Part Two: "Forensic Stalker:" Former Oklahoma Forensic Scientist Gilchrist Accused of Hiding Or Destroying Hairs Sought For DNA Testing;

EARLY POSTING FOR MONDAY APRIL 28, 2008;

IN EACH OF ITS RULINGS OVERTURNING MCCARTY’S CONVICTIONS, THE APPEALS COURT NOTED THAT GILCHRIST INITIALLY SAID HAIRS FROM THE CRIME SCENE DEFINITELY DID NOT MATCH MCCARTY, THEN CHANGED HER RECORDS AND TESTIMONY TO SAY THEY DEFINITELY MATCHED HIM (YEARS LATER, GILCHRIST EITHER HID OR DESTROYED THOSE HAIRS WHEN THEY WERE SOUGHT FOR DNA TESTING).

FROM INNOCENCE PROJECT PRESS RELEASE HEADED "INNOCENT MAN FREED FROM DEATH ROW" - CASE INVOLVED OKLAHOMA FORENSIC SCIENTIST JOYCE GILCHRIST;

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

Curtis McCarty's release after serving 21 years in prison in Oklahoma - including sixteen on death row - following his conviction on evidence given by now discredited forensic scientist Joyce Gilchrist - is the subject of a press release issued by the Innocence Project on May 12, 2007.

McCarty had been exonerated by DNA evidence;

In a recent post, I described how a Blog, operating out of Denver, Colorado, compared Dr. Charles Smith to Gilchrist, who's tainted evidence has been implicated in death penalty cases; ("Smith Compared To Notorious American Forensic Specialist - Called "Latest Forensic Stalker.")

The author states that, "While Joyce Gilchrist of Oklahoma apparently still holds the world's record for systematically framing the largest number of people over a period of years ,the Toronto Star reports today, December 10,2007,that Canada boasts a forensic expert who,in duration of his service(if not in the number of his victims)can at least equal Gilmore's achievement."

(Dr. Charles Smith has admitted making "errors" and "mistakes" during his evidence at the Goudge Inquiry but has consistently denied allegations that he deliberately set out to harm to any of the individuals who were affected by his flawed opinions.)

I was fascinated to note the allegation in the press release that Gilchrist had hid or destroyed hairs which had been sought for DNA-testing in the case - in light of Dr. Smith's admissions that he had kept in his personal possession (and failed to submit for testing) an apparent male pubic hair taken during the autopsy on Baby Jenna which could have been of significant evidentiary value to the defence.

The press release, datelined, Oklahoma City, appeared under the heading: "Another Innocent Man Freed From Death Row: Oklahoma City case is one of the worst cases of government misconduct in the history of the American criminal justice system, Innocence Project says."

"Curtis Edward McCarty, who was convicted twice and sentenced to death for the same murder in verdicts that were both thrown out based on evidence of his innocence and an extraordinary pattern of government misconduct, was released from prison this morning after a judge dismissed the indictment against him that would have led to a third trial," the release began;

"The prosecution said today that it will not appeal the decision – finally clearing McCarty after 21 years of wrongful incarceration, more than 16 of them on death row," it continued.

"In 1986, McCarty was convicted of a 1982 murder in Oklahoma City and sentenced to die.

Citing misconduct by the prosecutor and a police lab analyst, the Court of Criminal Appeals overturned the conviction, and McCarty was retried in 1989.

He was again convicted and sentenced to death. In 1995, the appeals court upheld his conviction but threw out his death sentence; in 1996, he was sentenced to death again.

In 2005, the Court of Criminal Appeals again overturned his conviction, citing the continued pattern of government misconduct – and new DNA tests showing
that semen recovered from the victim did not come from McCarty.

“Every piece of evidence in this case, including evidence that was used improperly to secure convictions, now shows Curtis McCarty’s innocence,” said Colin Starger, the Innocence Project Staff Attorney on the case who argued the motion to dismiss the indictment in a three-hour hearing yesterday afternoon.

“Semen recovered from the victim, material under the victim’s fingernails and a bloody print the perpetrator left on the victim’s body all come from someone other than Curtis McCarty.”

Robert H. Macy, who was the Oklahoma County District Attorney for 21 years, prosecuted McCarty in both of his trials.

Macy sent 73 people to death row – more than any other prosecutor in the nation – and 20 of them have been executed.

Macy has said publicly that he believes executing an innocent person is a sacrifice worth making in order to keep the death penalty in the United States.

Macy committed misconduct in the manner that he prosecuted McCarty and presented the case to the jury.

His misconduct was compounded when he relied on Joyce Gilchrist, a police lab analyst who falsified test results and hid or destroyed evidence in order to help secure McCarty’s convictions.

Gilchrist was the lead forensic analyst in 23 cases that ended in death sentences (11 of the defendants in those cases have been executed).

“This is by far one of the worst cases of law enforcement misconduct in the history of the American criminal justice system,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

“Bob Macy has said that executing an innocent person is a risk worth taking – and he came very close to doing just that with Curtis McCarty.”

Macy’s conduct in prosecuting McCarty was singled out in the Court of Criminal Appeals ruling that overturned McCarty’s first conviction; that ruling noted that the case was “replete with error” and referred to Macy’s conduct as “improper” and “unprofessional.”

In each of its rulings overturning McCarty’s convictions, the appeals court noted that Gilchrist initially said hairs from the crime scene definitely did not match McCarty, then changed her records and testimony to say they definitely matched him (years later, Gilchrist either hid or destroyed those hairs when they were sought for DNA testing).

The prosecution also claimed that semen on the victim’s body came from McCarty, while DNA testing now shows that it did not.

The prosecution maintained that McCarty acted alone in the crime, until evidence began to emerge that he was not the perpetrator; at that point, the prosecution began to say McCarty had an accomplice (though no evidence of multiple perpetrators was ever found or introduced).

McCarty was charged in 1985 with stabbing and strangling 18-year-old Pamela Kaye Willis three years earlier in Oklahoma City.

Willis, an acquaintance of McCarty’s, was found dead in the kitchen of a friend’s home on December 10, 1982.

Hairs and other biological evidence were collected by police at the crime scene.

Gilchrist, who testified in both of McCarty’s trials, was fired in 2001 for fraud and misconduct in McCarty’s case and others.

DNA testing conducted on post-conviction appeal in 2002 showed that sperm recovered from the victim’s body did not match McCarty and the Court of Criminal Appeals overturned the second conviction in 2005.

The Innocence Project became involved in the case in 2003; attorneys Perry Hudson and Marna Franklin also represent McCarty.

“For anyone who believes the death penalty is being carried out appropriately in this country, and anyone who believes that prosecutors and government witnesses can always be relied on to pursue the truth, this case is a wake-up call,” said Peter Neufeld, Co-Director of the Innocence Project.

“Three separate times, an innocent man was sentenced to die because of the actions of an unethical prosecutor and a fraudulent analyst.”

McCarty is the 201st person in the United States exonerated through DNA evidence – and the 15th of those 201 who has served time on death row.

McCarty is the ninth person to be exonerated by DNA evidence in Oklahoma and the third to be exonerated from the state’s death row.

Robert Miller was exonerated based on DNA evidence in 1998 after serving more than 9 years on death row in Oklahoma for crimes he didn’t commit.

Macy prosecuted Miller, and Gilchrist provided forensic testimony leading to his wrongful conviction."

Harold Levy...hlevy15@gmail.com;

Part One: "Forensic Stalker;" Smith Compared To Notorious American Forensic Specialist - Called "Latest Forensic Stalker."

"THE REPORT SAYS THAT “MISSING EVIDENCE IS OCCURRING IN MAJOR CASES.” SOME OF THOSE CASES WERE DEATH PENALTY CASES. ACCORDING TO THE REPORT, A FREEZER BREAKDOWN CONTAMINATED EVIDENCE FROM HUNDREDS OF CASES. THE REPORT ALSO SAID THAT BLOOD ANALYSIS FILES FROM THREE ENTIRE YEARS - 1980, 1981, AND 1990 - WERE MISSING, AND THAT RAPE EVIDENCE WAS SYSTEMATICALLY BEING DESTROYED AFTER ONLY TWO YEARS"

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

"WILSON SAYS THAT THE ENTIRE SYSTEM IS TO BLAME FOR ALLOWING GILCHRIST TO CONTINUE WORKING. “I THINK YOU HAVE TO LOOK AT THE PROSECUTOR’S OFFICE, THAT THEY HAVE TO UNDERSTAND WHAT’S BEEN GOING ON. THEY HAVE TO HAVE SEEN ALL THE FLAGS THAT HAVE BEEN WAVED. THE JUDGES ARE NO DIFFERENT. THEY’VE SEEN THE APPELLATE COURT DECISIONS COME BACK. IT’S NOT JUST THE POLICE, IT’S NOT JUST THE PROSECUTORS, IT’S EVERYONE IN THE ENTIRE SYSTEM.”

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

"I THINK JOYCE GILCHRIST MAY HAVE FALLEN INTO AN INTERNAL FEELING THAT SHE WAS ON THE POLICE TEAM, SHE WAS ON THE PROSECUTION TEAM,” HE SAYS. “AND WHAT SCIENTISTS SHOULD ALWAYS FEEL LIKE IS THEY ARE ON THE SIDE OF SCIENCE.”

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

ALL QUOTES FROM CBS DOCUMENTARY: "UNDER THE MICROSCOPE: FORENSIC SCIENTIST ACCUSED OF MISHANDLING CASES;

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

The growing international notoriety of Dr. Charles Smith is evident in a post on a Blog called "TalkLeft: The Politics of Crime" published out of Denver, Colorado.

The post was published on Dec. 10, TalkLeft, 2007 under the heading, "Suffer the Little Children To Come Unto Me - The Latest Forensic Stalker."

"The Latest Forensic Stalker" is the description given by the author to Dr. Charles Smith, who has admitted "errors" and "mistakes" but has consistently denied allegations made during the Goudge Inquiry that he deliberately set out to harm to any of the individuals who were affected by his flawed opinions.

The author of the post compares Dr. Smith to Joyce Gilchrist, a forensic scientist in the State Of Oklahoma, who has been implicated in death penalty cases;

"While Joyce Gilchrist of Oklahoma apparently still holds the world's record for systematically framing the largest number of people over a period of years, the Toronto Star reports today, December 10,2007, that Canada boasts a forensic expert who, in duration of his service(if not in the number of his victims) can at least equal Gilmore's achievement," the author says;

This is the same Joyce Gilchrist was the subject of a CBS: Sixty Minutes presentation on July, 24, 2002, under the heading: "Under the Microscope: Forensic Scientist Accused of Mishandling Cases;"

"DNA testing in old criminal cases is doing more than freeing dozens of innocent people from prison. It is also pointing the finger of blame at a legal system that has sometimes relied on bad science, and gotten bad results," the CBS story begins;

"That is the case in a growing legal scandal in Oklahoma City where one innocent man has been freed after 15 years in prison, triggering an investigation into the police chemist whose work put him and hundreds of other people behind bars," the story continues;

"The scientist's name is Joyce Gilchrist. Now she finds herself under the microscope and every case she worked on is in question.

For 20 years, Gilchrist examined crime scenes, looking for clues linking suspects to evidence she said she found. Often, her testimony in court meant the difference between innocence and guilt.

When 60 Minutes II first brought you this story last year, questions were just beginning to be asked. Joyce Gilchrist is the target of lawsuits and investigations, and there are concerns that she may have put people in prison with more sorcery than science.

In Oklahoma City, Gilchrist was considered so good at getting conviction that police had given her the nickname "black magic." She says it started with one particular case: “It was in reference to a homicide case where the defense attorney referred to me in his closing statements as a sorcerer - someone who conducted black magic, and stated that I seemed to be able to do things with evidence that nobody was else able to do.”

Now, she is the target of several investigations, and there are growing concerns that she may have put people in prison with more sorcery than science.

According to her critics, Gilchrist has a history of seeing things in the lab that other scientists can’t, and saying things in court that other scientists won’t.

But for nearly two decades, her work has been helping Oklahoma City police and prosecutors win convictions - whether the defendant was guilty or innocent.

Among the cases that Gilchrist handled was that of Jeff Pierce. Fifteen years ago, Gilchrist was the police chemist on his case. Pierce had been arrested for rape.

“I voluntarily gave them hairs and blood,” says Pierce. “And they said, if this comes back and it doesn’t match, you can go home. And I voluntarily gave it to them. And they came back five minutes later and said, ‘Oh, it all matches... you’re going to prison.’”

Gilchrist used her microscope to match Pierce’s hair and blood to evidence found at the crime scene and on the victim. At trial, her testimony was devastating. She told jurors that the dozens of hairs she found were microscopically “consistent” with Pierce’s, and were a means of “positive” identification.

Pierce had a clean record, alibi witnesses and character references. In the end, though, he was found guilty. But three weeks ago, a DNA test proved he did not commit the rape that put him in prison.

Gilchrist says she did the best she could in the Pierce case: “Using the technology we had at the time, I did the best job I could and I presented the facts to the court and let the jury decide what they believed.”

But there are questions about Gilchrist’s lab work in the Pierce case. A few months ago, when Pierce’s defense team requested DNA testing, chemists pulled out the 15-year-old evidence and found that Gilchrist’s testimony didn’t match the facts. The FBI was sent in to investigate Gilchrist’s work in the Pierce case, and seven other controversial cases.

The official report found that in five cases, including Pierce's, there are “errors in identification,” and that lab notes were “incomplete or inadequate” In one case, the matches Gilchrist made “fall far below the acceptable limits of the science of hair comparisons.” The FBI suggested a review of all cases where her work was significant to the outcome of the trial.

Gilchrist herself isn’t sure about the FBI tests. “Let’s submit that evidence for DNA analysis and see,” she says. “I look forward to that. And if I’m wrong, you know, I would accept responsibility if I’m wrong. But I’ve never intentionally done anything wrong in a case I’ve ever been involved in.”

In 1985, she was named the police department’s Employee of the Year. But a more recent police memo paints a far different picture, suggesting that the lab Gilchrist supervised was chaotic.

The report says that “missing evidence is occurring in major cases.” Some of those cases were death penalty cases. According to the report, a freezer breakdown contaminated evidence from hundreds of cases. The report also said that blood analysis files from three entire years - 1980, 1981, and 1990 - were missing, and that rape evidence was systematically being destroyed after only two years.

“My administrators are the ones who make the decisions about the operation of the laboratory,” says Gilchrist. “I don’t make that decision. I just carry out those orders. That’s why I can’t comment right now.”

In going over Gilchrist’s notes, chemists found she had a wildly inappropriate way of jogging her memory about cases, repeatedly referring to victims or defendants as “fags” and “faggots.”

She admits to using those terms, and says she regrets it now. “At the time though, that’s the slang that was used,” she says.

In March, Gilchrist was suspended from her job by police chief M.T. Berry. “My biggest concern is that in my life as a law enforcement officer, I would rather let a guilty man go free than send an innocent man to the penitentiary. And my biggest fear is that may have happened in this case,” Berry says.

Gilchrist was part of thousands of police investigations. She testified in hundreds of cases. She helped send 23 people to death row. Eleven have already been executed. Now all of her felony cases are under review.

Over the years, Gilchrist’s testimony has been repeatedly criticized by appellate court judges, who have described her testimony as “misleading,” “untruthful,” and “inexcusable.”

“I don’t agree with (that characterization),” Gilchrist says. “Because I’ve never lied in court. I’ve always told the truth. I’ve never lied to anyone about anything. If you don’t want to know the truth, don’t ask me because I’m not going to sugarcoat anything for you. I’m going to tell it to you. I’ll tell it to you just the way it is.”

Gilchrist has been reprimanded by one professional forensic association, and expelled from another for unethical behavior.

John Wilson, chief chemist at the Kansas City police lab, filed an ethics charge against Gilchrist 15 years ago. “I’m not the only forensic scientist who has reviewed her work and said this is bad work,” he says. “The whole criminal justice system has failed. It has absolutely failed.”

Wilson says that the entire system is to blame for allowing Gilchrist to continue working. “I think you have to look at the prosecutor’s office, that they have to understand what’s been going on. They have to have seen all the flags that have been waved. The judges are no different. They’ve seen the appellate court decisions come back. It’s not just the police, it’s not just the prosecutors, it’s everyone in the entire system.”

Gilchrist says that Wilson is a sore loser. "He has come into Oklahoma County, in district court, to testify against me on several occasions... expert witness for the defense. But the juries did not believe his testimony. And I don't think he's been back since."

Gilchrist agreed to talk to us only if we would agree to talk to her old boss Dave McBride. Ten years ago, he was Oklahoma City's police chief. Asked if he had any reason to suspect that she was not doing her job well, McBride says: "No one ever raised the issue." He says that no one mentioned to him that there was a problem with the crime lab: "Never. Not one time, not ever."

McBride believes that what has happened in Oklahoma City could happen anywhere that a forensics lab is attached to a police agency, and that is the case in most large American cities. He says it creates scientists who consider themselves cops in lab coats.

“I think there’s an inherent potential conflict there,” he says. “And I don’t know that that’s always healthy for the criminal justice system. But I certainly think that the investigators liked working with her. And I know that the district attorney loved having her as a witness.”

“I think Joyce Gilchrist may have fallen into an internal feeling that she was on the police team, she was on the prosecution team,” he says. “And what scientists should always feel like is they are on the side of science.”

After Pierce was convicted, Gilchrist received an honorary citation from the Oklahoma City police and a commendation from the district attorney, for her “skillful work in the careful analysis of the forensic evidence.”

Pierce says that he is still outraged at Gilchrist: “She’s ruined me and countless lies. They lost their kids, lost their wives, lots their families.”

When Pierce last saw his sons, they were 1 year old. He and his wife decided they didn’t want prison to be part of their children’s lives. So the boys and their mother moved out of state. They grew up without knowing their father, or even where he was. Pierce didn’t want them to know he was in prison.

Last night, Pierce was released from prison. He was asked what he wanted to say to Gilchrist. “Why? Why did you do this?” he said.

Hundreds of cases that Gilchrist handled are now under review. The worry in Oklahoma City is that Pierce isn’t the only innocent person Gilchrist helped send to prison - just one of the lucky few to get out.

July 2002 Update:

Since his release, Jeff Pierce has been getting reacquainted with his ex-wife and twin sons in Michigan. In April, he filed a $75 million federal lawsuit against the state of Oklahoma and Oklahoma City, Also named in the lawsuit is former prosecutor Bob Macy and Joyce Gilchrist.

Gilchrist was fired from her job in September. She is suing the city demanding her job back."

Bloggist's Note: Sound familiar?

Next posting: "Part Two: "Forensic Stalker:" Former Oklahoma Forensic Scientist Gilchrist Accused of Hiding Or Destroying Hairs Sought For DNA Testing;"

Harold Levy...hlevy15@gmail.com;qwq

Part Eight; Critical Comment: Father Raymond J. De Souza; "Holding The Justice System To A Higher Standard

"GIVEN THE ALARMING FREQUENCY OF WRONGFUL CONVICTIONS -- THE GOUDGE INQUIRY INTO SEVERAL SUCH CASES INVOLVING DISGRACED PATHOLOGIST CHARLES SMITH WRAPPED UP LAST MONTH -- PERHAPS THERE SHOULD BE A STANDING OFFICE CHARGED WITH EXONERATING THE WRONGFULLY CONVICTED ON A PERMANENT BASIS;"

FATHER RAYMOND DE SOUZA; NATIONAL POST;

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

Father Raymond De Souza is rapidly becoming one of the most articulate and impassioned critics of Canada's criminal justice system through his columns published in the National Post;

Father De Souza's philosophy is well reflected in the title to a recent column called, "Holding the justice system to a higher standard," published on Thursday April, 24, on the recent acquittal of Robert Baltovich following a pursuit for justice that lasted almost two decades.

(Father De Souza is the author of an earlier column published on March 31, 2008, under the heading, "Dr. Smith And The Price Of Justice," which I have included below for those who have not yet had the opportunity to read it.

"The Premier of Ontario opened the door to a public inquiry into the wrongful conviction of Robert Baltovich yesterday," the column begins. (The Baltovich case is summarized in the Wikipedia entry which I have included in this post);

"Given the alarming frequency of wrongful convictions -- the Goudge Inquiry into several such cases involving disgraced pathologist Charles Smith wrapped up last month -- perhaps there should be a standing office charged with exonerating the wrongfully convicted on a permanent basis," it continues;

It has now become clear that in Canada it is not rare for police, prosecutors and, in the Baltovich case at least, the trial judge, to rush to injustice, honouring in no real sense the presumption of innocence.

Along with a seemingly endless parade of wrongful convictions, the Baltovich case -- which meandered through the courts for 18 years with nothing other than circumstantial evidence to back it up -- puts us dangerously close to a damaging erosion of public confidence.

As the malfeasance of our police and prosecutors becomes more widely-known, reasonable citizens will begin to doubt whether they can trust any convictions procured by a system that apparently cares for successful prosecutions more than truth or justice.

Today the Supreme Court of Canada is hearing arguments in the Grant case -- the case began when a young black man was stopped by Toronto police some years ago because he appeared "fidgety" and was found to be carrying a loaded handgun.

Many experts expect the outcome will loosen the prohibitions on improperly gathered evidence being admitted at trial. Leaving aside the merits of the Grant case, it is not a propitious time to entrust Canada's police or prosecutors with greater latitude. As inquiries are springing up into miscarriages of justice, it would seem better to hold the criminal justice system to a higher standard. It is the accused who in a just system are entitled to the benefit of the doubt, not the state.

I have returned to this theme several times in the past year, which would be a bore except that our courts are freeing the wrongfully convicted even more often than I write about abuse of prosecutorial power. Yet my thinking on this was sharpened last week in the most unusual of circumstances -- covering the papal visit in Washington and New York.

Not than any of us were arrested, but living a week under the security protocols of the United States Secret Service gives one a taste of what the safety and security state does with unchecked power. Not surprisingly, it abuses it.

The Secret Service stands out because, with unlimited budgets in its favour and a peculiar American enthusiasm for ostentatious displays of security cheering it on, no incursion into our liberties was thought too much.

If the Secret Service had its way -- which it did last week -- we would all be in a never-ending airport security lineup: much inconvenience, ever greater invasions of privacy and very little actual security.

We were told repeatedly that the papal visit was conducted at the highest level of security the Secret Service provides, save for a presidential inauguration.

Many people seemed perversely proud of this -- that the visit of the Pope provoked a curtailing of liberties second only to those used to mark great patriotic festivals.

Despite all journalists being screened by the Secret Service weeks ago, for every event we were required to show up four to eight hours in advance, be made to wait in various places while the whole dog-sniffing, metal-detecting routine ensued.

Then it was on to a special bus and into a holding pen on the other end to pass a few more hours, sometimes being forbidden to look out the windows, or interview members of the general public a few feet away.

Much like their colleagues in airport security, the Secret Service were not particularly competent, as even after hours of sequestering we were frequently taken into non-secure areas to mingle with the general public, rendering the whole operation useless.

As far as it went, it was a perfect image of the security state: Plenty of power to invade and curtail the liberties of free citizens, ostentatious displays of force, a widespread suspicion that we were up to no good and, in the end, shockingly poor competence in discharging the duties for which it is given extraordinary powers in the first place.

A week under the thumb of the Secret Service is instructive, and really only inconvenient. The criminal justice system, as it is pleased to call itself, offers far more than inconvenience.

And 18 years is altogether different from one week."

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

A concise Wikipedia entry for those readers who are not familiar with the Baltovich case which will be referred to in up-coming posts:

Robert Baltovich (born July 17, 1965) is a Canadian man who was wrongly convicted in 1992 of the murder of his girlfriend, Elizabeth Bain in Scarborough, Ontario, Canada. He spent eight years in prison and nearly another decade trying to clear his name, before being found not guilty in a retrial on April 22, 2008.

Elizabeth Bain murder;

In 1990 Baltovich graduated with a degree in psychology from the University of Toronto at Scarborough. Here he also met and developed a relationship with Elizabeth Bain, a fellow student.

Bain disappeared on June 19, 1990, telling her mother she was going to "check the tennis schedule" on campus. On June 22, her car was found with a large bloodstain in the back seat. Her body was never found.

First trial and conviction;

On November 19, 1990, Baltovich was arrested and charged with first-degree murder. His case continued in the courts for several years, during which he consistently maintained his innocence. His lawyers suggested that the so-called "Scarborough rapist", the name by which the infamous Canadian serial killer Paul Bernardo was then known, might be responsible for the murder.

On March 31, 1992, he was convicted of second-degree murder. His lawyers appealed and on March 31, 2000, Baltovich was released on bail, pending the outcome of his appeal. In September 2004 his appeal was finally processed and his case gained national attention again when his lawyers alleged that he had been wrongfully convicted and that Bernardo was guilty of Bain's murder. They allege that circumstantial evidence suggests links to Bernardo, and that this evidence could not have been available during Baltovich's original trial as the identity of the Scarborough rapist was then unknown.

Appeal, retrial and acquittal;

On December 2, 2004, the Ontario Court of Appeal set aside the conviction, delivering what news reports called "a scathing attack" [1] on the conduct of the original trial judge. This fell short of the acquittal that Baltovich's counsel had argued for. On July 15, 2005, Ontario's Ministry of the Attorney-General announced that Baltovich would face a new trial on charges of second-degree murder, at an unspecified date, and remain free on bail in the meantime...

On March 31, 2008, jury selection began in the second-degree murder trial. The trial, slated to begin in Toronto on April 14, 2008, was delayed, with the Crown (prosecution) giving no reason. When the trial resumed, the Crown declined to call any of the more than 50 witnesses they had planned, citing "recent developments, including the cumulative effect of the pre-trial evidentiary rulings rendered to date in this case, other evidentiary issues, and changes to case law".[2] With no Crown case, the judge directed the jury to make a finding of not guilty on April 22, 2008.

Crown seeks plea bargain;

It is widely reported that the crown had sought an agreement in which if Robert Baltovich revealed the location of Elizabeth Bain's body, he would receive a one day sentance. On the basis of his innocence and lack of knowledge of this event, this plea bargain was rejected.

-------------------------------------------------------------------------------
Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;

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

Earlier post featuring column by Father De Souza:

"GOD HELP THE FALSELY ACCUSED; THEIR INNOCENCE IS NO MATCH FOR A CORRUPT SYSTEM;"

FATHER RAYMOND J. DE SOUZA;
-------------------------------------------------------------------------------------

The National Post has provided insightful gavel to gavel reporting of the Goudge Inquiry by reporter Tom Blackwell.

In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"

Father De Souza has an interesting background.

A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.

Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.

"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.

"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.

"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.

The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.

Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.

It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.

Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.

Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.

A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.

The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.

Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.

Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.

Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.

Remember the Klemko controversy last summer?

Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.

His offence?

He has testified for defendants as an outside consultant in various cases.

The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.

The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.

The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.

So we have coroners who think they should say what the Crown prosecutors want.

Cops who are told not to contradict what the Crowns want. Crowns who want convictions.

The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.

Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.

God help the falsely accused; their innocence is no match for a corrupt system.

Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.

It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.

Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.

It will be terribly costly -- but less costly than imprisoning the innocent.

Less costly than accusing innocent parents of murdering their own children.

Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.

Less costly than having a justice system unworthy of the name.

Harold Levy...hlevy15@gmail.com;

Three Deadly Scandals: A Sad Testament To Canadian Pathology;

"THREE MAJOR ONGOING SCANDALS IN ONTARIO, NEWFOUNDLAND AND LABRADOR AND NEW BRUNSWICK — WHICH HAVE COLLECTIVELY BEEN LINKED TO HUNDREDS OF DEATHS, TENS OF THOUSANDS OF SUSPECT TEST RESULTS AND DOZENS OF QUESTIONABLE IMPRISONMENTS — AND THEIR REQUISITE HIGH-PROFILE PUBLIC INQUIRIES, HAVE HIGHLIGHTED THE PATHOLOGY SYSTEM'S SERIOUS FAILINGS."

NATIONAL REVIEW OF MEDICINE STORY; SAM SOLOMON;

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

The National Review Of Medicine - a publication for Canadian physicians - has published an article that echos this Blog's conclusion that the three on-going Inquiries - including the Goudge Inquiry which center's on Dr. Charles Smith's flawed work - signal a "crisis" in Canada's health care system.

The story, by Sam Solomon, appears today, under the heading "Canadian pathology mired in crisis" - and the sub-heading "Three deadly scandals expose gross failings in training, oversight...

Sir William Osler famously said, "As is our pathology so is our practice... what the pathologist thinks today, the physician does tomorrow," the story begins;

"If Dr Osler — a pathologist himself — was right, then Canada's entire medical system is in deep trouble, says Canadian Association of Pathologists president Dr Jagdish Butany," it continues;

""Over the last 20-plus years, we have not paid enough attention to laboratories and pathology and pathologists," he says.

"[The healthcare system has] relegated pathologists to the basement and given them that same priority."

The result of that chronic disregard is now becoming readily apparent: Canadian pathology is in crisis.

SYSTEMIC PROBLEMS

Three major ongoing scandals in Ontario, Newfoundland and Labrador and New Brunswick — which have collectively been linked to hundreds of deaths, tens of thousands of suspect test results and dozens of questionable imprisonments — and their requisite high-profile public inquiries, have highlighted the pathology system's serious failings.

As a result, an expert panel of leading medical authorities are now in the process of setting up a comprehensive review of the current deficiencies in pathology in Canada.

The details of the review haven't been finalized yet, says Royal College of Physicians and Surgeons of Canada CEO Dr Andrew Padmos, but the report will have another goal as well: to restore the public's severely shaken confidence.

The three scandals have done grievous damage to the profession's reputation.

"They've given us a black eye," Dr Butany admitted to the National Post last month as he and Dr Padmos dutifully denied a crisis exists and reassured reporters across the country that Canadian pathology is indeed trustworthy and can be repaired.

In conversation, however, cracks appeared in the veneer of their everything's-under-control exhortations.

After explaining that Canadian health human resources problems are having a particularly acute effect on the field of pathology — "We are concerned the problem is going to become worse and more widespread and we don't have in place an effective pan-Canadian action to stop it" — Dr Padmos quickly sought to quell any possible anxiety.

"Is it an absolute knockdown crisis? Of course not. What they need is some hope and some planning."

The shortage of pathologists and lab technologists is already putting pressure on the system.

"People are working too long hours, or past your threescore and ten, even," says Dr Butany, "so that makes for an increasing potential for mistakes. You don't have time to critically analyse previous work, to sit back and think."

But the real culprit in all three scandals appears to be a lackadaisical approach to quality assurance and training.

ONTARIO

Dr Charles Smith was once considered the epitome of expertise when it came to pediatric forensic pathology.

If a child died under suspicious circumstances in Ontario, all eyes turned to Dr Smith.

If Dr Smith served as an expert witness in a homicide case, people listened.
But that trust was misplaced.

Dr Smith is now at the centre of a public inquiry into the entire field of pediatric forensic pathology in the province.

Many child murder convictions that Dr Smith helped resolve have been thrown into question and the provincial Chief Coroner's office is now suggesting a total of 142 cases be reviewed.

Although Dr Smith made a dramatic apology to his victims at the inquiry, he wasn't actually on trial.

In fact, there's one thing he and his victims seem to be able to agree on: the balance of the blame should go to the pediatric forensic pathology system itself and the lack of oversight, training and quality assurance.

The inquiry's closing arguments wrapped up April 1. Justice Stephen Goudge is due to submit his final report and recommendations to the government by September 30.

NEWFOUNDLAND AND LABRADOR

In a strange twist of fate, the Ontario inquiry has come to a head at almost exactly the same time another inquiry, this one potentially just as broad as the Ontario one, is just getting underway in Newfoundland and Labrador.

This inquiry, headed by Justice Margaret Cameron, is looking at how 383 women were given incorrect estrogen and progesterone hormone receptor breast cancer test results (which determine whether the patient should receive tamoxifen) over an eight-year period from 1997 to 2005. Over a hundred of those women are now dead.

Again, the absence of standardized quality assurance — a problem that still persists today, says Dr Padmos — appears to have contributed significantly to the errors.

There have also been suggestions that a St John's lab may have misinterpreted the results of a now-outmoded method of immunohistochemical testing on biopsy tissue; a 2003 internal memo by pathologist Gershon Ejeckam called the lab's technique "unreliable and erratic" and said diagnoses based on those tests "will surely jeopardize patient care."

Amidst allegations of a politically motivated coverup, some have called for Health Minister Ross Wiseman's resignation. The inquiry's final report is due no later than July 30.

NEW BRUNSWICK

The New Brunswick investigation is slightly different from those in Ontario and Newfoundland in that it focuses more specifically on the work of one pathologist, Dr Rajgopal Menon of Miramichi, who was found to have a misdiagnosis rate of 3% and an incomplete diagnosis rate of 18% in a recent audit.

Another report released late last month said Dr Menon's "vision seemed to be failing," his hands were shaky and his work "fails to meet the current standards of surgical pathology."

Already, Dr Menon's lawyer, Mel Norton, has employed the same tactics that Dr Smith's have in Ontario, blaming the pathology system and the lack of oversight.

"[It's] too convenient just to aim the gun at one person," he told the Telegraph-Journal in February.

The government has ordered reviews of all 24,000 of Dr Menon's cases, from 1995 until 2007, and the RCMP has also been asked to consider charges of criminal negligence against Dr Menon.

Retired judge and former provincial Tory health minister Paul Creaghan, who is heading the inquiry, is due to submit his final report by August 22."

Harold Levy...hlevy15@gmail.com;

Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;

"GIVEN THE ALARMING FREQUENCY OF WRONGFUL CONVICTIONS -- THE GOUDGE INQUIRY INTO SEVERAL SUCH CASES INVOLVING DISGRACED PATHOLOGIST CHARLES SMITH WRAPPED UP LAST MONTH -- PERHAPS THERE SHOULD BE A STANDING OFFICE CHARGED WITH EXONERATING THE WRONGFULLY CONVICTED ON A PERMANENT BASIS;"

FATHER RAYMOND DE SOUZA; NATIONAL POST;

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

Father Raymond De Souza is rapidly becoming one of the most articulate and impassioned critics of Canada's criminal justice system through his columns published in the National Post;

Father De Souza's philosophy is well reflected in the title to a recent column called, "Holding the justice system to a higher standard," published on Thursday April, 24, on the recent acquittal of Robert Baltovich following a pursuit for justice that lasted almost two decades.

(Father De Souza is the author of an earlier column published on March 31, 2008, under the heading, "Dr. Smith And The Price Of Justice," which I have included below for those who have not yet had the opportunity to read it.

"The Premier of Ontario opened the door to a public inquiry into the wrongful conviction of Robert Baltovich yesterday," the column begins. (The Baltovich case is summarized in the Wikipedia entry which I have included in this post);

"Given the alarming frequency of wrongful convictions -- the Goudge Inquiry into several such cases involving disgraced pathologist Charles Smith wrapped up last month -- perhaps there should be a standing office charged with exonerating the wrongfully convicted on a permanent basis," it continues;

It has now become clear that in Canada it is not rare for police, prosecutors and, in the Baltovich case at least, the trial judge, to rush to injustice, honouring in no real sense the presumption of innocence.

Along with a seemingly endless parade of wrongful convictions, the Baltovich case -- which meandered through the courts for 18 years with nothing other than circumstantial evidence to back it up -- puts us dangerously close to a damaging erosion of public confidence.

As the malfeasance of our police and prosecutors becomes more widely-known, reasonable citizens will begin to doubt whether they can trust any convictions procured by a system that apparently cares for successful prosecutions more than truth or justice.

Today the Supreme Court of Canada is hearing arguments in the Grant case -- the case began when a young black man was stopped by Toronto police some years ago because he appeared "fidgety" and was found to be carrying a loaded handgun.

Many experts expect the outcome will loosen the prohibitions on improperly gathered evidence being admitted at trial. Leaving aside the merits of the Grant case, it is not a propitious time to entrust Canada's police or prosecutors with greater latitude. As inquiries are springing up into miscarriages of justice, it would seem better to hold the criminal justice system to a higher standard. It is the accused who in a just system are entitled to the benefit of the doubt, not the state.

I have returned to this theme several times in the past year, which would be a bore except that our courts are freeing the wrongfully convicted even more often than I write about abuse of prosecutorial power. Yet my thinking on this was sharpened last week in the most unusual of circumstances -- covering the papal visit in Washington and New York.

Not than any of us were arrested, but living a week under the security protocols of the United States Secret Service gives one a taste of what the safety and security state does with unchecked power. Not surprisingly, it abuses it.

The Secret Service stands out because, with unlimited budgets in its favour and a peculiar American enthusiasm for ostentatious displays of security cheering it on, no incursion into our liberties was thought too much.

If the Secret Service had its way -- which it did last week -- we would all be in a never-ending airport security lineup: much inconvenience, ever greater invasions of privacy and very little actual security.

We were told repeatedly that the papal visit was conducted at the highest level of security the Secret Service provides, save for a presidential inauguration.

Many people seemed perversely proud of this -- that the visit of the Pope provoked a curtailing of liberties second only to those used to mark great patriotic festivals.

Despite all journalists being screened by the Secret Service weeks ago, for every event we were required to show up four to eight hours in advance, be made to wait in various places while the whole dog-sniffing, metal-detecting routine ensued.

Then it was on to a special bus and into a holding pen on the other end to pass a few more hours, sometimes being forbidden to look out the windows, or interview members of the general public a few feet away.

Much like their colleagues in airport security, the Secret Service were not particularly competent, as even after hours of sequestering we were frequently taken into non-secure areas to mingle with the general public, rendering the whole operation useless.

As far as it went, it was a perfect image of the security state: Plenty of power to invade and curtail the liberties of free citizens, ostentatious displays of force, a widespread suspicion that we were up to no good and, in the end, shockingly poor competence in discharging the duties for which it is given extraordinary powers in the first place.

A week under the thumb of the Secret Service is instructive, and really only inconvenient. The criminal justice system, as it is pleased to call itself, offers far more than inconvenience.

And 18 years is altogether different from one week."

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

A concise Wikipedia entry for those readers who are not familiar with the Baltovich case which will be referred to in up-coming posts:

Robert Baltovich (born July 17, 1965) is a Canadian man who was wrongly convicted in 1992 of the murder of his girlfriend, Elizabeth Bain in Scarborough, Ontario, Canada. He spent eight years in prison and nearly another decade trying to clear his name, before being found not guilty in a retrial on April 22, 2008.

Elizabeth Bain murder;

In 1990 Baltovich graduated with a degree in psychology from the University of Toronto at Scarborough. Here he also met and developed a relationship with Elizabeth Bain, a fellow student.

Bain disappeared on June 19, 1990, telling her mother she was going to "check the tennis schedule" on campus. On June 22, her car was found with a large bloodstain in the back seat. Her body was never found.

First trial and conviction;

On November 19, 1990, Baltovich was arrested and charged with first-degree murder. His case continued in the courts for several years, during which he consistently maintained his innocence. His lawyers suggested that the so-called "Scarborough rapist", the name by which the infamous Canadian serial killer Paul Bernardo was then known, might be responsible for the murder.

On March 31, 1992, he was convicted of second-degree murder. His lawyers appealed and on March 31, 2000, Baltovich was released on bail, pending the outcome of his appeal. In September 2004 his appeal was finally processed and his case gained national attention again when his lawyers alleged that he had been wrongfully convicted and that Bernardo was guilty of Bain's murder. They allege that circumstantial evidence suggests links to Bernardo, and that this evidence could not have been available during Baltovich's original trial as the identity of the Scarborough rapist was then unknown.

Appeal, retrial and acquittal;

On December 2, 2004, the Ontario Court of Appeal set aside the conviction, delivering what news reports called "a scathing attack" [1] on the conduct of the original trial judge. This fell short of the acquittal that Baltovich's counsel had argued for. On July 15, 2005, Ontario's Ministry of the Attorney-General announced that Baltovich would face a new trial on charges of second-degree murder, at an unspecified date, and remain free on bail in the meantime...

On March 31, 2008, jury selection began in the second-degree murder trial. The trial, slated to begin in Toronto on April 14, 2008, was delayed, with the Crown (prosecution) giving no reason. When the trial resumed, the Crown declined to call any of the more than 50 witnesses they had planned, citing "recent developments, including the cumulative effect of the pre-trial evidentiary rulings rendered to date in this case, other evidentiary issues, and changes to case law".[2] With no Crown case, the judge directed the jury to make a finding of not guilty on April 22, 2008.


Crown seeks plea bargain;

It is widely reported that the crown had sought an agreement in which if Robert Baltovich revealed the location of Elizabeth Bain's body, he would receive a one day sentance. On the basis of his innocence and lack of knowledge of this event, this plea bargain was rejected.

-------------------------------------------------------------------------------
Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;

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

Earlier post featuring column by Father De Souza:

"GOD HELP THE FALSELY ACCUSED; THEIR INNOCENCE IS NO MATCH FOR A CORRUPT SYSTEM;"

FATHER RAYMOND J. DE SOUZA;
-------------------------------------------------------------------------------------

The National Post has provided insightful gavel to gavel reporting of the Goudge Inquiry by reporter Tom Blackwell.

In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"

Father De Souza has an interesting background.

A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.

Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.

"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.

"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.

"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.

The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.

Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.

It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.

Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.

Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.

A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.

The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.

Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.

Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.

Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.

Remember the Klemko controversy last summer?

Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.

His offence?

He has testified for defendants as an outside consultant in various cases.

The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.

The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.

The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.

So we have coroners who think they should say what the Crown prosecutors want.

Cops who are told not to contradict what the Crowns want. Crowns who want convictions.

The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.

Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.

God help the falsely accused; their innocence is no match for a corrupt system.

Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.

It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.

Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.

It will be terribly costly -- but less costly than imprisoning the innocent.

Less costly than accusing innocent parents of murdering their own children.

Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.

Less costly than having a justice system unworthy of the name.

Harold Levy...hlevy15@gmail.com;

Ban Imposed On Controversial British Pediatrician Dr. David Southall Lifted Pending Appeal Court Decision To Permit Humanitarian Work;

BBC News reports that the ban imposed on Dr. David Southall by the British Medical Council has been lifted to allow him to perform humanitarian work;

Southall was the subject of an earlier post entitled, "Part One: After Goudge; Will there be lasting change? Not necessarily; The British experience." (March 13, 2008);

That post read:

"The other leading light in the drive to unearth hidden abuse in Britain (apart from Sir Roy Meadow H.L.) was Prof David Southall. Working on aspects of MSbP in the late 1980s and early 90s, he videoed parents whom he suspected of suffocating children.

Thirty-three parents or step-parents were prosecuted, though the evidence may have been unreliable: clasping a child to the chest could, for example, indicate feeding rather than smothering.

The (Sally) Clark case was also his undoing when, having merely seen Steve on television, he stated to police that it was 'beyond reasonable doubt' that Steve had murdered his sons. (This statement is explained in the CBC report below);

A three-year ban from child protection work followed in 2004;

In December 2007 he was struck off for, among other charges, concealing the medical records of some 4,500 children."

(For more on Dr. Southall, see: "Part Five; After Goudge; Will there be change? Not necessarily; Dr. David Southall; The British Experience;" (March 20, 2008);

"Paediatrician David Southall has overturned a ban which stopped him working as a doctor," the BBC report, published Wednesday, April 23, begins;

"The General Medical Council struck off Dr Southall for serious professional misconduct. His appeal is continuing," the report continues;

"But it admitted at the High Court it was wrong to apply 2004 guidelines retrospectively in enforcing the ban.

Dr Southall, still employed at the North Staffordshire University Hospital, remains banned from undertaking child protection work.

He was barred from working as a doctor after the GMC decided he had abused his position by accusing a mother of drugging and murdering her son.

Mother distressed

The GMC found that Dr Southall's actions added to the distress of the mother - Mandy Morris, from Shropshire - whose 10-year-old son Lee hanged himself in 1996.

The hearing in December heard how Dr Southall made the claim in an interview with Mrs Morris about the safety of her surviving son.

The GMC also ruled Dr Southall had acted inappropriately in some cases by keeping original medical documents on children in his care separate from their medical records.

The GMC told the High Court that rules used to apply for Dr Southall's suspension were introduced in 2004.

As the allegations centred on events prior to 2004, the previous set of rules should have been applied, which would have meant the ban was not imposed.

Work abroad

The GMC said in a statement on Tuesday: "We can confirm that the immediate suspension imposed on Dr David Southall's registration has been lifted by mutual consent.

"The GMC supports the application to lift the immediate suspension, pending the outcome of the appeal against the panel's direction to erase Dr Southall's name from the medical register.

"Dr Southall's registration will be subject to previously imposed conditions which prevent him undertaking any child protection work."

Dr Southall said it was important for him to have the suspension overturned so he could work as a doctor for "humanitarian aid work abroad".

Wrongly jailed

He added that he would be leaving his job at the hospital in Staffordshire from June.

In a separate case in 2004, he was suspended from child protection work over his role in the case of Sally Clark, wrongly jailed over the death of her two sons. Dr Southall had accused Mrs Clark's husband Steve of murdering the two boys on the basis of a television interview Mr Clark gave.

The doctor also faces another GMC disciplinary hearing into the so-called CNEP breathing tank experiments at the hospital in the 1990s.

The case is expected to start in Manchester next week and will look into the research carried out which involved placing premature babies into low-pressure incubators so they could breathe on their own."

Harold Levy...hlevy15@gmail.com;

Regulating Doctors Who Practice In The Area Of Forensic Pathology: Is The Ontario College Up To The Job?

FILED EARLY FOR WEDNESDAY APRIL 23, 2008;

"THIS STRONGLY SUGGESTS THAT A BODY CHARGED WITH GENERAL OVERSIGHT OF THE MEDICAL PROFESSION AS A WHOLE MAY NOT BE IDEALLY SUITED FOR OVERSIGHT OF SPECIFIC ISSUES ARISING FROM THE ROLE PLAYED BY FORENSIC PATHOLOGY IN THE JUSTICE SYSTEM."

CLOSING SUBMISSIONS; THE AFFECTED FAMILIES GROUP;

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

One of the crucial questions raised by the evidence called at the Goudge Inquiry is why the College of Physicians And Surgeons of Ontario did not do a better job of protecting the public from Dr. Charles Smith.

The Affected Families Group suggests, in its closing submissions, that the College did not have a sufficient knowledge of issues involving forensic pathology to do a proper job.

"It is arguable that the College of Physicians and Surgeons of Ontario is the only body that ever exerted anything that remotely resembled effective oversight of Dr. Smith," the Group's closing submissions on this topic begin.

"Following the decision of the Health Professions Appeal and Review Board in February, 2000, which determined that the College did have jurisdiction to consider DM’s (the babysitter's father) complaint, the Complaints Committee dealt with the merits of complaints by DM, Brenda Waudby, and Maurice Gagnon, and required Dr. Smith to attend before the panel of the Committee to be cautioned in all three cases," they continue.

"The College considers a reprimand to be a significant regulatory sanction, according to Dr. Gerace. (College Registrar)

Moreover, the Complaints Committee, assisted by its expert panel, appears to have reached conclusions on Dr. Smith’s forensic pathology work in all three cases which parallels evidence heard by this Inquiry:

0: In the Amber case, the panel concluded that Dr. Smith’s work was not as thorough as it should have been and that he was overly dogmatic in stating his conclusions;

0: In the Jenna case, the panel criticized Dr. Smith’s failure to review clinical information, as well as his failure to conduct an adequate examination with respect to sexual assault, and, most specifically, concluded that his estimate of the time during which the fatal injuries were received was far too broad;

0: In the Nicholas case, the deficiencies noted by the panel were similar to many of those outlined by Mr. Gagnon in his initial letter of complaint to the Chief Coroner's Office.

However, there were important deficiencies in the results of the complaints in each case.

First, and most important, the Complaint Committee’s conclusion in all three cases was that Dr. Smith “met the standards expected of a pathologist assisting the coroner in an investigation”.

To the contrary, this Inquiry has heard expert evidence in all three cases that Dr. Smith’s opinions and testimony were deeply flawed and did not meet forensic pathology standards.

This strongly suggests that a body charged with general oversight of the medical profession as a whole may not be ideally suited for oversight of specific issues arising from the role played by forensic pathology in the justice system.

Second, the complaint committee clearly did not reach the appropriate conclusion with respect to Dr. Smith’s handling of the hair in the Jenna case.

The Review Board's conclusions on appeal completely contradict the evidence heard before this Inquiry.

In retrospect, this appears to be because the expert panel accepted Dr. Smith’s explanation in isolation, not being aware of information provided by DC Charmley (Peterborough police officer) to the College Investigator, Ms. Doris, or of the explanation provided by Dr. Smith to Dr. Cairns.

Third, the expert panel appears to have been unaware that at the time of Dr. Cohl’s interview with Dr. Smith (for the College H.L.), he had been suspended by the Chief Coroner's Office from doing coroner’s autopsies in criminally suspicious death cases.

Indeed, the Minutes of that interview suggest that Dr. Smith was less than candid about his status.

Had the College been aware of his suspension, the Complaint Committee might well have determined to take further investigatory steps."

I read with interest the College's position that a reprimand is a significant regulatory sanction.

The reality is that reprimands are not considered important enough to be posted on the College's Web-site.

Dr. Smith was therefore shielded from the scrutiny from anybody - or any other medical jurisdiction - that might be interested in his professional record.

The information that Dr. Smith was found to have demonstrated serious deficiencies in his work in three cases is nowhere to be found on the College Web-Site.

If you go to the that site, and check under "findings" you will be told "no past findings."

Of even greater concern to this Bloggist is that Dr. Smith's "status" is listed as "active" on the "terms and conditions" section of the site - and a note indicates that "Dr. Charles Randal Smith has entered into a voluntary undertaking not to practice forensic pathology in Ontario, prior to April 25, 2008.

That undertaking expires on Friday.

One way to judge whether the Ontario College has any teeth will be whether it brings any discipline proceedings against Dr. Smith in connection with allegations at the Inquiry that he mislead College investigators looking into the three complaints.

Harold Levy...hlevy15@gmail.com;