In his closing Submissions, Dr. Charles Smith responded to allegations made against him by lawyers for the Affected Families Group in connection with the "Sharon" and "Jenna" cases;
Lawyers Peter Wardle and Julie Kirkpatrick reply to Smith's defence of his conduct int these two cases in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the Affected Families response begins:
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Sharon's mother by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
Tuesday, April 22, 2008
Monday, April 21, 2008
When Innocent Parents Plead Guilty: The Aftermath Of Dr. Charles Smith's Intrusion In Their Lives;
In a previous posting, I reported Brenda Waudby's lawyer's allegation that prosecutors would not would not withdraw a charge of murdering her daughter, Baby Jenna, unless she first pleaded guilty to a Family Court allegation that had previously physically assaulted her; (See Part Three; Case Studies' Systemic Factors; The "Jenna" Case; April 17, 2008);
Two problems:
First problem; The prosecutors were withdrawing the charge because they had received evidence indicating that Waudby could not possibly have committed the crime. (Jenna's babysitter later admitted killing Baby Jenna and sexually assaulting her);
Second problem: Waudby had never physically assaulted Baby Jenna - (another flawed opinion of Dr. Charles Smith. She only pleaded guilty - with all of the consequences relating to her family vis @ vis the local Children's Aid Society that the guilty plea would entail - to get rid of the horrific murder charge.
Sadly, Waudby is not the only one of Dr. Smith's victims who felt compelled to plead guilty to an offence they did not commit in a prosecution involving Dr. Charles Smith;
Previous postings to this Blog have shown how an innocent mother named Sherry Sherrett felt she had no choice but to agree to be convicted of infanticide in connection with the death of her beloved son Joshua in order to avoid being found guilty of murdering him - and going to prison for life - because of Dr. Charles Smith's celebrated prowess over jurors.
This Blog has also looked at the the direct consequences to Sherrett - including a year spent in prison and the collateral damage caused to her family. (See recent posting: Collateral damage; Part One and Part Two;)
I was absolutely stunned to hear defence lawyer Bruce Hillyer's account at the Goudge Inquiry as to how he had to assist Sherrett with an unusual "nolo contendere" plea - in which there is no acknowledgment of guilt - even though he was confident that the medical evidence he would call pointed to her innocence;
Hillyer made clear to Commission Counsel Mark Sandler that Sherrett never ever admitted guilt to him, that she insisted she had never hurt Joshua or done anything unlawful to him, and that she believed Joshua died because of mould or the unconventional bed she had recently put him in.
A loving, utterly innocent mother, mother spent a year in prison following her pragmatic plea;
Outrageous;
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By way of brief introduction:
Joshua died in January of 1996 at the age of four (4) months in Trenton.
At the time of Joshua's death, Sherry, his mother, was twenty (20) years old.
On March the 27th of 1996, she was charged with first degree murder.
She was committed on that charge after a preliminary inquiry.
That committal was subsequently quashed and a charge of second degree murder substituted.
On January the 4th of 1999, a new indictment charging infanticide was placed before the Court.
She entered a plea of not guilty.
The Crown read into the record certain agreed facts.
The defence called no evidence in response to those facts and did not dispute them.
As a result, he was convicted of infanticide and sentenced to a one
(1) year custodial term followed by probation.
Related Children's Aid proceedings involving Joshua's brother and another child, a daughter, that was born to Sherry in September of 2005.
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The following excerpts from the transcript paint an excellent picture of what Hellyer faced as defence counsel in this case - and of Sherrett's brutal predicament:
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Excerpt One: Hillyer's view of the merit's of the Crown's case:
MR. MARK SANDLER: So when you look at the merits of the case, here you were at the end of the preliminary inquiry, and I'll -- I'll take you to the end of the period where you successfully brought a certiorari to -- to quash the first degree charge, and the second degree charge was substituted. How did you feel about the strength of the defence case?
MR. BRUCE HILLYER: On the medical side, I -- well it -- it -- the problem was from my experience as a jury trial lawyer, you know, the -- the unknown is there. I mean, I -- I had -- it was going to come down to my client's word against a fellow like Smith who, s Mr. Struthers says, was very articulate, well spoken, good posture; would quickly, as you can see from the transcript, go off on tangents, and talk about other issues with some purported degree of expertise.
And, you know, that was -- it was going to be -- I was troubled by -- by it, but I was -- academically, I wasn't worried about the medicine, assuming I had a trier of fact that could cut the wheat from the chaff. I guess I was worried a jury might not be able to do that.
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Excerpt Two: The Judges's out of court view of Dr. Smith's reputation:
MR. MARK SANDLER: All right. Did you have any dialogue with Dr. Smith outside of the courtroom prior to, during, or after the preliminary inquiry?
MR. BRUCE HILLYER: I don't think so.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But I did with the -- with the preliminary hearing judge.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: The only reason I mention that is that he was -- he took me aside afterwards, and it's a very small town; very small
courtroom; and said, You know, Dr. Smith's a very good witness, and they were -- he was very proud of him. I guess Dr. Smith -- I don't whether he'd done any -- any
of his work down in the Belleville area, but they -- he was certainly well known down there. And you know, it was just more information to assimilate. He was -- the judge was encouraging me to enter into plea negotiations with -- with the Crown.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: Who I understood he was -- he jogged with.
MR. MARK SANDLER: All right. I mean, you're not suggesting anything improper --
MR. BRUCE HILLYER: No, not at all. No, no. I have high regard for Ms. Walsh. She handled herself very well.
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Ecerpt Three: How the Crown initiated plea discussions: -
MR. MARK SANDLER: And it reflects that on October 15th of 1998, Ms. Walsh sent a memorandum to Staff Sergeant MacLellan in which she stated: "Since our last conversation, I've spoken to Bruce Hillyer about our offer of a plea of guilty to infanticide. Today, he agreed to give a firm answer by November 15. By that time, he should be able to have arranged for a psychiatric evaluation of Sherry to canvass the issues relevant to infanticide which will hopefully also
address sentencing issues and to meet ith her." Were discussions taking place as between you and Sheila Walsh about a potential resolution to infanticide?
MR. BRUCE HILLYER: Well, how that all ar -- we'd already had a pretrial -- a judicial pretrial -- where we were talking about the length of the trial, whether there would be challenge for cause. I think challenge for cause was more -- more liberal then, than it is now. There was a window of time where it was, anyway. And we may have had discussions then, but I indicated there would be no plea being offered. And as we got closer to -- to the trial date, I think Sheila called me, and asked me to -- I think her first -- asked me to consider was manslaughter, and I -- I just -- I said I'll pass it on, but I don't -- I'm sure the answer will be no, and it was. And then she called back, and surprisingly said, Well you gotta give me something. She was very uneasy about -- about prosecuting the case. And I said, Well, I don't know what it could be. And, so I said, But I'll have a look, which was sort of -- I sort of didn't think that it would amount to anything. And then I started wandering through the - the criminal code, and the charge of infanticide caught my attention, because I'd never dealt with it before.
And the only way I could even think that it would possibly be an appropriate charge would be on the basis that my client had -- was well aware of the health problems the child was having, and she, in fact, had gone out of her way to report the matter to the landlord, to the local health authorities, but she was a
single -- single mother on, I believe, social assistance, you know, very -- very -- not very -- no resources. And then we got to the -- and in discussions with the bedding, she was concerned that .. all these loose sleeping bags and blanket was --
wasn't an appropriate way to deal with -- to deal with bedding for such a young child, because I think the baby had just moved from a -- from a crib setting into this -- into this more unconventional setting. And, you know, she was communicating to me, if only I had gotten up in the night or whatever, and
-- and that was the only way I could -- I could even justify it in my own mind, and without speaking to my client, I communicated that to Ms. Walsh.
MR. MARK SANDLER: And just stopping there for a moment. What I -- what I'm hearing you saying is that a plea of guilt based upon omission as
opposed to commission.
MR. BRUCE HILLYER: Right.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Yes. And Ms. Walsh came back and said, No, she would insist on -- on commission, and so I -- I just said, Well, is -- are you
saying you'll do that? And she said she would, so I said, Well, I'll put it to -- I'll put it to my client.
MR. MARK SANDLER: Now, just stopping there for a moment. Just to be clear, who had initiated this discussion as to possible resolution?
MR. BRUCE HILLYER: The Crown.
MR. MARK SANDLER: And you said that she had some discomfort or expressed some concern about -- about the case. Did she tell you what it was that --
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: -- caused that --
MR. BRUCE HILLYER: I mean I didn't -- I didn't understand what was going on then, what -- what I've seen here now. I just assumed it was -- well, I
hoped, I guess, in a perfect world that she thought that the medical evidence was not going to go very far. There were some evidentiary issues that were going to get revisited at the trial with respect to the KGB statements that we had -- we had spent all our time on at the preliminary hearing, virtually, anyway, or was she just was feeling sorry for my client; I didn't know -- I didn't know what it was.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But it was just a desire to -- to find a resolution that was nowhere near manslaughter or murder.
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Excerpt Four: Hellyer puts the Crowns's plea offer to Sherrett:
MR. MARK SANDLER: So, could -- could you give the Commissioner a sense, first of all, of -- of how the conversation then went with your client that
ultimately resulted in what transpired in Court?
MR. BRUCE HILLYER: Yeah, well, this is - I know it was -- it was re -- I think it was recorded somehow, but it was done in Mr. Bonn's office. I asked
that -- that my client and -- and her parents go into Mr. Bonn's office in Trenton and that --
MR. MARK SANDLER: Mr. Bonn was who?
MR. BRUCE HILLYER: He was the lawyer whose office had asked me to help.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: For lack of a better description, the solicitor. And I was on the line at the other end and I put to -- I put them -- I put the options to my client, discussed the -- what -- what the -- what
could happen. And I'm assuming she made the decision right away, but I'm not sure, but she made it clear that she would not plead guilty to anything. And so -- and I
don't know whether it was during that phone call or whether it was later -- I assume it was during that phone call because I've -- I've done a lot of work in the
states. I'm a member of the Board of Governors of the American Trial Lawyers Association, which is now the American Association for Justice. And I've par -- taken part in their -- not only their civil sections, but their criminal sections,
as well, and I was always interested in this nolo contendere or whatever they call it down there, nolo pros. And I ran it by my partner of the day, who's now Justice Forsyth, who actually wrote a paper on -- on the need for -- in the Criminal Lawyers Quarterly, I think, on the need for a nolo pros procedure, because, of course, I had to face -- I had to look myself in the mirror when -- at the end of the day and hope I had done the right thing. And -- and then I called -- I think I must have gotten instructions that if -- if we can do it that way, she would do it, and then I contacted Ms. Walsh and put that proposal to her which she accepted.
MR. MARK SANDLER: All right. Had -- throughout the process, up to and including the time that the case was dealt with in Court, did the client ever
admit guilt?
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: And did you have a sense of the factors that informed her decision to proceed by way of nolo contendere rather than to proceed
to trial?
MR. BRUCE HILLYER: Could you say that again, please?
MR. MARK SANDLER: Did you have a sense or did you discuss with her what factors informed her decision to take that offer?
MR. BRUCE HILLYER: I guess it would just be a fear of going to trial and being found guilty of second or manslaughter and having an extensive period of -- a far more lengthy period of time in jail.
MR. MARK SANDLER: Okay. Now, if you go to -- well, I'll ask you this. It's probably implicit, if not explicit, in what you've already said, but you had consulted Dr. Plunkett; you'd consulted Dr. Jaffe. We've heard what Dr. Jaffe had had to say about the case. What level of confidence did you have in ultimate success on the murder trial, had it proceeded to trial?
MR. BRUCE HILLYER: I had a good level of confidence on the medical evidence. What I didn't have a good level of confidence on was in my client. She was extremely stressed and upset over the events surrounding
the death of Joshua. She -- you've got to appreciate the -- this is a small town. The Children's Aid had -- first of all, the fact that anyone would think that -- that she killed her child; second of all, the Children's Aid had taken away her -- her other child. She was -- I won't say irrational, but she was -- she was difficult. It was very difficult to sort of communicate effectively with her in a very logical -- logical sense, because she was consumed with -- with all the emotional, whether it was guilt in her mind for not having gotten up that night or whether the way the bed was made, or whether it was the social pressure that she
was -- she was getting from the community. She was telling me stories about people
making fun of her and speaking unkindly of her. She was really in a mess intellectually and emotionally, in terms of making decisions which is why I insisted that she have her parents there and Mr. Bond, the solicitor, to hopefully, effectively communicate what the options were. I mean, if -- at the end of the day,
looking forward in the crystal ball, you don't know how a jury is going to perceive something. I've got Doctor -- or I've got Judge Hunter telling me what a great witness this guy is; Jaffe is telling me what a great witness he is. I hadn't -- I didn't dance with him at the preliminary because -- I was ready to. If you see in the material, I had a whole pile of medical stuff I was ready to go at him with, but he didn't -- he didn't hurt me in- chief. I just drew a circle around him and left him alone. So I was reasonably confident, but it's not me that has to do the time, so I wasn't prepared to recommend that she gamble.
MR. MARK SANDLER: All right. If you go to page 100 of the overview report, we see that paragraph 199, that on September the 7th of 2005 you drafted a letter on Sherry's behalf to assist her with the family law proceedings. And you reflected: "I was quite perplexed in representing her about whether or not the Crown could establish that her child had, indeed, died as a result of an unlawful
act. The Crown's case rested primarily on the opinion of Dr. Smith, the forensic pathologist with the Centre of Forensic Sciences in Toronto, who, at the time, had a very high reputation in his field. In preparing the defence, I had commissioned opinions from Dr. Jaffe, a forensic pathologist from Toronto, and I also consulted with American doctors who I spoke with on the telephone. They were all deeply troubled by what Dr. Smith reported but, in essence, they deferred to him,
with the exception of Dr. Jaffe, with respect to his conclusions and findings." Just stopping there for a moment. Does hat assist in refreshing your memory as to what you ight have received from -- from those other than Dr. Jaffe about the case?
MR. BRUCE HILLYER: Not really.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Don't forget, I wrote that letter in '05, so. Yeah, I'm not so sure that that comment is correct; it may be but I don't know.
MR. MARK SANDLER: And then you reflect: "Faced with the prospect of a conviction and all that flows from that, I vigorously represented Sherry, and at the eleventh hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide on the basis that at the time, Sherry was suffering from post partum depression. The compromise was seen as a way out for both sides. The Crown fearing they couldn't get a conviction of any kind, and the defence fearing a conviction for murder, while not justified, would result in a lengthy period of incarceration." And then you reflect some of the
psychological or psychiatric opinions that were rendered, and then you say:
"Some cases come back to haunt you, and this is one (1) of them." Ad then you reflect certain -- more recent information that have cau -- that has called into
question Dr. Smith's testimony, and you say: "It's far to late to ever know what
happened -- really happened with respect to the death of Sherry's child, but I'd like to think in all the circumstances, and in particular, with respect to the reports that I have enclosed and were commissioned so many years, that one (1) shouldn't have any concerns now. In my view, even then with respect to Sherry's ability to ook after a child and to be a lovingand caring mother." And did that represent your views of the case?
MR. BRUCE HILLYER: It certainly did.
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Excerpt Five: How to reconcile Sherrett's unbending denial with the opinions of other experts? (Doctors and psychologists);
MR. MARK SANDLER: Now, one (1) of the things I just want to ask you about very briefly, and I won't take you to all the documentation, but it would
appear that -- that the various psychologists, or psychiatrists weighed in on Sherry's case, gave some conflicting views on -- on how to analyze her situation. And -- and am I right that one (1) of the factors that appears to explain some of the different views is -- is how to reconcile what it was that she had been found guilty with, with her continuing denial that she had committed the offense?
MR. BRUCE HILLYER: I -- yeah. I -- yeah, it -- it's hard for me to answer that question. I mean, it -- I suspect the -- the doctors must have
assumed that -- that she smothered her child and that they were sort of working with that as part of their hypothesis. With -- and -- and they were struggling
with coming up with a -- with a diagnosis. This --
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Excerpt Six: The lack of remorse conundrum:
MR. MARK SANDLER: And we also see that the presiding justice appeared to rely upon the absence of remorse in determining what the appropriate sentence was. Am I right?
MR. BRUCE HILLYER: Yes. In fairness to Justice Byers, she was very -- I don't know whether you know this, but once this became known about Dr. Smith and this -- and this case has been back in the news, was -- I'm told publically commented on it in the local media down in Trenton, and sort of regretted the way that it had all unravelled.
Harold Levy...hlevy15@gmail.com;
Two problems:
First problem; The prosecutors were withdrawing the charge because they had received evidence indicating that Waudby could not possibly have committed the crime. (Jenna's babysitter later admitted killing Baby Jenna and sexually assaulting her);
Second problem: Waudby had never physically assaulted Baby Jenna - (another flawed opinion of Dr. Charles Smith. She only pleaded guilty - with all of the consequences relating to her family vis @ vis the local Children's Aid Society that the guilty plea would entail - to get rid of the horrific murder charge.
Sadly, Waudby is not the only one of Dr. Smith's victims who felt compelled to plead guilty to an offence they did not commit in a prosecution involving Dr. Charles Smith;
Previous postings to this Blog have shown how an innocent mother named Sherry Sherrett felt she had no choice but to agree to be convicted of infanticide in connection with the death of her beloved son Joshua in order to avoid being found guilty of murdering him - and going to prison for life - because of Dr. Charles Smith's celebrated prowess over jurors.
This Blog has also looked at the the direct consequences to Sherrett - including a year spent in prison and the collateral damage caused to her family. (See recent posting: Collateral damage; Part One and Part Two;)
I was absolutely stunned to hear defence lawyer Bruce Hillyer's account at the Goudge Inquiry as to how he had to assist Sherrett with an unusual "nolo contendere" plea - in which there is no acknowledgment of guilt - even though he was confident that the medical evidence he would call pointed to her innocence;
Hillyer made clear to Commission Counsel Mark Sandler that Sherrett never ever admitted guilt to him, that she insisted she had never hurt Joshua or done anything unlawful to him, and that she believed Joshua died because of mould or the unconventional bed she had recently put him in.
A loving, utterly innocent mother, mother spent a year in prison following her pragmatic plea;
Outrageous;
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By way of brief introduction:
Joshua died in January of 1996 at the age of four (4) months in Trenton.
At the time of Joshua's death, Sherry, his mother, was twenty (20) years old.
On March the 27th of 1996, she was charged with first degree murder.
She was committed on that charge after a preliminary inquiry.
That committal was subsequently quashed and a charge of second degree murder substituted.
On January the 4th of 1999, a new indictment charging infanticide was placed before the Court.
She entered a plea of not guilty.
The Crown read into the record certain agreed facts.
The defence called no evidence in response to those facts and did not dispute them.
As a result, he was convicted of infanticide and sentenced to a one
(1) year custodial term followed by probation.
Related Children's Aid proceedings involving Joshua's brother and another child, a daughter, that was born to Sherry in September of 2005.
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The following excerpts from the transcript paint an excellent picture of what Hellyer faced as defence counsel in this case - and of Sherrett's brutal predicament:
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Excerpt One: Hillyer's view of the merit's of the Crown's case:
MR. MARK SANDLER: So when you look at the merits of the case, here you were at the end of the preliminary inquiry, and I'll -- I'll take you to the end of the period where you successfully brought a certiorari to -- to quash the first degree charge, and the second degree charge was substituted. How did you feel about the strength of the defence case?
MR. BRUCE HILLYER: On the medical side, I -- well it -- it -- the problem was from my experience as a jury trial lawyer, you know, the -- the unknown is there. I mean, I -- I had -- it was going to come down to my client's word against a fellow like Smith who, s Mr. Struthers says, was very articulate, well spoken, good posture; would quickly, as you can see from the transcript, go off on tangents, and talk about other issues with some purported degree of expertise.
And, you know, that was -- it was going to be -- I was troubled by -- by it, but I was -- academically, I wasn't worried about the medicine, assuming I had a trier of fact that could cut the wheat from the chaff. I guess I was worried a jury might not be able to do that.
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Excerpt Two: The Judges's out of court view of Dr. Smith's reputation:
MR. MARK SANDLER: All right. Did you have any dialogue with Dr. Smith outside of the courtroom prior to, during, or after the preliminary inquiry?
MR. BRUCE HILLYER: I don't think so.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But I did with the -- with the preliminary hearing judge.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: The only reason I mention that is that he was -- he took me aside afterwards, and it's a very small town; very small
courtroom; and said, You know, Dr. Smith's a very good witness, and they were -- he was very proud of him. I guess Dr. Smith -- I don't whether he'd done any -- any
of his work down in the Belleville area, but they -- he was certainly well known down there. And you know, it was just more information to assimilate. He was -- the judge was encouraging me to enter into plea negotiations with -- with the Crown.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: Who I understood he was -- he jogged with.
MR. MARK SANDLER: All right. I mean, you're not suggesting anything improper --
MR. BRUCE HILLYER: No, not at all. No, no. I have high regard for Ms. Walsh. She handled herself very well.
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Ecerpt Three: How the Crown initiated plea discussions: -
MR. MARK SANDLER: And it reflects that on October 15th of 1998, Ms. Walsh sent a memorandum to Staff Sergeant MacLellan in which she stated: "Since our last conversation, I've spoken to Bruce Hillyer about our offer of a plea of guilty to infanticide. Today, he agreed to give a firm answer by November 15. By that time, he should be able to have arranged for a psychiatric evaluation of Sherry to canvass the issues relevant to infanticide which will hopefully also
address sentencing issues and to meet ith her." Were discussions taking place as between you and Sheila Walsh about a potential resolution to infanticide?
MR. BRUCE HILLYER: Well, how that all ar -- we'd already had a pretrial -- a judicial pretrial -- where we were talking about the length of the trial, whether there would be challenge for cause. I think challenge for cause was more -- more liberal then, than it is now. There was a window of time where it was, anyway. And we may have had discussions then, but I indicated there would be no plea being offered. And as we got closer to -- to the trial date, I think Sheila called me, and asked me to -- I think her first -- asked me to consider was manslaughter, and I -- I just -- I said I'll pass it on, but I don't -- I'm sure the answer will be no, and it was. And then she called back, and surprisingly said, Well you gotta give me something. She was very uneasy about -- about prosecuting the case. And I said, Well, I don't know what it could be. And, so I said, But I'll have a look, which was sort of -- I sort of didn't think that it would amount to anything. And then I started wandering through the - the criminal code, and the charge of infanticide caught my attention, because I'd never dealt with it before.
And the only way I could even think that it would possibly be an appropriate charge would be on the basis that my client had -- was well aware of the health problems the child was having, and she, in fact, had gone out of her way to report the matter to the landlord, to the local health authorities, but she was a
single -- single mother on, I believe, social assistance, you know, very -- very -- not very -- no resources. And then we got to the -- and in discussions with the bedding, she was concerned that .. all these loose sleeping bags and blanket was --
wasn't an appropriate way to deal with -- to deal with bedding for such a young child, because I think the baby had just moved from a -- from a crib setting into this -- into this more unconventional setting. And, you know, she was communicating to me, if only I had gotten up in the night or whatever, and
-- and that was the only way I could -- I could even justify it in my own mind, and without speaking to my client, I communicated that to Ms. Walsh.
MR. MARK SANDLER: And just stopping there for a moment. What I -- what I'm hearing you saying is that a plea of guilt based upon omission as
opposed to commission.
MR. BRUCE HILLYER: Right.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Yes. And Ms. Walsh came back and said, No, she would insist on -- on commission, and so I -- I just said, Well, is -- are you
saying you'll do that? And she said she would, so I said, Well, I'll put it to -- I'll put it to my client.
MR. MARK SANDLER: Now, just stopping there for a moment. Just to be clear, who had initiated this discussion as to possible resolution?
MR. BRUCE HILLYER: The Crown.
MR. MARK SANDLER: And you said that she had some discomfort or expressed some concern about -- about the case. Did she tell you what it was that --
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: -- caused that --
MR. BRUCE HILLYER: I mean I didn't -- I didn't understand what was going on then, what -- what I've seen here now. I just assumed it was -- well, I
hoped, I guess, in a perfect world that she thought that the medical evidence was not going to go very far. There were some evidentiary issues that were going to get revisited at the trial with respect to the KGB statements that we had -- we had spent all our time on at the preliminary hearing, virtually, anyway, or was she just was feeling sorry for my client; I didn't know -- I didn't know what it was.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: But it was just a desire to -- to find a resolution that was nowhere near manslaughter or murder.
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Excerpt Four: Hellyer puts the Crowns's plea offer to Sherrett:
MR. MARK SANDLER: So, could -- could you give the Commissioner a sense, first of all, of -- of how the conversation then went with your client that
ultimately resulted in what transpired in Court?
MR. BRUCE HILLYER: Yeah, well, this is - I know it was -- it was re -- I think it was recorded somehow, but it was done in Mr. Bonn's office. I asked
that -- that my client and -- and her parents go into Mr. Bonn's office in Trenton and that --
MR. MARK SANDLER: Mr. Bonn was who?
MR. BRUCE HILLYER: He was the lawyer whose office had asked me to help.
MR. MARK SANDLER: All right.
MR. BRUCE HILLYER: For lack of a better description, the solicitor. And I was on the line at the other end and I put to -- I put them -- I put the options to my client, discussed the -- what -- what the -- what
could happen. And I'm assuming she made the decision right away, but I'm not sure, but she made it clear that she would not plead guilty to anything. And so -- and I
don't know whether it was during that phone call or whether it was later -- I assume it was during that phone call because I've -- I've done a lot of work in the
states. I'm a member of the Board of Governors of the American Trial Lawyers Association, which is now the American Association for Justice. And I've par -- taken part in their -- not only their civil sections, but their criminal sections,
as well, and I was always interested in this nolo contendere or whatever they call it down there, nolo pros. And I ran it by my partner of the day, who's now Justice Forsyth, who actually wrote a paper on -- on the need for -- in the Criminal Lawyers Quarterly, I think, on the need for a nolo pros procedure, because, of course, I had to face -- I had to look myself in the mirror when -- at the end of the day and hope I had done the right thing. And -- and then I called -- I think I must have gotten instructions that if -- if we can do it that way, she would do it, and then I contacted Ms. Walsh and put that proposal to her which she accepted.
MR. MARK SANDLER: All right. Had -- throughout the process, up to and including the time that the case was dealt with in Court, did the client ever
admit guilt?
MR. BRUCE HILLYER: No.
MR. MARK SANDLER: And did you have a sense of the factors that informed her decision to proceed by way of nolo contendere rather than to proceed
to trial?
MR. BRUCE HILLYER: Could you say that again, please?
MR. MARK SANDLER: Did you have a sense or did you discuss with her what factors informed her decision to take that offer?
MR. BRUCE HILLYER: I guess it would just be a fear of going to trial and being found guilty of second or manslaughter and having an extensive period of -- a far more lengthy period of time in jail.
MR. MARK SANDLER: Okay. Now, if you go to -- well, I'll ask you this. It's probably implicit, if not explicit, in what you've already said, but you had consulted Dr. Plunkett; you'd consulted Dr. Jaffe. We've heard what Dr. Jaffe had had to say about the case. What level of confidence did you have in ultimate success on the murder trial, had it proceeded to trial?
MR. BRUCE HILLYER: I had a good level of confidence on the medical evidence. What I didn't have a good level of confidence on was in my client. She was extremely stressed and upset over the events surrounding
the death of Joshua. She -- you've got to appreciate the -- this is a small town. The Children's Aid had -- first of all, the fact that anyone would think that -- that she killed her child; second of all, the Children's Aid had taken away her -- her other child. She was -- I won't say irrational, but she was -- she was difficult. It was very difficult to sort of communicate effectively with her in a very logical -- logical sense, because she was consumed with -- with all the emotional, whether it was guilt in her mind for not having gotten up that night or whether the way the bed was made, or whether it was the social pressure that she
was -- she was getting from the community. She was telling me stories about people
making fun of her and speaking unkindly of her. She was really in a mess intellectually and emotionally, in terms of making decisions which is why I insisted that she have her parents there and Mr. Bond, the solicitor, to hopefully, effectively communicate what the options were. I mean, if -- at the end of the day,
looking forward in the crystal ball, you don't know how a jury is going to perceive something. I've got Doctor -- or I've got Judge Hunter telling me what a great witness this guy is; Jaffe is telling me what a great witness he is. I hadn't -- I didn't dance with him at the preliminary because -- I was ready to. If you see in the material, I had a whole pile of medical stuff I was ready to go at him with, but he didn't -- he didn't hurt me in- chief. I just drew a circle around him and left him alone. So I was reasonably confident, but it's not me that has to do the time, so I wasn't prepared to recommend that she gamble.
MR. MARK SANDLER: All right. If you go to page 100 of the overview report, we see that paragraph 199, that on September the 7th of 2005 you drafted a letter on Sherry's behalf to assist her with the family law proceedings. And you reflected: "I was quite perplexed in representing her about whether or not the Crown could establish that her child had, indeed, died as a result of an unlawful
act. The Crown's case rested primarily on the opinion of Dr. Smith, the forensic pathologist with the Centre of Forensic Sciences in Toronto, who, at the time, had a very high reputation in his field. In preparing the defence, I had commissioned opinions from Dr. Jaffe, a forensic pathologist from Toronto, and I also consulted with American doctors who I spoke with on the telephone. They were all deeply troubled by what Dr. Smith reported but, in essence, they deferred to him,
with the exception of Dr. Jaffe, with respect to his conclusions and findings." Just stopping there for a moment. Does hat assist in refreshing your memory as to what you ight have received from -- from those other than Dr. Jaffe about the case?
MR. BRUCE HILLYER: Not really.
MR. MARK SANDLER: Okay.
MR. BRUCE HILLYER: Don't forget, I wrote that letter in '05, so. Yeah, I'm not so sure that that comment is correct; it may be but I don't know.
MR. MARK SANDLER: And then you reflect: "Faced with the prospect of a conviction and all that flows from that, I vigorously represented Sherry, and at the eleventh hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide on the basis that at the time, Sherry was suffering from post partum depression. The compromise was seen as a way out for both sides. The Crown fearing they couldn't get a conviction of any kind, and the defence fearing a conviction for murder, while not justified, would result in a lengthy period of incarceration." And then you reflect some of the
psychological or psychiatric opinions that were rendered, and then you say:
"Some cases come back to haunt you, and this is one (1) of them." Ad then you reflect certain -- more recent information that have cau -- that has called into
question Dr. Smith's testimony, and you say: "It's far to late to ever know what
happened -- really happened with respect to the death of Sherry's child, but I'd like to think in all the circumstances, and in particular, with respect to the reports that I have enclosed and were commissioned so many years, that one (1) shouldn't have any concerns now. In my view, even then with respect to Sherry's ability to ook after a child and to be a lovingand caring mother." And did that represent your views of the case?
MR. BRUCE HILLYER: It certainly did.
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Excerpt Five: How to reconcile Sherrett's unbending denial with the opinions of other experts? (Doctors and psychologists);
MR. MARK SANDLER: Now, one (1) of the things I just want to ask you about very briefly, and I won't take you to all the documentation, but it would
appear that -- that the various psychologists, or psychiatrists weighed in on Sherry's case, gave some conflicting views on -- on how to analyze her situation. And -- and am I right that one (1) of the factors that appears to explain some of the different views is -- is how to reconcile what it was that she had been found guilty with, with her continuing denial that she had committed the offense?
MR. BRUCE HILLYER: I -- yeah. I -- yeah, it -- it's hard for me to answer that question. I mean, it -- I suspect the -- the doctors must have
assumed that -- that she smothered her child and that they were sort of working with that as part of their hypothesis. With -- and -- and they were struggling
with coming up with a -- with a diagnosis. This --
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Excerpt Six: The lack of remorse conundrum:
MR. MARK SANDLER: And we also see that the presiding justice appeared to rely upon the absence of remorse in determining what the appropriate sentence was. Am I right?
MR. BRUCE HILLYER: Yes. In fairness to Justice Byers, she was very -- I don't know whether you know this, but once this became known about Dr. Smith and this -- and this case has been back in the news, was -- I'm told publically commented on it in the local media down in Trenton, and sort of regretted the way that it had all unravelled.
Harold Levy...hlevy15@gmail.com;
The Affected Families Group's Response To Dr. Smith's Closing Submissions On The "Sharon" and "Jenna" Cases: An Enlightening Document;
In his closing Submissions, Dr. Charles Smith responded to allegations made against him by lawyers for the Affected Families Group in connection with the "Sharon" and "Jenna" cases;
The reply to Smith's defence of his conduct in these cases is made by lawyers Peter Wardle and Julie Kirkpatrick in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the response begins in the context of Sharon's case.
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Louise Reynolds by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
The reply to Smith's defence of his conduct in these cases is made by lawyers Peter Wardle and Julie Kirkpatrick in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the response begins in the context of Sharon's case.
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Louise Reynolds by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
Mullins-Johnson: Vows To Be A Thorn In The Side Of Justice;
William Mullins-Johnson has displayed his inspiring resilience in an address he recently gave to the Manitoulin-Northshore Victim Crisis Assistance and Referral Service conference.
Mullins-Johnson's address appears in today's Sudbury Star under the heading "Island group hears from MD's victim", as reported by Margo Little;
A Sault Ste. Marie man wrongfully convicted in the death of his four-year-old niece in 1993 pledges to be a thorn in the side of the Canadian justice system.
"William Mullins-Johnson spent more than a decade in prison before being acquitted in 2007," the story begins.
"I did go through 12 years of hell when I was in jail," he told delegates to the Manitoulin-Northshore Victim Crisis Assistance and Referral Service conference Friday. "And in many ways I'm still going through hell," it continues.
"Mullins-Johnson shared his traumatic ordeal with a gathering of community volunteers trained to assist victims of tragic circumstances. The theme of the 9th annual VCARS forum held April 17-18 was "Through the Eyes of a Victim."
His nightmare started on June 27, 1993, when Valin Johnson's lifeless body was found in her bed around 7 a.m. Mullins-Johnson had been staying at his brother Paul's place while attending school and working at an electrical equipment warehouse. By 6:30 p.m., Mullins-Johnson had been arrested and charged with first-degree murder.
The prosecutors relied heavily on expert witness Dr. Charles Smith, then regarded as Ontario's leading expert on child deaths.
Smith had conducted more than 1,000 autopsies at Toronto's Hospital for Sick Children. Eventually, a coroner's review of Smith's work would reveal questionable findings in 20 child autopsies. Thirteen of the 20 resulted in criminal convictions - including the Mullins-Johnson case.
Despite protestations of innocence, Mullins-Johnson was convicted in September 1994 after a two-week trial and sentenced to life imprisonment with no parole for 25 years. If prison authorities expected him to accept his fate, they would be proven wrong.
Since he had been labelled a child sexual offender, his life was in danger every moment. In prison hierarchy, child molesters, or "skinners," are viewed as "scum."
"Just the accusation destroys your life. It literally destroyed me," he said. "I went through an emotional breakdown in prison. I suffered insomnia, my head was churning and I couldn't sleep. I would have strung myself up or slit my wrists if it wasn't for a native elder I met there."
With the help of his spiritual advisor, he was able to shed some weight and set aside the pot and pills he had been taking. Through native sweat-lodge rituals, weight-training and exercise he grew strong enough to educate himself about his case and the inner workings of Canadian prisons.
Recognizing that knowledge is power, he started reading sociology and criminology. By January 2005, the association for the wrongly convicted took an interest in his battle for freedom.
"A major turning point came in February 2005 when the results of a review of the forensic file were released. The report authored by Dr. Michael Pollanen confirmed there was no positive medical evidence that Valin Johnson was murdered.
Also, there was no positive medical evidence that the child was sexually assaulted at any time.
The Pollanen conclusions were backed up by Dr. Bernard Knight of Wales as well. He confirmed there was no evidence of a homicide or of sexual injury."
Harold Levy...hlevy15@gmail.com;
Mullins-Johnson's address appears in today's Sudbury Star under the heading "Island group hears from MD's victim", as reported by Margo Little;
A Sault Ste. Marie man wrongfully convicted in the death of his four-year-old niece in 1993 pledges to be a thorn in the side of the Canadian justice system.
"William Mullins-Johnson spent more than a decade in prison before being acquitted in 2007," the story begins.
"I did go through 12 years of hell when I was in jail," he told delegates to the Manitoulin-Northshore Victim Crisis Assistance and Referral Service conference Friday. "And in many ways I'm still going through hell," it continues.
"Mullins-Johnson shared his traumatic ordeal with a gathering of community volunteers trained to assist victims of tragic circumstances. The theme of the 9th annual VCARS forum held April 17-18 was "Through the Eyes of a Victim."
His nightmare started on June 27, 1993, when Valin Johnson's lifeless body was found in her bed around 7 a.m. Mullins-Johnson had been staying at his brother Paul's place while attending school and working at an electrical equipment warehouse. By 6:30 p.m., Mullins-Johnson had been arrested and charged with first-degree murder.
The prosecutors relied heavily on expert witness Dr. Charles Smith, then regarded as Ontario's leading expert on child deaths.
Smith had conducted more than 1,000 autopsies at Toronto's Hospital for Sick Children. Eventually, a coroner's review of Smith's work would reveal questionable findings in 20 child autopsies. Thirteen of the 20 resulted in criminal convictions - including the Mullins-Johnson case.
Despite protestations of innocence, Mullins-Johnson was convicted in September 1994 after a two-week trial and sentenced to life imprisonment with no parole for 25 years. If prison authorities expected him to accept his fate, they would be proven wrong.
Since he had been labelled a child sexual offender, his life was in danger every moment. In prison hierarchy, child molesters, or "skinners," are viewed as "scum."
"Just the accusation destroys your life. It literally destroyed me," he said. "I went through an emotional breakdown in prison. I suffered insomnia, my head was churning and I couldn't sleep. I would have strung myself up or slit my wrists if it wasn't for a native elder I met there."
With the help of his spiritual advisor, he was able to shed some weight and set aside the pot and pills he had been taking. Through native sweat-lodge rituals, weight-training and exercise he grew strong enough to educate himself about his case and the inner workings of Canadian prisons.
Recognizing that knowledge is power, he started reading sociology and criminology. By January 2005, the association for the wrongly convicted took an interest in his battle for freedom.
"A major turning point came in February 2005 when the results of a review of the forensic file were released. The report authored by Dr. Michael Pollanen confirmed there was no positive medical evidence that Valin Johnson was murdered.
Also, there was no positive medical evidence that the child was sexually assaulted at any time.
The Pollanen conclusions were backed up by Dr. Bernard Knight of Wales as well. He confirmed there was no evidence of a homicide or of sexual injury."
Harold Levy...hlevy15@gmail.com;
Sunday, April 20, 2008
Part Six: Case Studies; Systemic Factors; The "Athena" Case; Presented By The Affected Families Group;
"FINALLY, THE USE MADE BY THE POLICE OF THE POST-MORTEM REPORT IN THEIR INVESTIGATION – IT WAS NOT RELEASED TO THE FAMILY UNTIL THE POLICE HAD WIRETAPPED THEIR HOTEL ROOM, SO AS TO GAUGE THEIR REACTION – AGAIN RAISES ISSUES ABOUT THE ACTIVE INVOLVEMENT OF THE CHIEF CORONERS' OFFICE IN ONGOING POLICE INVESTIGATIONS."
CASE STUDY; THE ATHENA CASE; AFFECTED FAMILIES GROUP;
------------------------------------------------------------------------------
Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The sixth case has been identified by the Inquiry as the "Athena" Case;
--------------------------------------------------------------------------------
By way of brief background:
Athena's parents were freed of murder charges by the Ontario Court of Appeal on April 14, 2005 on grounds of excessive delay;
The appeal court acknowledged that, "The prospect of freeing someone on a charge of first-degree murder without a trial on the merits is almost unthinkable," the court conceded.
While the court decision lifted a heavy load from the shoulders of the couple, they were deprived of the opportunity of having their innocence demonstrated in the courtroom, in a prosecution that was based on the opinion of Dr. Charles Randal Smith.
The couple had protested their innocence from the outset;
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"The primary systemic issues raised by the Athena case obviously relate to the Chief Coroner's Office's control over the timing and delivery of post-mortem reports and consultation opinions," the case study begins;
"As found by the trial judge, and affirmed by the Court of Appeal, Dr. Smith’s delays in this case were unexplained, and had a significant impact on the time it took for the case to reach trial, with highly prejudicial effects for the family," it continues;
"There are however several other issues raised by the case which deserve the Commissioner’s attention.
As outlined in the trial judge’s reasons, there were a series of misunderstandings which led to Athena’s body being cremated at a time when the family were still considering whether to obtain a second opinion.
It is also important to note that there was evidence before Justice Trafford that the family, when inquiring about a second (defence) autopsy, was told by the Regional Coroner Dr. Bennett that the cost would be prohibitive.
Finally, the use made by the police of the post-mortem report in their investigation – it was not released to the family until the police had wiretapped their hotel room, so as to gauge their reaction – again raises issues about the active involvement of the Chief Coroners' Office in ongoing police investigations."
------------------------------------------------------------------------------
By way of background to Athena's case, here is an earlier Blog which I initially pulled because of concerns over the Inquiry's publish ban - which now has been modified accordingly:
"HE (SMITH) WAS THE SUBJECT OF MANY COMPLAINTS BY DOCTORS, POLICE OFFICERS, AND CROWN ATTORNEYS ABOUT DELAYS ON THE PART OF DR. SMITH IN THE PREPARATION OF POST-MORTEM, OR CONSULTATIVE REPORTS..."
"THE DELAY BY DR. SMITH IN THE PREPARATION OF A COMPREHENSIVE POST-MORTEM REPORT IS SHOCKING, NOT ONLY IN ITS DEPARTURE FROM THE STANDARDS EXPECTED OF HIM AND THE ONTARIO CHIEF CORONER'S OFFICE IN THE CIRCUMSTANCES OF THE CASE BUT BECAUSE OF HIS KNOWLEDGE OF THE IMPORTANCE OF HIS WORK TO THE CASE AND HIS KNOWLEDGE OF THE DESIRE OF THE POLICE, THE CROWN ATTORNEY AND THE DEFENDANTS TO HAVE A COPY OF THE REPORT AS SOON AS WAS REASONABLY POSSIBLE."
SUPERIOR COURT JUSTICE BRIAN TRAFFORD:
Dr. Charles Smith has come under fire for erroneous opinions that sent innocent persons to prison for life.
He has also come under attack for allegedly misplacing key forensic evidence that could show that people charged as a result of his opinions are innocent.
There is a third area in which the once venerated pediatric forensic pathologist has been criticized: An apparent problem with providing police and prosecutors with post-mortem reports, and other important documents in a timely fashion.
Allegations of a propensity for delay are found in Athena's case where Superior Court Justice Brian Trafford stayed charges of first-degree murder charges against a couple largely because of unreasonable delay.
Dr. Charles Smith had taken almost twelve month-s to file what turned out to be a one-page report.
As Trafford observed in his 63-page decision,"He (Smith) was the subject of "many complaints by doctors, police officers, and Crown Attorneys about delays on the part of Dr. Smith in the preparation of post mortem, or consultative reports..."
Trafford also notes that the officer in charge of the case distrusted Smith so intensely that he refused to lay criminal charges against the couple without written confirmation of the timing of the injuries to baby Athena.
Trafford details the Herculean efforts to obtain obtain the written addendum from Smith. (The homicide officers had asked Smith to prepare the document around July 20, 1999 - and Smith did not make it available until April 4, 2000);
An aggravated prosecutor had told a judge conducting a pre-trial conference held on March 6, 2000, "We have been trying ever since then (November, 1999) to get the amended (post-mortem) report. We still do not have it. We've written letters. I've called. The police have called numerous times."
"Understandably (defence) counsel is anxious to get this on and so is the Crown," the Prosecutor continued. "And I am considering taking the unusual step, Your Honour, of subpoenaing the doctor to come to Court to get some explanation as to when we're going to get this other report...
Time to pause for a moment;
A prosecutor on a first-degree murder trial is contemplating the serving of a subpoena on an important Crown witness who is none other than the renowned Dr. Charles Smith, head of the Pediatric Forensic Pathology Unit at the Hospital For Sick Children, in order to obtain a report which is crucial to the police investigation.
Something is very wrong with that picture.
Meanwhile the police where frantically attempting to obtain the document from Smith, as in a letter dated Feb. 1, 2000, signed By Detective Sergeant Matt Crone which notes that, "Proceedings against Athena's father have been delayed by my efforts to obtain this information from you."
"(Prosecutor) Rita Zaied has been placed in the difficult position of being unable to properly disclose this information and thus set a date for the preliminary hearing," Crone continued. "Despite my many phone calls and your assurances, I have not yet received the additional information requested.
"I fully appreciate how full your schedule is, but the situation is now critical and I must formally request, in the strongest terms, that the additional information I have requested be forwarded to me as soon as possible."
(Prosecutor Zaied made a similar written request to Smith in a letter dated March 13, 2000);
The letters clearly came to no avail as Detective Sergeant Crone was forced to serve Dr. Smith with a subpoena compelling production of the written addendum about two weeks later.
Smith's failure to provide police and prosecutors with crucial documents was clearly not unique.
Trafford tells us that:
0: On April 3, 2000, Detective Crone served Dr. Smith with a subpoena compelling production of the written memorandum;
0: In August 1997, Dr. Smith was compelled by a subpoena to attend Court with his report in another case;
0: In September 1998, Dr. Smith, in yet another murder case, was the subject of an application by the defence for an order requiring production of his post-mortem reports;
(This blog would appreciate receiving identification of the two other cases from its loyal readers);
Trafford also tells us that the addendum which had taken Smith more than nine months to produce turned out to be one page long and to contain nothing more than a repetition of the oral opinion he had provided the previous July;
In Athena's case, Trafford found that Smith's unreasonable delay in producing the addendum to the post-mortem report, "caused a significant delay in the completion of the investigation and the decision to proceed against both defendants on a charge of murder."
(Trafford ruled that Smith caused further delay by failing to submit forensic exhibits to the Centre for Forensic Science for a period of approximately six weeks);
But one must also consider the cruel consequences Smith's failure to do his job in a prompt manner had on Athena's mother who found out in the summer of 1998 that she was pregnant, and her husband.
Athena's mother was caught in a terrible dilemma:
She hoped that once the post-mortem report was issued by Smith both she and her husband would be cleared.
But she had been advised by a social worker that she ought not continue the pregnancy because if she had the baby it would likely be taken from he on an application for Crown wardship.
The couple opted for an abortion;
As Trafford puts it:
"The decision to have the abortion was a very difficult one that was difficult to make"
"She and Angela's father considered all their options," he continued.
"The options included having the child and resisting the efforts of the CAS(Children's Aid Society) to obtain custody, consenting to custody by any one of a number of immediate relatives in Toronto or elsewhere and having the child and putting it up for adoption.
The other option, abortion, was the alternative selected by them.
Neither the Toronto Police Services or the Crown Attorneys Office were involved in the decision.
As a result of the termination of the pregnancy, Angela's mother, suffered from extreme feelings of depression, anger, frustration and loss.
She obtained medical treatment for this condition.
If the post-mortem report of Dr. Smith had been received and proved the death of Athena was a sudden unexplained death, she would not have terminated the pregnancy."
Harold Levy...hlevy15@gmail.com;
CASE STUDY; THE ATHENA CASE; AFFECTED FAMILIES GROUP;
------------------------------------------------------------------------------
Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The sixth case has been identified by the Inquiry as the "Athena" Case;
--------------------------------------------------------------------------------
By way of brief background:
Athena's parents were freed of murder charges by the Ontario Court of Appeal on April 14, 2005 on grounds of excessive delay;
The appeal court acknowledged that, "The prospect of freeing someone on a charge of first-degree murder without a trial on the merits is almost unthinkable," the court conceded.
While the court decision lifted a heavy load from the shoulders of the couple, they were deprived of the opportunity of having their innocence demonstrated in the courtroom, in a prosecution that was based on the opinion of Dr. Charles Randal Smith.
The couple had protested their innocence from the outset;
-------------------------------------------------------------------------------
"The primary systemic issues raised by the Athena case obviously relate to the Chief Coroner's Office's control over the timing and delivery of post-mortem reports and consultation opinions," the case study begins;
"As found by the trial judge, and affirmed by the Court of Appeal, Dr. Smith’s delays in this case were unexplained, and had a significant impact on the time it took for the case to reach trial, with highly prejudicial effects for the family," it continues;
"There are however several other issues raised by the case which deserve the Commissioner’s attention.
As outlined in the trial judge’s reasons, there were a series of misunderstandings which led to Athena’s body being cremated at a time when the family were still considering whether to obtain a second opinion.
It is also important to note that there was evidence before Justice Trafford that the family, when inquiring about a second (defence) autopsy, was told by the Regional Coroner Dr. Bennett that the cost would be prohibitive.
Finally, the use made by the police of the post-mortem report in their investigation – it was not released to the family until the police had wiretapped their hotel room, so as to gauge their reaction – again raises issues about the active involvement of the Chief Coroners' Office in ongoing police investigations."
------------------------------------------------------------------------------
By way of background to Athena's case, here is an earlier Blog which I initially pulled because of concerns over the Inquiry's publish ban - which now has been modified accordingly:
"HE (SMITH) WAS THE SUBJECT OF MANY COMPLAINTS BY DOCTORS, POLICE OFFICERS, AND CROWN ATTORNEYS ABOUT DELAYS ON THE PART OF DR. SMITH IN THE PREPARATION OF POST-MORTEM, OR CONSULTATIVE REPORTS..."
"THE DELAY BY DR. SMITH IN THE PREPARATION OF A COMPREHENSIVE POST-MORTEM REPORT IS SHOCKING, NOT ONLY IN ITS DEPARTURE FROM THE STANDARDS EXPECTED OF HIM AND THE ONTARIO CHIEF CORONER'S OFFICE IN THE CIRCUMSTANCES OF THE CASE BUT BECAUSE OF HIS KNOWLEDGE OF THE IMPORTANCE OF HIS WORK TO THE CASE AND HIS KNOWLEDGE OF THE DESIRE OF THE POLICE, THE CROWN ATTORNEY AND THE DEFENDANTS TO HAVE A COPY OF THE REPORT AS SOON AS WAS REASONABLY POSSIBLE."
SUPERIOR COURT JUSTICE BRIAN TRAFFORD:
Dr. Charles Smith has come under fire for erroneous opinions that sent innocent persons to prison for life.
He has also come under attack for allegedly misplacing key forensic evidence that could show that people charged as a result of his opinions are innocent.
There is a third area in which the once venerated pediatric forensic pathologist has been criticized: An apparent problem with providing police and prosecutors with post-mortem reports, and other important documents in a timely fashion.
Allegations of a propensity for delay are found in Athena's case where Superior Court Justice Brian Trafford stayed charges of first-degree murder charges against a couple largely because of unreasonable delay.
Dr. Charles Smith had taken almost twelve month-s to file what turned out to be a one-page report.
As Trafford observed in his 63-page decision,"He (Smith) was the subject of "many complaints by doctors, police officers, and Crown Attorneys about delays on the part of Dr. Smith in the preparation of post mortem, or consultative reports..."
Trafford also notes that the officer in charge of the case distrusted Smith so intensely that he refused to lay criminal charges against the couple without written confirmation of the timing of the injuries to baby Athena.
Trafford details the Herculean efforts to obtain obtain the written addendum from Smith. (The homicide officers had asked Smith to prepare the document around July 20, 1999 - and Smith did not make it available until April 4, 2000);
An aggravated prosecutor had told a judge conducting a pre-trial conference held on March 6, 2000, "We have been trying ever since then (November, 1999) to get the amended (post-mortem) report. We still do not have it. We've written letters. I've called. The police have called numerous times."
"Understandably (defence) counsel is anxious to get this on and so is the Crown," the Prosecutor continued. "And I am considering taking the unusual step, Your Honour, of subpoenaing the doctor to come to Court to get some explanation as to when we're going to get this other report...
Time to pause for a moment;
A prosecutor on a first-degree murder trial is contemplating the serving of a subpoena on an important Crown witness who is none other than the renowned Dr. Charles Smith, head of the Pediatric Forensic Pathology Unit at the Hospital For Sick Children, in order to obtain a report which is crucial to the police investigation.
Something is very wrong with that picture.
Meanwhile the police where frantically attempting to obtain the document from Smith, as in a letter dated Feb. 1, 2000, signed By Detective Sergeant Matt Crone which notes that, "Proceedings against Athena's father have been delayed by my efforts to obtain this information from you."
"(Prosecutor) Rita Zaied has been placed in the difficult position of being unable to properly disclose this information and thus set a date for the preliminary hearing," Crone continued. "Despite my many phone calls and your assurances, I have not yet received the additional information requested.
"I fully appreciate how full your schedule is, but the situation is now critical and I must formally request, in the strongest terms, that the additional information I have requested be forwarded to me as soon as possible."
(Prosecutor Zaied made a similar written request to Smith in a letter dated March 13, 2000);
The letters clearly came to no avail as Detective Sergeant Crone was forced to serve Dr. Smith with a subpoena compelling production of the written addendum about two weeks later.
Smith's failure to provide police and prosecutors with crucial documents was clearly not unique.
Trafford tells us that:
0: On April 3, 2000, Detective Crone served Dr. Smith with a subpoena compelling production of the written memorandum;
0: In August 1997, Dr. Smith was compelled by a subpoena to attend Court with his report in another case;
0: In September 1998, Dr. Smith, in yet another murder case, was the subject of an application by the defence for an order requiring production of his post-mortem reports;
(This blog would appreciate receiving identification of the two other cases from its loyal readers);
Trafford also tells us that the addendum which had taken Smith more than nine months to produce turned out to be one page long and to contain nothing more than a repetition of the oral opinion he had provided the previous July;
In Athena's case, Trafford found that Smith's unreasonable delay in producing the addendum to the post-mortem report, "caused a significant delay in the completion of the investigation and the decision to proceed against both defendants on a charge of murder."
(Trafford ruled that Smith caused further delay by failing to submit forensic exhibits to the Centre for Forensic Science for a period of approximately six weeks);
But one must also consider the cruel consequences Smith's failure to do his job in a prompt manner had on Athena's mother who found out in the summer of 1998 that she was pregnant, and her husband.
Athena's mother was caught in a terrible dilemma:
She hoped that once the post-mortem report was issued by Smith both she and her husband would be cleared.
But she had been advised by a social worker that she ought not continue the pregnancy because if she had the baby it would likely be taken from he on an application for Crown wardship.
The couple opted for an abortion;
As Trafford puts it:
"The decision to have the abortion was a very difficult one that was difficult to make"
"She and Angela's father considered all their options," he continued.
"The options included having the child and resisting the efforts of the CAS(Children's Aid Society) to obtain custody, consenting to custody by any one of a number of immediate relatives in Toronto or elsewhere and having the child and putting it up for adoption.
The other option, abortion, was the alternative selected by them.
Neither the Toronto Police Services or the Crown Attorneys Office were involved in the decision.
As a result of the termination of the pregnancy, Angela's mother, suffered from extreme feelings of depression, anger, frustration and loss.
She obtained medical treatment for this condition.
If the post-mortem report of Dr. Smith had been received and proved the death of Athena was a sudden unexplained death, she would not have terminated the pregnancy."
Harold Levy...hlevy15@gmail.com;
Part Five: Case Studies; Systemic Factors; The "Tyrell" Case; As presented by the Affected Families Group;
Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The third case has been identified by the Inquiry as the "Tyrell" case;
-----------------------------------------------------------------------------
By way of brief background:
Tyrell was born in Toronto on February the 1st of 1994.
Tyrell died on on January the 23rd, 1998 in Toronto.
He was almost four (4) years old at the time of his death.
Criminal proceedings were initiated against his caregiver.
The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.
-------------------------------------------------------------------------------------
"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;
"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;
"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.
It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.
Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.
The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.
He immediately got up and tried to run forward but fell and struck his forehead”).
However, this report contains highly prejudicial information about Tyrell’s father.
It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.
In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.
Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.
No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.
As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.
He was drawn into testifying outside his expertise.
He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.
Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.
According to Dr. Smith, “...with the newer studies, the literature is on my side”.
One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.
Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to Tyrell...is in any way accurate...”).
He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).
He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).
He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.
Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”
It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.
There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.
The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.
At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.
Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.
Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.
Harold Levy...hlevy15@gmail.com;
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The third case has been identified by the Inquiry as the "Tyrell" case;
-----------------------------------------------------------------------------
By way of brief background:
Tyrell was born in Toronto on February the 1st of 1994.
Tyrell died on on January the 23rd, 1998 in Toronto.
He was almost four (4) years old at the time of his death.
Criminal proceedings were initiated against his caregiver.
The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.
-------------------------------------------------------------------------------------
"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;
"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;
"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.
It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.
Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.
The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.
He immediately got up and tried to run forward but fell and struck his forehead”).
However, this report contains highly prejudicial information about Tyrell’s father.
It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.
In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.
Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.
No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.
As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.
He was drawn into testifying outside his expertise.
He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.
Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.
According to Dr. Smith, “...with the newer studies, the literature is on my side”.
One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.
Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to Tyrell...is in any way accurate...”).
He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).
He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).
He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.
Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”
It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.
There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.
The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.
At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.
Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.
Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.
Harold Levy...hlevy15@gmail.com;
Saturday, April 19, 2008
Part Four: Case Studies; Systemic Factors; The "Sharon" Case; Presented By The Affected Families Group;
"EVEN THOUGH BY DR. SMITH’S OWN ADMISSION TO JANE O’HARA HE RECOGNIZED THAT HE DIDN’T KNOW ANYTHING ABOUT DOG BITES, UNDER CROSS-EXAMINATION AT THE PRELIMINARY INQUIRY HE VIGOROUSLY REFUTED THESE SUGGESTIONS BY DEFENCE COUNSEL, EVEN REMARKING THAT “AS ABSURD AS IT IS TO THINK THAT A POLAR BEAR ATTACKED SHARON, SO IT IS EQUALLY ABSURD THAT IT’S A DOG WOUND.”
DR. SMITH ADMITTED AT THE INQUIRY THAT HE WAS IN REALITY NOT AS CONFIDENT AS HE SOUNDED.
IN HIS EVIDENCE AT THE PRELIMINARY INQUIRY, DR. SMITH EVEN WENT SO FAR AS TO SUGGEST, WRONGLY, THAT HE WAS UNIQUELY QUALIFIED TO RENDER AN OPINION ABOUT THE PENETRATING WOUNDS IN THIS CASE BECAUSE THERE WERE DIFFERENCES IN WOUNDING PATTERNS BETWEEN CHILDREN AND ADULTS.
WHEN QUESTIONED AT THE PRELIMINARY INQUIRY ABOUT THE BASIS FOR HIS OPINION THAT THE SCALP WAS DELIBERATELY CUT OUT BY SCISSORS, HE TESTIFIED THAT MICROSCOPIC EXAMINATION REVEALED THE WOUND EDGE TO BE REMARKABLY SMOOTH, EVEN THOUGH THE SCALP WAS NO LONGER IN A CONDITION TO BE EXAMINED WHEN IT WAS RETURNED TO HIM."
CASE STUDY; SYSTEMIC ISSUES; THE "SHARON" CASE; AFFECTED FAMILIES GROUP;
---------------------------------------------------------------------------------
Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The fourth case has been identified by the Inquiry as the "Sharon" Case;
-----------------------------------------------------------------------------------
By way of brief background:
Sharon was born in Kingston, Ontario in December of 1989.
She died on June the 12th, 1997 at the age of seven and a half (7 1/2).
On June the 26th of 1997, her mother was charged with second-degree murder in her death.
The preliminary inquiry was conducted the following year.
She was committed to stand trial on the charge and remanded without bail for some period of time when she was ultimately released with the consent of the Crown.
The Crown withdrew the charge on January the 25th, 2001, indicating that it did not have a reasonable prospect of conviction.
--------------------------------------------------------------------------------
"The Sharon case serves as an alarming example of misleading and Crown-biased testimony, confirmation bias, and tunnel vision," the case study begins;
"It also raises issues about forensic training, due diligence in preparing forensic opinions, post-mortem report writing, pathologist scene visits, allocation of cases amongst pathologists, and recording of material communications within the Ontario Chief Coroner's Office and between the Chief Coroner's Office and the police and Crown," it continues;
"Notwithstanding that Dr. Smith had little experience with penetrating wounds,263 he performed Sharon’s autopsy because he was asked to by Dr. Young.
He did not visit the scene.
He did not request that the autopsy be done by a forensic pathologist, nor did he seek the assistance of Dr. Chiasson, whom Dr. Smith knew to be one.
Dr. Smith was told by the police at the time of autopsy of their working theory that Sharon’s death was a homicide and that she was stabbed possibly by scissors.
Rather than shave the scalp to examine the wound edges microscopically (which Dr. Smith acknowledged he should have), he sent the scalp to be examined for head lice, which was indicated as a possible motive for the scalping.
The scalp was no longer in a condition to be examined by the time it returned from the entomologist.
Dr. Smith acknowledged at the Inquiry that he made a number of other basic errors in his post-mortem examination, including inadequate description of wounds and wound tracks, failure to measure the depth of one of the key penetrating wounds, insufficient tissue excisions around the wounds, failure to ensure sufficient photographs were taken, and failure to take swabs.
While at the time of the autopsy Dr. Smith knew of the possible presence of a dog in Sharon’s home when she died, there is little documentation of any communications between the police and the Chief Coroner's Office / Dr. Smith regarding the “alarming” information the police were gathering about the pitbull Hat Trick in the week following Sharon’s death.
Two days after the post-mortem examination, Dr. Smith unequivocally told Cst. Goodfellow in response to concerns raised about some of the wounds that they were “not domestic or wild animal in any way”.
This was then passed on to the investigation team.
It does not appear that Dr. Smith asked any questions during this conversation, and it is unclear whether the police volunteered any information.
The information emerging about Hat Trick should have made its way to Dr. Smith and formed part of his initial opinion.
Today, ten years later, it is still unclear what Dr. Smith knew about the dog and when he knew it.
Although Dr. Smith testified that he believed Mr. Blenkinsop would be consulting with Dr. Wood about the wounds, this is inconsistent with (a) Dr. Wood’s testimony that he was not consulted until many months later, likely as a result of the dog theory having been raised by the defence, and (b) Dr. Smith’s willingness to release Sharon’s body for burial three days after the autopsy even though Dr. Wood had not examined it.
A December 19, 1997 memo from Jennifer Ferguson to Jack McKenna suggests that Dr. Wood was being consulted to “nip [the defence’s dog attack] theory in the bud.”
Dr. Wood acknowledges that this phrasing was “particularly unfortunate”, as it suggests that he was being retained to give a specific opinion from the outset.
Like Dr. Smith’s initial oral opinion, Dr. Wood’s February 22, 1998 opinion regarding the wounds was unequivocal in rejecting the possibility of a dog attack.
278 It left no room for doubt, notwithstanding that it was based only on a review of some (not all) of the photographs, rather than an examination of the body, which Dr. Wood testified would have been “very important” in order to analyze the wounds.
When asked about whether his opinion ought to have been expressed in less certain terms, Dr. Wood’s response was to imply that it was up to the defence to cross-examine him about it at trial.
This answer suggests that Dr. Wood, like Dr. Smith, may indeed have viewed it as his role to nip the defence theory in the bud and support the Crown’s theory.
Equally telling is Dr. Wood’s email in 2000 to a colleague asking, “in extreme confidence”, for any information about Dr. Dorion to assist Dr. Wood in doing a “hatchet job” on him.
The research on dog attacks available at the time (which formed part of Dr. Wood’s own file in the Sharon matter) referred to patterns of wounding in young children similar to those on Sharon’s body, including scalp lacerations and scalp avulsion (separation).
Apparently, neither Dr. Smith nor Dr. Wood took the time to review this literature before they rendered their initial opinions.
Dr. Smith acknowledged that when testifying at the preliminary Inquiry he assumed the role of supporting the Crown’s position and dismissing the dog attack theory, notwithstanding that he knew by that time that he was supposed to be neutral and objective.
He did so by resisting a justified challenge to his relevant forensic experience by defence counsel and by expressing unjustified confidence in his opinion to assist with what he perceived to be the Crown’s strategy for undermining the defence’s dog attack theory.
Even though by Dr. Smith’s own admission to Jane O’Hara he recognized that he didn’t know anything about dog bites, under cross-examination at the preliminary inquiry he vigorously refuted these suggestions by defence counsel, even remarking that “as absurd as it is to think that a polar bear attacked Sharon, so it is equally absurd that it’s a dog wound.”
Dr. Smith admitted at the Inquiry that he was in reality not as confident as he sounded.
In his evidence at the preliminary inquiry, Dr. Smith even went so far as to suggest, wrongly, that he was uniquely qualified to render an opinion about the penetrating wounds in this case because there were differences in wounding patterns between children and adults.
When questioned at the preliminary inquiry about the basis for his opinion that the scalp was deliberately cut out by scissors, he testified that microscopic examination revealed the wound edge to be remarkably smooth, even though the scalp was no longer in a condition to be examined when it was returned to him.
In sum, through misleading and emotive testimony Dr. Smith managed to annihilate the defence’s theory that the wounds were caused by a dog attack.
This is reflected in the Court’s comment to defence counsel: “....lots of luck convincing a jury that this death was caused by a dog attack.... Based on the evidence that I’ve heard.”
After the American Academy of Forensic Sciences AAFS) meeting in February 1999, Dr. Young and Dr. Cairns clearly acted responsibly in raising concerns about the case.
No one at OCCO appears to have recorded the internal case conference between Dr. Cairns, Dr. Dr. Smith, Dr. Wood, Mr. Blenkinsop, and Dr. Queen at which the possibility of a dog attack was raised, and regrettably, dismissed.
The evidence as a whole suggests that the meeting was called by Dr. Cairns after he and Dr. Young returned from the AAFS meeting.
It is still a mystery, however, why so many present (with the exception of Dr. Queen) managed to miss what Drs. Pollanen and Milroy described as a straightforward diagnosis.
Dr. Chiasson was the pathologist who conducted and was in charge of the second post-mortem examination, notwithstanding that he felt his experience with dog-bites was limited and he did not have a high level of comfort.
With hindsight, Dr. Chiasson acknowledged that this may have been the reason he was unable to reach a definitive opinion regarding the nature of many of the wounds.
Dr. Chiasson also acknowledged, with hindsight, that the second autopsy presented a missed opportunity to engage and involve an independent forensic pathologist in the case.
It is not only Dr. Smith (and others at the Chief Coroner's Office) who exhibited tunnel vision in this case.
The Kingston police persisted in their view that Sharon’s mother killed her, despite the results of the second exhumation showing that a dog caused almost all of the wounds.
As indicated by Sgt. Bird in his April 2000 memo, “Make no mistake, the right person, Louise, is on trial. If we want justice to be served and her found guilty, it's an absolute must that we get back on track and work towards this common goal.”2
Also reflective of the police’s state of mind is Sgt. Begbie’s characterization of the mood as “doom and gloom”298 after Mr. Bradley became involved in early 2000, presumably because he began questioning whether the case could survive scrutiny.
Surprisingly, the views of the Kingston police about Sharon’s mother’s guilt persisted even after receiving Dr. Symes’ opinion which definitively dismissed the scalping theory – a key part of the police’s theory on motive.
This is evident from Chief Closs’s letter writing campaign following the withdrawal of the charges against Sharon’s mother, in particular his February 20, 2001 letter to The Kingston Whig-Standard calling for an independent inquiry into Sharon’s death.
The magnitude of the tunnel vision is perhaps best illustrated by Inspector Begbie’s inability at the Inquiry to even express a coherent theory of Sharon’s mother’s involvement following the changed medical evidence:
Basically, whether the – the mother was involved and the dog joined in, or whether the dog came down and foraged later, that’s – we – we weren’t able to tell that.
…
That was – that was the initial – from the onset of the case there was a scalping. The scalp come off somehow. Maybe the – maybe the dog is what's responsible, and that's – some of the defence experts have said with the – the injuries to the head is what's removed the – the scalp but the mother still could have inflicted injuries before."
Harold Levy...hlevy15@gmail.com;
DR. SMITH ADMITTED AT THE INQUIRY THAT HE WAS IN REALITY NOT AS CONFIDENT AS HE SOUNDED.
IN HIS EVIDENCE AT THE PRELIMINARY INQUIRY, DR. SMITH EVEN WENT SO FAR AS TO SUGGEST, WRONGLY, THAT HE WAS UNIQUELY QUALIFIED TO RENDER AN OPINION ABOUT THE PENETRATING WOUNDS IN THIS CASE BECAUSE THERE WERE DIFFERENCES IN WOUNDING PATTERNS BETWEEN CHILDREN AND ADULTS.
WHEN QUESTIONED AT THE PRELIMINARY INQUIRY ABOUT THE BASIS FOR HIS OPINION THAT THE SCALP WAS DELIBERATELY CUT OUT BY SCISSORS, HE TESTIFIED THAT MICROSCOPIC EXAMINATION REVEALED THE WOUND EDGE TO BE REMARKABLY SMOOTH, EVEN THOUGH THE SCALP WAS NO LONGER IN A CONDITION TO BE EXAMINED WHEN IT WAS RETURNED TO HIM."
CASE STUDY; SYSTEMIC ISSUES; THE "SHARON" CASE; AFFECTED FAMILIES GROUP;
---------------------------------------------------------------------------------
Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The fourth case has been identified by the Inquiry as the "Sharon" Case;
-----------------------------------------------------------------------------------
By way of brief background:
Sharon was born in Kingston, Ontario in December of 1989.
She died on June the 12th, 1997 at the age of seven and a half (7 1/2).
On June the 26th of 1997, her mother was charged with second-degree murder in her death.
The preliminary inquiry was conducted the following year.
She was committed to stand trial on the charge and remanded without bail for some period of time when she was ultimately released with the consent of the Crown.
The Crown withdrew the charge on January the 25th, 2001, indicating that it did not have a reasonable prospect of conviction.
--------------------------------------------------------------------------------
"The Sharon case serves as an alarming example of misleading and Crown-biased testimony, confirmation bias, and tunnel vision," the case study begins;
"It also raises issues about forensic training, due diligence in preparing forensic opinions, post-mortem report writing, pathologist scene visits, allocation of cases amongst pathologists, and recording of material communications within the Ontario Chief Coroner's Office and between the Chief Coroner's Office and the police and Crown," it continues;
"Notwithstanding that Dr. Smith had little experience with penetrating wounds,263 he performed Sharon’s autopsy because he was asked to by Dr. Young.
He did not visit the scene.
He did not request that the autopsy be done by a forensic pathologist, nor did he seek the assistance of Dr. Chiasson, whom Dr. Smith knew to be one.
Dr. Smith was told by the police at the time of autopsy of their working theory that Sharon’s death was a homicide and that she was stabbed possibly by scissors.
Rather than shave the scalp to examine the wound edges microscopically (which Dr. Smith acknowledged he should have), he sent the scalp to be examined for head lice, which was indicated as a possible motive for the scalping.
The scalp was no longer in a condition to be examined by the time it returned from the entomologist.
Dr. Smith acknowledged at the Inquiry that he made a number of other basic errors in his post-mortem examination, including inadequate description of wounds and wound tracks, failure to measure the depth of one of the key penetrating wounds, insufficient tissue excisions around the wounds, failure to ensure sufficient photographs were taken, and failure to take swabs.
While at the time of the autopsy Dr. Smith knew of the possible presence of a dog in Sharon’s home when she died, there is little documentation of any communications between the police and the Chief Coroner's Office / Dr. Smith regarding the “alarming” information the police were gathering about the pitbull Hat Trick in the week following Sharon’s death.
Two days after the post-mortem examination, Dr. Smith unequivocally told Cst. Goodfellow in response to concerns raised about some of the wounds that they were “not domestic or wild animal in any way”.
This was then passed on to the investigation team.
It does not appear that Dr. Smith asked any questions during this conversation, and it is unclear whether the police volunteered any information.
The information emerging about Hat Trick should have made its way to Dr. Smith and formed part of his initial opinion.
Today, ten years later, it is still unclear what Dr. Smith knew about the dog and when he knew it.
Although Dr. Smith testified that he believed Mr. Blenkinsop would be consulting with Dr. Wood about the wounds, this is inconsistent with (a) Dr. Wood’s testimony that he was not consulted until many months later, likely as a result of the dog theory having been raised by the defence, and (b) Dr. Smith’s willingness to release Sharon’s body for burial three days after the autopsy even though Dr. Wood had not examined it.
A December 19, 1997 memo from Jennifer Ferguson to Jack McKenna suggests that Dr. Wood was being consulted to “nip [the defence’s dog attack] theory in the bud.”
Dr. Wood acknowledges that this phrasing was “particularly unfortunate”, as it suggests that he was being retained to give a specific opinion from the outset.
Like Dr. Smith’s initial oral opinion, Dr. Wood’s February 22, 1998 opinion regarding the wounds was unequivocal in rejecting the possibility of a dog attack.
278 It left no room for doubt, notwithstanding that it was based only on a review of some (not all) of the photographs, rather than an examination of the body, which Dr. Wood testified would have been “very important” in order to analyze the wounds.
When asked about whether his opinion ought to have been expressed in less certain terms, Dr. Wood’s response was to imply that it was up to the defence to cross-examine him about it at trial.
This answer suggests that Dr. Wood, like Dr. Smith, may indeed have viewed it as his role to nip the defence theory in the bud and support the Crown’s theory.
Equally telling is Dr. Wood’s email in 2000 to a colleague asking, “in extreme confidence”, for any information about Dr. Dorion to assist Dr. Wood in doing a “hatchet job” on him.
The research on dog attacks available at the time (which formed part of Dr. Wood’s own file in the Sharon matter) referred to patterns of wounding in young children similar to those on Sharon’s body, including scalp lacerations and scalp avulsion (separation).
Apparently, neither Dr. Smith nor Dr. Wood took the time to review this literature before they rendered their initial opinions.
Dr. Smith acknowledged that when testifying at the preliminary Inquiry he assumed the role of supporting the Crown’s position and dismissing the dog attack theory, notwithstanding that he knew by that time that he was supposed to be neutral and objective.
He did so by resisting a justified challenge to his relevant forensic experience by defence counsel and by expressing unjustified confidence in his opinion to assist with what he perceived to be the Crown’s strategy for undermining the defence’s dog attack theory.
Even though by Dr. Smith’s own admission to Jane O’Hara he recognized that he didn’t know anything about dog bites, under cross-examination at the preliminary inquiry he vigorously refuted these suggestions by defence counsel, even remarking that “as absurd as it is to think that a polar bear attacked Sharon, so it is equally absurd that it’s a dog wound.”
Dr. Smith admitted at the Inquiry that he was in reality not as confident as he sounded.
In his evidence at the preliminary inquiry, Dr. Smith even went so far as to suggest, wrongly, that he was uniquely qualified to render an opinion about the penetrating wounds in this case because there were differences in wounding patterns between children and adults.
When questioned at the preliminary inquiry about the basis for his opinion that the scalp was deliberately cut out by scissors, he testified that microscopic examination revealed the wound edge to be remarkably smooth, even though the scalp was no longer in a condition to be examined when it was returned to him.
In sum, through misleading and emotive testimony Dr. Smith managed to annihilate the defence’s theory that the wounds were caused by a dog attack.
This is reflected in the Court’s comment to defence counsel: “....lots of luck convincing a jury that this death was caused by a dog attack.... Based on the evidence that I’ve heard.”
After the American Academy of Forensic Sciences AAFS) meeting in February 1999, Dr. Young and Dr. Cairns clearly acted responsibly in raising concerns about the case.
No one at OCCO appears to have recorded the internal case conference between Dr. Cairns, Dr. Dr. Smith, Dr. Wood, Mr. Blenkinsop, and Dr. Queen at which the possibility of a dog attack was raised, and regrettably, dismissed.
The evidence as a whole suggests that the meeting was called by Dr. Cairns after he and Dr. Young returned from the AAFS meeting.
It is still a mystery, however, why so many present (with the exception of Dr. Queen) managed to miss what Drs. Pollanen and Milroy described as a straightforward diagnosis.
Dr. Chiasson was the pathologist who conducted and was in charge of the second post-mortem examination, notwithstanding that he felt his experience with dog-bites was limited and he did not have a high level of comfort.
With hindsight, Dr. Chiasson acknowledged that this may have been the reason he was unable to reach a definitive opinion regarding the nature of many of the wounds.
Dr. Chiasson also acknowledged, with hindsight, that the second autopsy presented a missed opportunity to engage and involve an independent forensic pathologist in the case.
It is not only Dr. Smith (and others at the Chief Coroner's Office) who exhibited tunnel vision in this case.
The Kingston police persisted in their view that Sharon’s mother killed her, despite the results of the second exhumation showing that a dog caused almost all of the wounds.
As indicated by Sgt. Bird in his April 2000 memo, “Make no mistake, the right person, Louise, is on trial. If we want justice to be served and her found guilty, it's an absolute must that we get back on track and work towards this common goal.”2
Also reflective of the police’s state of mind is Sgt. Begbie’s characterization of the mood as “doom and gloom”298 after Mr. Bradley became involved in early 2000, presumably because he began questioning whether the case could survive scrutiny.
Surprisingly, the views of the Kingston police about Sharon’s mother’s guilt persisted even after receiving Dr. Symes’ opinion which definitively dismissed the scalping theory – a key part of the police’s theory on motive.
This is evident from Chief Closs’s letter writing campaign following the withdrawal of the charges against Sharon’s mother, in particular his February 20, 2001 letter to The Kingston Whig-Standard calling for an independent inquiry into Sharon’s death.
The magnitude of the tunnel vision is perhaps best illustrated by Inspector Begbie’s inability at the Inquiry to even express a coherent theory of Sharon’s mother’s involvement following the changed medical evidence:
Basically, whether the – the mother was involved and the dog joined in, or whether the dog came down and foraged later, that’s – we – we weren’t able to tell that.
…
That was – that was the initial – from the onset of the case there was a scalping. The scalp come off somehow. Maybe the – maybe the dog is what's responsible, and that's – some of the defence experts have said with the – the injuries to the head is what's removed the – the scalp but the mother still could have inflicted injuries before."
Harold Levy...hlevy15@gmail.com;
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