish you were a cop. I wouldn't
have any worries.
Schlegel: Sorry.
Waudby: Or are you one of them?
Schlegel: Can't do 'er, sorry.
Waudby: (Laughing) Or are you one of the ...
(Talking at the same time - unintelligible.)
Schlegel: Fake I'm an addict (laughing). You never know.
Waudby: I don't know. (Person's name) works for them.
Schlegel: Well, there ya go.
Waudby: On drug squad nonetheless.
Schlegel: They may be able to hire me onto the drug squad.
Waudby: Hire you as an informant. You'd have to
(unintelligible).
Schlegel: I don't think I'm into ratting, thank you.
Their final taped conversation was at 9: 58 a.m. Sept. 17,
1997, when Schlegel called Waudby to tell her that Schlegel's
sister had been critically injured in a car accident.
Schlegel sounded distressed, saying, "The best I can say is
I'm going to call you when I get a chance, okay?"
The next day, Waudby was arrested for second-degree murder,
and she saw the woman she believed was her friend at the
Peterborough police station, as one of her arresting officers.
"I felt horrible." Waudby recalled. "I feel like the system
violated me personally."
Waudby said she felt violated again Sept. 28, 1999, when
police seized her psychiatric records from the Etobicoke office
of Dr. Mark Ben-Aron.
The raid came three months after charges were dropped and
focused on a psychiatric assessment that had been ordered by her
lawyer before the charges were dropped.
Ben-Aron said in an interview that he protested to the officer
who took the records that they were protected both by
patient-doctor and lawyer-client privilege, since Ben-Aron had been
retained by Waudby's lawyer.
"When police came in, I was distressed," Ben-Aron said.
"The issue was much greater than me. The issue here is in
terms of the protection of the inherent rights of the
individual."
The court order from a justice of the peace did not require
the records to be sealed, but Ben-Aron sealed them anyway.
He said he can't help but worry about them.
"I worried that someone might unseal it and then reseal it,"
the psychiatrist said. "That's human nature."
Other counselling records from Waudby were seized on Feb. 7,
1997, from 4Cast, Four Counties Addiction Services Team Inc.,
where she had been getting one-on-one therapy at the same time
she was attending Narcotics Anonymous meetings.
Waudby said she's still receiving counselling but would never
attend a group session again.
She said she even has trouble opening up in one-on-one
sessions, noting she balked when her current therapist asked her
to put her thoughts down on paper.
She said she only hopes that the tiny hair or fibre tested
finally points police away from her and toward her daughter's
real killer.
"They had tunnel vision, and it was me and me alone who they
saw in the tunnel."
Harold Levy: hlevy15@gmail.com;
This is not the only example of the extraordinary length that police officers went to in bid to get evidence against Dr. Smith's victims: The Peterborough police force planted an undercover officer in a bid to get a confession from Brenda Waudby after Smith came up with a time of death (later proven wrong) that implicated her.
(Waudby was arrested and charged with murdering Baby Jenna; Years later the teenage male babysitter pleaded guilty to killing her. Brian Gilkinson, Waudby's prosecutor, will testify at the Goudge Inquiry later today);
Here is the story my colleague Peter Edwards and I wrote on the excess of police power in the Waudby case.
It backs up a comment by Rubin Hurricane Carter - former Executive Director of the Association In Defence of the Wrongly Convicted, as to how hard the authorities have to work to convict an innocent person.
It appeared in the Toronto Star on April 12, 2002;
Brenda Waudby badly needed a friend, and the woman with the
blonde, scraggly hair who sat next to her at her Narcotics
Anonymous meeting seemed to fill the bill.
Waudby was trying to cope with the sudden death of her
21-month-old daughter, Jenna, who died just hours after Waudby
dropped her off at a babysitter.
She was also fighting to shake a cocaine addiction, and she
and her common-law husband were breaking up.
So Waudby desperately needed someone to confide in during the
spring of 1997, and the woman who introduced herself at the
meeting as Ramona Speigel seemed to need her, too.
"I felt sorry for her," Waudby recalled. "She was an addict.
She was in the same boat as everybody else. She was genuine. She
was a nice woman."
Waudby grew to value her as a trusted friend, close enough to
bring to her mother's home and baby Jenna's grave.
It was not until five months later that Waudby discovered that
her friend, who had attended Narcotics Anonymous meetings off
and on during that time, wasn't Ramona Speigel at all.
She was really Maja Schlegel, a Toronto undercover officer
sent to Narcotics Anonymous to gather information on her
regarding Jenna's death.
Waudby found herself staring at Schlegel in disbelief as she
was charged with second-degree murder.
She also found herself wondering how police could be allowed
to infiltrate a closed-doors therapy group that she thought was
confidential, and to confiscate counselling records.
"I just shook my head," Waudby recalled.
"She apologized to me. She said she was sorry that she had to
do it."
A crown attorney threw out the charge against Waudby as
unfounded before it reached trial, after reviewing medical
reports indicating she was not with her daughter at the time the
fatal injuries were inflicted.
Peterborough police Chief Terry McLaren declined to comment,
saying the case is still under investigation.
Requests for interviews with Toronto police Chief Julian
Fantino and Schlegel were referred to Staff Inspector Bruce
Smollet, who said the undercover operation at Narcotics
Anonymous would have been approved by Peterborough police, who
headed the case.
Smollet said Toronto police have no written policy against
undercover operations in counselling groups, and would not
comment on whether they have infiltrated other Narcotics
Anonymous or Alcoholics Anonymous meetings.
"You've got to be really careful on this one," Smollet said.
"Maja ... didn't go into these groups looking into the groups
themselves. She was in there as an undercover officer with the
subject, so that the actual content of the group was not a
concern of hers."
This winter, five years after Jenna's death, there was finally
a break in the case.
The new evidence had nothing to do with Waudby and her
counselling files.
It was a single dark, curly strand of hair or fibre - which
was never tested or used as evidence - that fell into police
hands when they removed it from the office of Toronto
pathologist Dr. Charles Smith last December.
Yesterday, after the strand was examined at the Centre of
Forensic Sciences in Toronto, the case was reviewed in
Peterborough by a group that included a group that included
McLaren, Ontario deputy chief coroner Dr. James Cairns, centre
director Dr. Ray Prime, and prosecutor Brian Gilkinson.
Cairns declined to comment on the results of forensic testing
on the strand, citing the ongoing investigation.
Meanwhile, the undercover operation at Narcotics Anonymous -
dubbed Project Jenna by investigators - has driven at least
three recovering drug addicts besides Waudby out of the
counselling group, according to the woman who was her NA
sponsor.
"I was shocked, angry and disillusioned," said Waudby's
sponsor, a professional woman and recovering drug addict.
"It's (police infiltrating meetings) never been an issue
before, and I've never heard of it happening."
Narcotics Anonymous is modelled on Alcoholics Anonymous.
A spokesperson for Alcoholics Anonymous North America said he
has never heard of undercover police officers planted in an AA
meeting.
The Narcotics Anonymous Web page said the group uses
"confidential self-disclosure" to help wean addicts from
drugs.
"NA has only one mission: to provide an environment in which
addicts can help one another stop using drugs and find a new way
to live," it states.
Waudby said she was further shocked to read a newspaper report
that the officer who posed as her friend for five months was
honoured as the city's Police Officer of the Year for 1998, in a
gala ceremony sponsored by the Toronto Board of Trade.
A police news release on the award stated:
"The officer maintained contact with the suspect every day,
gaining her confidence, and a month later, the suspect confessed
to the murder of her child."
After The Star questioned police about the operation, the Web
site carrying the news release was altered this week to delete
the text, "the suspect confessed to the murder of her child."
Smollet said the deletion was made because it would be
"absolutely unfair" to Waudby to leave the impression that
she had confessed to murdering her daughter.
Reports and transcripts of the undercover operation refer to
Waudby repeatedly arguing that she was innocent and that she
suspected the child's babysitter of the killing.
On Sept. 5, 1997 - the day Waudby received a copy of the
coroner's report on Jenna's death - a police bugging device in
the undercover officer's apartment recorded Waudby repeatedly
stating she didn't beat her daughter.
Ironically, it also recorded Waudby saying that she thought
she was going to be wrongly charged with murder.
Waudby: I have this funny feeling I'm going down for murder,
eh.
Schlegel: What happened then?
Waudby: Wednesday morning?
Schlegel: Um hum.
Waudby: Got her up out of the crib. Cuddled up with her. Found
that she was tired. Put her back to down and let her cry herself
to sleep ...
Schlegel: (unintelligible) You didn't shake her?
Waudby: Nope.
On Sept. 7, 1997, Waudby was riding in the undercover
officer's green Chevrolet Corsica, which had been bugged as
well. Waudby complained that she thought people from her old
drug-taking days were out to get her.
Waudby: (Expletive) man. I wish you were a cop. I wouldn't
have any worries.
Schlegel: Sorry.
Waudby: Or are you one of them?
Schlegel: Can't do 'er, sorry.
Waudby: (Laughing) Or are you one of the ...
(Talking at the same time - unintelligible.)
Schlegel: Fake I'm an addict (laughing). You never know.
Waudby: I don't know. (Person's name) works for them.
Schlegel: Well, there ya go.
Waudby: On drug squad nonetheless.
Schlegel: They may be able to hire me onto the drug squad.
Waudby: Hire you as an informant. You'd have to
(unintelligible).
Schlegel: I don't think I'm into ratting, thank you.
Their final taped conversation was at 9: 58 a.m. Sept. 17,
1997, when Schlegel called Waudby to tell her that Schlegel's
sister had been critically injured in a car accident.
Schlegel sounded distressed, saying, "The best I can say is
I'm going to call you when I get a chance, okay?"
The next day, Waudby was arrested for second-degree murder,
and she saw the woman she believed was her friend at the
Peterborough police station, as one of her arresting officers.
"I felt horrible." Waudby recalled. "I feel like the system
violated me personally."
Waudby said she felt violated again Sept. 28, 1999, when
police seized her psychiatric records from the Etobicoke office
of Dr. Mark Ben-Aron.
The raid came three months after charges were dropped and
focused on a psychiatric assessment that had been ordered by her
lawyer before the charges were dropped.
Ben-Aron said in an interview that he protested to the officer
who took the records that they were protected both by
patient-doctor and lawyer-client privilege, since Ben-Aron had been
retained by Waudby's lawyer.
"When police came in, I was distressed," Ben-Aron said.
"The issue was much greater than me. The issue here is in
terms of the protection of the inherent rights of the
individual."
The court order from a justice of the peace did not require
the records to be sealed, but Ben-Aron sealed them anyway.
He said he can't help but worry about them.
"I worried that someone might unseal it and then reseal it,"
the psychiatrist said. "That's human nature."
Other counselling records from Waudby were seized on Feb. 7,
1997, from 4Cast, Four Counties Addiction Services Team Inc.,
where she had been getting one-on-one therapy at the same time
she was attending Narcotics Anonymous meetings.
Waudby said she's still receiving counselling but would never
attend a group session again.
She said she even has trouble opening up in one-on-one
sessions, noting she balked when her current therapist asked her
to put her thoughts down on paper.
She said she only hopes that the tiny hair or fibre tested
finally points police away from her and toward her daughter's
real killer.
"They had tunnel vision, and it was me and me alone who they
saw in the tunnel."
Harold Levy: hlevy15@gmail.com;
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