Several of this Blog's readers have drawn my attention to a probing editorial that appears in todays's Sudbury Star; (My thanks to them);
It runs under the heading: "Human Failings and Dr. Smith";
"Sudbury Star reporter Denis St. Pierre's exhaustive narrative Friday and Saturday of the nightmare that Lianne Gagnon and her family endured over the death of her 11-month-old son unveiled one astonishing development after another," the editorial begins.
"Just reading about what Gagnon and her family went through was draining. Imagine suffering as they did," it continues.
"There are lessons buried in all this - of oversight, and of human failing.
Dr. Charles Smith's story is now well known. Once an esteemed pediatric child pathologist who vigorously - even belligerently - pursued cases in a manner that was beyond his mandate, he has been thoroughly impugned as an incompetent, under-trained doctor who ignored facts, bullied investigators and lied under oath.
He left a trail of persecuted innocents in his wake, sending some people to jail - a Sault Ste Marie man for 12 years - and subjecting Sudbury's Gagnon family to a dreadful experience.
A panel of outside experts concluded Smith made errors in 20 of 45 criminal investigations into suspicious child deaths from 1991 to 2001.
Gagnon's 11-month-old son Nicholas died in December 1995. She has always maintained he hit his head on a table and stopped breathing shortly thereafter.
The case was reviewed by a pathologist and a coroner and was investigated by the local police, but no charges were laid.
Eighteen months later, in came Smith.
He concluded - incorrectly - that the child had multiple injuries and that Gagnon likely killed her son.
Gagnon, then a 21-year-old Laurentian University student, was subjected to a grueling interrogation by local police, her conversations with intimate friends were eavesdropped twice and her son's body was disinterred.
Despite all this, police concluded after a second six-month investigation that there was no case for criminal charges.
Yet Smith went ahead and contacted the Children's Aid Society, telling officials he was "99-per cent sure" Gagnon killed her son.
The CAS then decided to take custody of Gagnon's second child.
No one can imagine the anguish the Gagnon family went through, dealing with the death of a child and the merciless legal pursuit that followed.
Smith now says he was simply incompetent, tearfully offering apologies to his victims during an inquiry last week.
The police say they were led down the wrong path by a respected pathologist.
But the only real innocent one here is Gagnon.
The lessons involved include the medical community, police and child-welfare authorities. How did Smith, without training in pediatric forensic pathology, achieve virtual star status in that field?
How were his mistakes missed for a decade?
The medical community must become better accustomed to scrutinizing their own.
Even the Ontario College of Physicians and Surgeons didn't stop Smith's carnage.
Why were the Sudbury police so quick to ignore the conclusions of the two initial doctors and their own investigation on the presumption that Smith was so much better?
Do they grant anyone else infallibility status? Are the police subject to tunnel vision once they've made up their minds, the characteristic that is known to lead to wrongful convictions?
In Gagnon's case, though no charges were laid, lead investigator Insp. Bob Keetch, who was then a sergeant, testified the police chief at the time, Alex McCauley, was adamant that Gagnon was guilty even after the second investigation resulted in no charges. (McCauley has denied this.)"
These are all good questions;
Kudos to the Sudbury Star - and reporter Denis St. Pierre - for asking them.
See this Blog's series: Interrogation of an innocent mother: Parts one to fourteen; January, 2008.
Harold Levy...hlevy15@gmail.com;
Wednesday, February 6, 2008
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;
Monday, February 4, 2008
Pathology of Lies: Part Two: Smith The Intimidator; Battling Against Truth And Accountability;
One aspect of Dr. Charles Smith's pathology is a tendency to call others "liars" - especially when they are speaking the truth.
A classic example is the $4 million lawsuit he launched against the Canadian Broadcasting Corporation (CBC) in connection with the Fifth Estate documentary "Diagnosis Murder", which exposed the enormous harm Dr. Smith caused to innocent parents and caregivers within Ontario's criminal justice system.
Smith claimed a whopping $2 million in general damages for libel and $2 million punitive damages from the CBC in in his statement of claim, dated February 8, 2000, which was filed as an exhibit at the Goudge Inquiry.
The legal basis of the claim was that the broadcast was "malicious, false and libelous of him (Smith) personally and in the profession", and that it contained "false defamatory innuendoes".
More specifically, it alleged that the impugned aspects of the program would make people believe that:
"(B)ased on the plaintiff's involvement in the review of the three pediatric deaths described in the broadcast, the plaintiff in the performance of his duties as a pediatric forensic pathologist is incompetent."
How misleading!
"(T)hat the plaintiff is not qualified to perform he role of pediatric forensic pathologist;
How dare they suggest that!
"The plaintiff is primarily responsible for miscarriages of justice in the first and second pediatric deaths described in the Broadcast and perhaps is primarily responsible for a miscarriage of justice in the third pediatric death described in the broadcast!
Moi? How could that possibly be true?
As a result of these unwarranted calumnies, Smith went on to say that he "personally and in the way of his profession has been greatly injured in his credit and his reputation and has been brought into scandal, odium, hatred ridicule, contempt and has suffered damage."
Poor Charles...
(The CBC was unaware at the time Smith had asked former Chief Coroner, Dr. James Young, to ask the Ontario Government to help back his private lawsuit with public funds - and the government pulled through!);
(See earlier posting: Goudge Inquiry: Young tells inquiry he persuaded Ontario Government to help fund Dr. Charles Smith's lawsuit against the CBC);
Dr. Smith's lawsuit CBC never played out in a courtroom. (It's probably the last thing he have ever wanted)!
Instead he left it hanging over the CBC like a dark cloud - a stark message to the CBC and any other media that might be tempted to portray the truth about him, that there would be consequences.
This was Smith the intimidator.
The same Dr. Smith who allegedly tried to brow-beat an Ontario Provincial Police Officer who pulled him over for speeding by threatening to curtail his office's investigations of deaths of children in her area if she insisted on giving him a ticket.
See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police) letter; Was this the real Dr. Charles Smith; Parts one, two, three and four: December, 2007);
Smith also lashed out against Macleans Magazine in connection with a feature article by reporter Jane O'Hara which, as we have seen from the evidence called at the Goudge Inquiry, has also withstood the sands of time;
Information he gave O'Hara during the course of a lengthy interview about two elaborate conversations he purported to have with a judge has been proven, during the course of the Inquiry, to be an utter fabrication.
(To think that he had the nerve to sue O'Hara and Macleans for not telling the truth!)
It is mind-boggling.
If only he had taken the stories to heart - and learned from them - instead of blasting away defensively in the courts.
Things might have turned out very differently.
Dr. Smith also fought to keep the truth about him from emerging on three other fronts:
The courts; (His legal battle to prevent any one from suing him for any alleged misconduct on the basis that he was a witness and therefore enjoyed absolute witness immunity);
The College of Physicians and Surgeons of Ontario; (His efforts, backed up by the Chief Coroner, Dr. James Young, to persuade the College that it did not have the legal jurisdiction to hear complaints against pathologists for work done on behalf of the Chief Coroner's Office, and;
Public Opinion: His lawyer's efforts to play down suggestions that Dr. Smith was responsible for miscarriages of justice while sending out the message that he he was only responsible for mistakes and errors - a theme which Dr. Smith played out to the hilt in his testimony at the Inquiry.
First, the courts; For about five years, Dr. Smith fended off law-suits - with their potential to compell him to testify and produce documents - with his arcane legal argument that he could not be sued because of a common law doctrine intended encourage people testify in legal proceedings without fear of being sued.
The Ontario Court of Appeal finally opened a door to lawsuits from the people affected by his work, by ruling that the lawsuits were focused on his death investigations – and not on the testimony he later gave in court.
Second: The College; Smith, took the legal position, that the College had no jurisdiction to investigate complaints against him for the reasons referred to above.
We now know, from evidence called at the Goudge Inquiry, that Dr. James Young, the Chief Coroner of the day, attempted to get the College to decline to receive the complaints and forward them to his office where they would be dealt with internally.
Ultimately, the Ontario Health Professions Review Board ruled against Smith and Young, and the three complaints could finally proceed - but not without significant delay and aggravation for the complainants;
A scary thought: If Dr. Smith had managed to fend off both the courts and the College he would have been totally without any external public accountability
(While, at the same time, as we know from the evidence called at the Inquiry, he was not being subjected to internal accountability by either his superiors at the Hospital For Sick Children or in the Chief Coroner's office);
Lastly, the spin being put on Dr. Smith's work by his lawyers is illustrated by a legal document they filed at the outset of the Inquiry.
As I set out in an earlier posting: "Lawyers representing Dr. Charles Smith claim some media incorrectly reported that an independent review found he had "erred" in his work, engaged in "misconduct" - and that his actions had, "directly resulted in miscarriages of justice."
Smith's lawyers make these allegations in a "factum" filed at the Goudge Inquiry on Smith's application to have his own lawyers elicit his evidence "in chief."
The lawyers refer to a "background paper" released by Dr. Barry McLellan, Chief Coroner of Ontario at that time, which announced the result of an independent inquiry of criminally suspicious and homicide cases where Dr. Charles Smith conducted autopsies or provided opinions.
"The Office of the Chief Coroner revealed that in 20 of the 45 cases, the reviewers "had some issue with the opinion of Dr. Smith that appeared in a written report, testimony in Court, or both," the lawyers say in the factum.
"Moreover, the Chief Coroner advised that there were "restrictions of liberty arising from findings of guilt, including 12 convictions and one finding of not criminally responsible, in 13 of those cases where the reviewers did not agree with significant facts or with the interpretation of the examinations conducted."
But Smith's lawyers contend that, "despite the absence of any indication in the Backgrounder that Dr. Smith had "erred" in his work, or that he had engaged in any misconduct, subsequent media coverage of the "Backgrounder" described a "revelation of errors" in Dr. Smith's work."
They also allege that, "Moreover, because the Office of the Chief Coroner advised that some of the cases in which concerns were identified had resulted in convictions, the public perception created by the media coverage was that Dr. Smith's "errors" had directly resulted in miscarriages of justice."
The "factum" also alleges that media coverage of government announcements relating to the Inquiry were "highly prejudicial"..." referring to Dr. Smith himself as "an error prone pathologist", and questioning whether his work was "reckless" or "inept.";
(See earlier posting: Smith and the media: Part Six; Smith's lawyers criticize media;)
But no lawyer's tactic could ever contain the ugly truth's about Dr. Smith that were ultimately exposed in the courts, through the College, and at the Inquiry - all of which proved to be beyond Dr. Smith's control and influence.
We have learned that he was not only a liar - both inside and outside of court - but also that he did his best to prevent others from learning the truth, and to defy accountability.
A very calculating and intimidating man.
Harold Levy...hlevy15@gmail.com;
A classic example is the $4 million lawsuit he launched against the Canadian Broadcasting Corporation (CBC) in connection with the Fifth Estate documentary "Diagnosis Murder", which exposed the enormous harm Dr. Smith caused to innocent parents and caregivers within Ontario's criminal justice system.
Smith claimed a whopping $2 million in general damages for libel and $2 million punitive damages from the CBC in in his statement of claim, dated February 8, 2000, which was filed as an exhibit at the Goudge Inquiry.
The legal basis of the claim was that the broadcast was "malicious, false and libelous of him (Smith) personally and in the profession", and that it contained "false defamatory innuendoes".
More specifically, it alleged that the impugned aspects of the program would make people believe that:
"(B)ased on the plaintiff's involvement in the review of the three pediatric deaths described in the broadcast, the plaintiff in the performance of his duties as a pediatric forensic pathologist is incompetent."
How misleading!
"(T)hat the plaintiff is not qualified to perform he role of pediatric forensic pathologist;
How dare they suggest that!
"The plaintiff is primarily responsible for miscarriages of justice in the first and second pediatric deaths described in the Broadcast and perhaps is primarily responsible for a miscarriage of justice in the third pediatric death described in the broadcast!
Moi? How could that possibly be true?
As a result of these unwarranted calumnies, Smith went on to say that he "personally and in the way of his profession has been greatly injured in his credit and his reputation and has been brought into scandal, odium, hatred ridicule, contempt and has suffered damage."
Poor Charles...
(The CBC was unaware at the time Smith had asked former Chief Coroner, Dr. James Young, to ask the Ontario Government to help back his private lawsuit with public funds - and the government pulled through!);
(See earlier posting: Goudge Inquiry: Young tells inquiry he persuaded Ontario Government to help fund Dr. Charles Smith's lawsuit against the CBC);
Dr. Smith's lawsuit CBC never played out in a courtroom. (It's probably the last thing he have ever wanted)!
Instead he left it hanging over the CBC like a dark cloud - a stark message to the CBC and any other media that might be tempted to portray the truth about him, that there would be consequences.
This was Smith the intimidator.
The same Dr. Smith who allegedly tried to brow-beat an Ontario Provincial Police Officer who pulled him over for speeding by threatening to curtail his office's investigations of deaths of children in her area if she insisted on giving him a ticket.
See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police) letter; Was this the real Dr. Charles Smith; Parts one, two, three and four: December, 2007);
Smith also lashed out against Macleans Magazine in connection with a feature article by reporter Jane O'Hara which, as we have seen from the evidence called at the Goudge Inquiry, has also withstood the sands of time;
Information he gave O'Hara during the course of a lengthy interview about two elaborate conversations he purported to have with a judge has been proven, during the course of the Inquiry, to be an utter fabrication.
(To think that he had the nerve to sue O'Hara and Macleans for not telling the truth!)
It is mind-boggling.
If only he had taken the stories to heart - and learned from them - instead of blasting away defensively in the courts.
Things might have turned out very differently.
Dr. Smith also fought to keep the truth about him from emerging on three other fronts:
The courts; (His legal battle to prevent any one from suing him for any alleged misconduct on the basis that he was a witness and therefore enjoyed absolute witness immunity);
The College of Physicians and Surgeons of Ontario; (His efforts, backed up by the Chief Coroner, Dr. James Young, to persuade the College that it did not have the legal jurisdiction to hear complaints against pathologists for work done on behalf of the Chief Coroner's Office, and;
Public Opinion: His lawyer's efforts to play down suggestions that Dr. Smith was responsible for miscarriages of justice while sending out the message that he he was only responsible for mistakes and errors - a theme which Dr. Smith played out to the hilt in his testimony at the Inquiry.
First, the courts; For about five years, Dr. Smith fended off law-suits - with their potential to compell him to testify and produce documents - with his arcane legal argument that he could not be sued because of a common law doctrine intended encourage people testify in legal proceedings without fear of being sued.
The Ontario Court of Appeal finally opened a door to lawsuits from the people affected by his work, by ruling that the lawsuits were focused on his death investigations – and not on the testimony he later gave in court.
Second: The College; Smith, took the legal position, that the College had no jurisdiction to investigate complaints against him for the reasons referred to above.
We now know, from evidence called at the Goudge Inquiry, that Dr. James Young, the Chief Coroner of the day, attempted to get the College to decline to receive the complaints and forward them to his office where they would be dealt with internally.
Ultimately, the Ontario Health Professions Review Board ruled against Smith and Young, and the three complaints could finally proceed - but not without significant delay and aggravation for the complainants;
A scary thought: If Dr. Smith had managed to fend off both the courts and the College he would have been totally without any external public accountability
(While, at the same time, as we know from the evidence called at the Inquiry, he was not being subjected to internal accountability by either his superiors at the Hospital For Sick Children or in the Chief Coroner's office);
Lastly, the spin being put on Dr. Smith's work by his lawyers is illustrated by a legal document they filed at the outset of the Inquiry.
As I set out in an earlier posting: "Lawyers representing Dr. Charles Smith claim some media incorrectly reported that an independent review found he had "erred" in his work, engaged in "misconduct" - and that his actions had, "directly resulted in miscarriages of justice."
Smith's lawyers make these allegations in a "factum" filed at the Goudge Inquiry on Smith's application to have his own lawyers elicit his evidence "in chief."
The lawyers refer to a "background paper" released by Dr. Barry McLellan, Chief Coroner of Ontario at that time, which announced the result of an independent inquiry of criminally suspicious and homicide cases where Dr. Charles Smith conducted autopsies or provided opinions.
"The Office of the Chief Coroner revealed that in 20 of the 45 cases, the reviewers "had some issue with the opinion of Dr. Smith that appeared in a written report, testimony in Court, or both," the lawyers say in the factum.
"Moreover, the Chief Coroner advised that there were "restrictions of liberty arising from findings of guilt, including 12 convictions and one finding of not criminally responsible, in 13 of those cases where the reviewers did not agree with significant facts or with the interpretation of the examinations conducted."
But Smith's lawyers contend that, "despite the absence of any indication in the Backgrounder that Dr. Smith had "erred" in his work, or that he had engaged in any misconduct, subsequent media coverage of the "Backgrounder" described a "revelation of errors" in Dr. Smith's work."
They also allege that, "Moreover, because the Office of the Chief Coroner advised that some of the cases in which concerns were identified had resulted in convictions, the public perception created by the media coverage was that Dr. Smith's "errors" had directly resulted in miscarriages of justice."
The "factum" also alleges that media coverage of government announcements relating to the Inquiry were "highly prejudicial"..." referring to Dr. Smith himself as "an error prone pathologist", and questioning whether his work was "reckless" or "inept.";
(See earlier posting: Smith and the media: Part Six; Smith's lawyers criticize media;)
But no lawyer's tactic could ever contain the ugly truth's about Dr. Smith that were ultimately exposed in the courts, through the College, and at the Inquiry - all of which proved to be beyond Dr. Smith's control and influence.
We have learned that he was not only a liar - both inside and outside of court - but also that he did his best to prevent others from learning the truth, and to defy accountability.
A very calculating and intimidating man.
Harold Levy...hlevy15@gmail.com;
Sunday, February 3, 2008
Pathology Of Lies: Part One: Robert latimer and Charles Smith: An interesting Take:
Columnist Lynn Cockburn's comparison of Robert Latimer and Dr. Charles Smith which appeared in the Edmonton Sun on Feb. 1, 2008, under the heading "A Pathology Of Lies" is a worthy read.
At the outset I wondered what connection there could possibly between the two men - Latimer who is serving a life sentence in a British Columbia prison for killing a 12-year-old daughter suffering from cerebral palsy and Smith, a pathologist who left a lot of innocent wrecked lives in his wake,
Cockburn hones in on the character of the two men.
"Robert Latimer refuses to apologize and so, in December 2007 was refused day parole. The parole board says he shows no remorse for killing his severely disabled daughter Tracy in 1993," the column begins.
""He hasn't developed any insight into his crime," is the way the board put it," it continues.
"His sister, Pat Latimer-Martin, sees it differently. "They want him to lie," she said, and "he will never lie."
He remains unapologetic because he still believes he did the right thing in killing his daughter. The 12-year-old girl had cerebral palsy, functioned at the level of an infant and suffered five or six seizures daily.
She was in constant pain and weighed 40 lbs. She'd already had four major surgeries and was scheduled for a fifth.
It may have been the thought of that fifth operation that pushed Robert Latimer to put his daughter in his truck, pump exhaust in and let her die.
Since that time, Latimer has been sentenced to life without parole - twice. He remains in jail in William Head Institution in B.C. where he refuses to take part in the contrition game.
The man ought to take lessons from Dr. Charles Smith, former Ontario pathologist, who has been apologizing for days now and doesn't even need to. He's not trying to get out of jail. In fact, so far, he has not been incarcerated for a single day.
It may be true that Smith felt moments of remorse for his part in putting William Mullins-Johnson in jail for 12 years, or perhaps he truly experienced a brief frisson of contrition over the other 19 people falsely accused because of his arrogant and sometimes deliberately erroneous testimony.
He apologized and apologized, never looking at his victims.
But on Wednesday, under pressure from lawyer James Lockyer to offer a direct apology to Mullins-Johnson, Smith finally looked at one of his victims. And maybe the catch in his voice, the near tears were real, just for a second, when he said "I'm sorry."
Smith had a lot to apologize for - Mullins-Johnson spent a dozen years in jail for supposedly sodomizing and strangling his niece. Pathologists have now termed that death a natural one.
When it comes to apologies, I'll take Latimer, the man who refuses to lie in order to get parole. He refuses to take the easy way out in order to get out. And so there he'll stay, a prisoner in a Kafka novel, until he smartens up and learns to lie properly.
On the other hand, Smith has done nothing but lie for years. He lied and lied and lied. He excused himself by saying his training in pathology was minimal and that he was ignorant.
And, worst of all, he said he did not understand until recently that a pathologist is supposed to be impartial. According to Smith, he thought his job was to back up the prosecution's case.
As an aside, after a review of Smith's work began in 2005, he resigned from Sick Kids Hospital in Toronto and decamped to Saskatoon where he got a job as a pathologist. Seems he did not bother to admit he was the person under review in Ontario. He was fired three months later.
Smith is unlikely to spend a single day in jail. More's the pity. It would not be unjust if he were to be sentenced to 12 years for Mullins-Johnson, 19 for the others he victimized, five years for stupidity, five for incompetence and five for arrogance. To run consecutively.
But it is Mullins-Johnson who must get the last word.
When Smith offered his tearful apology on Wednesday, Mullins Johnson responded: "You destroyed my family.... They hate me because of what you did to me.
"I'll never forget that, but for my own healing ... I must forgive you.""
Harold Levy: hlevy15@gmail.com
At the outset I wondered what connection there could possibly between the two men - Latimer who is serving a life sentence in a British Columbia prison for killing a 12-year-old daughter suffering from cerebral palsy and Smith, a pathologist who left a lot of innocent wrecked lives in his wake,
Cockburn hones in on the character of the two men.
"Robert Latimer refuses to apologize and so, in December 2007 was refused day parole. The parole board says he shows no remorse for killing his severely disabled daughter Tracy in 1993," the column begins.
""He hasn't developed any insight into his crime," is the way the board put it," it continues.
"His sister, Pat Latimer-Martin, sees it differently. "They want him to lie," she said, and "he will never lie."
He remains unapologetic because he still believes he did the right thing in killing his daughter. The 12-year-old girl had cerebral palsy, functioned at the level of an infant and suffered five or six seizures daily.
She was in constant pain and weighed 40 lbs. She'd already had four major surgeries and was scheduled for a fifth.
It may have been the thought of that fifth operation that pushed Robert Latimer to put his daughter in his truck, pump exhaust in and let her die.
Since that time, Latimer has been sentenced to life without parole - twice. He remains in jail in William Head Institution in B.C. where he refuses to take part in the contrition game.
The man ought to take lessons from Dr. Charles Smith, former Ontario pathologist, who has been apologizing for days now and doesn't even need to. He's not trying to get out of jail. In fact, so far, he has not been incarcerated for a single day.
It may be true that Smith felt moments of remorse for his part in putting William Mullins-Johnson in jail for 12 years, or perhaps he truly experienced a brief frisson of contrition over the other 19 people falsely accused because of his arrogant and sometimes deliberately erroneous testimony.
He apologized and apologized, never looking at his victims.
But on Wednesday, under pressure from lawyer James Lockyer to offer a direct apology to Mullins-Johnson, Smith finally looked at one of his victims. And maybe the catch in his voice, the near tears were real, just for a second, when he said "I'm sorry."
Smith had a lot to apologize for - Mullins-Johnson spent a dozen years in jail for supposedly sodomizing and strangling his niece. Pathologists have now termed that death a natural one.
When it comes to apologies, I'll take Latimer, the man who refuses to lie in order to get parole. He refuses to take the easy way out in order to get out. And so there he'll stay, a prisoner in a Kafka novel, until he smartens up and learns to lie properly.
On the other hand, Smith has done nothing but lie for years. He lied and lied and lied. He excused himself by saying his training in pathology was minimal and that he was ignorant.
And, worst of all, he said he did not understand until recently that a pathologist is supposed to be impartial. According to Smith, he thought his job was to back up the prosecution's case.
As an aside, after a review of Smith's work began in 2005, he resigned from Sick Kids Hospital in Toronto and decamped to Saskatoon where he got a job as a pathologist. Seems he did not bother to admit he was the person under review in Ontario. He was fired three months later.
Smith is unlikely to spend a single day in jail. More's the pity. It would not be unjust if he were to be sentenced to 12 years for Mullins-Johnson, 19 for the others he victimized, five years for stupidity, five for incompetence and five for arrogance. To run consecutively.
But it is Mullins-Johnson who must get the last word.
When Smith offered his tearful apology on Wednesday, Mullins Johnson responded: "You destroyed my family.... They hate me because of what you did to me.
"I'll never forget that, but for my own healing ... I must forgive you.""
Harold Levy: hlevy15@gmail.com
Saturday, February 2, 2008
A Mystery Solved:
I always wondered who was the rat who told the Saskatchewan College of Physicians and Surgeons that Charles Smith had been investigated and ultimately reprimanded by its Ontario counterpart;
That mystery has been solved.
I found out from documents filed last week at the Goudge Inquiry that the rat is me.
It seems that the College was surprised to learn Dr. Smith had been in trouble with his own governing body from a story I reported in the Toronto Star on Sept. 24, 2005 under the heading. "Shamed MD finds new job."
The story, filed as an exhibit, indicated that Smith had been formally "cautioned" after being investigated in three cases - and a discipline committee had found "disturbing deficiencies" in his work in each of the cases.
Just two days later the Saskatchewan College informed Ontario that, "There appears to be a significant discrepancy between the information that he (Dr. Smith) provided to us, and the information that was recently published in the Toronto Star.
Bryan Salte, The Saskatchewan College's Legal Counsel and Associate Registrar, also told Ontario that Smith went on to answer the following questions with "No" in his application form:
0: Have you been suspended, disqualified, censured, or had any disciplinary action taken against you as a member of any profession?
0: Have you ever been the subject of an inquiry or investigation by a medical licensing authority or hospital?
0: Are you aware of any complaint or charge pending against you by any medical licensing authority which might result in your being suspended, reprimanded or otherwise disciplined?
In the aftermath of this story, Smith was hauled up before a discipline panel where he later pleaded guilty to misleading the Saskatchewan College.
(An investigator from the Ontario College has alleged at the Goudge Inquiry that Smith provided misleading information in his written responses to the three complaints);
In short, Dr. Smith continued lying - right through to 2005 - even after he quietly slipped away from the Hospital For Sick Children several weeks after former Ontario Chief Coroner, Dr. Barry McLellan, announced the independent review of his work.
Now the question arises whether Dr. Smith was lying when he was responding to questions posed Friday by Ontario College of Physicians and Surgeons lawyer Carolyn Silver.
Here is Ms. Silver's cross-examination of Dr. Smith on the application:
"MS. CAROLYN SILVER: And when you applied to the Saskatchewan College you were asked several questions and you filled out a questionnaire, correct?
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: And one (1) of the questions you were asked was: "Have you ever been the subject of an inquiry or investigation by a medical licensing authority or a hospital?"
Correct?
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: And you answered, "no", to that question, correct?
DR. CHARLES SMITH: That's correct.
MS. CAROLYN SILVER: And on your application you signed a solemn declaration swearing that that information was true, correct?
DR. CHARLES SMITH: That's correct.
MS. CAROLYN SILVER: And I'm suggesting to you, Dr. Smith, that you knew, when you answered no to that question, that you had been investigated by the College on at least three (3) occasions, if not four (4), because you were investigated twice in one (1) of the cases. Isn't that true? Hadn't forgotten about the College investigations, had you?
DR. CHARLES SMITH: No. No, the -- I -- I misinterpreted the question. I put down an answer that, at the time, I thought was correct. I recognized it's misleading. I --
MS. CAROLYN SILVER: It's not misleading, it's untruthful, isn't it, Dr. Smith?
DR. CHARLES SMITH: The -- the answer was wrong, I acknowledge that. And I -- and I acknowledge it was wrong and it -- and it was misleading. But I remain firm, resolute, in my -- in my position that it was never an intentional mistake, though I recognize it was a serious mistake.
MS. CAROLYN SILVER: You know when you filled out this application in 2005, that you'd been the subject of at least three (3) investigations by the College, didn't you, Dr. Smith?
DR. CHARLES SMITH: I knew that the College had dealt with -- with complaints, yes; considered them, dismissed them --
MS. CAROLYN SILVER: You knew they were investigations, Dr. Smith. You have countless letters from the College asking you to respond --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- in the course of the investigation. So to be fair, Dr. Smith, didn't you know these were investigations by the College?
DR. CHARLES SMITH: Yes, but I -- I misunderstood, or misinterpreted the question. I recognize that was a error. I did -- I -- at the time I answered that, I had not given my mind to that issue. It was a mistake, I recognize it, I'm embarrassed by it. I -- I have -- I have admitted to it. But --
Ms. Silver then attempted to get an honest response to another of the Saskatchewan College's questions: The transcript reads:
MS. CAROLYN SILVER: You were also asked if you were suspended, disqualified or censured by any -- any action was taken against you. Do you see that? Have you ever been suspended, disqualified, censured or has any discipline action been taken against you as a member of any profession?"
DR. CHARLES SMITH: I -- I've been cautioned, is that -- is that --
MS. CAROLYN SILVER: Right. You didn't understand that was a censure?
(BRIEF PAUSE)
DR. CHARLES SMITH: No, I -- no. No, I'm not -- I would -- I would -- I -- no, no. I recognize it was a caution, it was serious. I respected the College, I submitted myself to the caution -- to the caution. I did not take it at all lightly. I believe I indicated that -- that I regarded it well with embarrassment as -- as an important educational exercise, and I explained that in fact though I was embarrassed by it, I had used it as a teaching point for others as had others. But I -- I don't know that I have ever linked the word censure and a caution as being the same thing. And -- and if -- if should have been linked, I am -- I am sorry. I didn't understand that and that would
me my mistake if they should be linked."
Towards the end of her cross-exmination, Silver attempted to engage Dr. Smith on his respect for the College - suggesting that a pattern of repeated lies does not exactly fit the definition of respect: Here is the transcript:
"MS. CAROLYN SILVER: -- and I'm suggesting to you that this completely untruthful and inaccurate answer that you gave to the College of Saskatchewan in 2005 when you told them you had never been the subject of an inquiry or an investigation by a medical licensing authority, was just one (1) of a pattern that had -- that you had of giving untruthful and inaccurate information to the regulatory body, and those are the examples that we've looked at. Isn't that true, Dr. Smith? It's just another example that continued into 2005?
DR. CHARLES SMITH: I'm sorry, your que - I -- I missed the first part of your question.
MS. CAROLYN SILVER: Wasn't -- you say you respect the regulatory --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- body --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- and I'm suggesting to you that that respect is not manifest, because you had a pattern which ran from 1992 and continued until 2005 with the Saskatchewan College of providing untruthful and inaccurate information to the regulatory body. Isn't that true, Dr. Smith?
DR. CHARLES SMITH: That's --
MS. CAROLYN SILVER: That occurred on many occasions.
DR. CHARLES SMITH: No. That's your view. It was never my intention to be disrespectful or to be misleading.
MS. CAROLYN SILVER: But you were untruthful and misleading on many occasions, intention or not, isn't that true?
DR. CHARLES SMITH: I recognize I made mistakes and I recognize before the -- and I -- I pleaded before the College of Physicians and Surgeons of Saskatchewan, that what I did was misleading. I recognize that. I accept that. I stand by that -- by
that statement.
MS. CAROLYN SILVER: Those are my questions. Thank you."
I know that reporters are supposed to be flies on the wall and detached from the story.
But that said, I am very pleased that this story was noticed by the medical authorities in Saskatchewan and triggered some consequences.
No wonder Dr. Smith described me in an email to former Chief Coroner Dr. James Young as, "Harold Levy (who is not my favourite journalist)";
That's the best compliment I could ever ask for.
Harold Levy...hlevy15@gmail.com;
That mystery has been solved.
I found out from documents filed last week at the Goudge Inquiry that the rat is me.
It seems that the College was surprised to learn Dr. Smith had been in trouble with his own governing body from a story I reported in the Toronto Star on Sept. 24, 2005 under the heading. "Shamed MD finds new job."
The story, filed as an exhibit, indicated that Smith had been formally "cautioned" after being investigated in three cases - and a discipline committee had found "disturbing deficiencies" in his work in each of the cases.
Just two days later the Saskatchewan College informed Ontario that, "There appears to be a significant discrepancy between the information that he (Dr. Smith) provided to us, and the information that was recently published in the Toronto Star.
Bryan Salte, The Saskatchewan College's Legal Counsel and Associate Registrar, also told Ontario that Smith went on to answer the following questions with "No" in his application form:
0: Have you been suspended, disqualified, censured, or had any disciplinary action taken against you as a member of any profession?
0: Have you ever been the subject of an inquiry or investigation by a medical licensing authority or hospital?
0: Are you aware of any complaint or charge pending against you by any medical licensing authority which might result in your being suspended, reprimanded or otherwise disciplined?
In the aftermath of this story, Smith was hauled up before a discipline panel where he later pleaded guilty to misleading the Saskatchewan College.
(An investigator from the Ontario College has alleged at the Goudge Inquiry that Smith provided misleading information in his written responses to the three complaints);
In short, Dr. Smith continued lying - right through to 2005 - even after he quietly slipped away from the Hospital For Sick Children several weeks after former Ontario Chief Coroner, Dr. Barry McLellan, announced the independent review of his work.
Now the question arises whether Dr. Smith was lying when he was responding to questions posed Friday by Ontario College of Physicians and Surgeons lawyer Carolyn Silver.
Here is Ms. Silver's cross-examination of Dr. Smith on the application:
"MS. CAROLYN SILVER: And when you applied to the Saskatchewan College you were asked several questions and you filled out a questionnaire, correct?
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: And one (1) of the questions you were asked was: "Have you ever been the subject of an inquiry or investigation by a medical licensing authority or a hospital?"
Correct?
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: And you answered, "no", to that question, correct?
DR. CHARLES SMITH: That's correct.
MS. CAROLYN SILVER: And on your application you signed a solemn declaration swearing that that information was true, correct?
DR. CHARLES SMITH: That's correct.
MS. CAROLYN SILVER: And I'm suggesting to you, Dr. Smith, that you knew, when you answered no to that question, that you had been investigated by the College on at least three (3) occasions, if not four (4), because you were investigated twice in one (1) of the cases. Isn't that true? Hadn't forgotten about the College investigations, had you?
DR. CHARLES SMITH: No. No, the -- I -- I misinterpreted the question. I put down an answer that, at the time, I thought was correct. I recognized it's misleading. I --
MS. CAROLYN SILVER: It's not misleading, it's untruthful, isn't it, Dr. Smith?
DR. CHARLES SMITH: The -- the answer was wrong, I acknowledge that. And I -- and I acknowledge it was wrong and it -- and it was misleading. But I remain firm, resolute, in my -- in my position that it was never an intentional mistake, though I recognize it was a serious mistake.
MS. CAROLYN SILVER: You know when you filled out this application in 2005, that you'd been the subject of at least three (3) investigations by the College, didn't you, Dr. Smith?
DR. CHARLES SMITH: I knew that the College had dealt with -- with complaints, yes; considered them, dismissed them --
MS. CAROLYN SILVER: You knew they were investigations, Dr. Smith. You have countless letters from the College asking you to respond --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- in the course of the investigation. So to be fair, Dr. Smith, didn't you know these were investigations by the College?
DR. CHARLES SMITH: Yes, but I -- I misunderstood, or misinterpreted the question. I recognize that was a error. I did -- I -- at the time I answered that, I had not given my mind to that issue. It was a mistake, I recognize it, I'm embarrassed by it. I -- I have -- I have admitted to it. But --
Ms. Silver then attempted to get an honest response to another of the Saskatchewan College's questions: The transcript reads:
MS. CAROLYN SILVER: You were also asked if you were suspended, disqualified or censured by any -- any action was taken against you. Do you see that? Have you ever been suspended, disqualified, censured or has any discipline action been taken against you as a member of any profession?"
DR. CHARLES SMITH: I -- I've been cautioned, is that -- is that --
MS. CAROLYN SILVER: Right. You didn't understand that was a censure?
(BRIEF PAUSE)
DR. CHARLES SMITH: No, I -- no. No, I'm not -- I would -- I would -- I -- no, no. I recognize it was a caution, it was serious. I respected the College, I submitted myself to the caution -- to the caution. I did not take it at all lightly. I believe I indicated that -- that I regarded it well with embarrassment as -- as an important educational exercise, and I explained that in fact though I was embarrassed by it, I had used it as a teaching point for others as had others. But I -- I don't know that I have ever linked the word censure and a caution as being the same thing. And -- and if -- if should have been linked, I am -- I am sorry. I didn't understand that and that would
me my mistake if they should be linked."
Towards the end of her cross-exmination, Silver attempted to engage Dr. Smith on his respect for the College - suggesting that a pattern of repeated lies does not exactly fit the definition of respect: Here is the transcript:
"MS. CAROLYN SILVER: -- and I'm suggesting to you that this completely untruthful and inaccurate answer that you gave to the College of Saskatchewan in 2005 when you told them you had never been the subject of an inquiry or an investigation by a medical licensing authority, was just one (1) of a pattern that had -- that you had of giving untruthful and inaccurate information to the regulatory body, and those are the examples that we've looked at. Isn't that true, Dr. Smith? It's just another example that continued into 2005?
DR. CHARLES SMITH: I'm sorry, your que - I -- I missed the first part of your question.
MS. CAROLYN SILVER: Wasn't -- you say you respect the regulatory --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- body --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- and I'm suggesting to you that that respect is not manifest, because you had a pattern which ran from 1992 and continued until 2005 with the Saskatchewan College of providing untruthful and inaccurate information to the regulatory body. Isn't that true, Dr. Smith?
DR. CHARLES SMITH: That's --
MS. CAROLYN SILVER: That occurred on many occasions.
DR. CHARLES SMITH: No. That's your view. It was never my intention to be disrespectful or to be misleading.
MS. CAROLYN SILVER: But you were untruthful and misleading on many occasions, intention or not, isn't that true?
DR. CHARLES SMITH: I recognize I made mistakes and I recognize before the -- and I -- I pleaded before the College of Physicians and Surgeons of Saskatchewan, that what I did was misleading. I recognize that. I accept that. I stand by that -- by
that statement.
MS. CAROLYN SILVER: Those are my questions. Thank you."
I know that reporters are supposed to be flies on the wall and detached from the story.
But that said, I am very pleased that this story was noticed by the medical authorities in Saskatchewan and triggered some consequences.
No wonder Dr. Smith described me in an email to former Chief Coroner Dr. James Young as, "Harold Levy (who is not my favourite journalist)";
That's the best compliment I could ever ask for.
Harold Levy...hlevy15@gmail.com;
Friday, February 1, 2008
The Julie Bowers case: The Very First Alarm Bells: A Precursor Of Things To Come;
“WHEN OPHOVEN WAS FIRST CALLED TO REVIEW SMITH'S POST-MORTEM REPORT AND OTHER FORENSIC EVIDENCE, SHE COULD NOT GET IMPORTANT SAMPLES FROM SMITH.
"HE WITHHELD, IN MY OPINION, ALL THE MATERIALS THAT I NEEDED," SHE SAID.
WHEN CRITICAL TISSUE SLIDES WERE FINALLY PRODUCED, OPHOVEN WAS SHOCKED.
"THEY WERE FROM SOMEBODY ELSE," SHE SAID.
SMITH EVENTUALLY PRODUCED THE CORRECT SAMPLES AND ALTHOUGH THE SLIDES WEREN'T CRITICAL TO HER FINAL CONCLUSIONS, OPHOVEN WAS TROUBLED BY THE BEHAVIOUR OF SMITH, WHO HAD APPARENTLY KEPT THE SLIDES AT HIS HOME.
"I'VE NEVER HAD AN EXPERIENCE LIKE THIS," SHE SAID. "I DREW A CONCLUSION THAT [POLICE AND PROSECUTORS] HAD A SERIOUS PROBLEM ON THEIR HANDS." “
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WHEN LAW ENFORCEMENT AUTHORITIES ARE HUNTING THE KILLER OF A CHILD, THEY'RE PERCEIVED TO BE "WORKING FOR GOD," SAID OPHOVEN.
"YOU ARE UNTOUCHABLE UNLESS THERE'S A FORENSIC PATHOLOGIST TO REEL YOU IN AND BRING SOME SCIENCE TO THE TABLE," OPHOVEN SAID. "BUT IF YOU'RE WORKING FOR LAW ENFORCEMENT AND YOU HAVE NO FORENSIC TRAINING, THEN THE CAUSE OF DEATH IS GOING TO BE WHATEVER YOU SAY IT IS, WHETHER IT'S TRUE OR NOT."
DR. JANICE OPHOVEN: FORENSIC PATHOLOGIST WHO ASSISTED THE DEFENCE IN THE JULIE BOWER'S CASE”.
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"IS THIS THE WAY YOU PASS OFF YOUR EVIDENCE - AS A SERIES OF GUESSES?" DEFENSE LAWYER JACK PINKOFSKY ASKED DR. CHARLES SMITH YESTERDAY, DURING A LENGTHY CROSS EXAMINATION.
"THE ESTIMATION OF THE TIME OF DEATH IS REALLY AN EDUCATED GUESSING GAME," SMITH RESPONDED...
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One of this Blog's readers has asked for some background on the Julie Bower's case.
First the status: The Bower's case was not one of the cases subject to the Ontario Chief Coroner's review.
It is expected, however, to come under scrutiny in the second phase of the Inquiry which is about to begin.
First, the basics.
Julie Bowers was charged with the second-degree murder of her 11-month-old son Dustin who she had reported kidnapped from her car in January, 1988.
The next day Bowers, then 26, reported to the police that she had a dream in which she saw Dustin's body - and that she believed she could lead them to it.
Bower's dream led to the discovery of Dustin's body North of Kinkardine, Ontario, on a frigid day, in an area of dense brush.
One of the central factors in the case is that the police presumed Dustin was dead -although he was not immediately examined by a doctor or taken to a hospital.
Bowers was charged with second-degree murder in a prosecution that was widely viewed as a "slam-dunk" because of the bizarre elements of the dream and her ability to lead the police to her son.
But Bowers was subsequently acquitted on March 16, 1990 following a lengthy trial, as a result of a brilliant defense (as usual) by legendary Toronto lawyer Jack Pinkofsky.
The acquittal was extraordinary - given the bizarre elements of the dream and Bower's ability to lead the police to Dustin
The police theory was that Bowers had deliberately drowned her baby backed by evidence by - (guess who!) - who provided a time of death when Bower's could be shown to have exclusive access to her so. (Echoes of the Waudby and Mullins-Johnson cases which were scrutinized by the Goudge Inquiry).
Here is how the forensics played out (as distilled from Toronto Star reports).
At the preliminary hearing in June, 1988, Smith, who performed the autopsy, gave evidence which placed Dustin in snow at the earliest at 5.30 p.m. on Jan. 14.
In a meeting with Pinkofsky and his staff in May 1989, the doctor suggested the time of deposit was 9.30 p.m., he said.
But during the trial, Smith said he had since refined his medical opinion and concluded Dustin could have been abandoned as early as 8.00 a.m. on Jan. 14.
Pinkofsky brought in Dr. Janice Ophoven, a Minnesota U.S.A. forensic pathologist - a real forensic pathologist - who took a very different view;
As my former colleague Toronto Star reporter Maureen Murray wrote in her wonderfully nuanced and detailed coverage of the trial:
"Ophoven, who has testified in more than 20 hypothermia-related cases, said Dustin may simply have been near death when police discovered the toddler shortly before 3 p.m. on Jan.15, 1988.
She said the process of death by exposure to cold results in the body's systems slowly failing, and vital signs are undetectable prior to actual death.
"Fixed and dilated pupils, undetectable heart rate, no breathing, no evidence of blood circulation is also compatible with someone who is profoundly hypothermic, but still alive," Ophoven said.
In hypothermia cases, particularly in children, "re-establishing a normal temperature, rewarming and resuscitation, before deciding absence of life is the case, is important and in my opinion must be done."
Coroner Richard Mann pronounced Dustin dead at the scene about 4 p.m. after failing to detect any vital signs, court has been told. (He died of hypothermia or cold);
The child was then left lying on a blanket near the side of the roadway before being removed about 6 p.m.
Ophoven said Dustin should have been rushed to a hospital.
She said she suspects Dustin was still alive because autopsy results indicate his body showed no significant signs of freezing.
Ophoven examined the autopsy report on Dustin as well as tissue samples taken from his body and statements made by doctors and police who examined or observed the body.
She said Dustin's body was stiff, but not frozen except for signs of frostbite on his left foot. There were no signs his organs were ever frozen except for slight freezing in the passage of his voice box, she said.
The boy's testicles - the most likely area besides the skin to show initial signs of freezing - appeared normal, she said.
The condition of Dustin's body indicates the child was exposed to the cold for 16 to 18 hours, Ophoven testified.
She concluded he was likely left in the snow between 10 p.m. and midnight on Jan. 14, 1988.
It's virtually impossible Dustin was abandoned as early as 1 p.m. on Jan. 14, she said...
Ophoven criticized the procedures used by Dr. Charles Smith, who performed the autopsy, to determine the likely time of death.
She also pointed out what she called omissions in Smith's report.
Smith has testified Dustin may have been exposed to the elements for up to 40 hours prior to the autopsy and could have been abandoned as early as 11.30 a.m. on Jan. 14.
Reporter Murray provided a gripping portrayal of Pinkosky's cross-examination of Smith in a story dated January 24, 1990, which read, in part:
"The doctor who examined Dustin Bowers' body has been grilled for his apparent change in testimony over the length of time the child was abandoned in the snow.
"Is this the way you pass off your evidence - as a series of guesses?" defense lawyer Jack Pinkofsky asked Dr. Charles Smith yesterday, during a lengthy cross examination.
"The estimation of the time of death is really an educated guessing game," Smith responded...
Pinkofsky zeroed in on several areas where the doctor had made revisions in his testimony since the June, 1988, preliminary hearing.
During that hearing, Smith said Dustin was probably exposed to the cold at least 2 1/2 hours after his mother reported him missing.
Smith, a pathologist at the Hospital for Sick Children, performed an autopsy on Dustin the night the body was found.
But Smith's evidence at the trial suggests the baby could have been abandoned as early as 8 a.m. on Jan. 14, five hours before his mother reported him abducted.
Pinkofsky hinted Smith altered his earlier testimony after realizing it could help the mother's defense.
"You have since learned the implications of the opinions you gave under oath on June 28, 1988 . . . It means that the wrong person is sitting before this court," the lawyer said."
Madam Justice Mabel Van Camp warned Pinkofsky it was for the jury to decide whether or not the accused is guilty.
"The figures I have given this court are to the best of my ability today," Smith said.
He told Pinkofsky he hadn't willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Smith told court he has acquired greater knowledge since he began writing a textbook on pediatric forensic pathology.
He considered factors, such as the degree of freezing in Dustin's body and the environment conditions, to help him estimate the time of death and how long the body lay before being discovered, court heard.
At the end of the lively cross examination, Smith told Pinkofsky: "I've enjoyed an extraordinary artistry of cross examination."
Van Camp told the witness the remark was out of line. he trial continues.
Ophoven clearly loathes Smith to this day.
This is evident from a story by reporter Robb Tripp (another astute reporter of the criminal justice system) which appeared in the Kingston Whig under the heading: "Most awful case: Errors known long ago, pathologist says".
"Top officials in Ontario's criminal justice system should have realized 15 years ago that they needed to review thoroughly the work of a senior pathologist, says a respected American forensic expert, "the story begins.
"Dr. Janice Ophoven, a pediatric forensic pathologist in Minnesota and a medical examiner, was an expert witness for the defense at the 1990 trial of Julie Bowers of Kincardine.
"In all my years, this is the most awful case that I've had," said Ophoven, who has worked as a pathologist for 30 years and is a certified forensic expert.
Bowers was acquitted of murdering her 11-month-old son, Dustin, after a sensational 49-day trial.
Ophoven's findings cast doubt on the work of Dr. Charles Smith, who testified for the prosecution after conducting the autopsy on Dustin.
The case appears to be one of the earliest in which Smith's work was publicly discredited.
Earlier this month, an international panel of experts that reviewed 45 of Smith's cases over a decade concluded he erred in at least 20, and a dozen people may have been wrongly convicted because of his mistakes.
One of the cases reviewed was that of Kingston's Louise Reynolds, accused of killing her seven-year-old daughter, Sharon, in 1997.
Smith's conclusions were later discredited and charges against Reynolds were withdrawn after she spent almost two years in custody. The Bowers case was not part of the review of Smith's work, but it will be examined in the second phase of the probe.
"I found the process and [Smith's] opinions to be extremely troublesome," Ophoven told the Whig-Standard in an interview from her office in Woodbury, Minn.
She said his behaviour was erratic and he was un-cooperative.
"If you have a sentinel case that says something is really, really wrong, there's an obligation to verify if this was a single bad day or it was the tip of an iceberg," Ophoven said.
"I would have marked this as a sentinel case."
Jack Pinkofsky, the Toronto lawyer who hired Ophoven to review Smith's work, said he doesn't believe any review of Smith's work was conducted after the Bowers case.
"Unfortunately, nobody in the government did anything about it," Pinkofsky said. "He went on to bigger and better things."
Pinkofsky said he made it clear, informally, to the Crown lawyers that he thought Smith should be investigated.
"The idea that he was incompetent just passed everyone, either through oversight or worse, or they weren't geared in those days to think people in power could do wrong," he said.
Pinkofsky said the Crown considered, but did not file, an appeal of the acquittal, meaning senior officials in the Crown law office must have known about Smith's work was questionable.
"Everybody who knows about the case ... was always amazed that nothing was done about Smith as a result of the Bowers case," he said.
"Had something been done about him at that time, look at what it would have saved in terms of anguish, costs, grief to the justice system."
Brian Farmer, the Crown attorney who prosecuted Bowers, could not be reached for comment.
Ophoven wondered how many years have gone by since judges and others pointed out that his findings didn't make sense.
"Why didn't the justice system ... follow up on that issue?" she said. "The answer is obvious, because there's not only no incentive to do so, but they're in a horrible conflict of interest."
Smith was subsequently given more responsibility for investigating suspicious child deaths.
A year after the Bowers trial, he was named director when the province established a pediatric forensic pathology unit at the Hospital for Sick Children in Toronto.
He went on to perform hundreds of autopsies on children who died under suspicious circumstances, including the Reynolds case in Kingston.
Smith's courtroom testimony was critical to many prosecutions of parents who were accused of abusing or killing their children through the 1990s.
The Bowers case was so riddled with problems, Ophoven said, that it still gives her nightmares.
She concluded that Dustin likely was still alive when his body was found and examined by a local coroner, who wrongly pronounced him dead at the scene.
His body was left in the snow for crime scene analysis for roughly three hours before it was placed in a body bag and transported for autopsy.
"He may have even died in the bag," Ophoven said, repeating the testimony she offered at the trial.
When Ophoven was first called to review Smith's post-mortem report and other forensic evidence, she could not get important samples from Smith.
"He withheld, in my opinion, all the materials that I needed," she said.
When critical tissue slides were finally produced, Ophoven was shocked.
"They were from somebody else," she said.
Smith eventually produced the correct samples and although the slides weren't critical to her final conclusions, Ophoven was troubled by the behaviour of Smith, who had apparently kept the slides at his home.
"I've never had an experience like this," she said. "I drew a conclusion that [police and prosecutors] had a serious problem on their hands."
When Ophoven reviewed Smith's post-mortem report, which concluded Dustin died of hypothermia, she could not find evidence that would substantiate key findings.
There were no signs of serious tissue damage in areas of Dustin's body where it would be expected, given Smith's assertion that the child was severely frozen.
Smith explained, at one time during courtroom proceedings, that he couldn't measure the child's body temperature because he didn't have a thermometer that would go that low.
Smith offered at least three different time frames to explain how long Dustin had been in the snow.
His first opinion was for a short time span, Ophoven said, excluding the mother as the killer.
He changed his opinion twice after that, finally testifying at trial that Dustin was left alone in the snow for 21 to 32 hours, or perhaps longer. This timing meant the mother could be the killer.
"He altered his opinion to fit the prosecution of the case," Ophoven believes.
She said the lack of freezing in the body meant Dustin could not have been alone in the snow for as long as Smith concluded.
Ophoven said Smith has operated for so long in Ontario, committing more mistakes, perhaps because his work usually gave police and prosecutors what they needed: Strong findings of criminal responsibility against parents, babysitters and others.
"So who the hell is going to look into Dr. Smith's scientific acumen if what he gets them is what they're looking for?" she wondered. "It's terrifying."
Bowers claimed her son was abducted from her car after she left him alone briefly to go into a bank. She led police to his body the next day, claiming that she saw the location in a dream.
Bowers was acquitted 17 years ago. Police have not charged anyone else in the case since then.
In another story, under the heading "Reliving the pain of death; How a once-respected pathologist turned victims into suspects," Tripp has Ophoven wondering how Smith could describe himself as a forensic pediatric pathologist.
"Dr. Janice Ophoven, a forensic pathologist and county medical examiner in Minnesota with three decades of experience, wondered what forensic training Smith had when she confronted him 17 years ago," Tripp writes.
"Ophoven appeared as a defence expert in a 1990 murder trial in Kincardine and provided opinions that cast doubt on Smith's findings and his methods.
"I knew that [Smith] didn't have forensic training," said Ophoven, who is an expert on child deaths. "I could tell."
When law enforcement authorities are hunting the killer of a child, they're perceived to be "working for God," said Ophoven.
"You are untouchable unless there's a forensic pathologist to reel you in and bring some science to the table," Ophoven said. "But if you're working for law enforcement and you have no forensic training, then the cause of death is going to be whatever you say it is, whether it's true or not."
Now for the wind-up:
Questions abound:
First, the jury seemed to have no trouble seeing through Dr. Charles Smith - in spite of the bizarre nature of the facts implicating Bowers. Why couldn't the trained police and prosecutors be as perceptive?
Secondly, why didn't Smith's vacillating performance - and demonstration of so little knowledge of forensic pediatric pathology - sound the alarm bells and expose him to scrutiny by his superiors at the Hospital For Sick Children and the Chief Coroner's Office; So many innocent people and their families would have been spared their hellish experiences.
Lastly, Bower's trial was in 1990 - quite some time before Smith was appointed Director of the Ontario Pediatric Forensic Pathology Unit; Why would he be put in this prestigious position of enormous responsibility after demonstrating such pathetic, self-taught knowledge of forensic pathology?
We now know from Smith's own mouth - during his testimony at the Inquiry over the last few days - that in the ‘80’s Smith regarded himself as "an advocate" who was out to win for the prosecution team.
Although Dr. Ophoven desperately needed the tissue samples from Smith in order to fulfill her responsibilities as an expert for the defense it looks like Smith was blocking her all the way - or to put it another way – running interference for the Crown.
This appears to back up Commission Counsel Linda Rothstein’s suggestion denied by Smith that he approached his responsibilities in the criminal justice system as if he were playing a game.
But Julie Bowers was charged with murder – and this “game” could send her to prison for life as her son’s killer.
Ophoven also learned that Smith had kept the vital forensic evidence in this case at his home - which does not seem out of the question of evidence from the Inquiry that he kept a crucial forensic exhibit from the Waudby case at his home.
I get shivers when I think of the implication that Smith - the self-admitted advocate for the Crown and self-perceived member of the prosecution team - kept the materials at his home to make sure the Crown won and Bowers went to prison for the rest of her life.
We also know, by his own admission, that at the time of Dustin Bower’s death in the 1980’s, Smith was utterly ignorant of the most fundamental concepts of forensic pediatric pathology - such as calculating the time of death – as he presumably, according to his sworn testimony in court, is now.
Oh, yes.
As Murray reported, Smith testified that he hadn’t willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Indeed, he had acquired “greater knowledge” since he began writing a text on pediatric pathology.
Has anyone seen the book lately?
Harold Levy…hlevy15@gmail.com;
"HE WITHHELD, IN MY OPINION, ALL THE MATERIALS THAT I NEEDED," SHE SAID.
WHEN CRITICAL TISSUE SLIDES WERE FINALLY PRODUCED, OPHOVEN WAS SHOCKED.
"THEY WERE FROM SOMEBODY ELSE," SHE SAID.
SMITH EVENTUALLY PRODUCED THE CORRECT SAMPLES AND ALTHOUGH THE SLIDES WEREN'T CRITICAL TO HER FINAL CONCLUSIONS, OPHOVEN WAS TROUBLED BY THE BEHAVIOUR OF SMITH, WHO HAD APPARENTLY KEPT THE SLIDES AT HIS HOME.
"I'VE NEVER HAD AN EXPERIENCE LIKE THIS," SHE SAID. "I DREW A CONCLUSION THAT [POLICE AND PROSECUTORS] HAD A SERIOUS PROBLEM ON THEIR HANDS." “
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WHEN LAW ENFORCEMENT AUTHORITIES ARE HUNTING THE KILLER OF A CHILD, THEY'RE PERCEIVED TO BE "WORKING FOR GOD," SAID OPHOVEN.
"YOU ARE UNTOUCHABLE UNLESS THERE'S A FORENSIC PATHOLOGIST TO REEL YOU IN AND BRING SOME SCIENCE TO THE TABLE," OPHOVEN SAID. "BUT IF YOU'RE WORKING FOR LAW ENFORCEMENT AND YOU HAVE NO FORENSIC TRAINING, THEN THE CAUSE OF DEATH IS GOING TO BE WHATEVER YOU SAY IT IS, WHETHER IT'S TRUE OR NOT."
DR. JANICE OPHOVEN: FORENSIC PATHOLOGIST WHO ASSISTED THE DEFENCE IN THE JULIE BOWER'S CASE”.
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"IS THIS THE WAY YOU PASS OFF YOUR EVIDENCE - AS A SERIES OF GUESSES?" DEFENSE LAWYER JACK PINKOFSKY ASKED DR. CHARLES SMITH YESTERDAY, DURING A LENGTHY CROSS EXAMINATION.
"THE ESTIMATION OF THE TIME OF DEATH IS REALLY AN EDUCATED GUESSING GAME," SMITH RESPONDED...
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One of this Blog's readers has asked for some background on the Julie Bower's case.
First the status: The Bower's case was not one of the cases subject to the Ontario Chief Coroner's review.
It is expected, however, to come under scrutiny in the second phase of the Inquiry which is about to begin.
First, the basics.
Julie Bowers was charged with the second-degree murder of her 11-month-old son Dustin who she had reported kidnapped from her car in January, 1988.
The next day Bowers, then 26, reported to the police that she had a dream in which she saw Dustin's body - and that she believed she could lead them to it.
Bower's dream led to the discovery of Dustin's body North of Kinkardine, Ontario, on a frigid day, in an area of dense brush.
One of the central factors in the case is that the police presumed Dustin was dead -although he was not immediately examined by a doctor or taken to a hospital.
Bowers was charged with second-degree murder in a prosecution that was widely viewed as a "slam-dunk" because of the bizarre elements of the dream and her ability to lead the police to her son.
But Bowers was subsequently acquitted on March 16, 1990 following a lengthy trial, as a result of a brilliant defense (as usual) by legendary Toronto lawyer Jack Pinkofsky.
The acquittal was extraordinary - given the bizarre elements of the dream and Bower's ability to lead the police to Dustin
The police theory was that Bowers had deliberately drowned her baby backed by evidence by - (guess who!) - who provided a time of death when Bower's could be shown to have exclusive access to her so. (Echoes of the Waudby and Mullins-Johnson cases which were scrutinized by the Goudge Inquiry).
Here is how the forensics played out (as distilled from Toronto Star reports).
At the preliminary hearing in June, 1988, Smith, who performed the autopsy, gave evidence which placed Dustin in snow at the earliest at 5.30 p.m. on Jan. 14.
In a meeting with Pinkofsky and his staff in May 1989, the doctor suggested the time of deposit was 9.30 p.m., he said.
But during the trial, Smith said he had since refined his medical opinion and concluded Dustin could have been abandoned as early as 8.00 a.m. on Jan. 14.
Pinkofsky brought in Dr. Janice Ophoven, a Minnesota U.S.A. forensic pathologist - a real forensic pathologist - who took a very different view;
As my former colleague Toronto Star reporter Maureen Murray wrote in her wonderfully nuanced and detailed coverage of the trial:
"Ophoven, who has testified in more than 20 hypothermia-related cases, said Dustin may simply have been near death when police discovered the toddler shortly before 3 p.m. on Jan.15, 1988.
She said the process of death by exposure to cold results in the body's systems slowly failing, and vital signs are undetectable prior to actual death.
"Fixed and dilated pupils, undetectable heart rate, no breathing, no evidence of blood circulation is also compatible with someone who is profoundly hypothermic, but still alive," Ophoven said.
In hypothermia cases, particularly in children, "re-establishing a normal temperature, rewarming and resuscitation, before deciding absence of life is the case, is important and in my opinion must be done."
Coroner Richard Mann pronounced Dustin dead at the scene about 4 p.m. after failing to detect any vital signs, court has been told. (He died of hypothermia or cold);
The child was then left lying on a blanket near the side of the roadway before being removed about 6 p.m.
Ophoven said Dustin should have been rushed to a hospital.
She said she suspects Dustin was still alive because autopsy results indicate his body showed no significant signs of freezing.
Ophoven examined the autopsy report on Dustin as well as tissue samples taken from his body and statements made by doctors and police who examined or observed the body.
She said Dustin's body was stiff, but not frozen except for signs of frostbite on his left foot. There were no signs his organs were ever frozen except for slight freezing in the passage of his voice box, she said.
The boy's testicles - the most likely area besides the skin to show initial signs of freezing - appeared normal, she said.
The condition of Dustin's body indicates the child was exposed to the cold for 16 to 18 hours, Ophoven testified.
She concluded he was likely left in the snow between 10 p.m. and midnight on Jan. 14, 1988.
It's virtually impossible Dustin was abandoned as early as 1 p.m. on Jan. 14, she said...
Ophoven criticized the procedures used by Dr. Charles Smith, who performed the autopsy, to determine the likely time of death.
She also pointed out what she called omissions in Smith's report.
Smith has testified Dustin may have been exposed to the elements for up to 40 hours prior to the autopsy and could have been abandoned as early as 11.30 a.m. on Jan. 14.
Reporter Murray provided a gripping portrayal of Pinkosky's cross-examination of Smith in a story dated January 24, 1990, which read, in part:
"The doctor who examined Dustin Bowers' body has been grilled for his apparent change in testimony over the length of time the child was abandoned in the snow.
"Is this the way you pass off your evidence - as a series of guesses?" defense lawyer Jack Pinkofsky asked Dr. Charles Smith yesterday, during a lengthy cross examination.
"The estimation of the time of death is really an educated guessing game," Smith responded...
Pinkofsky zeroed in on several areas where the doctor had made revisions in his testimony since the June, 1988, preliminary hearing.
During that hearing, Smith said Dustin was probably exposed to the cold at least 2 1/2 hours after his mother reported him missing.
Smith, a pathologist at the Hospital for Sick Children, performed an autopsy on Dustin the night the body was found.
But Smith's evidence at the trial suggests the baby could have been abandoned as early as 8 a.m. on Jan. 14, five hours before his mother reported him abducted.
Pinkofsky hinted Smith altered his earlier testimony after realizing it could help the mother's defense.
"You have since learned the implications of the opinions you gave under oath on June 28, 1988 . . . It means that the wrong person is sitting before this court," the lawyer said."
Madam Justice Mabel Van Camp warned Pinkofsky it was for the jury to decide whether or not the accused is guilty.
"The figures I have given this court are to the best of my ability today," Smith said.
He told Pinkofsky he hadn't willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Smith told court he has acquired greater knowledge since he began writing a textbook on pediatric forensic pathology.
He considered factors, such as the degree of freezing in Dustin's body and the environment conditions, to help him estimate the time of death and how long the body lay before being discovered, court heard.
At the end of the lively cross examination, Smith told Pinkofsky: "I've enjoyed an extraordinary artistry of cross examination."
Van Camp told the witness the remark was out of line. he trial continues.
Ophoven clearly loathes Smith to this day.
This is evident from a story by reporter Robb Tripp (another astute reporter of the criminal justice system) which appeared in the Kingston Whig under the heading: "Most awful case: Errors known long ago, pathologist says".
"Top officials in Ontario's criminal justice system should have realized 15 years ago that they needed to review thoroughly the work of a senior pathologist, says a respected American forensic expert, "the story begins.
"Dr. Janice Ophoven, a pediatric forensic pathologist in Minnesota and a medical examiner, was an expert witness for the defense at the 1990 trial of Julie Bowers of Kincardine.
"In all my years, this is the most awful case that I've had," said Ophoven, who has worked as a pathologist for 30 years and is a certified forensic expert.
Bowers was acquitted of murdering her 11-month-old son, Dustin, after a sensational 49-day trial.
Ophoven's findings cast doubt on the work of Dr. Charles Smith, who testified for the prosecution after conducting the autopsy on Dustin.
The case appears to be one of the earliest in which Smith's work was publicly discredited.
Earlier this month, an international panel of experts that reviewed 45 of Smith's cases over a decade concluded he erred in at least 20, and a dozen people may have been wrongly convicted because of his mistakes.
One of the cases reviewed was that of Kingston's Louise Reynolds, accused of killing her seven-year-old daughter, Sharon, in 1997.
Smith's conclusions were later discredited and charges against Reynolds were withdrawn after she spent almost two years in custody. The Bowers case was not part of the review of Smith's work, but it will be examined in the second phase of the probe.
"I found the process and [Smith's] opinions to be extremely troublesome," Ophoven told the Whig-Standard in an interview from her office in Woodbury, Minn.
She said his behaviour was erratic and he was un-cooperative.
"If you have a sentinel case that says something is really, really wrong, there's an obligation to verify if this was a single bad day or it was the tip of an iceberg," Ophoven said.
"I would have marked this as a sentinel case."
Jack Pinkofsky, the Toronto lawyer who hired Ophoven to review Smith's work, said he doesn't believe any review of Smith's work was conducted after the Bowers case.
"Unfortunately, nobody in the government did anything about it," Pinkofsky said. "He went on to bigger and better things."
Pinkofsky said he made it clear, informally, to the Crown lawyers that he thought Smith should be investigated.
"The idea that he was incompetent just passed everyone, either through oversight or worse, or they weren't geared in those days to think people in power could do wrong," he said.
Pinkofsky said the Crown considered, but did not file, an appeal of the acquittal, meaning senior officials in the Crown law office must have known about Smith's work was questionable.
"Everybody who knows about the case ... was always amazed that nothing was done about Smith as a result of the Bowers case," he said.
"Had something been done about him at that time, look at what it would have saved in terms of anguish, costs, grief to the justice system."
Brian Farmer, the Crown attorney who prosecuted Bowers, could not be reached for comment.
Ophoven wondered how many years have gone by since judges and others pointed out that his findings didn't make sense.
"Why didn't the justice system ... follow up on that issue?" she said. "The answer is obvious, because there's not only no incentive to do so, but they're in a horrible conflict of interest."
Smith was subsequently given more responsibility for investigating suspicious child deaths.
A year after the Bowers trial, he was named director when the province established a pediatric forensic pathology unit at the Hospital for Sick Children in Toronto.
He went on to perform hundreds of autopsies on children who died under suspicious circumstances, including the Reynolds case in Kingston.
Smith's courtroom testimony was critical to many prosecutions of parents who were accused of abusing or killing their children through the 1990s.
The Bowers case was so riddled with problems, Ophoven said, that it still gives her nightmares.
She concluded that Dustin likely was still alive when his body was found and examined by a local coroner, who wrongly pronounced him dead at the scene.
His body was left in the snow for crime scene analysis for roughly three hours before it was placed in a body bag and transported for autopsy.
"He may have even died in the bag," Ophoven said, repeating the testimony she offered at the trial.
When Ophoven was first called to review Smith's post-mortem report and other forensic evidence, she could not get important samples from Smith.
"He withheld, in my opinion, all the materials that I needed," she said.
When critical tissue slides were finally produced, Ophoven was shocked.
"They were from somebody else," she said.
Smith eventually produced the correct samples and although the slides weren't critical to her final conclusions, Ophoven was troubled by the behaviour of Smith, who had apparently kept the slides at his home.
"I've never had an experience like this," she said. "I drew a conclusion that [police and prosecutors] had a serious problem on their hands."
When Ophoven reviewed Smith's post-mortem report, which concluded Dustin died of hypothermia, she could not find evidence that would substantiate key findings.
There were no signs of serious tissue damage in areas of Dustin's body where it would be expected, given Smith's assertion that the child was severely frozen.
Smith explained, at one time during courtroom proceedings, that he couldn't measure the child's body temperature because he didn't have a thermometer that would go that low.
Smith offered at least three different time frames to explain how long Dustin had been in the snow.
His first opinion was for a short time span, Ophoven said, excluding the mother as the killer.
He changed his opinion twice after that, finally testifying at trial that Dustin was left alone in the snow for 21 to 32 hours, or perhaps longer. This timing meant the mother could be the killer.
"He altered his opinion to fit the prosecution of the case," Ophoven believes.
She said the lack of freezing in the body meant Dustin could not have been alone in the snow for as long as Smith concluded.
Ophoven said Smith has operated for so long in Ontario, committing more mistakes, perhaps because his work usually gave police and prosecutors what they needed: Strong findings of criminal responsibility against parents, babysitters and others.
"So who the hell is going to look into Dr. Smith's scientific acumen if what he gets them is what they're looking for?" she wondered. "It's terrifying."
Bowers claimed her son was abducted from her car after she left him alone briefly to go into a bank. She led police to his body the next day, claiming that she saw the location in a dream.
Bowers was acquitted 17 years ago. Police have not charged anyone else in the case since then.
In another story, under the heading "Reliving the pain of death; How a once-respected pathologist turned victims into suspects," Tripp has Ophoven wondering how Smith could describe himself as a forensic pediatric pathologist.
"Dr. Janice Ophoven, a forensic pathologist and county medical examiner in Minnesota with three decades of experience, wondered what forensic training Smith had when she confronted him 17 years ago," Tripp writes.
"Ophoven appeared as a defence expert in a 1990 murder trial in Kincardine and provided opinions that cast doubt on Smith's findings and his methods.
"I knew that [Smith] didn't have forensic training," said Ophoven, who is an expert on child deaths. "I could tell."
When law enforcement authorities are hunting the killer of a child, they're perceived to be "working for God," said Ophoven.
"You are untouchable unless there's a forensic pathologist to reel you in and bring some science to the table," Ophoven said. "But if you're working for law enforcement and you have no forensic training, then the cause of death is going to be whatever you say it is, whether it's true or not."
Now for the wind-up:
Questions abound:
First, the jury seemed to have no trouble seeing through Dr. Charles Smith - in spite of the bizarre nature of the facts implicating Bowers. Why couldn't the trained police and prosecutors be as perceptive?
Secondly, why didn't Smith's vacillating performance - and demonstration of so little knowledge of forensic pediatric pathology - sound the alarm bells and expose him to scrutiny by his superiors at the Hospital For Sick Children and the Chief Coroner's Office; So many innocent people and their families would have been spared their hellish experiences.
Lastly, Bower's trial was in 1990 - quite some time before Smith was appointed Director of the Ontario Pediatric Forensic Pathology Unit; Why would he be put in this prestigious position of enormous responsibility after demonstrating such pathetic, self-taught knowledge of forensic pathology?
We now know from Smith's own mouth - during his testimony at the Inquiry over the last few days - that in the ‘80’s Smith regarded himself as "an advocate" who was out to win for the prosecution team.
Although Dr. Ophoven desperately needed the tissue samples from Smith in order to fulfill her responsibilities as an expert for the defense it looks like Smith was blocking her all the way - or to put it another way – running interference for the Crown.
This appears to back up Commission Counsel Linda Rothstein’s suggestion denied by Smith that he approached his responsibilities in the criminal justice system as if he were playing a game.
But Julie Bowers was charged with murder – and this “game” could send her to prison for life as her son’s killer.
Ophoven also learned that Smith had kept the vital forensic evidence in this case at his home - which does not seem out of the question of evidence from the Inquiry that he kept a crucial forensic exhibit from the Waudby case at his home.
I get shivers when I think of the implication that Smith - the self-admitted advocate for the Crown and self-perceived member of the prosecution team - kept the materials at his home to make sure the Crown won and Bowers went to prison for the rest of her life.
We also know, by his own admission, that at the time of Dustin Bower’s death in the 1980’s, Smith was utterly ignorant of the most fundamental concepts of forensic pediatric pathology - such as calculating the time of death – as he presumably, according to his sworn testimony in court, is now.
Oh, yes.
As Murray reported, Smith testified that he hadn’t willfully set out to change his testimony, but had since refined his medical opinion based on more research conducted in the area of hypothermia in children.
Indeed, he had acquired “greater knowledge” since he began writing a text on pediatric pathology.
Has anyone seen the book lately?
Harold Levy…hlevy15@gmail.com;
Smith: A Loyal Member Of The Prosecution Team Right To The End;
At times it is good to get right to the point.
Dr. Smith has admitted that he saw himself as a member of the prosecution team - and that his role was to help the Crown win the case, "in the 80's."
However, on Wednesday morning the Goudge Inquiry heard startling evidence that he once agreed to go to Barrie, Ontario to meet with the mother of a deceased child - knowing that the conversation would be recorded by bugs which had been surreptitiously planted in her home by the police.
This was in 1996;
It is also noteworthy that Smith admitted in cross-examination regarded himself as a member of the prosecution team in "Sharon's case" where he testified under cross-examination at the mother's preliminary hearing that it was "absolutely wrong" to hypothesize a dog attack.
(The police theory was that Sharon had 81-wounds inflicted by knives or scissors - and that she had not been attacked by a Pit Bull as defence experts insisted - which later proved to be the case).
"I believe I could well have slipped into an advocacy role here," Dr. Smith said. "I believe that I knew by then that I wasn't to be an advocate ..."
This was in 1998;
Dr. Smith gave this evidence as an "advocate" for the prosecution, seven years after he was appointed Director of the Ontario Forensic Pediatric Pathology Unit at the Hospital For Sick Children in Toronto - and just three years before his name was removed from the roster for performing forensic autopsies.
It was near the end of his career - far from the beginning;
The evidence indicates that Dr. Smith - or "Mr. Smith" as Lawyer James Lockyer, representing nine families insisted on calling him yesterday - saw himself as a loyal member of the prosecution team right to the end.
Back to the Barrie case:
Smith's cooperation in the police investigation is documented in an affidavit by Detective Sergeant Mark Holden which filed as an exhibit;
Here is the complete affidavit - dated January 28, 2008;
"1: I am a staff Sergeant of the Barrie Police Service. I was involved in the investigation into the death of X, who was a minor. I believe that revealing the name of the minor and his mother could jeopardize an on-going investigation. I have knowledge of the matters deposed to in my affidavit.
2: On Sept 4, 1996, the Ontario Provincial Police (O.P.P) intercepted a telephone conversation between Dr. Smith and X’s mother pursuant to an authorization granted under Part VI of the Criminal Code of Canada. Dep. Insp. McNeil of the O.P.P. learned from the conversation that Dr Smith intended to meet with X’s mother at her home in the Barrie area to discuss with her the results of the report on his post-mortem examination on X. Det. Insp. McNeil knew that listening devices installed in the house, also pursuant to a Part VI application, would likely intercept this conversation.
3: Dep. Insp. McNeil subsequently met with members of the Barrie Police Service including me, to discuss the situation. Det. Insp. McNeil telephoned Dr. Smith and advised him that the listening devices installed in the house would likely intercept his conversations with X’s mother.
4: Dr. Smith agreed to meet with the Barrie Police Service and Det. Insp. McNeil and he did so on Sept. 5, 1996, the day he was scheduled to meet with X’s mother. The meeting took place at the Barrie Police Service police station and lasted approximately 20 minutes. During the meeting, the Barrie Police and Det, Insp. McNeil s did not direct Dr. Smith in in any way as to how to conduct the meeting with X’s mother and did not ask him to solicit any information from her. At the conclusion of the meeting with Barrie police and Det. Insp. McNeil, Dr. Smith went to the house of X’s mother and met with her.
5: Following that meeting, Dr. Smith met with representatives of the Barrie Police Service and Det, Insp. McNeil over lunch to discuss his meeting with X's mother. Dr. Smith explained that she had a number of questions about his findings and that he answered her questions arising from his report on post-mortem examination.
6: The Barrie Police officers recall that Dr. Smith expressed a view on X's mother's demeanour when she was discussing her child's death. Dr. Smith said, "It was like talking to a load of gravel." The officers understood this to mean that Dr. Smith was commenting on the inappropriate and flat affect of X's mother during that meeting. The Barrie police do not recall that Dr. Smith expressed a position during the lunch meetings to whether or not his pathology evidence supported X's mother's culpability or not.
7: I recall that there were two case conferences involving Dr. Cairns and Dr. Smith, which were held on April 17, 1996, and May 30, 1996. However at these meetings there was no discussion of any surveillance of X's mother.
8: I do not recall any further meetings with Dr. Smith following his meeting with X's mother.
9: The Barrie police have complied with S. 196 of the Criminal Code and have provided X's mother with written notification of the authorization of the interception."
A few comments:
Doctor Smith acknowledged in cross-examination that his interview with the mother in these circumstances was inappropriate but told the Inquiry that he had been asked to attend the meeting by Deputy Chief Coroner Dr. James Cairns;
In fairness to Dr. Cairns, by now we are well aware that just because Dr. Smith said this under oath does not mean that this is true. (We don't have Dr. Cairns side of the story);
However it is worth pointing out that this may not be an isolated incident in Ontario.
An earlier posting in the context of "Tiffani's case" contained a note written by a prosecutor which read: "Our file contains... a lot of information involving the initial coroner's investigation, including videotaped statements from both accused taken by the Regional Coroner Dr. (Benoit) Bechard and the police without caution, warning, or right to counsel."
(Part Ten: Interrogation of an innocent woman: Backing up Dr. Smith's opinion at all costs; Jan. 22, 2008);
Harold Levy...hlevy15@gmail.com;
Dr. Smith has admitted that he saw himself as a member of the prosecution team - and that his role was to help the Crown win the case, "in the 80's."
However, on Wednesday morning the Goudge Inquiry heard startling evidence that he once agreed to go to Barrie, Ontario to meet with the mother of a deceased child - knowing that the conversation would be recorded by bugs which had been surreptitiously planted in her home by the police.
This was in 1996;
It is also noteworthy that Smith admitted in cross-examination regarded himself as a member of the prosecution team in "Sharon's case" where he testified under cross-examination at the mother's preliminary hearing that it was "absolutely wrong" to hypothesize a dog attack.
(The police theory was that Sharon had 81-wounds inflicted by knives or scissors - and that she had not been attacked by a Pit Bull as defence experts insisted - which later proved to be the case).
"I believe I could well have slipped into an advocacy role here," Dr. Smith said. "I believe that I knew by then that I wasn't to be an advocate ..."
This was in 1998;
Dr. Smith gave this evidence as an "advocate" for the prosecution, seven years after he was appointed Director of the Ontario Forensic Pediatric Pathology Unit at the Hospital For Sick Children in Toronto - and just three years before his name was removed from the roster for performing forensic autopsies.
It was near the end of his career - far from the beginning;
The evidence indicates that Dr. Smith - or "Mr. Smith" as Lawyer James Lockyer, representing nine families insisted on calling him yesterday - saw himself as a loyal member of the prosecution team right to the end.
Back to the Barrie case:
Smith's cooperation in the police investigation is documented in an affidavit by Detective Sergeant Mark Holden which filed as an exhibit;
Here is the complete affidavit - dated January 28, 2008;
"1: I am a staff Sergeant of the Barrie Police Service. I was involved in the investigation into the death of X, who was a minor. I believe that revealing the name of the minor and his mother could jeopardize an on-going investigation. I have knowledge of the matters deposed to in my affidavit.
2: On Sept 4, 1996, the Ontario Provincial Police (O.P.P) intercepted a telephone conversation between Dr. Smith and X’s mother pursuant to an authorization granted under Part VI of the Criminal Code of Canada. Dep. Insp. McNeil of the O.P.P. learned from the conversation that Dr Smith intended to meet with X’s mother at her home in the Barrie area to discuss with her the results of the report on his post-mortem examination on X. Det. Insp. McNeil knew that listening devices installed in the house, also pursuant to a Part VI application, would likely intercept this conversation.
3: Dep. Insp. McNeil subsequently met with members of the Barrie Police Service including me, to discuss the situation. Det. Insp. McNeil telephoned Dr. Smith and advised him that the listening devices installed in the house would likely intercept his conversations with X’s mother.
4: Dr. Smith agreed to meet with the Barrie Police Service and Det. Insp. McNeil and he did so on Sept. 5, 1996, the day he was scheduled to meet with X’s mother. The meeting took place at the Barrie Police Service police station and lasted approximately 20 minutes. During the meeting, the Barrie Police and Det, Insp. McNeil s did not direct Dr. Smith in in any way as to how to conduct the meeting with X’s mother and did not ask him to solicit any information from her. At the conclusion of the meeting with Barrie police and Det. Insp. McNeil, Dr. Smith went to the house of X’s mother and met with her.
5: Following that meeting, Dr. Smith met with representatives of the Barrie Police Service and Det, Insp. McNeil over lunch to discuss his meeting with X's mother. Dr. Smith explained that she had a number of questions about his findings and that he answered her questions arising from his report on post-mortem examination.
6: The Barrie Police officers recall that Dr. Smith expressed a view on X's mother's demeanour when she was discussing her child's death. Dr. Smith said, "It was like talking to a load of gravel." The officers understood this to mean that Dr. Smith was commenting on the inappropriate and flat affect of X's mother during that meeting. The Barrie police do not recall that Dr. Smith expressed a position during the lunch meetings to whether or not his pathology evidence supported X's mother's culpability or not.
7: I recall that there were two case conferences involving Dr. Cairns and Dr. Smith, which were held on April 17, 1996, and May 30, 1996. However at these meetings there was no discussion of any surveillance of X's mother.
8: I do not recall any further meetings with Dr. Smith following his meeting with X's mother.
9: The Barrie police have complied with S. 196 of the Criminal Code and have provided X's mother with written notification of the authorization of the interception."
A few comments:
Doctor Smith acknowledged in cross-examination that his interview with the mother in these circumstances was inappropriate but told the Inquiry that he had been asked to attend the meeting by Deputy Chief Coroner Dr. James Cairns;
In fairness to Dr. Cairns, by now we are well aware that just because Dr. Smith said this under oath does not mean that this is true. (We don't have Dr. Cairns side of the story);
However it is worth pointing out that this may not be an isolated incident in Ontario.
An earlier posting in the context of "Tiffani's case" contained a note written by a prosecutor which read: "Our file contains... a lot of information involving the initial coroner's investigation, including videotaped statements from both accused taken by the Regional Coroner Dr. (Benoit) Bechard and the police without caution, warning, or right to counsel."
(Part Ten: Interrogation of an innocent woman: Backing up Dr. Smith's opinion at all costs; Jan. 22, 2008);
Harold Levy...hlevy15@gmail.com;
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