Guilty plea a miscarriage of justice

By ALAN SHANOFF, Toronto Sun

Last Updated: January 29, 2011 3:36pm

What can we learn from the recent acquittal of Dinesh Kumar?

He is the father who was charged with the second-degree murder of his five-week-old baby in 1992.

He chose to plead guilty to a charge of criminal negligence causing death as part of a plea bargain that included a 90-day sentence to be served on weekends.

Had he been guilty of murder, it would have been the deal of the century. But he wasn’t.

So what could possibly motivate a father to falsely accept criminal responsibility for the death of a child and what can we do to prevent such miscarriages of justice?

Kumar had another child, a one-year-old who had been taken in protective custody following the death of his sibling.

Incredibly, part of the deal was an assurance the child would be returned after Kumar completed serving his sentence.

Think about that for a minute.

Plead guilty in exchange for the return of a child, or plead not guilty and risk losing your child indefinitely.

In order for a confession to be admissible it must be voluntary “in the sense that it has not been obtained … either by fear or prejudice or hope of advantage exercised or held out by a person in authority”.

Suppose Kumar confessed to causing his infant’s death after being threatened with the loss of his one-year-old son.

Surely such a confession would have been deemed involuntary and would have been inadmissible at any trial. So why, then, was it permissible to use the same inducement to extract a guilty plea?

At the same time, isn’t it rather odd that a murder charge with an automatic life sentence upon conviction would be bartered down to a criminal negligence charge with an agreed 90-day sentence?

If the prosecution had sufficient evidence to justify a murder charge, how could it agree to a criminal negligence charge and a 90-day sentence?

And how could it agree to return the one-year-old to a murderer?

So, either the initial charge wasn’t warranted or the prosecution was willing to punish a baby murderer with a slap on the wrist and permit him to regain custody of a toddler.

This doesn’t make much sense to me.

But even if the prosecution’s position was deeply flawed, why wouldn’t the trial judge have inquired into the propriety of the deal?

Shouldn’t the trial judge have made probing inquiries into whether any improper inducements or threats had been made to seal the deal?

Apparently, Kumar also pled guilty because Dr. Charles Smith was the star prosecution witness and it would have been impossible to challenge his expert opinion on the cause of the infant’s death.

We now know Smith had no training in forensic pathology. But shouldn’t that have been known or easily ascertainable in 1992?

In 1991, Justice Patrick Dunn acquitted a babysitter charged with manslaughter in the death of a 16-month-old child.

In the course of giving his reasons for acquittal, Justice Dunn was highly critical of Smith, pointing out that he wasn’t familiar with the scientific literature, failed to conduct a thorough investigation, gave unscientific evidence and was dogmatic in the presentation of his evidence.

So why would Smith have been considered “like a God” — reportedly even by Kumar’s own lawyer — when Kumar made his deal in 1992?

I don’t blame Kumar for having pled guilty.

Who wouldn’t have done the same in order to get his son back, particularly when faced with the incriminating evidence of an apparently God-like expert?

But if we want to prevent innocent people from pleading guilty or confessing to crimes they haven’t committed we need to examine this case carefully and learn from our mistakes.

alan.shanoff@sunmedia.ca

Source:

http://www.torontosun.com/comment/columnists/alan_shanoff/2011/01/28/17074256.html

Grandparent is set to change the laws governing the legal rights for grandparents within adoption

Author:

Christina England

January 30, 2011

In the USA today grandparents have no legal rights to have any contact with a child once parental rights have been terminated. In fact, the law specifically states that if the parental rights are removed, the rights of the grandparents are removed along with them. This leaves many children raised by their grandparents from infancy, with no legal grandparents or any other relative with any rights to bring them up. One brave and determined grandparent from South Carolina, John Schafer, has decided that this is one law that must be changed. Outraged by the way loving grandparents are treated, he has single-handedly taken on the South Carolina State Representatives and Senators. Taking remarkable steps, he has began to make changes that could effectively change the way we view adoption forever.

Mr Schafer’s grandchildren were removed from him and his wife and put into care when the children’s parents parental rights to care for them were removed. Mr Schafer and his wife were deemed too old and too sick to care for them adequately. The children had been happy and settled with their grandparents who are in their mid sixties. There had been problems in the past with the placement but Mr Schafer felt that these had been dealt with adequately. The CPS decided however, that it was in was in the children’s best interest to be adopted. The children aged 10 and 8 were to have no further contact with any member of their birth family.

In South Carolina a massive $722 million a year is spent on child protection. On the document South Carolina Spending Transparency in the section ‘Case Services’, this figure is shown very clearly. As this figure is for one State in the USA it is frightening to comprehend the amounts of money being spent on child protection throughout the country as a whole. There is no doubt that child abuse exists. However, we have to ask ourselves when children could be cared for by loving family members, is the child care system the right place for them to grow up? Mr Schafer is adamant that every effort should be made to keep families together. He says:

“Grandparents are a soft place to fall when there are problems at home, they have a special kind of love and compassion that no other family member can possibly own, and to deprive a child of that should be criminal. I think it is a very sad commentary of our society when it is necessary to seek legislation to affirm that fact.”

Mr Schafer says that the state can simply snatch children from often the only home they have ever known, and put them in a broken and overloaded foster care system, then up for adoption. In many cases, these children end up spending their early lives under the thumb of the DSS until they are 18, then they are told to just go and be an adult. He feels that this a deplorable situation that must be changed.

I spoke to one adopted child who had the most incredible bond with his grandfather before he was adopted. The severing of this bond has since caused him much pain and distress. I asked him to explain to me hows he feels. He told me that he would have liked to have had the opportunity to have been adopted by his grandfather because he feels that they had a lot in common. He made it quite clear to me that age is not important when there is a loving bond. He now feels that older children should have more rights to speak out and make choices in adoption. Fortunately now that he is an adult he has full contact with his grandfather and they are making up for all the years that they lost together.

Mr Schafer feels that these type of situations should not be allowed to continue. He feels so strongly about these important issues that he has set up the website Grandparents Rights Association of South Carolina He has issued a letter to ALL senators, representatives and candidates for Governor and Lt. Governor in the state of South Carolina. This letter addresses the issues surrounding the rights of the grandparent when their grandchild enters the child care system. In his letter he has pointed out that:

“Every voter in South Carolina either is, had, or has grandparents. In thousands of families throughout the state, those grandparents are deeply involved, and in many cases, have had to totally take over, the raising of grandchildren.”

He continues to point out the fact that research shows that there are NO laws specifically protecting the rights of grandparents. This means that there are in fact no laws to protect a massive section of our society. In fact it seems that everybody has rights except the grandparents.

Mr Schafer has spoken out on the behalf of the members of his site and has continued his letter making the following points:

“We are not in favour of usurping the authority of good parents, rather, give the children the right to stay with their own loving family in cases where the parents either can´t or won´t take the responsibility themselves. With all this in mind, we want to know how you stand.

1.Do you support legislation which would protect grandparents and their grandchildren from being separated when parental rights of the children´s parents are being terminated, and allowing the grandparents the right to adopt said children? This would be conditional on the grandparents being deemed appropriate caregivers.

2. Would you consider introducing such legislation?

3.Do you consider grandparents appropriate caregivers for children whose parents either can´t or won´t take responsibility for them?

4.Do you consider age and/or minor disability a disqualifying factor when considering grandparents as caregivers or adoptive parents?”

The letter went out to the legislators prior to the election which was November 2010. At that time he had received responses from one of 46 State Senators, and 11 of 124 current members of the State House of Representatives. To read their responses please see his website GRASC. He tells me that much of the response he has had has been very positive.

The great news is that Schafer has now had a total of 17 Representatives respond to the letter, several of whom did not originally respond. They have signed on as co-sponsors of the new bill, and a second Senator has also given Mr Schafer and his team a positive response. Amazingly he has not received one single negative response.

Mr Schafer has given the full laws governing grandparents rights from every state in the USA. These can be found in full on the page entitled General State By State Description.

I have spoken to several parents whose children are in the care system. One parent whose children were removed after false allegations of child abuse spoke out very strongly and said:

“I agree!! My parents have been trying to get my children and the state keeps resisting them. They had to hire an attorney to file a motion to intervene to try to get custody of my daughter. It has been 3 months and they are still awaiting an answer. My father also hasn’t been allowed to see my older two children because their father simply doesn’t like him, so its been a year and a half since he’s seen them. And, it’s true that if my children are adopted, they will not get to see them anymore. They were not given a final visit with ******** either. I’m organizing a family rights protest for August that will include grandparents’ rights.”

Mr Schafer said that he was also working on a rally:

“I am helping a friend organize a synchronized Nationwide protest (rally). She is doing most of the work, but I am maintaining and updating the website. We have a majority of the states being organized. It is being organized well in advance due to the logistics involved in coordinating protests to all happen at the same time in front of courthouses in all 50 states, and in several counties in each state.

The rally will be on the 12th August 2011. To read what is happening go to: Government Abuse is Child Abuse“

So far the progress that Mr Schafer has made has been outstanding. He is currently working on getting a bill passed to amend the code of laws of South Carolina, 1976, by adding section 63-15-35. This will determine the best interests of the child in cases where a grandparent/s could offer a loving and stable home. To find out what is happening with this and full updates, his page is the tracking for the bill, simply return from time to time and you will see updates on its progress through the legislature Tracking of the bill If Schafer succeeds then we could start to see changes throughout the USA and perhaps the world.

He said:

“The new legislation going through the system at this time, will be the first to even mention grandparents in custody/foster/adoption cases in this state. The game plan is to take it a step at a time. This first amendment will establish the direction. It will be the mandate for priority consideration. The next step will be to establish the child’s right to keep his natural grandparents, even if adopted. The “system” needs to do a better job of looking at the situation from the child’s point of view.”

Now that the election is over Mr Schafer’s website has been updated and many of the original responses have been deleted. This is because the movement is moving on to the bill passage. This means that much of original data is now irrelevant. He has assured me these will be reposted in the future on an archive page. However, with the speed that this is now moving this has had to be shelved until a later date.

It often takes the little people of this world to make the biggest changes. I would like to thank Mr Schafer for allowing me to write this article.

Source:

http://www.americanchronicle.com/articles/view/215355

Judge clears man accused of violently shaking baby

33-year-old found not guilty of aggravated assault in foster home

By CINDY E. HARNETT, Timescolonist.com January 28, 2011 9:01 PM

A man accused of violently shaking an 11-week old baby girl in frustration, causing permanent brain damage, was found not guilty in Victoria provincial court Friday.

Avtar Basi, 33, was charged with the aggravated assault of Baby E.B. in the Central Saanich foster home run by his girlfriend, Micheline Slader.

After the verdict, Basi left the courthouse fighting back tears of relief.

Basi was also clutching the hand of Slader, with whom he said he planned to adopt Baby E.B., now two. The baby is so profoundly handicapped that she will require a feeding tube and 24-hour care for the rest of her life.

Basi is the only person who will ever know what happened in the five minutes and eight seconds between the end of an unremarkable phone conversation with Slader about baby formula at 9:04 a.m., on Nov. 26, 2008, and 9:09, when he called to say Baby E.B. had stopped breathing.

“No one else was there. He is the only person who does know what happened,” defence lawyer John Green said Friday. “The judge accepted his evidence.”

Judge Adrian Brooks ruled the Crown had not proven beyond a reasonable doubt that the force Basi used on Baby E.B. was not done for the purpose of caring for the infant and that excessive force was used.

“While Mr. Basi obviously bears a heavy moral responsibility for what he has done to the life of this child, E.B., it is not established that his is a criminal responsibility under our law and I find him not guilty,” Brooks said as he read his 37-page verdict.

Slader and Basi met in Nov. 2007. By September 2008, they lived together.

Slader is the biological mother of three school-age children, and at the time was a caregiver for a children aged three, one and five months — placed with her by the Ministry of Children and Family Development.

In October 2008, Baby E.B. arrived. She was the seventh child in the home. Basi and Slader considered her the “perfect baby” and talked of adopting her.

In court, Basi testified that, on the morning of the incident everything unfolded normally — until Baby E.B. began crying loudly and arching her back. She fell limp and unconscious. In a panicked reaction, he shook her three times. She was not breathing. He called Slader, then 911.

The judge heard expert medical testimony about the child’s injuries and about a condition known as “breath holding,” in which children cry forcefully only to get stuck at the point of exhalation and stop breathing, faint or pass out.

In determining whether excessive force was used, the judge took into account both the physical vulnerability of an infant and the life-and-death circumstances Basi said he was facing.

“I have concluded that although the severity of the injuries is an important factor, it is only one factor,” Brooks said.

“I have found that E.B. behaved suddenly and uncharacteristically. She stopped breathing. The force applied by Mr. Basi was three motions of back and forth shaking.

“The purpose of that shaking motion was an attempt to relieve that life-threatening situation.

“When the shaking did not resuscitate E.B., Mr. Basi immediately sought assistance,” Brooks said. “I am not persuaded beyond a reasonable doubt that the force used was excessive.”

The judge rejected focusing on a snippet of conversation during an undercover police sting when, on June 12, 2008, Basi says “Yeah” to questions such as “This kid was pissing you off, right?”

Rather, Brooks looked at the day’s conversations, including Basi saying “No, no, no, no” when asked if he was angry at the time of the shaking and explained it as “strictly panic.”

The entirety of Basi’s comments on June 12 were consistent with his testimony, Brooks said.

Basi, with a Grade 11 education and no first-aid training, was a man of few words but direct in his testimony, Brooks said.

“There was no air of deception in his manner,” Brooks said. “His demeanour was of a witness doing his best to tell the truth.

Although Basi originally lied to his girlfriend and authorities about what had happened to the baby, Brooks said: “Basi’s lying about having shaken E.B. does not cause me to reject his evidence given on the stand.”

Basi sat pensively in the front row of courtroom 203 as he listened to the verdict being read aloud for about an hour. Slader sat a few rows back, tightly clenching the hand of a friend. When the judge concluded, Basi eyes welled with tears.

Defence lawyer John Green described his client’s emotional reaction to the verdict as “relief,” and said the case had been extremely “difficult” for all concerned.

Read more: http://www.timescolonist.com/Judge+clears+accused+violently+shaking+baby/4188415/story.html#ixzz1COn0nWZe

Also See:

http://www.cfax1070.com/newsstory.php?newsId=17120

Science informs the court but tends not to provide definite proof

Expert Witnesses

 

Marta Cohen

Email: marta.cohen@sch.nhs.uk

This commentary addresses the role of expert witnesses in the complex and controversial area of paediatric head injury. Head and brain injuries in children fall into three broad categories, namely, injuries that are:

• Definitely accidental – reliable witness accounts and pathology findings that are consistent with these accounts;
• Definitely abusive – some combination of impact head injuries (scalp bruises, fractures), the triad (i.e. retinal haemorrhages, subdural haemorrhages, brain swelling), other usually multifocal, multiphasic injuries (bruises, fractures), and an improbable explanation from witnesses;
• Of uncertain or indeterminate nature – often infants who have the triad and nothing else, with caregivers who usually describe coming across an infant in extremis and who may make panicked attempts at resuscitation.

It is the third group that causes most of the difficulties regarding causation. The presence of the triad is taken as inferential evidence that the infant has been shaken or subjected to a head impact or impacts that leave no trace. The problem is that, in these cases, there is no direct evidence of the child having been grasped and shaken, or having been subjected to head impacts that had left no marks. The ‘proof’ of abusive head injury in such cases, therefore, relies on indirect or inferential evidence.

This indirect evidence of causation includes:

• The presence of the triad in definite abusive head injury cases allows an analogy of causation to be extended to cases in the ‘indeterminate’ group;
• The triad can be reproduced by ‘shaking’ actions in animals – the problem being that the forces involved in these experiments greatly exceed the forces that can be generated when humans shake infant models;¹
• Shaking is described in many confession accounts. Lawyers are often suspicious of ‘confessions’, fearing they may be coerced or conceal other more important information. However, pathologists need to consider these accounts and address whether they match the pathological evidence, leaving the courts to deal with legal niceties;
• There have been hardly any accounts of the triad developing in an infant in a public place. The problem with this observation is one of confirmatory bias – an infant presenting with the triad that appeared to evolve publicly is assumed to have been previously abused and the carer’s account of an acute onset of a life-threatening condition is summarily dismissed;
• There is nothing else that can account for the injuries. This ‘proof’ should never be used. It is better framed as ‘I do not know for certain what caused these injuries’.

The reliance on such indirect evidence should be subjected to continuous and critical appraisal in order to avoid miscarriages of justice. Recent observations have established that two aspects of the triad, specifically brain swelling and small subdural haemorrhages, can occur in infants who die of natural causes and who have sustained prolonged cardiopulmonary resuscitation after cardiorespiratory arrest.^2,3 Detailed information regarding this syndrome has yet to be established (for example, the presence and/or extent of retinal and optic nerve sheath haemorrhages), but the similarities between the findings in such cases and some cases of alleged abusive head injury are sufficiently worrying that the courts should be aware of these new developments when they are trying a case of alleged child abuse that falls into the ‘indeterminate’ category.

In addressing difficult cases, it is also important to understand the tension between the scientific method – which the judiciary sometimes mistakenly believes to be employed by medical experts – and the courts. In general terms, science deals with populations and comparisons of cohorts, and its method attempts to refute established theories; the longer a theory can resist such attacks, the more ‘reliable’ it is. The scientific method on which this process is based is well-known and the difficulties in applying the method to a single case in court should be obvious. Scientifically ‘upheld’ theories are used by the pathologist to analyse a given case, but variations between individuals and the many uncertainties in medical diagnosis rarely produce certainty. Thus, through the reports and testimony of experts, science informs the court but tends not to provide definitive proof for the court, particularly when dealing with many types of pathological evidence. The role of the pathologist who reviews an apparent homicide is to present the court with rational and reasonable explanations that could account for the death and to explain to the court the strengths and weaknesses of the various options. Given the complexities, the scientific method rarely provides a single answer in any given case – the ‘n-of-1’ conundrum that, reminds us that rare things rarely happen but they do happen. This is particularly true in developing areas such as paediatric head injury. It is then up to the court to decide, partly from expert evidence, where – to use a legal term which should perhaps be avoided by the expert – a ‘reasonable degree of certainty’ lies. In this, judges and juries – and experts – may differ.

Returning to the ‘shaken baby’, judges and juries should be advised that shaken baby syndrome is a hypothesis that has not been validated and whose original tenets have been undermined (or in some instances disproven) by research, analysis and biomechanical experiments. The mistaken belief that shaken baby syndrome has been scientifically ‘proven’ has led to profound misunderstandings by the public, the police, the prosecutors, the medical community and the courts, resulting in a shift in the burden of proof from ‘innocent until proven guilty’ to ‘guilty until proven innocent’.

Footnotes:

Dr Marta Cohen, Consultant Pathologist, Sheffield Children’s Hospital NHS Trust, Western Bank, Sheffield S10 2TH, UK

References:

1. Ommaya AK, Faas F, Yarnell P. Whiplash injury and brain damage: an experimental study. JAMA 1968; 204: 285–9[Abstract/Free Full Text]
2. Cohen M, Sprigg A, Whitby E. Subdural hemorrhage, intradural hemorrhage and hypoxia in the pediatric and perinatal post mortem: Are they related? An observational study combining the use of post mortem pathology and magnetic resonance imaging. Forensic Science International 2010; 200: 100–7[Medline]
3. Krous HF, Haas EE, Chadwick AE, et al. Delayed death in sudden infant death syndrome: A San Diego SIDS/SUDC Research Project 15-year population-based report. Forensic Science International 2008; 176: 209–16[Medline]

Source:

http://cr.rsmjournals.com/cgi/content/full/17/1/5?maxtoshow=&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&minscore=5000&resourcetype=HWCIT

Charles Smith called before disciplinary panel

By MICHELE MANDEL, Toronto Sun

Last Updated: January 26, 2011 8:11pm

 

Ontario College of Physicians And Surgeons

It’s time Charles Smith is stripped of the Dr. in front of his name.

Blamed for so many wrongful convictions still winding their way through the Ontario Court of Appeal, vilified by a judicial inquiry that slammed his incompetence, Smith finally has a date with Ontario’s College of Physicians and Surgeons next week where he will be hauled in front of a disciplinary committee.

It’s about time they threw the book at him.

According to the notice posted on the medical regulator’s website, “It is alleged that Dr. Smith is incompetent, fell below the standard of care and engaged in disgraceful, dishonourable or unprofessional conduct in his practice of pathology and his work providing expert opinion evidence in relation thereto.”

No kidding.

How many lives have been ruined by his erroneous conclusions that loving parents and dutiful caregivers were, in fact, cold-blooded murderers? How many innocent people who felt they had no option but to plead guilty in the face of Smith’s God-like reputation?

Just last week, almost two decades after Smith wrongly implicated him in the death of his five-week-old son, Dinesh Kumar was finally exonerated by the appeal court .

“It was a reputation that went beyond police and Crowns and judges,” his lawyer James Lockyer said of Smith’s testimony. “It even seemed to affect defence lawyers of the day: ‘If Smith said something, it was almost bound to be right.’”

If found guilty during the one-day hearing Feb. 1, Smith could be stripped of his licence to practise medicine. In reality, he hasn’t practised since Aug. 9, 2008, when he failed to renew his expired registration with the College.

He must have known it would be an uphill battle.

Once renowned as one of Canada’s pre-eminent forensic child pathologists, his word treated as gospel, Smith conducted more than 1,000 autopsies on children in his 24 years at Sick Kids.

A religious zealot who saw himself as a crusader for dead children, he too often saw foul play where there was only the cruelty of happenstance. And despite his much heralded expertise, it turned out that he wasn’t very well trained at all.

The chinks in his armour began as early as 1991 with the first of many complaints to the College.

The parents of a 12-year-old Timmins babysitter reported him after she was acquitted of manslaughter. Smith had wrongly accused her of shaking a toddler to death.

While questions continued to mount about his competence, his superiors in the Ontario coroner’s office failed to take him to task. For another 14 years, Smith’s incompetence continued to help send innocent people to prison.

In 2005, the criticism hard to ignore, a new Ontario chief coroner called for a review of 45 child autopsies where Smith determined the cause of death was either murder or criminally suspicious. Two years later, outside experts found Smith had major scientific errors in 20 cases — 13 of which had resulted in criminal convictions.

A judicial inquiry was called and the College of Physicians and Surgeons agreed to a request by Justice Stephen Goudge to allow his investigation to proceed before the medical regulator launched its own.

In his damning report, Goudge blasted Smith for having “actively misled” his superiors, “made false and misleading statements” in court and lacked “basic knowledge” about forensic pathology.

Among his many errors: William Mullins-Johnson, who spent 12 years in prison after being wrongly convicted of raping and murdering his four-year-old niece in Sault Ste. Marie. The child had likely died of natural causes.

Single mom Louise Reynolds of Kingston was charged with murdering her daughter after Smith concluded the seven-year old had been stabbed more than 80 times with scissors. Experts later concluded she’d been mauled by a dog.

All Smith could offer was a tearful apology.

Two years after the Goudge Report, College spokesman Kathryn Clarke said the medical authority has completed its own inquiry and referred Smith to Tuesday’s disciplinary hearing.

“The findings by Goudge are so damning, I don’t see a way out for him,” Lockyer said.

Smith doesn’t have to appear in person. But after ruining so many lives, the least the arrogant disgraced pathologist can do is take his medicine like a man.

Read Mandel Wednesday through Saturday. michele.mandel@sunmedia.ca or 416-947-2231

 

Source:

http://www.torontosun.com/news/columnists/michele_mandel/2011/01/26/17048166.html

 

College to decide professional fate of disgraced doctor Charles Smith

GREG McARTHUR

From Wednesday’s Globe and Mail

Published Wednesday, Jan. 26, 2011 8:16AM EST

Last updated Wednesday, Jan. 26, 2011 9:20AM EST

Disgraced pathologist Charles Smith’s professional future will be officially decided next week when he stands before a disciplinary committee of Ontario’s College of Physicians and Surgeons.

Dr. Smith, whose erroneous expert evidence and testimony contributed to more than a dozen criminal charges, many of which resulted in wrongful convictions, will have to answer on Tuesday to allegations that he is incompetent and acted in a manner that would be regarded as “disgraceful, dishonourable and unprofessional.”

The college, which governs the conduct of doctors in the province, had held off investigating Dr. Smith while a public inquiry, headed by Mr. Justice Stephen Goudge of the Ontario Court of Appeal, conducted a year-and-half-long probe into the pathologist and his superiors in the Office of the Chief Coroner. In a final report released in October, 2008, Judge Goudge concluded that the doctor’s findings – most of which were made in connection with the deaths of babies and infants and often resulted in parents losing custody of other children – “defied logic” and were “simply baffling.”

It’s not clear what arguments, if any, Dr. Smith is prepared to offer in his defence. When he testified before the public inquiry, he stated that his mistakes were not intentional. He also made a tearful apology to William Mullins-Johnson, who spent 12 years in jail after being wrongfully convicted of sodomizing and murdering his four-year-old niece. Dr. Smith’s lawyer, Niels Ortved, declined to comment about what the pathologist is expected to say.

There are a range of penalties that Dr. Smith could face from the panel: His certification could be revoked completely, or merely suspended for a specified period of time; he could be required to pay a fine to the provincial government of not more than $35,000. He has been unable to practise medicine for nearly three years. He agreed to stop practising shortly after Judge Goudge’s probe commenced, and then later resigned his licence, said Kathryn Clarke, a spokeswoman for the College of Physicians and Surgeons.

In October, Ontario’s provincial Liberal government announced that Mr. Mullins-Johnson would receive $4.25-million in compensation. Earlier in August, the government pledged a maximum of $250,000 to the victims in the other cases examined by Judge Goudge.

 

Source:

http://www.theglobeandmail.com/news/national/ontario/college-to-decide-professional-fate-of-disgraced-doctor-charles-smith/article1883002/

 

Features associated with “shaken baby” may also occur as an effect of cerebral hypoxia, according to new study

New observations indicate that findings traditionally linked with “shaken baby syndrome” can be present even in the absence of “shaking” when there has been brain hypoxia in young babies, according to an article in the current issue of Pediatric and Developmental Pathology.

The observations by British doctors Marta C. Cohen and Irene Scheimberg find that brain hemorrhages associated with brain hypoxic damage commonly attributed to shaken baby syndrome can occur as a result of cerebral hypoxia, which occurs when the body’s tissues don’t receive enough oxygen.

Their findings could have significant implications for people charged with, or convicted of, shaken baby syndrome.

The National Center on Shaken Baby Syndrome says an estimated 1,200 to 1,400 U.S. children are injured or killed by shaking each year. These new findings could have an impact on those numbers.

Shaken baby syndrome is generally suspected when a child has three symptoms known as “the triad”: subdural hemorrhage, retinal hemorrhages and brain edema without a record of being involved in a car accident or a fall from a high distance.

But Cohen and Scheimberg say their findings based on their routine practice show that intradural hemorrhage “is frequent in fetal, perinatal, and neonatal postmortems.” They also note that during labor, pressure from contractions and maternal pushing with increased of intracranial venous pressure could result in retinal hemorrhages, another symptom in “the triad.” None of the babies involved in their study showed any evidence of head injuries.

The doctors examined 25 babies who died before birth and 30 newborns, and found evidence of bleeding in the brain—specifically subdural hemorrhages. This kind of bleeding has commonly been thought to result from torned bridging veins and to indicate infant abuse, although in the cases studied that was not a possibility. Instead, the specialists demonstrate that the source of the bleeding in their cases was the dura matter itself.

Birth trauma can produce tentorial or falx tears, which give rise to subdural hemorrhages, according to the article. This bleeding in the brain is among the more common forms of cranial birth trauma. But Cohen and Scheimberg also found subdural hemorrhage associated with intradural hemorrhage without tentorial or falx tears and explain how the free blood can ooze from the intradural hemorrhage.

Their study shows a correlation between the degree of hypoxia, the extent of intradural hemorrhage, and presence of subdural hemorrhage. The authors call for more studies of this relationship and of the causes of bleeding in newborn brains.

Pediatric and Developmental Pathology is published by the Society for Pediatric Pathology and the Pediatric Pathology Society. Pediatric and Developmental Pathology is the premiere journal dealing with the pathology of disease from conception through adolescence. For more information, see www.pedpath.org.

Media Contact:
Amy Schneider
Allen Press, Inc.
800/627-0326 ext. 412
Aschneider@allenpress.com

Read the article: Pediatric and Developmental Pathology, 2009; Vol 12(3): 169-176

 

 

Source:

http://allenpress.com/node/286

Overstating Certainty

 

The Sun Does Revolve Around The Earth

How do we know what we know? It is a simple question but not so simple to answer. Sometimes there are things that we know which require no proof. I love my wife and I know this. I am not required to prove this (except perhaps to my wife at times such as our anniversary). Whether I can prove this or not does not really affect other people.

Other beliefs have consequences which impact on one or many other people. In the world of health care, what we know dictates what we do and how we advise our patients. When someone presents with chest pain, shortness of breath, diaphoresis, tachycarida, and classic ST changes on EKG, we know they are at risk of cardiac arrest based upon hundred’s of thousands of observations. Specific interventions have been tested in controlled fashions and although there are still gray areas in terms of optimum interventions, there are reasonably solid numbers in terms of risk associated with specific scenarios.

It is unfortunate that in many if not most of healthcare we see certainty where it does not exist and nowhere is this more disturbing than where health care and law intersect. There is a recent story about Dr. Marta Cohen, a pathologist in England who has taken on the study of the neuropathological findings in shaken baby syndrome. From the New Scientist:

A triad of markers

The three markers for a shaken baby diagnosis are retinal haemorrhages in both eyes; subdural haemorrhages between the fibrous dura layer that protects the brain and the brain surface beneath; and swelling of the brain. Subdural haemorrhages are said to arise from ripping and shearing of so-called bridging veins. New lines of evidence challenge this hypothesis with the discovery that subdural bleeds are much more common in babies than generally appreciated, and for a host of innocent reasons (see “Anatomy of a murder?”).

Last year, Cohen and co-researcher Irene Scheimberg of Barts and the London NHS Trust examined post-mortem tissue from fetuses and newborns and found subdural haemorrhages in 16 of the 25 fetuses and 20 of the 30 newborns. They also found haemorrhages within the dural layer itself, suggesting that the bleeding started here (Pediatric and Developmental Pathology, DOI: 10.2350/08/08/0509.1). The research is just the latest of many reports to show that subdural bleeds can occur without shaking (see “Anatomy of a murder?”).

http://www.newscientist.com/article/mg20727713.600-doctor-gagged-for-doubting-shaken-baby-syndrome.html?full=true

It seems that by calling into question the dogma accepted as fact by an army of expert witnesses who have testified in trials over many years, Dr. Cohen has raised the ire of those who have a vested interest in maintaining the aura of certainty. The General Medical Council has placed restrictions on her medical license which bar her from further testimony as an expert witness. It appears that she was consistently spoiling the party by showing up to testify in trials and unlike her adversaries claiming the that the triad of findings were specific, she had actual data to support the opposite contention.

I have seen this before. Twenty five years ago the presence of genital or peri-anal warts in an infant was declared proof positive of child abuse. However, after putting countless parents through the ringer, we discovered that..oh never mind, such warts can be transmitted through many other means. Furthermore, the actual numbers which are relevant are poorly defined. Are half of the cases of genital or peri-anal warts in children due to sexual abuse? 25%? 10%? 1%? Who knows and who knows how to know?  How many people were jailed or placed upon the sex offender list based upon the testimony of experts whose hypotheses were essentially untestable.

I have done a modest amount of expert witness work and reviewed a number of depositions. I am surprised by the culture of certainty which prevails. It is scary how many people who are certain they know, don’t know that they don’t know. Furthermore, they have no concept of what they need to do in order to know how they know. The casualties are people like Dr. Cohen who has the audacity to take on a contrary opinion based upon actually testing the evidence and the tools used to make these assessments of certainty. She had her license restricted based upon the fact she failed to agree with a consensus. Sounds like Galileo. Oh yes the sun does revolve around the earth.

http://georgiacontrarian.blogspot.com/2010/08/overstating-certainty.html

Lawyer For Man Charged In “Shaken Baby” Death Says It Was Accidental

An accidental short fall leading to a diagnosis of shaken baby syndrome. Experts say the theory has been debunked according to the legal counsel involved.

A San Francisco man accused of causing the death of his infant son was charged today with felony assault on a child, though his attorney maintained it was a tragic accident.

Karl Aspelin, 39, is suspected by police of violently shaking his 4-month-old son Johan on Nov. 8 at their home in the 500 block of Vicente Street. The boy was hospitalized and was taken off life support over the weekend.

Aspelin was arrested two days after the incident, and prosecutors today charged him with felony assault on a child causing death, which carries a potential sentence of 25 years to life in prison, according to the district attorney’s office. He is also charged with felony child endangerment.

He was being held today under psychiatric observation at San Francisco General Hospital.

His attorney, Stuart Hanlon, said his client would be released from the hospital and brought to jail soon, so his arraignment was postponed until Wednesday. He is being held on $2 million bail.

“It’s a tragic case,” Hanlon said by phone this afternoon. “Every piece of evidence we have is that he’s a loving and wonderful father. It just seems the prosecution has jumped the gun here as to what occurred.”

According to Hanlon, Aspelin runs his own software company in San Francisco and had just returned home that day from day care.

He trying to calm the infant, who was crying, when he heard a crash in the kitchen, where his other child, a 2-and-a-half-year-old, and the family dog were, Hanlon said.

In the kitchen, Aspelin saw the older child and the dog on the floor in the middle of some spilled food, and when he bent down with his infant in his arms, slipped and fell backwards, and the baby tumbled to the floor, Hanlon said.

Aspelin then called 911, according to Hanlon.

The call “will show that he was totally freaked out and hysterical” about the incident, Hanlon said.

Prosecutors were not immediately available to respond today to Hanlon’s contentions.
Hanlon also questioned the accusation by police of “shaken baby syndrome.”

“We’re being contacted already by numerous doctors in the field that say the theory has been debunked,” he said. “We’ll get our experts to look at the evidence and try to figure out what happened.”

In the meantime, Hanlon said he will file a motion to reduce bail for his client, whom he said has not had the chance to begin grieving the death of his son.

“When a child dies, I think the process of a family is just devastating,” Hanlon said. “And without any real evidence…they’ve taken his family apart.”

Ari Burack, Bay City News

 

Source:

http://sfappeal.com/news/2010/11/lawyer-for-man-charged-in-shaken-baby-death-says-it-was-accidental.php

When Experts Become Advocates: The Case of Dr. Charles Smith

Dr. Charles Smith Was Not Working Alone…

It almost goes without saying that an expert witness has to be impartial. However, it is not always easy to keep one’s impartiality in real-life courtroom scenarios, where an expert may feel under pressure to present the case for one side. Or, an expert may feel he or she needs to be an advocate for a certain cause, representing an opinion of a certain hospital department or a heart-felt social education mission rather than professional standards.

A rare glimpse into the pressures experts are exposed to – and the terrible things that can happen when experts allow those pressures to influence them – was recently given in a public inquiry into forensic pathology practices in the province of Ontario, Canada. The inquiry has recently heard the closing arguments. The main focus, widely reported in Canadian press, were the practices of top Canadian pediatric forensic pathologist, Dr. Charles Smith. During his remarkably candid testimony, the disgraced Dr. Smith provided a checklist of the reasons he “fell victim to [his] tendency to become dogmatic, adversarial, too defensive, and to speak in black and white terms” – with disastrous results.

“Dr Charles Smith was once considered the epitome of expertise when it came to pediatric forensic pathology,” the Canadian National Medical Review of Medicine wrote in an article titled “Canadian pathology mired in crisis” published in its April 2008 issue. “If a child died under suspicious circumstances in Ontario, all eyes turned to Dr Smith. If Dr Smith served as an expert witness in a homicide case, people listened. But that trust was misplaced. Dr Smith is now at the center of a public inquiry into the entire field of pediatric forensic pathology in the province. Many child murder convictions that Dr. Smith helped resolve have been thrown into question and the provincial Chief Coroner’s office is now suggesting a total of 142 cases be reviewed.”

Some convictions have already been overturned after Smith’s testimony was reviewed. Cases reported in the press included one where a man spent twelve years in jail after being convicted of raping and killing his niece. He was released when it became clear that Smith’s evidence was unreliable. Several mothers spent years in prison before the cases against them fell apart. In some cases, children were taken from their families. A case that grabbed a lot of attention was one in which Smith failed to recognize the distinctive marks left by dog’s teeth and described them as scissors stab wounds.

On the witness stand in January this year, Smith said that when he first began testifying at criminal trials in the 1980s, he was “profoundly ignorant” of the role of expert witnesses in the criminal justice system and believed his role was to support the prosecution. Only years later did he realize his role as an expert witness was an impartial one.

“I believe I was too defensive or dogmatic or adversarial, and I was certainly too concrete. I don’t believe that I clearly communicated my own uncertainty, but rather, I — I think communicated the certainty of others,” said Dr. Smith, referring to his testimony in the case of the dog bites.

When asked by the inquiry’s Judge Stephen Goudge, why he behaved in that way, Smith candidly replied “Part of it was before going into court, the Crown attorney had indicated to me that the defense counsel wanted to make a big issue of this. And I had expected Dr. Wood to testify at the preliminary hearing and I was quite surprised to learn he didn’t, and Mr. McKenna said, We want you to give that opinion.”

Only much later, after giving his testimony, did Dr. Smith find out that his colleagues had differing opinions, and changed his own opinion. “And so I came to realize that I was, essentially, the only person who — who was of that opinion. And while I remained perplexed in explaining some of the injuries, and especially the thoracic inlet injury, I realized I was the only person who had seen that. And I didn’t feel that I had the — the expertise or the confidence to stand up and give that opinion in light of the fact that other people — defense experts, who had much, much more experience in the area – were strongly of the opinion that — that they were explicable on the basis of a dog attack. “

The following is taken from a transcript from the Canadian inquiry (full version found at the public inquiry’ site: http://mail.tscript.com/trans/pfp/jan_28_08/index.htm).

MS. LINDA ROTHSTEIN: There were a number of occasions this morning, Dr. Smith, when you described how you — I think I’m quoting you fairly: “Fell victim to my tendency to become dogmatic, adversarial, too defensive, speak in black and white terms.” Is that a fair encapsulation of what you told Ms. Langford this morning, sir?

DR. CHARLES SMITH: Those — those are words that I believe I used, yes, yeah.

MS. LINDA ROTHSTEIN: What led to that unfortunate dogmatism, Dr. Smith?

(BRIEF PAUSE)

DR. CHARLES SMITH: I — I think that there may be three (3) things here. As I would ponder it, you know, in the days ahead, it could be that I could add to the list.

First of all, I think there is a general tendency when experts are questioned, they — they want to show their expertise and to show their all- encompassing approach so they tend to — to — in the first instance, seek to reaffirm what their opinion was, perhaps, rather than stand back and — and think anew on the matter.
And so that — that would be, I think, the first one and I — I believe that I’m guilty of that, and acknowledge that as well. And that’s — and that occurs also in — in rounds and other discussions. Someone says, I think you’re wrong and then the first reaction is to say, well no, I think I’m right because of this reason.

I think the second is that when challenged in the Court environment, which is a little bit different than a collegial environment where – where one is more comfortable in front of colleagues admitting inadequacies because your colleagues have expertise that — that you don’t. In the Court environment, there isn’t that — that more comfortable environment of trying to work through a problem. It really is much more adversarial which is — which is foreign to the way physicians work. And so I — I think that my — that my reaction there was — was again to cause me to become more fixed in my opinion. And there was a third one and I — and if you’ll give me a moment, I’ll try and remember that.

(BRIEF PAUSE)

DR. CHARLES SMITH: The third one — the third one I believe may have been a factor even in one (1) or more of these cases. In the very beginning when I went to court in the — on the few occasions in the 1980s, I — I honestly believed it was my role to support the Crown attorney. I was there to make a case look good.

That’s being very blunt but that was the way I felt and I know when I talked with some of my other colleagues especially those who were junior, we — we shared the same — the same kind of an attitude. And — and I think it — it took me a long time, years, to acknowledge that my role was really not to make the Crown’s case, or to make the case of whoever wanted me in court, but really to be much more impartial. And though into the 1990s I would have told you that that was what my role was, I — I think I was pretty lousy at executing it. I’m sorry for that — for that language. I think I was poor at executing it. Though I knew what to do, I didn’t do it and so my — my understanding or my book knowledge was not — was not borne out by my execution in court.

MS. LINDA ROTHSTEIN: And did your desire to make a case for the Crown lead as well to its converse? A feeling that you were there to refute the defence case?

DR. CHARLES SMITH: I — I certainly felt that pressure at times when I walked into court; that pressure from a Crown attorney, yeah.

COMMISSIONER STEPHEN GOUDGE: Where did you get the sense originally that that was the role?

DR. CHARLES SMITH: I — I think this is an expression of ignorance. The first time I went into a court case, you know, I had a — I had a diagnosis of head injury, of non-accidental head injury. My colleagues had come to a similar thing and I think as we discussed the case in the hospital, it was our — our view that this was a non-accidental head injury and we were going out there to make sure that a judge and jury understood it. And as I spoke to my colleagues from, you know, radiology or — or what was, I think, the forerunner to the to SCAN Team, that was the sense that I had.
As I think back on it now, I wonder to what degree the — the — sometimes the advocacy role that was used by some at the hospital colored my thinking.
I certainly didn’t understand sort of that concept of advocacy in the — in the early ’80s but I believe that I was giving an opinion as part of a group that was supposed to — to make — make it very clear to everyone what the right diagnosis was.

COMMISSIONER STEPHEN GOUDGE: And who at the hospital had an advocacy role then?

DR. CHARLES SMITH: Oh, there — there — before the SCAN Team was kind of redesigned under Dr. Mian, which would have been — I’m — I’m sorry I can’t remember the year, it would have been mid or late ’80s perhaps, there was prior to that others who were involved in those cases, and — and they were — they were proactive in — in their investigation. As well, one (1) of the radiologists who I leaned heavily on, a — a very senior gentleman, also was very clear cut in black and white and — and that — and…

CONTINUED BY MS. LINDA ROTHSTEIN: Who was that, Dr. Smith?

DR. CHARLES SMITH: Dr. Reilly, R-E-I-L- L-Y. Bernard, Bernie Reilly, who I presume he’s deceased now because I was junior and he was towards the end of his career and –

COMMISSIONER STEPHEN GOUDGE: And this was a general atmosphere of advocacy against child abuse? Is that –

DR. CHARLES SMITH: Yes. I think — I think that’s a fair way of doing it. And — and please understand, sir, that this is a period of time where the whole area of child abuse is just kind of coming into being and so there was a sense that this is a new area, we need to pay attention to it. And — and it was almost wanting to educate and kind of bringing attention to this, and I think that might have been part of that advocacy community, or environment, or culture that — that was exist — in existence at that time.

COMMISSIONER STEPHEN GOUDGE: Thank you.

The inquiry, which has heard months of testimony from experts and former colleagues, was ordered after serious doubts were raised about opinions given by Smith in roughly 20 cases of suspicious child deaths. In more than 12 of those cases, Smith’s decisions led to criminal investigations or convictions.

The inquiry’s website:

http://www.goudgeinquiry.ca

Wikipedia page:
http://en.wikipedia.org/wiki/Charles_Randal_Smith

Source:

http://expertpages.com/news/dr_charles_smith_ontario_canada_goudge.htm

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A father’s 20-year battle for exoneration

Tracey Tyler Legal Affairs Reporter

Dinesh Kumar walked up the temple steps and paused while a priest sounded a bell.

Opening a rich red and gold shawl, the men draped it around a statue of Durga Mata, the all-powerful Hindu goddess responsible for moral order and righteousness in the universe.

The ritual, said Laxminarayan Kumbaria, priest at the Jai Durga Hindu Society on Markham Rd., is a form of giving thanks for wishes that come true.

And that finally happened for Kumar on Thursday.

Nearly two decades after a prominent pathologist’s mistakes wrongly implicated him in the death of his 5-week-old son, Guarov, the Ontario Court of Appeal quashed Kumar’s conviction and acquitted him outright.

“I am very happy,” said Kumar, 44, who trained as a goldsmith in Punjab and immigrated to Canada in 1991, only to find himself quickly enmeshed in a legal nightmare.

Speaking on behalf of a three-judge panel, Justice Marc Rosenberg told Kumar the court appreciates “the terrible toll this case has taken on you and your family over these last 20 years.

“We can now say the conviction in your case was unreasonable,” he told Kumar, who was accompanied by his wife, Veena, and son Saurob, 19.

Forensic experts from North America and England who have examined the evidence in the case since 2006 have concluded Gaurov probably died of natural causes resulting from a birth injury.

But back in 1992, Dr. Charles Smith, once Canada’s superstar of pediatric forensic pathology, concluded after performing an autopsy that the child had been shaken to death.

Kumar was charged with second-degree murder.

Despite the seriousness of the charge, the Crown offered him an incredible deal just six months into the case, telling Kumar that if he pleaded guilty to criminal negligence causing death, he would get a 90-day jail sentence to be served on weekends.

He took the deal.

What’s not clear is whether the attorney-general’s ministry recognized back in 1992 that it never really had much of a case.

What is clear is that Kumar felt he had little choice but to plead guilty after being told by his own lawyer that Smith was “like a god” and his opinions would be next to impossible to challenge in court.

Addressing Kumar in the ornate surroundings of the Osgoode Hall courtroom Thursday, Rosenberg said the court understood why he decided to enter a guilty plea back in 1992.

Smith was found to have made mistakes in more than 20 child death autopsies.

A public inquiry headed by Justice Stephen Goudge later concluded Ontario’s chief coroner and deputy chief coroner had a “symbiotic” relationship with their star pathologist, propping him up and ignoring warning signs because their office was enhanced by his reputation.

Acting on Goudge’s recommendations, the Ontario government has set up a compensation process for families damaged by Smith’s mistakes. Those administering the scheme have already been in touch with Kumar, said James Lockyer, a lawyer representing Kumar through the Association in Defence of the Wrongly Convicted.

On the steps of the courthouse after he was acquitted Thursday, Kumar was asked by a reporter if he had a photograph of Gaurov. He reached into his pocket.

“This will be with me until the day I die,” he said.

For many years, Kumar had pledged that if he were ever acquitted, he would post a copy of the decision at his temple.

Despite Smith having attained notoriety for all the wrong reasons, Kumar said he knows some members of the community have continued to suspect him. And he wanted to put a stop to that.

The court has yet to release its decision, so Kumar instead handed a copy of the newspaper story about his acquittal to temple president Lajpat Gognar.

He also knelt before a silver tray filled with oils and candles. Veena and Saurob knelt beside him.

“This,” said Yogrij Verma, Veena’s brother, “is a precious day for them.”

 

Source:

http://www.thestar.com/news/article/925085–man-s-murder-conviction-dropped-in-baby-s-death