DR. CHARLES SMITH; COMPENSATION; GAGNON FAMILY STILL WAITING FOR COMPENSATION FROM THE ONTARIO GOVERNMENT; THE SUDBURY STAR;

"Gagnon and his daughter, Liane Thibeault, were also victims of the pathologist's flawed work.

The money will never make up for the suffering his family experienced, but it will provide the family with some closure, Gagnon indicated.

Gagnon spent more than $100,000 in legal fees to defend his daughter after she was wrongly accused of killing her infant son, Nicholas, in 1995.

In total, he estimates he spent $330,000, including all of his retirement savings -- to mount the legal challenge and fight the Children's Aid Society for custody of Thibeault's daughter."

REPORTER CAROL MULLIGAN: THE SUDBURY STAR;

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BACKGROUND; The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers. The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation. The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges. William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes. In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling. The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, mistating evidence, chronic tardiness, and the catastrophic misinterpretation of findings. he cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."

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"A Sudbury man and his family are still awaiting word about the payment they will receive because they were victims of disgraced pathologist Dr. Charles Smith," The Sudbury Sttar story by reporter Carol Mulligan published earlier today under the heading, "Money won't make up for suffering," begins.

"Maurice Gagnon learned last week, as did all Ontarians, that William Mullins-Johnson received $4.25-million in compensation from the provincial government for the 12 years he spent in jail after being wrongfully convicted of the sexual assault and murder of his four-year-old niece," the story continues.

"Gagnon and his daughter, Liane Thibeault, were also victims of the pathologist's flawed work.

The money will never make up for the suffering his family experienced, but it will provide the family with some closure, Gagnon indicated.

Gagnon spent more than $100,000 in legal fees to defend his daughter after she was wrongly accused of killing her infant son, Nicholas, in 1995.

In total, he estimates he spent $330,000, including all of his retirement savings -- to mount the legal challenge and fight the Children's Aid Society for custody of Thibeault's daughter.

Thibeault's case was one of 19 child-death investigations Smith was found to have made mistakes in during a five-month judicial inquiry into his practise of pediatric forensic pathology.

In August, Ontario Attorney General Chris Bentley announced a payment schedule and a promise that applications for compensation would be processed within 90 days.

Gagnon said that his and Thibeault's lawyer has filed an application for compensation, which they expect to receive before Christmas.

"We all feel, 'Let's get it over-with,' " said Gagnon, saying his family wants to put the tragedy behind them.

Bentley announced this summer that individuals wrongly accused and convicted would be entitled of recognition payments of up to $250,000."

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The story can be found at:

http://www.thesudburystar.com/ArticleDisplay.aspx?e=2817029

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

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

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

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

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

CAMERON TODD WILLINGHAM CASE; CALGARY HERALD CITES WILLINGHAM CASE AS LESSON FOR CANADIANS CONTMPLATING RETURN OF DEATH PENALTY;

"This month, a hearing was underway in Austin, Texas, to decide if the state wrongfully executed a man convicted of setting his house afire in a blaze which killed his three toddler daughters. Cameron Willingham was executed in 2004 -- two fire experts testified at the hearing that the fire was likely due to faulty wiring and not arson.

Canada must never go there. Capital punishment should not even be up for debate in this country."

EDITORIAL THE CALGARY HERALD.

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BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses were suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire. Legendary "Innocence" lawyer Barry Scheck asked participants at a conference of the National Association of Criminal Defence Lawyers held in Toronto in August, 2010, how Willingham, who had lost his family to the fire, must have felt to hear the horrific allegations made against him on the basis of the bogus evidence, "and nobody pays any attention to it as he gets executed." "It's the Dreyfus Affair, and you all know what that is," Scheck continued. "It's the Dreyfus AffaIr of the United States. Luke Power's music video "Texas Death Row Blues," can be found at:
http://smithforensic.blogspot.com/2010/09/cameron-todd-willingham-texas-death-row_02.html

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"Extreme cases make bad law, and that's why the double-murder case of Col. Russell Williams should not be regarded as an impetus for pondering a return to capital punishment in Canada," the Calgary Herald editorial published earlier today under the heading, "Death to this debate."

"Last week, as the details of Williams' horrific crimes were read into the record prior to his sentencing, William Mullins-Johnson, of Sault Ste. Marie, was awarded $4.25 million in compensation for the wrongful first-degree murder conviction which saw him spend more than 12 years behind bars, in connection with the death of his four-year-old niece, the editorial continues.

"One need only run down the list of miscarriages of justice to see why the death penalty must not be brought back. David Milgaard -- 23 years in prison after being wrongfully convicted in the death of Saskatoon nurse Gail Miller. Thomas Sophonow -- four years in prison and the ordeal of three trials, wrongfully convicted in the 1981 slaying of 16-year-old Winnipeg doughnut shop clerk Barbara Stoppel. Guy-Paul Morin -- first acquitted and then, at a re-trial, sentenced to life in prison for the 1984 death of Christine Jessop, and later exonerated by DNA evidence. Donald Marshall, Jr. -- wrongfully convicted of killing his friend, Sandy Seale, in Sydney, N.S. There are others.

If Canada had the death penalty, these innocent victims of miscarriages of justice, could be dead. The presence, for life, in our prisons of people like Williams, Clifford Olson and Paul Bernardo, have some Canadians clamouring for a return to capital punishment. The presence of those others, wrongfully convicted, is a reminder that Canada should never return to the days when capital punishment was law in this land.

In January 2000, then-Governor George Ryan of Illinois declared a moratorium on the death penalty. He said: "I now favour a moratorium, because I have grave concerns about our state's shameful record of convicting innocent people and putting them on death row . . . I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life. Thirteen people have been found to have been wrongfully convicted."

Thirteen people were nearly executed in Illinois for crimes they did not commit. Nor is there a utilitarian argument for capital punishment based solely on cost. Public Safety Canada says the annual cost of maintaining a prisoner in a maximum security facility is $147,135. Compare that to the astronomical court costs of appeal after appeal which is typical of a death-row inmate fighting to save himself from a date with the executioner.

This month, a hearing was underway in Austin, Texas, to decide if the state wrongfully executed a man convicted of setting his house afire in a blaze which killed his three toddler daughters. Cameron Willingham was executed in 2004 -- two fire experts testified at the hearing that the fire was likely due to faulty wiring and not arson.

Canada must never go there. Capital punishment should not even be up for debate in this country."

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The editorial can be found at:

http://www.calgaryherald.com/opinion/Death+this+debate/3725759/story.html?cid=megadrop_story

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

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

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

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

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

WILLIAM MULLINS-JOHNSON RETROSPECTIVE; (15); MAXINE JOHNSON'S DISTURBING FIRST-HAND ACCOUNT OF LOCATING THE MISSING EXHIBIT'S; FROM AN EARLY POST

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on December 18, 2007, ran under the heading, "Maxine Johnson's disturbing first hand account of locating the missing Mullins-Johnson exhibits."

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Maxine Johnson, who once worked in a secretarial pool serving pathologists at the Hospital for Sick Children, has given disturbing testimony on her discovery of the missing Mullins-Johnson slides.

She told the Goudge Inquiry that she believes that on several occasions key forensic materials were placed on a shelf in Dr. Charles Smith's office at the Hospital for Sick Children in Toronto after the office had already been searched.

(There has been evidence at the Inquiry that Dr. Smith had access to his office during the period that the search was conducted);

By way of context, lawyers for the Association in Defence of the Wrongly Convicted had been seeking the evidence from Mullins-Johnson's first degree murder trial since early 2003, so they could be sent to an independent specialist for analysis in support of his application for a Ministerial Review.

Crown law officers had to enlist the support of the police to locate the materials after Smith, who had been sent them by the local Sault Ste. Marie pathologist, was unable to hand them over.

Without these exhibits Mullins-Johnson would not be able to prove that he had not murdered his 4-year-old niece Valin.

Here is a chronology of Maxine Johnson's efforts to locate the missing exhibits as per her testimony at the Inquiry:

Friday November 26, 2004;

Ms. Johnson is summoned a meeting attended by herself, Deputy Chief Coroner Dr. James Cairns, Dr. Smith, and Dorothy Zwolakowski, an official of the Chief Coroner's Office, to discuss the missing exhibits.

After advising the meeting that she had not seen any exhibits from the Mullins-Johnson case, she was asked to go immediately with Zwolakowski to conduct a search of Smith's office.

Johnson testified that they were able to locate "a couple of (microscopic) slides" that day.

Monday November 29, 2004;

Johnson locates twenty (20) microscopic slides on a shelf in Smith's office which she described as being "fairly messy" that day.

She testified that it didn't take long to find the slides "because Dorothy and I had spent a lot of time the day prior -- the -- of the Friday prior, sorry -- and we 1didn't find them, so I was really happy that all of a sudden, you know, they were there."

MAY 6, 2005;
Johnson is surprised to find an additional ten (10) glass slides and twenty-eight (28) paraffin blocks on a shelf in Smith's office while doing "just another clean up"- she wasn't looking for any of the Mullins-Johnson materials at the time.
the stuff.

She said she located them in a cupboard on the first shelf of a cupboard as seen while entering the office.

Maxine Johnson's testimony raised a troubling question in the mind of lawyer Phillip Campbell, who represents seven unnamed persons at the Inquiry; How could the forensic evidence from the Mullins-Johnson keep showing up in locations that had already been thoroughly searched?

Here is Campbell's cross-examination on the issue - and Johnson's startling reply.

MR. PHILLIP CAMPBELL: Okay. We all
listened to your evidence about find -- beginning your
search on Friday the 29th (sic) of November for the slides
once this had become the focus of everybody's attention
and then finding them on the morning of the 29th.
Again, I think some of us listening weren't
completely clear what your own perception of -- of that
was. You found the slides quickly and easily on the
Monday morning, is that right?

MS. MAXINE JOHNSON: Yes.

MR. PHILLIP CAMPBELL: Was it your own
appreciation of this, at that time, that -- on the Friday,
you had looked in the place where you found them on the
Monday?

MS. MAXINE JOHNSON: Yes.

MR. PHILLIP CAMPBELL: And did you draw
from that the inference that they had been placed in the
position where you found them between the Friday and the
Monday?

MS. MAXINE JOHNSON: Yes, I did because we
did spend a lot of time, and we did look everywhere for
those.

MR. PHILLIP CAMPBELL: Did you -- at the
time having formed that impression -- did you discuss it
with anybody else? With Dorothy or -- or anybody else who
was fam -- aware of this search in progress?

MS. MAXINE JOHNSON: Sure, I told Dorothy
that, you know, I thought it was kind of strange that we had looked, I mean, and we spent a lot of time looking and then all of a sudden --

COMMISSIONER STEPHEN GOUDGE: Did you look
in the same place on Friday --

MS. MAXINE JOHNSON: Oh, yes.

COMMISSIONER STEPHEN GOUDGE: -- that you
found them on Monday?

MS. MAXINE JOHNSON: Yes, we did. I
looked.

COMMISSIONER STEPHEN GOUDGE: Okay.

CONTINUED BY MR. PHILLIP CAMPBELL:

MR. PHILLIP CAMPBELL: And I'm not
completely conversant with this history, but you found a
good deal more related to the case some months later?

MS. MAXINE JOHNSON: Yes.

MR. PHILLIP CAMPBELL: And had you --
wherever you found that, had you looked in that location
on the November 26th and 29th searches?

MS. MAXINE JOHNSON: Yes, we did.

MR. PHILLIP CAMPBELL: And you formed the
same inference that between the end of the November 26th
to 29th search, and your later discovery of this material,
it had been put in the position where you finally found
it?

MS. MAXINE JOHNSON: Yes.

Assuming that this inference is correct - the obvious question is who would have had a motive to keep positioning the forensic materials in a position where they would have been found and turned over to the Chief Coroner's Office.

Smith is an obvious suspect - if Johnson's sworn evidence is to be believed.

He is the last person known to have had the materials and he is aware at this time that that the police have been seeking them.

He must know that there could be serious consequences if prosecutors ever concluded that he had deliberately frustrated a police investigation.

Moreover, there has been evidence before the inquiry that Smith told Deputy Chief Coroner Cairns that he had kept a key exhibit in the Waudby cases at his home - and as reported in a previous Blog, police were discussing the possibility of laying charges against Smith - apparently in connection with that piece of evidence.

On the other hand, not a single witness has testified that they saw Smith place any forensic materials on the shelf - and no witnesses have been called at the Inquiry
to back up Johnson's testimony.

Smith's lawyers did not cross-examine Johnson on any of her testimony;

Dr. Smith will have the chance to offer his side of the story when he takes the witness stand on January 28;

A final point;

The Overview Report on the Mullins-Johnson case notes that Crown lawyer Phillip Downes, prepared a memo to file regarding a telephone call he had with Dr. Smith on December 29th, 2003.

The memo states:

"Spoke by telephone to Dr. Smith at 9:45 a.m. today.

He had requested his assistant to search the archive for the material.

Their first search had proved fruitless.

He thinks samples may not be there.

He will take another look when his assistant returns next week."

As the transcript indicates, Johnson did corroborate the information given by Smith to Downes.

MR. ROBERT CENTA: Now, Ms. Johnson, you said earlier that as
of -- from 2001 onward, Dr. Smith often looked to you to
provide secretarial assistance?

MS. MAXINE JOHNSON: Yes, he did.

MR. ROBERT CENTA: And in December 2003,
who would Dr. Smith likely have asked to assist him with
this kind of task?

MS. MAXINE JOHNSON: Myself.

MR. ROBERT CENTA: And do you have any
recollection of Dr. Smith asking you to search the archive
for slides and blocks related from his consultation report
on Valin's case?

MS. MAXINE JOHNSON: No, I do not.

Harold Levy...hlevy15@gmail.com;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE: (14); NOTEABLE QUOTES; (ONTARIO COURT OF APPEAL); FROM AN EARLY CHARLES SMITH BLOG POST;

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 15, 2007, ran under the heading, "Noteable uotes."

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Dr. Michael Pollanen (Ontario's chief pathologist):

On new provincial guidelines that reject the notion accepted by some pathologists that pathologists should "think dirty." Pollanen told the Court of Appeal that the new guidelines effectively say, "Don't think dirty; Think objectively. Think truth." Pollanen testified that he would have told Sault Ste. Marie police after the autopsy that the cause of death was "pending" because tissue samples had not yet been examined and toxicology tests had not yet been performed - instead of making an immediate pronouncement as was done in the Mullins-Johnson case. Pollanen cautioned that until all the results are in, "you cannot exclude a natural cause of death. Mullins-Johnson was arrested and charged with first-degree murder within twelve hours of the discovery of his niece Valin Johnson's body. "The cause of death must not be speculative either way," Pollanen said.

William Mullins-Johnson:

On his arrest:

"I culdn't believe my ears. I was in total shock. About 6.30 that evening, police came in the front door. They announced I was being arrested for first-degree murder. They grabbed me and took me out. They wouldn't let me put my shoes on...It felt so surreal. They (police) kept screaming at me that I did this and I did that. I kept responding, I didn't do it."

When asked by his lawyer (James Lockyer) if he thought that Valin had been molested and murdered;

"You get these police officers, these doctors saying that she had been molested, she had been strangled. They're supposed to be the protectors of society and all this stuff. So, yes, I believe she was.But I knew it wasn't me."

How did he cope in penitentiary?

"I thought I would go to the federal penitentiary and die. I tried to have a daily routine. I didn't want to associate with anyone because I didn't think anyone would want to associate with me. I expected to get my throat cut. I would call my mother at least once a week to let her know that I am still alive."

How did the murder charge affect his family?

"It split my family. It had my brother thinking that I had killed his little girl. It had me thinking that my brother had killed his little girl."

How did it feel to learn from Dr. Pollanen's report that Valin had neither been sexually assaulted or murdered?

"This was the first time that I saw the light at the end of the tunnel...I saw the end of the tunnel...As tragic a loss as she is, nobody violated her and I am happy for that."

On September 21, 2005, the day he was released on bail from the 361 University Avenue courthouse after so many years behind bars.

"It was eleven years to the day that I had been convicted," Mullins-Johnson said. "It was eleven years to the day. Full circle.

"It was the bluest sky I had ever seen."

On the ordeal he went through:

"It was worse than a scarlet letter."



Lawyer James Lockyer:

On the hasty laying of the murder charge:

"There was a rush to judgement...(before) the forensic tests were in...There was no stopping of the train when it left the station."

"William Mullins-Johnson should not have been charged...No one dreamt that he could have commited such a heinous crime."

Prosecuter Michal Fairburn:On the reasonableness of prosecution:

"It was entirely understandable and appropriate at the time for the Crown to prosecute this case based on the scientific evidence available."

On the Crown's efforts to investigate the Mullins-Johnson's claim that he was the victim of a miscarriage of justice:

"No stone was left unturned in exploring this case."

On the lack of a specific pathological cause of death:

"It is disquieting that we do not know what Valin died of. We might never know. What we know is that there is no evidence of homicide in this case."

Words of apology after the Court quashed the conviction and entered its acquittal:

"On behalf of the Ministry of the Attorney General I wish to extend our sincere, our profound and our deepest apologies to Mr. Mullins-Johnson and to his family for the miscarriage of justice that has occurred in this case and all that he has had to endure as a result. There can be no doubt this miscarriage of justice has exacted an incredible toll on Mr. Mullins-Johnson, on his mother, Mrs. Laureena Hill and his entire family. For this we are truly, we are profoundly sorry."

Her message to Valin's parents:

"Our deep sympathies to the family of Valin Johnson on the tragic loss of their beautiful daughter.

Chief Justice Dennis O'Connor for the Court:
"It is regrettable that as a result of the flawed pathological evidence you were wrongfully convicted and you spent so long in custody."

WILLIAM MULLINS-JOHNSON RETROSPECTIVE: (13) DR. CHARLES SMITH IN ALL HIS GLORY AN EARLY CHARLES SMITH BLOG POST.

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 28, 2007 - ran under the heading, "Dr. Charles Smith in all his glory."

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JUSTICE BRUCE NOBLE: "DOCTOR, I BELIEVE FIRMLY IN THE ADVERSARIAL SYSTEM SO I AM NOT GOING TO INTERFERE WITH IT EXCEPT TO SAY THANK YOU FOR COMING. I KNOW YOU WERE BUSY. I KNOW THERE WERE PROBLEMS."

DR. CHARLES SMITH: "I APPRECIATE YOUR PATIENCE, SIR";

JUSTICE BRUCE NOBLE; "THAT'S ALL RIGHT, AND THE JURY AND I ARE VERY THANKFUL FOR YOUR HELP. ALL RIGHT. THANK YOU. YOU MIGHT JUST MAKE YOUR FLIGHT;"

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SMITH'S FAILURE TO APPEAR IN COURT FOR HIS TESTIMONY;

William Mullins-Johnson's trial for the first-degree murder of his 4-year-old niece Valin is a classic example of the deference paid to Dr. Charles Smith - often at the expense of the accused.

Smith failed to show up at the Sault Ste. Marie courthouse pursuant to his subpoena on Sept. 13, 1994, to testify as an expert witness for the prosecution.

Any other witness would have been roasted by the Judge for not showing up to testify.

Not Dr. Charles Randal Smith.

"...But he's not available today and there may be a possibility that he's not well, a probability that we might have another day's delay, but I'll speak to you about that," Prosecutor Glen Wasyliniuk told Superior Court Justice Bruce Noble on Sept. 13, 1994;

Wasyliniuk went on to specify that although Smith had been prepared to attend that morning, "He advises that at the Hospital for Sick Children there are three pathologists, one of whom is in Germany. There were two for today, there was a death in the family of one of them, not Dr. Smith's family but, he advises that a pathologist has to be at the hospital and he cannot leave the hospital, there are operations and whatever, and would not be available today and he advises that Thursday was a day that he had schedules for holidays, he will attend here."

Even though Smith had long been subpoenaed to testify and his absence was disrupting a first-degree murder trial, Noble acquiesced, saying:

"It is a matter of utmost importance for the public that in large hospitals such as the service by Dr. Smith, a pathologist, be on hand for critical examinations of tissues during surgery and I quite understand...."

SMITH'S FAILURE TO PREPARE A REPORT;

Wasyliniuk informed Court of another problem: Smith had been asked to examine microscopic slides sent to him by the local pathologist who performed the autopsy (the same slides he is alleged to have misplaced) but had not prepared the requisite formal report which would permit defence counsel to properly prepare for the case. (See earlier posting: Judge Shocked By Smith's Delay In Producing Post-Mortem Report.")

Defence lawyer T.G. O'Hara, cautioned the Court that "Dr. Smith is going to be testifying in an area that I don't know what he's going to say about," and indicated that he would need extra time to consult with his own expert before he cross-examined Smith.

Noble then called in the jurors and told them that he had been advised by the prosecutor that there was a problem is securing the attendance that day of the Crown's next witness, who he described as, "a medical expert pathologist at the Sick Children's Hospital in Toronto."

Noble was presenting Smith - "his name is Dr. Smith" - to the jurors as an expert witness, even though he had not yet conducted an evidentiary hearing to qualify him as an expert.

There is no indication in the trial record that Noble made any inquiry as to whether the prosecution had take any steps to ensure that Smith would bring a report to court.

To the contrary, when Noble informed the jurors that O'Hara needed more time to prepare because he had not been provided a report, he told the jurors, "Members of the jury, there is one small problem here which is no criticism.

Ordinarily professional witnesses provide a report, usually immediately before their court attendance which encapsulates the evidence they are about to give, and in this case Doctor Smith being very busy and under considerable pressure, and probably for other good reasons that do not occur to me at the moment, was not able to provide that report, and that is certainly not a criticism, because it is his evidence that is going to motivate the determination of this matter and that you have heard today and not any report but, because of that Mr. O'Hara has asked for some time to prepare his cross-examination and I have advised him that I would rise early and perhaps extend the noon recess to permit him time so that he could organize and conduct his cross-examination. Hopefully to shorten it."

The pressure imposed on O'Hara by Smith's failure to produce a report may have had serious consequences.

We now know, in hind site, that Smith's evidence that Valin-Johnson had been sodomized and then strangled allowed the jury to convict Mullins-Johnson of first degree murder - to convict him of a crime that never occurred.

Wasilyniuk's direct examination of Smith takes forty-four (44) pages of the court record;

O'Hara's cross-examination took only ten (10) pages: Pages 524 to 534;

THE DEFENCE AGREES SMITH SHOULD BE QUALIFIED AS AN EXPERT;

Prosecutors are required to satisfy the Court that the proposed witness the requisite degree of experience to be qualified as an expert witness.

They usually do this by taking the proposed witness through his or her C.V. in terms of factors such as training, specialized degrees, work experience, research background, books and periodical articles, and expert testimony given in other courts.

But O'Hara spared Wasilyniuk the task of having to prove Smith's qualification to the Court by agreeing that he was qualified.

"Again, Your Honour, for the assistance of my friend I have no difficulty with the Doctor's qualifications as a pathologist or his qualification to to give opinion evidence in that area," he told Court. "I'm sure my friend will want to bring his qualifications to the jury's attention. For the purpose of the record his expertise is admitted."

To be fair, 1n 1994 defence lawyers would not have had any reason to challenge Smith's qualifications as an expert witness - although there was the obligation on behalf of the client to carefully scrutinize the evidence;

He was head of a prestigious forensic pathology unit in one of the world's great children's hospitals, he had both a national and international reputation in his field, and his record was unblemished.

In short, his bubble had not yet burst.

But some serious questions about Smith's qualifications could have been raised at that hearing.

For example, Smith told Court that he had received "a diploma in pathology" in 1980.

A diploma is the basic degree in pathology - and does not indicate in any way that the bearer has an expertise in forensic pathology, with expertise in determining matters such as the cause and time of a child's death.

O'Hara did not ask Smith a single question as to the post-graduate courses available to pathologists who wished to have certificates of expertise in forensic pathology - or press him as to his own knowledge of the area.

YOUR TRAVELLING ARRANGEMENTS, DR SMITH?

During the course of prosecutor Wasilyniuk's cross-examination of Dr. Smith, Justice Noble raised a concern about Smith's travel arrangements.

Court Clerk: "Doctor Smith, please return to the court," the transcript begins.

"The Court; "Doctor Smith, before Mr. Wasyliniuk continues with you, I am concerned about your travelling arrangements, do you have a return ticket for Toronto, sir?

A. Yes. I do.

The Court: What time is it?

A. I think it's 4.00 p.m. this afternoon.

The Court: All right, I will keep this in mind;

A. Yeah, if need be perhaps--

The Court: I think there is a later flight, but we will see--

A. There is, yeah...

It's hard too imagine that this conversation is taking place in a first-degree murder trial where a man, if convicted, can spend the rest of his life in jail.

Surely the message should have been - "Dr. Smith, we regret any inconvenience, but an accused man is at jeopardy, and we will take all the time necessary to ensure that he has a fair trial and that justice is ultimately done.'

THANK YOU, DR. SMITH;
As the following section of the transcript shows, after giving his evidence Dr. Smith left the courtroom basking in Justice Nobles's expression of gratitude - on behalf of the Court and the jury.

The Court: Doctor, I believe firmly in the adversarial system so I am not going to interfere with it except to say that I thank you for coming. I know you were busy, I know there were problems --
A. Oh, I appreciate your patience, sir.

The Court: That's all right, and the jury and I are very thankful to you for your help. All right, thank you. You might just make your flight.
Thank you."

There is the judge reinforcing the image of Dr. Smith as a neutral and credible witness who is there for the public-minded purpose of helping the jury.
The jurors might as well have convicted Mullins-Johnson right then and there.

Harold Levy;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE (12); GIVING EXPERT EVIDENCE A BAD NAME; FROM AN EARLY CHARLES SMITH BLOG POST;

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

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"MOREOVER, EXPERT EVIDENCE CAN EASILY OVERWHELM A JURY WITH ITS AURA OF INFALLIBILITY, PARTICULARLY IN AN AREA AS COMPLEX TO A LAY PERSON AS PEDIATRIC PATHOLOGY. MANY KNOWN CASES OF WRONGFUL CONVICTION HAVE BEEN BASED, IN WHOLE OR IN PART, UPON INCORRECT EXPERT OPINION. THE JURY'S ASSESSMENT OF THE COMPETENCE AND OBJECTIVITY OF DR. SMITH AS A FORENSIC PEDIATRIC PATHOLOGIST, AT LARGE AND IN THE AUTOPSY IN THIS CASE, IS CENTRAL TO THE DETERMINATION OF WHETHER OR NOT THE CROWN HAS PROVEN BEYOND A REASONABLE DOUBT THE GUILT OF EITHER, OR BOTH, OF THE DEFENDANTS;"

SUPERIOR COURT JUSTICE BRIAN TRAFFORD: KPORWODU AND VENO;

Apart from the rush to judgment by the police, expert witnesses called by both the prosecution and the defence lie at the heart of the miscarriage of justice suffered by William Mullins-Johnson and his family;

As the Court says, in one of the most extraordinary conclusions I have ever read in a judgment, "In short, without the expert evidence there is no case against the appellant and no evidence of a crime. The non-expert evidence, if anything, is inconsistent with guilt and, again, is not indicative of a crime."

That means it was the scientists with their white lab coats and microscopes who came on the scene after Valin Johnson died and therefore had no connection to the facts leading to her death who's evidence wrongfully convicted William Mullins-Johnson - while the evidence of the true flesh and blood witnesses pointed to his innocence.

Something is terribly wrong with that picture.

The perverse role played by the expert evidence called by both the prosecution and the defence in the case is made clear in the reasons for judgment of the Ontario Court of Appeal in the Mullins-Johnson reference released last week.

"A number of experts, including Drs. Rasaiah, Smith and Zehr, testified for the Crown at the trial," Justices Dennis O'Connor, Marc Rosenberg, and Robert Sharpe. (See previous posting: Conduct Of Other Experts Scrutinized By Mullins-Johnson's Lawyers);

"Their unanimous view was that various findings from the examination of Valin’s body and the autopsy showed that she had been sexually assaulted over some period of time. (See previous posting: Extremely Dogmatic Expert Testimony Played Role In Mullins-Johnson Case, Lawyers Say);

Drs. Rasaiah and Smith also testified that Valin had been suffocated by her killer.

The defence called two pathologists, but the evidence of the defence experts was not compelling and in some respects bolstered the Crown case.

The first expert, Dr. Rex Ferris, accepted that Valin had been subjected to chronic sexual abuse but suggested that she had not been sexually abused at the time of her death.

His evidence at trial that the cause of death was unexplained was inconsistent with a report he prepared prior to trial in which he suggested that Valin had been strangled. (See previous posting: Mullins-Johnson: Famed Forensic Pathologist Admits He Erred);

The second expert, Dr. Fred Jaffe, testified that Valin had not been subjected to recent sexual abuse and that the cause of death could not be determined.

His evidence suffered from certain frailties and was not accepted by the jury.

As we have said, the appellant has always maintained his innocence. After the Supreme Court of Canada dismissed his appeal, he contacted the Association in Defence of the Wrongfully Convicted.

AIDWYC took up his case and retained an eminent pathologist, Professor Bernard Knight, to reinvestigate the case.

To do so, Professor Knight needed the various photographs, slides and other materials from the autopsy.

For reasons that are chronicled in the record, there was some delay in locating that material, but the material was finally found and provided to Dr. Pollanen to be passed on to Professor Knight.

Fortunately, Dr. Pollanen first did his own investigation.

He concluded that the various bruises and injuries said to be the result of abuse and murder were no more than the result of normal processes following death or were caused by procedures connected to the post-mortem investigation.

For example, the dilation of the child’s anus that was thought to be so indicative of anal penetration and chronic sexual assault (recall Dr. Zehr and her comment that this was one of the worst cases of child sexual abuse she had seen) is a normal finding in children after death. (See previous posting: Die Was Cast Against William Mullins-Johnson Even Before The Autopsy Began);

The acute injuries to the child’s anus and vagina observed at the autopsy were the result of artefacts related to dissection or tissue preparation.

In other words, the findings said to establish sexual abuse were the result of natural changes to the body after death or of the post-mortem examination process itself.

Similarly, the various bruises to Valin’s chest, neck and head, which were said to show that she had been physically abused during her life and manually suffocated, were the result of post-mortem artefact's related to lividity (the settling of the blood in the body after death).

The multiple bruises described by Dr. Rasaiah were no more than detailed descriptions of lividity marks. They were not the product of a criminal assault.

Dr. Pollanen passed on the slides and other materials to Professor Knight. He agreed with Dr. Pollanen.

In late 2005, Dr. Ferris was given the opportunity to meet with Dr. Pollanen and re-examine the materials.

In a report he provided in January 2006, Dr. Ferris reversed his trial opinion and agreed with the opinion of Dr. Pollanen that Valin had not been sexually assaulted and there was no pathological evidence of homicidal suffocation.

By January 2006, the Chief Coroner’s review of other cases in which Dr. Smith had provided an opinion was already underway.

The Office of the Chief Coroner asked three other leading expert pathologists to independently examine the Valin Johnson materials.

They came to the same conclusions as Drs. Pollanen and Ferris and Professor Knight......"

The Court says later in its decision that, "There is no doubt that the new expert opinions in this case are credible and highly cogent.

They go to the very core of whether there was an offence committed in this case.

The opinions have been provided by some of the leading Canadian and international experts in forensic pathology and pathology"."

This is hugely ironic.

Just a few years ago judges throughout Ontario, if not the country, would have been saying that about Dr. Charles Randal Smith.

Harold Levy;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE (11): EXTREMELY DOGMATIC "EXPERT" TESTIMONY PLAYED ROLE. THE FROM AN EARLY CHARLES BLOG POST;

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

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Lawyers for William Mullins-Johnson have cited the dangers of unbalanced expert testimony in a factum filed in the Ontario Court of Appeal.

"Frequently the experts’ assertions in cases such as the Appellant’s are extremely dogmatic," the brief says..

"In Valin Johnson’s case, Dr. (Patricia) Zehr (a general practitioner with a speciality in obstetrics and gynecology) told Sgt. Welton that the appearance of what she described as anal penetration on Valin was the “worst she’s ever seen”.

Dr. Smith expressed the opinion that there was a “clear” cause of death, based on a pre-mortem “fissure” in Valin’s rectal canal that only he and Dr. (Marcellina) Mian (A pediatrician at the Hospital for Sick Children) saw as such.

In the English quartet of cases known as R. v. Harris, a consultant pediatrician described gross pre-retinal haemorrhages in the eyes of Lorraine Harris’ 16 month old deceased son as being
“so extensive that he could not recall seeing any that were worse.”

Ms. Harris’ manslaughter conviction was quashed by the Court of Appeal. A similar claim was made in the accompanying case of Raymond Rock’s deceased daughter.

In one of the other accompanying cases, that of Michael Faulder, a Crown doctor described a head injury of Mr. Faulder’s son as requiring a “massive and violent force comparable to a child being hit by a car travelling at 40 m.p.h.”


The same doctor had also expressed her certain opinion that the child had been the victim of shaking. Gage L.J. said:

During the summing up at trial the jury were told that Dr. San Lazaro was ‘very, very experienced’ and ‘specialises in child protection and abuse’ cases.

They were also reminded that Dr. San Lazaro had said ‘I am as certain as you can be in medicine’ in her opinion that this was a shaking injury.

This ‘certain’ opinion from the Crown’s principal witness is now rejected by Crown experts who are equally firm in their own opinion.

Dr. Lazaro’s opinions, like those of Professor Meadows and Dr. Charles Smith, have become the subject of intense scrutiny.


Gage L.J. explained the criticism of her work in Harris:

Dr. San Lazaro’s credibility and impartiality have subsequently been seriously challenged in the case of Lilley & Reed v. Newcastle City Council...It is indeed the case that Mr. Justice Eady considered Dr. San Lazaro’s role in a substantial child sexual abuse investigation and, having heard her give evidence, found that, in order to meet what she perceived to be the needs of the children she examined, she was prepared to throw “objectivity and scientific rigour to the winds in a highly emotional misrepresentation of the facts”. She was, according to Eady J’s findings, “unbalanced, obsessive and lacking in judgment.”

In Cannings, Judge L.J. put this issue this way:

And what was confidently presented to the jury as virtually overwhelming expert evidence providing the necessary proof that Jason and Matthew’s deaths resulted from the infliction of deliberate harm, should now be approached with a degree of healthy scepticism..."



See post: Ontario Court of Appeal Will Hear the Mullins-Johnson Reference on October 15;

Harold Levy;