the charles smith blog

Wednesday, June 27, 2012

Brenda Waudby: (5); Aftermath of the hearing: Former Toronto lawyer: "The legal system ganged up on her like a pack of dogs after a deer."

STORY: "Brenda Waudby cleared of child abuse charges from 1997: Six years after her true daughter's killer is convicted, Ms. Waudby's charges relating to Jenna Mellor's death are cleared from her record," by reporter Todd Vandonk, published in My Kawartha on June 27, 2012.

GIST: "A former Toronto lawyer was first out of the courthouse and told media that this case has been a great disgrace to the justice system. “The legal system ganged up on her like a pack of dogs after a deer,” explained Burke Doran, who says he’s been following Ms Waudby’s case closely for a long time. “The legal system out here in Peterborough, not the present bunch but the prior bunch, were playing dirty pool and ganging up on a vulnerable person.”

The entire story can be found at:

http://www.mykawartha.com/news/court/article/1382944--brenda-waudby-cleared-of-child-abuse-charges-from-1997

PUBLISHER'S NOTE:

I am monitoring this case. Keep your eye on the Charles Smith Blog for reports on developments.

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 found at:

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

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html

Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com

Harold Levy: Publisher; The Charles Smith Blog.

Brenda Waudby (4): Justice Fuerst unexpectedly orders her name to be struck from Ontario's Child Abuse List (The mark of a fine judge. (HL));

Publisher's View: If there was an unexpected moment at today's hearing, it was Justice Michelle Fuerst announcement that she intended to order the province to strike Brenda's Waudby's name off of Ontario's Child Abuse list. Justice Fuerst obviously recognized the pain and stigma that being on the list must cause Ms. Waudby - the innocent victim of a horrific crime - especially since she was about to quash the conviction under which Ms. Waudby had been placed on the Registry. To her great credit, Justice Fuerst order the name to be struck from the Register by July 11, 2012 - and if that doesn't happen, Registry officials are to be brought before her to explain their non-compliance. As well, to her great credit Justice Fuerst trumpeted Ms. Waudby's unequivocal innocence on all of the allegations she had faced - and ordered the Court Reporter to prepare as quickly as possible a transcript of the hearing containing her comments to be made available without cost to Ms. Waudby. Moreover, although Justice Fuerst made no judgment as to whether Ms. Waudby's guilty plea had been coerced by her prosecutor, she found that Ms. Waudby believed that the murder charge of which she was innocent would not be withdrawn unless she pleaded guilty to child abuse and that she would lose her two remaining children if she continued to fight the charge - and therefore allowed Ms. Waudby to introduce the new, independent medical evidence which proved that she had not in any way injured Baby Jenna. All in all, Justice Fuerst's conduct of the hearing helped make this the very special day that Brenda Waudby and her family so greatly deserved. A fine, if belated day for justice.

Harold Levy; Publisher; The Charles Smith Blog.

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PUBLISHER'S NOTE:

Brenda Waudby: (3); Her extraordinary address to the Court;

Publisher's note: One of the most dramatic moments at today's hearing was Brenda Waudby's request to address the court about her 15-year ordeal. Justice Michelle Fuerst acceded to her request - even though it is not customary for a party to address the court during an appeal. Ms. Waudby then made the following presentation which clearly moved Justice Fuerst, who applauded the fact that it was so articulate. Here in its entirety is Brenda Waudby's presentation to the court - which in my own view is one of the most powerful, insightful presentations (my hardened journalist's eyes watered) I have ever heard in a court of law. (And I have heard many of them!)

Harold Levy: Publisher; The Charles Smith Blog.

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"Good Morning Your Honour. My name is Brenda Waudby and I am Jenna Mellor’s mother.

I almost can’t believe that this day has arrived and that I have just heard the Crown state that my plea of guilty to child abuse was a miscarriage of justice. I can’t describe the feeling that I have now as I stand before this court in the presence of my daughter Justine and the rest of my family.

Not only has the Crown offered an apology but it has been committed to righting the wrongs in my case and that has meant everything to me and to my children. I know that extraordinary effort that has been put into this appeal over many months by both my lawyer Julie Kirkpatrick and by Ms. Wheeler. Because of that effort I know that the apology offered by Ms. Wheeler on behalf of the Crown is sincere and I am prepared to accept it wholeheartedly.

On the March 1^st, 2007 when Jenna’s killer was sentenced, I read a victim impact statement to the court. I would like to read a short part of that today:

“Jenna was gone forever. I could never say goodbye to her. My baby had barely started her life. She was just learning to talk. Her first word was “Mum.” I believed Jenna had great potential, but I will never know. She had a smile that would light a room. Her eyes sparkled with life. She loved me and I love her. I was to be her safety and security. I let her down. I failed her. Do you have any idea the guilt of failing your child? I was charged with murder. I pled guilty to a Child and Family Services Act charge in June of 1999. I was innocent of this charge. I understood from my lawyer that my choice was I pled guilty or fight the murder charge and the CAS put Justine up for adoption. I was terrified at the prospect of losing another child forever.”

That decision to plead guilty to save my family is the reason why I am before this court today. It worked. I did save my family. Justine is here with me in this courtroom today and I want her to know that I love her, that everything I have done I have done for her and for her younger brother, and to make sure that there is justice for Jenna. I also have wanted to do my best to make sure that my story is told, and that the record is clear, so that what has happened to me never happens to another family. That is why I am here.

There have been so many mistakes made by the justice system over the past fifteen years since Jenna’s death. I don’t know why that is so. I will never know why all of this has happened to us. But once the mistakes started – beginning with Charles Smith and the coroners’ office right after Jenna died – it was like a freight train that couldn’t be stopped.

I started to call for a public inquiry in 1999. I knew that something had gone horribly wrong with my case. And I knew that nothing that I had been told by Charles Smith, by the police, or by my own lawyers about Jenna’s death made any sense.

Even though the charge of murder had been withdrawn, I was still a suspect. I knew it was the babysitter and I started to launch complaints to everyone I could think of, hoping that someone would listen. I complained to the Police Services Board, the Board of the Kawartha Haliburton Children’s Aid Society, the Ombudsman, the College of Physicians & Surgeons, the Office of the Chief Coroner, the Attorney General, the federal Justice Department, MPs and MPPS, the media.

My complaints were largely ignored, and many of the responses that I received were nothing short of condescending. People told me that I should give up and “move on” but there was something in me that could not stop. I fought this battle alone for so long and no-one was listening.

I welcomed the Goudge Inquiry into Pediatric Forensic Pathology and fully participated in it. But I also knew that the Goudge Inquiry could not do everything to set things right in my case and that my fight was not over.

At the end of the Goudge Inquiry I was still a convicted child abuser, with the question remaining as to whether Jenna had suffered older injuries to her ribs and to her liver and whether I was responsible. That is why I brought this appeal. It is the last step for me in clearing my name.

I was pleased, but not surprised, when Dr. Milroy confirmed for this appeal that none of Jenna’s injuries were old. I always knew what the answer to that question would be. I knew that I didn’t harm Jenna and I knew that the only reason I pled guilty to the charge of child abuse was because I believed that I had no choice.

The consequence of my plea of guilty to child abuse, however, was enormous – not only legally, but privately. Because of that conviction I was not able to have my young son in my care until he was almost one year old. The Children’s Aid Society entered Jenna’s autopsy photographs into evidence before the family court and I was repeatedly accused of causing the injuries that were evident on her body. She was beaten black and blue. She was sexually assaulted. It didn’t matter how often I said that I didn’t , and couldn’t have, done that to her, very few people would believe me. The only person who I know truly believed me, without question, was my mother and it breaks my heart that she did not live to see this day. I wish that she was here with me.

When the babysitter was finally charged and then convicted in Jenna’s death, I was still left with the child abuse conviction. I asserted my innocence in court at his sentencing hearing and no-one reacted. I think they should have. I did not see the babysitter’s 2005 confession until I launched this appeal although many others in the justice system had.

The full confession has now been filed by Crown counsel Alison Wheeler as part of the public record in this appeal and I am grateful for that. As hard as it has been to read, the truth of what happened to Jenna is in that babysitters’ confession and it is the only thing about my case that has made any sense to me at all.

I also had the opportunity last week to meet with the expert pathologist Dr. Christopher Milroy to discuss what happened to Jenna. The time and care was taken with me during that meeting set many things in my mind to rest. Dr. Milroy told me that there is absolutely nothing in the medical evidence that has changed in Jenna’s case since the date of her death 1997. It’s not a question of having to search for the truth these past 15 years. The truth was there. Charles Smith got it all wrong.

This appeal has been a lengthy process but as a result of the work that has been done I know that I have received all of the information that I have requested, and I truly believe that all of the questions that can be answered at this point have been answered.

We are all human and we all make mistakes. I have made many mistakes and I have had to learn to live with the biggest mistake of my life – leaving Jenna with my neighbours to babysit on January 21st, 1997 and returning home to find sirens in my driveway and my baby dead in the hospital morgue. Somehow the fourteen-year-old boy was able to sexually assault and beat my baby to death while his mother was upstairs and nobody at the time believed that was possible. They thought it must have been me. I live my life wishing I could turn back the clock and that I had stayed home that night. But I didn’t, and I have had to learn to live with that.

Because I have had to learn to live with the horror of what happened to Jenna, I know that I have become far stronger than I ever knew I could be, more determined to seek truth, more committed to seeing that justice is done, and I hope, more understanding of others, less judgmental, and more determined to be kind and to choose to forgive whenever possible.

I am truly grateful to my lawyer Julie Kirkpatrick for listening to me, for believing me, and for working so hard on my behalf in this appeal to see that justice is done.

I knew that if I didn’t give up that this day would come. I am proud of myself that I never ever gave up no matter how alone I was or how dim the light looked ahead of me. My beautiful children have made it worth the fight and, because of me, they know that anything is possible if you believe deeply in finding the truth.

Your Honour, thank you for giving me the time today to say the things that I have needed to say for a long time. I very much appreciate that. Thank you."

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PUBLISHER'S NOTE:

Brenda Waudby:(2): Prosecutor Alison Wheeler's moving apology. A fitting close to a 15-year ordeal. (HL);

Publisher's view: I attended today's hearing during which Prosecutor Alison Wheeler and Defence Counsel Julie Kirkpatrick jointly urged Justice Michelle Fuerst to strike the guilty plea to child abuse, quash the conviction and substitute a verdict of acquittal. In my career as a criminal lawyer and journalist, I don't think that I have ever heard such a thoughtful, moving apology from a prosecutor. Although it is difficult to feel anything but bitterness over the sorely flawed, cruel criminal justice system in Ontario that put Brenda Waudby and her family through a 15-tyear-old deal, there is something redemptive in knowing that someone in the system could express publicly such empathy for a person the government has wrongly prosecuted.

Judge for yourself:

"The Crown is deeply sorry for how Ms. Waudby has suffered as a result of being wrongfully convicted of abusing Jenna. Her daughter was the victim of a homicide. She should have been treated like a grieving parent. She was not. Due to flawed forensic pathology she had to deal with being the focus of a police investigation, being charged with murder and being stigmatized as an abusive mother. Although the CAS (Children's Aid Society) had legitimately been involved with the family because of other issues, when all things are considered it would seem that she was wrongly deprived of her two other children for periods of time largely because of Dr. Smith’s opinions. She was wrongly placed in the position of having to rebuild a parental relationship with her older daughter, J., who at one point came to believe that her mother may have been responsible for Jenna’s death. She was wrongly stigmatized in a small community over a long period of time. And, it has taken a very long time for all of this to be set straight. For all of this, the Crown is deeply and sincerely sorry."

It is also worth noting that the apology, which is effectively made on behalf of the province, is being backed up by some commendable actions.

As Ms. Wheeler continued:

"While these wrongs can never fully be made right, a number of steps have and will be taken. For instance:

 Jenna’s case was one of a set of cases that were examined in detail at the “Goudge Inquiry” into pediatric forensic pathology in Ontario. This provided Ms Waudby with some answers about how Dr. Smith came to hold such weight with police and prosecutors, and how his incompetence went unnoticed and unchecked for so many years.

 Ms Waudby participated in a compensation process that resulted from the Inquiry. This compensation process was intended to recognize the moral responsibility of the Government for the suffering that resulted from the faulty forensic pathology relating to the deaths of the children in the group of cases examined by the Goudge Inquiry. The Inquiry compensation process was connected to the murder charge. A similar process has now been extended to deal with these proceedings.

 The Crown and other parties have settled law suits with Ms Waudby.

 The government has also paid Ms Waudby’s disbursements incident to bringing this appeal, and will pay the costs for Jenna’s re-burial (her ribs were not buried originally).

 The Crown is arranging for Ms Waudby to meet with a senior official in the Criminal Law Division, to address her concerns about the manner in which the prosecution of J.D. proceeded.

 Ms Waudby is going to meet with forensic pathologist Dr. Chris Milroy, who reviewed the case for the purpose of this appeal, to address any remaining questions she has about Jenna’s injuries and death.

 The Crown is making inquiries to determine if Ms Waudby’s name can be
removed from the Child Abuse Registry, and if so, what steps need to be taken to have her name removed."Harold Levy: Publisher; The Charles Smith Blog;

PUBLISHER'S NOTE:

Brenda Waudby: (1): The Peterborough Examiner on her complete and utter exoneration earlier today in a Peterborough courtroom. Reporter Sarah Deeth.

STORY: "Judge overturns Waudby's 1999 child abuse conviction," by reporter Sarah Deeth, published in the Peterborough Examiner on June 27, 2012.

GIST: "Brenda Waudby is no longer a perpetrator of a violent crime against a child. She is no longer a criminal. She is now simply the mother to a young woman and a young man, and the grieving mother of a child whose violent murder was the event that set off her long legal nightmare. On Wednesday morning Madam Justice Michelle Fuerst overturned Waudby’s 1999 child abuse conviction, acquitting her of the charge. The ruling capped a 15-year ordeal for Waudby, the last step in a long, hard journey to clear her name. During the emotional Superior Court proceeding, Waudby heard something she’s waited 15 years for: an apology, issued by Crown attorney Alison Wheeler, who acknowledged that Waudby’s conviction was a miscarriage of justice. “The Crown apologizes to Brenda Waudby,” Wheeler said. Her child, 21-month-old Jenna, was the victim of a homicide, Wheeler said. “Ms. Waudby should have been treated as a grieving parent. She was not,” Wheeler said. Instead, Waudby became the prime suspect, interrogated by police and eventually charged with murdering her child in 1997. She was stigmatized by the community, Wheeler said, and her two children were taken from her by the Children’s Aid Society. It was wrong, Wheeler said, and it’s taken a long time to set it right. “For all of this, the Crown is deeply and sincerely sorry,” she said. It was an apology Waudby said she accepted whole-heartedly."..........The basis for both the child abuse and murder charge lay in the shoddy work of disgraced former child pathologist Dr. Charles Smith, who told investigators Jenna was injured while she was in Waudby’s care. Smith also said he discovered “old” rib injuries, which he said were an indication of previous abuse. Smith was later found to have given false testimony in a series of child death cases. He was stripped of his medical licence last year. Wheeler conceded that if the forensic pathology was done correctly in the first place, Waudby never would have been charged with anything. When the babysitter pleaded guilty Crown attorney Brian Gilkinson told court the sitter admitted that his blows to Jenna’s abdomen “would’ve” caused rib injuries. But there was an error in the official court transcript, and Gilkinson’s statement read, “wouldn’t have.” The transcript was entered into proceedings during the Goudge Inquiry, a 2007 hearing that examined Smith’s work and child pathology in the province. The error became part of the public record. It wasn’t discovered until Kirkpatrick sought a court order allowing her to listen to the taped recordings of the babysitter’s proceedings. The babysitter’s confession was never disclosed to Waudby, nor was a medical report that indicated Jenna’s injuries may not be old, or notes written by investigators that indicated they realized Waudby may not be guilty of child abuse. Waudby’s lawyer, Julie Kirkpatrick, hammered on these facts in her submissions to the court. As she put it, the babysitter’s confession and a new pathology report fit together like a hand and glove. “All of the injuries occurred in the same time frame, and occurred under the babysitter’s watch,” Kirkpatrick said. “It is now an incontrovertible fact that Jenna did not have any old injuries when she died,” Kirkpatrick said."

The entire story can be found at:

http://www.thepeterboroughexaminer.com/2012/06/27/crown-apologies-to-brenda-waudby

PUBLISHER'S NOTE:

Barton McNeil: Illinois Innocence Project takes 1998 murder case. New DNA testing could offer hope of exoneration. WJBC;

STORY: "Illinois Innocence Project takes 1998 murder case," by reporter Ryan Denham, published by WJBC on May 4, 2012. (This case only recently came to my attention. HL);

GIST: "The Illinois Innocence Project is taking on a 1998 Bloomington homicide, hoping to exonerate convicted murderer Barton McNeil and expecting to get some help from new DNA evidence testing. The Illinois Innocence Project is “in with both feet, in terms of giving this a thorough, thorough review,” said IIP Legal Director John Hanlon, who recently visited McNeil in prison. A “professional” referred the case to the IIP, but Hanlon declined to say who or describe their occupation........McNeil was convicted of smothering his 3-year-old daughter, Christina. He’s now serving a life sentence in prison but has long maintained that his then-estranged girlfriend, Misook Nowlin, broke into his Bloomington apartment and killed Christina while he slept. But Nowlin, now known as Misook Wang, was arrested last fall and charged with staging an elaborate plot to lure her 70-year-old mother-in-law, Wenlan “Linda” Tyda, into traveling to the Twin Cities, where she was strangled. Tyda’s body was later dumped in a forest preserve near her home in the Joliet area. That connection was enough to prompt a second look at the 1998 case by police and the McLean County state’s attorney’s office. Detectives traveled to interview McNeil at Menard Correctional Center but later announced there were no new leads to pursue.........Hanlon’s specialty is DNA cases. Ultimately, the goal in such cases is to file a new motion for DNA testing on certain evidence, Hanlon said. Generally speaking, DNA evidence exists in only about 10 percent of serious criminal felony cases, he said. “But we think it exists here,” he said. (If DNA testing is not possible, another IIP lawyer specializing in investigations would then likely get the case, Hanlon said.)."

The entire story can be found at:

http://wjbc.com/illinois-innocence-project-takes-1998-b-n-murder/

PUBLISHER'S NOTE:

I am monitoring this case. Keep your eye on the Charles Smith Blog for reports on developments.

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 found at:

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

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html

Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com

Harold Levy: Publisher; The Charles Smith Blog.

Tuesday, June 26, 2012

Simon Harwood trial. (5): Court told that pathologist Dr. Freddy Patel 'threw evidence down the sink' because he had 'made up his mind'; Daily Mail.

STORY: "Pathologist who examined Ian Tomlinson 'threw evidence down the sink' because he had 'made up his mind' on how the newspaper vendor died at G20 protests," by reporter Graham Smith, published in the Daily Mail on June 26, 2012.

SUB-HEADINGS: "Dr. Freddy Patel carried out first post-mortem on Mr. Tomlinson two days after his death in April 2009 during the G20 protests in the City of London; He concluded he had died of natural causes in the form of a heart attack; Footage then emerged of PC Simon Harwood striking Mr. Tomlinson; Two further post-mortems then concluded he had been killed by internal bleeding caused by a liver injury; Dr. Patel today stood by his findings;

GIST: "Consultant forensic pathologist Dr Freddy Patel, 64, carried out the first post-mortem on Mr Tomlinson on April 3, 2009 - two days after his death during the G20 protests in the City of London. His findings led to the official line that the newspaper vendor had died of natural causes in the form of a heart attack. This theory was only questioned when footage later emerged of PC Simon Harwood hitting Mr Tomlinson with a baton and shoving him to the floor. The father-of-nine collapsed minutes later. Two subsequent post-mortems involving three pathologists concluded that Mr Tomlinson had been killed by internal bleeding caused by a liver injury, the hearing at Southwark Crown Court was told.........Prosecutor Mark Dennis today questioned whether Dr Patel had given proper consideration to the three litres of 'internal abdominal fluid blood' - which he later threw down the sink - and blood clots found in Mr Tomlinson’s stomach cavity."

The entire story can be found at:
http://www.dailymail.co.uk/news/article-2164981/Pathologist-examined-Ian-Tomlinson-threw-evidence-sink-mind-newspaper-vendor-died-G20-protests.html

See Guardian story on today's hearing:

http://www.guardian.co.uk/uk/2012/jun/26/ian-tomlinson-pathologist-forensic-evidence

PUBLISHER'S NOTE:

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

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html

Please send any comments or information on other cases and issues of interest to the readers of this blog to:

hlevy15@gmail.com

Harold Levy: Publisher; The Charles Smith Blog.

the charles smith blog

Wednesday, June 27, 2012

Brenda Waudby: (5); Aftermath of the hearing: Former Toronto lawyer: "The legal system ganged up on her like a pack of dogs after a deer."

Brenda Waudby (4): Justice Fuerst unexpectedly orders her name to be struck from Ontario's Child Abuse List (The mark of a fine judge. (HL));

Brenda Waudby: (3); Her extraordinary address to the Court;

Brenda Waudby:(2): Prosecutor Alison Wheeler's moving apology. A fitting close to a 15-year ordeal. (HL);

Brenda Waudby: (1): The Peterborough Examiner on her complete and utter exoneration earlier today in a Peterborough courtroom. Reporter Sarah Deeth.

Barton McNeil: Illinois Innocence Project takes 1998 murder case. New DNA testing could offer hope of exoneration. WJBC;

Tuesday, June 26, 2012

Simon Harwood trial. (5): Court told that pathologist Dr. Freddy Patel 'threw evidence down the sink' because he had 'made up his mind'; Daily Mail.

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