WILLIAM MULLINS-JOHNSON RETROSPECTIVE (10): CHRONICLE OF AN "INEXORABLE RUSH TO JUDGMENT:" PART TWO; AN EARLIER CHARLES SMITH BLOG POST;

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 5, 20017, ran under the heading, "Smith's credibility boosted in courtroom" Mullins-Johnson's lawyers claim."

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"TONIGHT THERE IS NO ROOM AT THE INN, EITHER THE HOLIDAY INN OR THE QUALITY INN, AND I AM PERSONALLY NOT SATISFIED WITH THE ACCOMMODATION WHICH HAS BEEN RESERVED FOR YOU BUT THE STAFF HAVE ADVISED ME THAT IT IS THE BEST AVAILABLE, PROBABLY THE ONLY AVAILABLE."

SUPERIOR COURT JUSTICE BRUCE NOBLE;

William Mullins-Johnson was the victim of a rush to justice at the autopsy conducted on his 4-year-old niece Valin Johnson and a premature arrest.

The transcript of his trial - which began on Sept. 6, 1994 and ended on Sept. 1994 -indicates that he may have been the victim of another rush to judgment - a jury anxious to return a verdict because they were told by the judge, "There is no room at the Inn." (See earlier posting: Mullins-Johnson: Chronicle of An Inexorable Rush To Judgment (Part One);

Superior Court Justice Bruce Noble allowed the jury to retire to consider their verdict at 12.35 p.m. on September the 21st;

Later that day (at 8.00 p.m), Noble informed Court that he was going to have the jury in "and have a very quiet chat with them," adding, "but I am not going to exhort them in any definitive way. I think I should probably try and encourage them a little bit."

After the jurors were brought into the courtroom, Noble told them: "You have now deliberated for four hours and it seems you are having some modest difficulty in reaching an agreement as to your verdict, and I have asked you to return to the courtroom because I would like to speak to you just very briefly."

"I am sure you all realize it is desirable for you to arrive at a verdict on the count before you because if you fail to do so it Will simply mean that a new trial will beheld, and for these reasons it is important that you agree if you can honestly do that."

Noble reminded them to provide court staff with a list of items they would like to have picked up from their homes, "in the event that you are required to be accommodated overnight."

This humble bloggist cannot understand why a judge would raise with the jurors the prospect that they might be having difficulty in reaching a unanimous verdict after only hours of deliberations on a first-degree murder trial that has been proceeding over the previous two weeks.

I also can't understand why the judge would not have exhorted the jury to deliberate as long as necessary to ensure that they don't convict an innocent man.

It gets worse.

Noble then tells them that he cannot provide them the best accommodation over night because, "there is no room at the Inn," and that the Court will retire at about 9.00 p.m. for the evening.

The jurors returned to Court with their unanimous verdict of first-degree murder two hours and two minutes later. (At 10.02. p.m);

Within the next five minutes, after the jury was polled, Mullins-Johnson was ordered to stand up and heard Noble pronounce the words, "The Criminal Code provides that in respect of a person who has been convicted of first-degree murder that he be sentenced to prison for life without eligibility for parole until he has served twenty-five years of his sentence, and so I sentence you."

Here are the relevant portions from the transcript;

Justice Noble: "In that regard (the possibility of having to stay over night) no doubt all of you have heard the expression "there was no room at the Inn."

It is my standing instruction, having regard for the comfort of jurors, which is my responsibility, that the best available overnight accommodation be reserved for the jurors who are working with me on a case and who require me to be sequestered overnight.

Tonight there is no room at the Inn, either the Holiday Inn or the Quality Inn, and I am personally not satisfied with the accommodation which has been secured for you but the staff have advised that it is the best available, probably the only available.

The Algoma Tour Train visitors have booked and over-booked virtually all of the accommodation in the City, as far as Thessalon, and even North of the City within driving distance, and I know that because of the supper time I was concerned, I personally called over a dozen hotels and motels to check the availability of accommodation.

I hope you are comfortable. I apologize in advance for any personal discomfort you may face..."

Why the indecent haste?

HANK SKINNER; SAN ANTONIO EXPRESS-NEWS SAYS GUILT SHOULD BE CONFIRMED BEYOND DOUBT BY DNA TESTING;

"Advances in DNA analysis in recent years have exonerated 41 Texans of serious crimes, including rape and murder. Putting the wrong person behind bars — or sending him to the death chamber — is fundamentally an injustice to the wrongly accused. But it's also an injustice to victims and a danger to society that allows dangerous criminals to remain on the streets.

In this day and age, there's no reason why DNA evidence, when it's available, shouldn't routinely be tested as part of the appeals process if it wasn't introduced at trial. Doing so would eliminate questions of reasonable doubt and, in the cases of the truly guilty, limit their seemingly limitless avenues of appeal."

SAN ANTONIO EXPRESS-NEWS; Wikipedia informs us that, "The San Antonio Express-News is the daily newspaper of San Antonio, Texas. It is ranked as the third-largest daily newspaper in the state of Texas in terms of circulation, and is one of the leading news sources of South Texas, with offices in Austin, Brownsville, Laredo, and Mexico City. The Express-News is owned by the Hearst Corporation."

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BACKGROUND OF APPEAL: Skinner v. Switzer, No. 09-9000, an appeal from Hank Skinner, an inmate in Texas who is seeking access to DNA evidence that he says could prove his innocence. In March, the court granted a stay of execution less than an hour before Mr. Skinner was to be put to death in the murder of his girlfriend and her two sons. Mr. Skinner seeks to test blood, fingernail scrapings and hair found at the scene of the killings. He maintains that he was sleeping on a sofa in a stupor induced by vodka and codeine when the killings took place on Dec. 31, 1993. Prosecutors say he is making his request too late. They add that testing would be pointless because "no item of evidence exists that would conclusively prove that Skinner did not commit the murder." Reporter Adam Liptak: New York Times;

BACKGROUND OF CASE: "Hank Skinner faces execution for a 1993 murder he's always maintained he didn't commit. He wants the state to test whether his DNA matches evidence found at the crime scene, but prosecutors say the time to contest his conviction has come and gone......We told the story of the murders and his conviction and sentencing in the first part of this story." Reporter Brandi Grissom, author of the Tribune series on Hank Skinner, writes: "I interviewed Henry "Hank" Watkins Skinner, 47, at the Polunsky Unit of the Texas Department of Criminal Justice — death row — on January 20, 2010. Skinner was convicted in 1995 of murdering his girlfriends and her two sons; Skinner has always maintained that he's innocent and for 15 years has asked the state to release DNA evidence that he says will prove he was not the killer." Texas Tribune;

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"In Texas, a person convicted of a crime must be found guilty beyond a reasonable doubt. By any sensible standard, the elimination of reasonable doubt should include the examination of evidence that might exonerate the accused. That is especially so in capital cases, where the state's ultimate punishment — execution — is irreversible," the San Antonio Express-News editorial published earlier today begins, under the heading, "Confirm guilt beyond doubt with DNA testing."

"The U.S. Supreme Court heard arguments last week that test this premise. In March, the high court halted the execution of Henry “Hank” Skinner in Huntsville, one hour before it was to take place," the editorial continues.

"Skinner was convicted and sentenced to die for the 1993 murders of his girlfriend and her two adult sons. An investigation by the Medill Innocence Project raised troubling questions about the circumstantial evidence used to convict Skinner. Among other problems, the state's star witness in the case recanted her story.

Skinner's attorneys argue that critical DNA evidence from the crime scene that has never been tested could exonerate their client. It might just as easily confirm his guilt. Either way, there shouldn't be any doubt.

Advances in DNA analysis in recent years have exonerated 41 Texans of serious crimes, including rape and murder. Putting the wrong person behind bars — or sending him to the death chamber — is fundamentally an injustice to the wrongly accused. But it's also an injustice to victims and a danger to society that allows dangerous criminals to remain on the streets.

In this day and age, there's no reason why DNA evidence, when it's available, shouldn't routinely be tested as part of the appeals process if it wasn't introduced at trial. Doing so would eliminate questions of reasonable doubt and, in the cases of the truly guilty, limit their seemingly limitless avenues of appeal."

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The editorial can be found at:

http://www.mysanantonio.com/opinion/confirm_guilt_beyond_doubt_by_dna_testing_105558208.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE; (9); CHRONICLE OF AN "INEXORABLE" RUSH TO JUSTICE. (PART ONE); REPLAY OF AN EARLY CHARLES SMITH BLOG POST;

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 21, 2007, ran under the heading, "Chronicle of an "inexorable" rush to judgment."
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William Mullins-Mullins Johnson was the victim of an "inexorable rush to judgment" according to the Ontario Court of Appeal.

The Court explains this conclusion as follows in written reasons for its decision to accept fresh evidence, quash Mullins-Johnson's conviction and enter an acquittal, released Friday.

"At 7:00 a.m. on Sunday, June 27, 1993, Valin’s parents found their daughter lying dead on her bed," says the Court.

"Her body was taken to the Sault Ste. Marie General Hospital for an autopsy to be performed by Dr. Bhubendra Rasaiah. (See earlier postings: "Die Cast Against Mullins-Johnson Even Before Autopsy Began, Lawyer Charges" and "Conduct Of Other Experts Scrutinized by Mullins-Johnson's Lawyers.")

While the autopsy began at 12:55 p.m., the dissection of the body did not begin until 4:50 p.m.

However, well before Dr. Rasaiah began the dissection, he called Dr. Charles Smith of the Hospital for Sick Children in Toronto and described his preliminary observations to him.

At around 2:50 p.m., Dr. Smith gave his opinion that Valin had been subjected to chronic abuse.

Dr. Rasaiah called in Dr. Patricia Zehr to attend the autopsy. (See earlier postings: "Die Cast Against Mullins-Johnson Even Before Autopsy Began, Lawyer Charges" and "Conduct Of Other Experts Scrutinized by Mullins-Johnson's Lawyers.")

Dr. Zehr was not a pathologist but rather a gynaecologist/obstetrician with expertise in child sexual abuse.

She observed the body and declared that this was one of the worst cases of child sexual abuse she had seen.

Events began to unfold very quickly thereafter.

Before the end of the post-mortem, Dr. Rasaiah told the police that he suspected Valin died between 8:00 and 10:00 p.m. the previous evening and that death was due to homicidal asphyxiation.

These initial findings by Drs. Rasaiah, Smith and Zehr set in motion an inexorable rush to judgment that centred on Valin’s uncle, William Mullins-Johnson.

At 6:30 p.m., less than twelve hours after her parents had found Valin’s body, the police arrested Mr. Mullins-Johnson for first degree murder and aggravated sexual assault.

He was charged because he had been home, alone, baby-sitting Valin and her three-year-old brother John between 8:00 and 10:00 p.m. on Saturday, June 26."

Dr. Michael Pollanen, Ontario's Chief Pathologist, told the appeal court that pathologists should withhold their findings as "pending" until the results of forensic test conducted on autopsy exhibits are in - rather than leaping to a premature conclusion which can lead to a wrongful arrest in a homicide investigation.

The Mullins-Johnson case is a classic example of the power that Dr. Charles Smith had amongst his deferential colleagues - the fact that they would call him for an opinion even before the autopsy had begun.

It is also an example of how the police can trigger miscarriage of justices by blindly accept the opinions of experts they hold in awe - like Dr. Charles Smith - rather than conducting a full investigation before laying a criminal charge.

That applies all the more to a charge of first-degree - the most serious offence in the Criminal Code.

Harold Levy;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE; (8): "MULLINS-JOHNSON: KIDS PEDIATRICIAN TELLS COURT SHE "DEFERRED" TO CHARLES SMITH; REPLAY OF AN EARLY POST;

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 18, 2007, ran under the heading, "Mullins-Johnson: Sick Kids' Pediatrician Tells Court She "Deferred" To Charles Smith."

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Dr. Marcellina Mian, a pediatrician at the Hospital for Sick Children in Toronto has defended the opinion she co-signed with Dr. Charles Smith which has been discredited by subsequent events in the William Mullins-Johnson case.

In 1993, Mian was a pediatrician and Director of the Suspected Child Abuse and Neglect (SCAN) Program at the Hospital For Sick Children in Toronto - and Smith was Director of Autopsy Pathology and Director of the Ontario Pediatric Forensic Pathology Unit which is located at the hospital.

The joint report, dated August 6, 1993, ends with Dr. Mian's signature above Dr. Smith's, and was an exhibit at the trial which resulted in Mullins-Johnson's conviction for first-degree murder.

The co-authors say in their "Conclusion" that, "This child's (Valin Johnson's) photographs show findings which if confirmed by the post-mortem examination, indicate death by asphyxiation, trauma to the head and injury to the perineum and anus. In the absence of a reasonable explanation by history, they indicate non-accidental trauma, including sexual abuse."

The photographs had been taken during an autopsy conducted on June 27, 1993.

Dr. Michael Pollanen, Ontario's Chief Pathologist, told the Ontario Court of Appeal on Monday September 15, that subsequent testing has shown that 4-year-old Valin was neither sexually assaulted or murdered but died a natural death.

Pollanen explained that the experts had wrongly interpreted pathological changes which occurred in Valin's body after her death.

Dr. Mian was recently cross-examined by Toronto lawyer Andrew Czernik, at the aggravated assault trial of Gregory Johnson.

The transcript reads in part:

q. Well sometimes do you ever find you might give an explanation for what you think may have happened and it turns out to be wrong?

A. Occasionally, yes. Sure.

Q. I say this with a great deal of delicacy. The Mullins-Johnson case, William Mullins-Johnson, you are familiar with that one?

A: You will have to refresh my memory;

Q. It's a long ago case. However it's quite famous because it involves Dr. Charles Smith.

A: Mm, hmm.

Q: Where William Mullins-Johnson was convicted of murder back in I think 1994 because it was alleged that he had sodomized his four year old niece and then murdered her. And it was the sodomy of the four year old niece which elevated it from second degree murder to first degree murder. Does that ring a bell?

A: Yes. I recall it, yes.

Q: And it has been the subject of a great deal of press, hasn't it?

A: I believe so, yes.

Q. And in fact the prevailing view, and you stop me if I am wrong on this, the prevailing view is that there was no sodomy, no murder, and that this man is going to be exonerated; Is that correct?

A: That's my understanding, yes.

Q: But you yourself opined in 1993 that this child had been sodomized, didn't you?

A: No. I believe I opined, if I am recalling the case, that what i saw was of concern but I deferred to the pathologist (Dr. Smith) in terms of any specific findings. So I don't believe I reached a definitive conclusion in the case."...

At the outset of his testimony at the Mullins-Johnson trial, Smith was asked by the prosecutor to describe how he had been brought in to the case.

"It would be, oh help me, about a year ago I believe, Doctor Meehan (Mian) had received some photographs from Dr. Rosaiah, (The pathologist who conducted the autopsy on Valin Johnson) that related to the autopsy on this little girl who we're discussing today," Smith replied.

"Dr. Meehan, Dr. Marcie (Marcellina) Meehan (Mian) is head of a program at the Hospital for Sick Children which deals with child abuse and neglect.

She had examined these photographs, she was quite comfortable in dealing with aspects of those photographs that dealt with possible sexual abuse, but there were aspects of the photographs that dealt with the mechanism of death which of course she is a pediatrician, was uncomfortable discussing, so she brought the photographs to me, and they asked me to help with the interpretation of those.

So we both authored a report together, based simply on the photographic evidence that Dr. Rasaiah had provided to Dr. Meehan (Mian);"

Harold Levy;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE (7); A TROUBLING TALE OF MISSING FORENSIC EXHIBITS; REPLAY OF AN EARLY CHARLES SMITH BLOG POST;

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October11, 2007, ran under the heading, "A troubling tale of missing forensic exhibits."

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

JUSTICE BRIAN TRAFFORD: KPORWODU AND VENO;

One of the most disturbing sections of the Factum filed by William Mullins-Johnson's lawyers in the Ontario Court of Appeal for the Reference set for Monday is a series of letters relating to their desperate attempt to obtain forensic exhibits from Valin Johnson's autopsy which they believed had been sent to Dr. Charles Smith.

The letters were crucial.

Without them Mullins-Johnson would likely spend much of the rest of his life in prison having been convicted of first-degree murder in the death of his beloved 4-year-old niece.

"In the summer of 2002, AIDWYC commissioned Professor Bernard Knight, a pathologist of international repute, to provide an assessment of the pathological aspects of Valin Johnson’s death," the section relating to the missing exhibits begins.

"Professor Knight asked to be provided with the slides and blocks prepared at the autopsy for subsequent microscopic examination.

On February 27, 2003, AIDWYC wrote to Crown Law Office and advised that it had enlisted the help of Professor Knight, and requested the slides and blocks for his examination.

Follow-up requests were sent to the Crown on May 21, 2003 and January 6, 2004. On January 12, 2004, counsel for the Crown responded. He wrote:
I understand your frustration over the delay in receiving the materials you have requested. When I had to be away from the office for personal reasons in the late fall I had hoped that I would have a favourable response from Dr. Smith to my repeated requests for the forensic material. He informed me on December 29, 2003 that he has been unable to locate the slides. I have asked him to conduct a further search and he has agreed to do so and provide me with a written response to my requests. I will be in contact with him again this week if I have not heard from him.

On January 20, 2004, AIDWYC wrote back:
With respect to the microscopic slides which are required by our expert to assess the physical evidence that we have in furtherance of AIDWYC’s investigation of this matter, it is disconcerting to hear that Dr. Smith has been “unable to locate” the slides. As you have indicated that you will be asking Dr. Smith to look for the slides again and provide a written report with respect to his efforts, I wonder if you might also ask him if there are blocks of tissue from the autopsy from which new slides can be made if the originals have been lost.
You have also included in a subsequent telephone call that you will have an officer investigate the whereabouts of the slides. I would also ask that you have this officer look into the availability of tissue blocks from which new slides can be taken. ..

On January 28, 2004, the Crown wrote to Dr. Smith as follows:
Dear Dr. Smith:
Re: Microscopic slides and tissue blocks of
Deceased Valin Johnson (Autopsy number A-93-51)
I understand from our recent telephone conversation that you have so far been unable to locate any of the microscopic slides examined by you in this case.
I would greatly appreciate if you could confirm, in writing, whether this continues to be the case and whether, if the slides are not available, you have any knowledge of whether the tissue block from the autopsy is nevertheless available from which new slides could be generated.
I would appreciate hearing from you at your earliest convenience.
Thank you very much.

On February 27, 2004, the Crown forwarded written material to AIDWYC which established that all the slides and blocks of tissue collected at Valin Johnson’s autopsy had been sent by Dr. Rasaiah to Dr. Smith at the Hospital for Sick Children on June 22, 1994, and that none of them had ever been returned by him. The Crown advised that Dr. Smith had not responded to his letter of January 28, 2004, and continued:
I am considering what other options are available to us to obtain the material or further information about it from Dr. Smith and will keep you advised. ..

On April 13, 2004, the Crown again wrote to AIDWYC:
On March 16, 2004 I sent Dr. Smith a registered letter asking for a response to my earlier letter requesting his written response to my questions about the possible whereabouts of the forensic material in this case. I have not heard back from him. I have asked the police to conduct inquiries with the office of the Coroner in the event that they might be of any assistance.
If you see fit to pursue any particular procedure or course of action I would be pleased to cooperate.

On November 15, 2004, AIDWYC wrote to the Crown and asked whether there had been any further developments:
Obviously, our office and AIDWYC, which is investigating this case, are concerned that Dr. Smith’s negligence appears to have brought any investigation of this aspect of the case to a standstill.
On December 10, 2004, the Crown advised that some of the slides had been found:
I am writing to tell you that Dr. McLellan’s office has been successful in locating some of the original autopsy slides from Mr. Mullins-Johnson’s trial. It appears, however, that there are still some slides outstanding which may be relevant for your purposes.
Dr. McLellan’s office is in the process of reviewing the slides and searching for the remaining ones. They will also be taking steps to ensure that a proper record of the slides is created prior to releasing them to you. I understand that they hope to be in a position to have them sent to you in early January. I will advise you as soon as possible.

By this time, three years had passed since AIDWYC’s first request in 2001 to the Chief Coroner for a review of the case, and 22 months had passed since the first request for the slides and tissue blocks. ..

AIDWYC wrote follow-up reminders on January 10 and February 4, 2005.

On February 16, 2005, Crown Law Office forwarded a report of Dr. Michael Pollanen dated January 19, 2005 which provided a review of the pathology of Valin’s death.

In his covering letter, the Crown wrote:
It seems that your request for production of the microscopic slides in this case set in motion a series of events that led to something of a review being conducted by Dr. Pollanen of at least some of the available materials in this case, and the preparation of [Dr. Pollanen’s] Report.
Dr. Pollanen’s report is reviewed at length infra.

On May 19, 2005, the Crown wrote to advise that the remaining tissue blocks and slides had been found:
I was just contacted by the Coroner’s Office and advised that, just this past Friday (May 6, 2005), the review being conducted by the Coroner’s Office in conjunction with the Hospital for Sick Children, turned up some 28 Paraffin tissue blocks and 10 microscopic slides in relation to this case. They were discovered, I understand, in Dr. Charles Smith’s office. These are the materials that, initially, were thought to be missing or lost. These materials have now been provided to Dr. Michael Sven Pollanen for his review and consideration.

On May 31, 2005, the Crown provided a copy of Dr. Pollanen’s Supplementary Report dated May 24, 2005 to AIDWYC.

On June 29, 2005, AIDWYC requested that all tissue slides and blocks be sent to Professor Knight in Wales for his examination. They were sent to him on July 6, 2005. On August 11, 2005, Professor Knight provided a report on the pathology of Valin’s death. .."

We know now that testing of the forensic materials ultimately retrieved from Dr. Smith's office by the Chief Coroner's staff showed that Valin Johnson was neither sexually assaulted or strangled but died a tragic, but natural death.

That one letter says it all..."By this time, (discovery of the first group of slides in Dr. Smith's office) three years had passed since AIDWYC’s first request in 2001 to the Chief Coroner for a review of the case, and 22 months had passed since the first request for the slides and tissue blocks" - while William Mullins-Johnson languished behind bars in the solitary cell he had requested for protection from other inmates."

How sad...

WILLIAM MULLINS-JOHNSON RETROSPECTIVE (6); FAMED DEFENCE PATHOLOGIST ADMITS HE ERRED; AN EARLY CHARLES SMITH BLOG POST;

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 8, 2007, ran under the heading, "Famed forensic pathologist admits he erred."

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The factum filed by William Mullins-Johnson's lawyers for the October 15 reference from federal Justice Minister Rob Nicholson reveals that Dr. Rex Ferris, a world famous forensic pathologist, disavowed his opinion for the defence that Valin Johnson had been chronically sexually assaulted after the application for ministerial review was launched in September, 2005.

Ferris's unequivocal repudiation of his earlier opinion - after Drs. Michael Pollanen and Bernard Knight retested forensic samples and determined Valin had not in any way been sexually assaulted - caused Mullins-Johnson's lawyers to comment, "Dr. Ferris’s volte face must be all but unprecedented and he deserves a great deal of credit for being so candid in his mea culpa over his previous opinion."

The fact that a forensic pathologist can make such major errors illustrates the vagaries and frailties of forensic pathology and the reason why the evidence of all forensic pathologists must be treated so carefully -regardless of their stature.

The fact that Dr. Ferris readily repudiated his previous opinion in the face of the newly acquired forensic information is an example of his integrity and professionalism.

The factum indicates that Dr. Ferris's evidence was damaging to Mullins-Johnson because, "he believed that Valin had been sexually abused in her lifetime, that she had likely suffered an asphyxial related death and suggested that she likely died as a result of a “minimal” form of neck compression."

"In October, 2005, Dr. Ferris was asked to review the case again, and his opinions on it. He came to Toronto in November, 2005, met with Dr. Pollanen, and reviewed the microscopic slides from the case," the factum continues. "In his subsequent report of January 12, 2006, he was blunt in his assessment of his own work in 1994.


He began by saying:
I welcome this opportunity to review and clarify some of the opinions given by me at the time of the trial of William Mullins-Johnson.

There is no doubt that at that time, my opinions were unduly influenced by the apparent authoritative opinions given by Drs. Smith and Mian who strongly supported the observations and opinions of Dr. Zehr.

I was concerned at that time with the opinions expressed by Dr. Smith in the Mullins-Johnson case and since that time I have found myself disagreeing with his forensic pathology opinions expressed in several cases and this experience including his work on the Louise Reynolds case has made me extremely cautious about the quality of his forensic pathology work.

I am now aware that Dr. Smith’s professionalism has been questioned by others, and I was clearly in error to accept so readily his opinions in the Mullins-Johnson case. Similarly, in retrospect I was wrong to have accepted Mr. O’Hara’s assumption that Valin Johnson had been the victim of sexual abuse and murder.

Dr. Ferris noted that his previous conclusions had been predicated on his belief that an area of hemorrhage adjacent to the thyroid gland and petechial haemorrhages on Valin’s face were either all, or partly, pre-mortem haemorrhages, indicative of neck compression.

He now rejected this proposition, and concluded that they were more likely post-mortem changes.

He wrote: Since it is now reasonable to completely exclude the two pathological foundations for my tentative cause of death as ‘vagal inhibition due to neck compression’, there is no reasonable alternative than to conclude that no definitive cause for death can be established.

This means that there is no evidence that Valin Johnson was a victim of homicide. (original emphasis) .


Dr. Ferris also discounted his previous opinion that Valin had been sexually assaulted:

Having now had an opportunity to examine photographs taken of the genital and perineal areas of Valin Johnson, I find that I must agree with Dr Pollanen and Professor Knight that there was no evidence of sexual abuse and that the features described by Drs. Zehr, Mian and Smith all fall within normal limits and cannot be interpreted as evidence of sexual abuse. ..

Dr. Ferris then presented his conclusions:

Having reviewed all of the evidence and materials referred to above, it is clear that my opinions were unduly influenced by my instructions from Mr. O’Hara and my ready acceptance of the opinions of Drs. (Patricia) Zehr, (Marcellina Mian) and Smith.

It is now clear to me that these influences reduced the level of objectivity of my opinions that would normally be expected from a Forensic Pathologist of my experience.

Further, when I was attempting to clarify and explain the limitations of such evidence, my difficulties and caution in reaching my conclusions as expressed in court were interpreted at the trial as inconsistency and contradiction.

It is now my opinion that there is no reasonable evidential foundation on which to determine the cause of Valin Johnson’s death.

It is now my opinion that there is no reasonable evidential foundation on which to conclude that Valin Johnson had been the victim of either chronic or recent sexual abuse.

It is now my opinion that there is no reasonable evidential foundation on which to base the time of Valin Johnson’s death. (original emphasis) ;

It is a compelling testament to the power of the forensic pathologists testimony that even Mullins-Johnson's trial lawyer bought into the conclusion that Valin Johnson had been the victim of a chronic sexual assault.

According to the factum, "The evidence of chronic sexual abuse, Dr. Jaffe notwithstanding, convinced defence counsel of its validity.

Thus, in his closing address, he told the jury:

There’s some special people that I think you owe a duty to in this case and that’s the children.

There was a child badly abused in this case, not as part of the charge but I believe that she was badly abused...

Defence counsel did however challenge Dr. Smith’s claim that there was a fissure in Valin’s anal canal which had occurred at or shortly before her death...
. As has been seen, the trial judge took the same position in his charge that Valin was undoubtedly a victim of longstanding sexual abuse, both anal and vaginal.

It seems likely that the jury, having found that Valin had been a victim of repeated sexual abuse, would conclude that her abuser was also her killer... "

Harold Levy;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE; (5); CONDUCT OF OTHER "EXPERTS" SCRUTINIZED BY MULLINS-JOHNSON'S LAWYER. AN EARLY CHARLES SMITH BLOG POST;

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government , I am re-running some early posts relating to the case. The following post, published on October 6, 2007, ran under the heading, "Conduct of other experts scrutinized by Mullins-Johnson's lawyer."

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Several experts who participated in the investigation of the death of Valin Johnson have come under scrutiny - along with Dr. Charles Smith - by lawyers representing William Mullins-Johnson.

One of those experts is Dr. Bhubendra Rasaiah, director of pathology at the General Hospital in Sault Ste. Marie, who performed the autopsy on Valin Johnson and determined a time of death at which only Mullins-Johnson had exclusive access to his niece.

"Dr. Rasaiah presented as an adversarial and defensive witness with outdated ideas of pathology," the brief reads.

"He was not a forensic pathologist although the significance of this was not brought to the jury’s attention. Dr. Rasaiah was often prepared to advocate in his own cause during his testimony:

● He discounted the authority of a textbook in pathology ‘Essentials of Forensic Medicine’ by Poulson, Gee and Knight14 which is viewed by forensic pathologists as one of the leading texts in the field. When questioned about statements in the book, Dr. Rasaiah responded:

A. Your Honour, there are many forensic text books out, but I wouldn’t regard this as being the most authoritative text book. One that I would refer to as a most authoritative text book is the Medicolegal Investigation of Death, which is the 3rd edition, published in 1993 by Spitz and Fisher, and is probably the major text book in the United States, Your Honour.

Mr. O’Hara: Q. Nonetheless, this is a recognized work?

A. Well, I don’t recognize it. Others would, I wouldn’t doubt that.

Q. Do you recognize the names of the authors?

A. Yes, I know they are forensic pathologists.

He later referred to Poulson, Gee and Knight’s book as a “primer”, and denied that it was an authoritative text. The book is decidedly not a ‘primer’.

● He relied on unreliable and outdated methods to fix a time of death with which all the other pathologists who testified disagreed.

● He criticized questions put to him, and addressed these criticisms to the trial judge. Following are two examples:

– when asked about passages from Medicolegal Investigation of Death by Spitz and Fisher, Dr. Rasaiah responded:

Your Honour, I don’t see the purpose of the defence reading something that I know, and something everyone knows.

And I mentioned quite clearly in my initial testimony that there is no accurate precise method of estimating the time of death in the present state of our scientific knowledge.
....
So, really, I don’t see the purpose of you reading that text to me.

I thought, Your Honour, the purpose of him reading the text was to mention to me causes of cooling. Perhaps he could read me out the 24 causes of cooling from the text.

– When asked about part of Dr. Ferris’ opinion set out in a letter to counsel, Dr. Rasaiah replied:
A. I’m sorry, Your Honour, I’m afraid the expert contradicts himself in another section of the same letter.
THE COURT: Well, in answer to the question, I think you should answer to the question. If you wish to refer to - -
A. Yes,
THE COURT: ...the report, you can do this.
A. And I disagree with that but I want to show how the expert in fact says the reverse elsewhere in his letter.
THE COURT: Well do it. You are permitted to do that. I want your full answer to every question put to you.

A. Your Honour, I think that since this letter has come to the court, I think there are sections here, I think [Mr. O’Hara’s] selectively taking parts of it, and other areas that [Dr. Ferris] should be here to testify [about] and be cross-examined on it.

The factum also indicates that after Mullins-Johnson's application for ministerial review was presented to former Justice Minister Irwin Cotler in September, 2005, "The Respondent (The Ministry of the Attorney General) received a series of unsolicited opinions from Dr. Rasaiah in response to the ministerial review application.

Dr. Rasaiah considers that “to insist that natural causes should be considered [as a cause of death] is unjustifiable speculation.”

He was highly critical of the reports of Dr. Pollanen and Professor Knight. He did not budge from his previous opinions.

In May, 2007, the Respondent asked Dr. Rasaiah to comment on the more recent reports of Dr. Ferris, (a defence expert) Professor Milroy, Professor Crane and Dr. Butt. (the three independent reviewers);

Dr. Rasiah’s opinions remain unaltered and he urged “re-examination of the physical evidence” including further DNA analysis of vaginal and rectal swabs and other items.

Dr. Rasaiah’s competence has been further called into question as a result of a re-autopsy in a case (James Travette) in which Dr. Rasaiah had failed to observe multiple post-mortem burns on the deceased, including his face, described by Dr. Pollanen at the re-autopsy as “related to the application of the heated end of a cigarette lighter”, and missed two foreign objects, an 8 cm. screw and a piece of wood, found in the deceased’s rectum.

In a letter to the Crown describing the case, Dr. Pollanen wrote:

I am aware that expert opinions are key to both these cases (Mullins-Johnson and Travette), and I personally do not wish to treat Dr. Rasaiah improperly or unfairly.

But, Dr. Rasaiah’s mistakes in the Travette autopsy are factual errors, i.e., missing physical evidence, failing to notice injuries, and misinterpreting histological slides.

In my view, errors of this type challenge Dr. Rasaiah’s forensic capabilities.

Insofar as these issues may be relevant to the autopsy of Valin Johnson, I believe it was necessary for me to communicate them to you directly.

There was a recent e-mail exchange between the Crown and the Chief Coroner:

Dr. McLellan:
I understand that Dr. Rasaiah is no longer on the roster of pathologists used by OCCO. Is this correct and since when? Prior to that occurring (if I am correct) what would be the correct way to characterize his relationship with OCCO? i.e. Contract, on a roster, employed by ... Thank you for your ongoing assistance.
. . . . .
[Reply]
Dr. Rasaiah is still conducting coroner’s autopsies at the Sault Area Hospital. Criminally suspicious cases and homicides are no longer autopsied in Sault Ste. Marie.
Dr. Rasaiah conducts these autopsies under Coroner’s warrant on a fee for service basis (as do all other pathologists who conduct coroner’s autopsies at Ontario hospitals).
I hope that this is the information you were looking for...

Mullins-Johnson's lawyers also scrutinize the opinions of Dr. Patricia Zehr, an expert in child abuse, who concluded, along with Dr. Rasaiah, that Valin Johnson was the victim of chronic sexual abuse.

Zehr was the only witness to testify that bruising on Valin's thighs was consistent with sexual abuse.

Dr. Michael Pollanen later determined that the discolouration could have been been caused by riding a bicycle.

"Dr. Zehr gave her testimony as if she had an agenda," the brief reads."

" Her opinions were overreaching and ambitious, especially since she was the only medical expert called who had no expertise in pathology at any level. "

Nevertheless, the Crown felt able to present her in his closing address in the following terms:

Let’s talk about that sexual abuse. We all know that it was...it was chronic and we heard the word sodomy from two of the experts here that deal with children exclusively, Doctor Zehr, exclusively, I mean this woman was...before she was a doctor, was a paediatric nurse.

And Doctor Smith is part of that SCAN at the Ontario Hospital for Sick Children, and they said things like sodomy, that’s what they said."

Harold Levy; hlevy15@gmail.com...