Ontario will offer up to $250,000 for each person whose life was directly affected by Dr. Charles Smith’s flawed pediatric forensic pathology, CBC’s Zulekha Nathoo reports … Dr. Charles Smiths Victims To Be Compensated
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:
Wikipedia page:
http://en.wikipedia.org/wiki/Charles_Randal_Smith
http://expertpages.com/news/dr_charles_smith_ontario_canada_goudge.htm
Susan Wishart and
Mayland McKimm Q.C.
On November 12, 2007 the Honourable Stephen T. Goudge commenced public hearings in the Inquiry into Pediatric Forensic Pathology in Ontario (the “Goudge Inquiry”). Those hearings concluded on February 29, 2008 and Commissioner Goudge is scheduled to release his report on September 30, 2008. The inquiry was commissioned to conduct a systemic review of the practice of pediatric forensic pathology and its oversight mechanisms in Ontario from 1981 to present, as they relate to the criminal justice system.
The impetus for the inquiry was the discovery that Dr. Charles Smith, a pediatric forensic pathologist, had drawn erroneous conclusions in several infant death cases in Ontario. Dr. Smith testified on behalf of the Crown in criminal trials that the infant deaths he had examined were not accidental. It was subsequently determined that many of Dr. Smith’s findings were incorrect and in fact the deaths were not the result of any criminal act. His testimony led to the convictions of innocent people. His expert testimony in criminal trials ruined lives and tore apart families already grieving the loss of a child. The enormity of the consequences of his expert evidence cannot be overstated.
In his testimony at the Goudge Inquiry Dr. Smith gave a number of reasons for his errors: poor training; lack of oversight; and pressure to make his findings consistent with the prevailing theory of the police to name a few. Over the course of the inquiry, policy roundtables were conducted and research papers submitted that examine the entire criminal justice system and medical expert witnesses in an effort to prevent future miscarriages of justice.1 One of the issues raised in several of the research papers is the phenomenon of medical expert witnesses acting as advocates for a particular theory rather than providing an opinion based on scientifically tested medical evidence.
When an expert medical witness testifies as an advocate, he or she rules out possible explanations for injuries that do not fit with their theory. Instead of limiting their testimony to a diagnosis and the mechanism of injury, the advocate goes further and offers a single theory as to causation. The danger for an accused in a criminal trial is that there are often several viable causes for the injury but only one is presented to the court. Judges and counsel rely heavily on medical experts as they have knowledge that is, practically speaking, not obtainable by the other participants in a criminal trial. When a doctor testifies as an expert witness on such issues as the mechanics of injury causation, there is an assumption that the opinion given represents the current medical science that is universally accepted by medical experts. Unfortunately, this is not always the case.
In most cases it will be impossible for counsel or the court to know that there is a division in the medical community on a particular issue. There may be only a handful of experts on the topic in a particular geographical area, all of whom hold the same view. In other parts of the country or the world, experts in the same field may hold the contrary view. Due to a lack of time and resources, particularly for the defence, this contrary view may not be discovered or explored at trial. When an expert medical witness testifies and only discloses her or his view, the witness is acting as an advocate. This has resulted in miscarriages of justice.
Expert medical witnesses and Shaken Baby Syndrome
A clear example of the dangers of the expert medical witness as advocate phenomenon is found in what has become to be known as Shaken Baby Syndrome (“SBS”). The syndrome was first referred to in 1972 by Dr. John Caffey to describe the mechanism of causation for subdural hematomas in infants where there was no sign of external injuries to the scalp.2 Caffey hypothesized that shaking or even swinging an infant in play could result in brain injuries with no blunt force trauma. He referred to this as “Whiplash Shaken Infant Syndrome”.
In the 1980s SBS took on a more sinister connotation and was used to described physical abuse on an infant whereby the infant is held around the rib cage and shaken violently causing the infant’s head to snap back and forth. The defining symptoms of SBS are stated to be: subdural hematoma, encephalopathy (usually manifest in fatal cases by brain swelling) and retinal hemorrhage. These symptoms are commonly referred to as “the triad.” Although there are no accounts of anyone witnessing an infant being shaken in this manner with the resultant triad of symptoms, doctors offered SBS as an explanation for these injuries where there was no apparent impact injury to the head. For some doctors SBS became not only a possible explanation for the triad of symptoms, but the only explanation.
Over the past three decades thousands of individuals around the world have been charged and convicted of murder/manslaughter/assaults on infants with the mechanism of brain injury defined as SBS. Proponents of the syndrome have attended annual medical conferences on SBS and some have declared themselves to be experts. Doctors have testified on behalf of the prosecution at criminal trials and stated as fact that when the triad of symptoms is present, the only mechanism of injury is SBS. Parents who testified that their child fell and hit his head were disbelieved in the face of the unquestioned expert medical opinion.
At the same time that the SBS experts were testifying in this manner, other doctors and scientists were conducting studies and demonstrating that the mechanism of SBS could not cause the injuries associated with the syndrome. One research study demonstrated that the forces needed to cause a subdural hematoma far exceeded the amount of force that could be generated by shaking. The forces generated inside the skull by impact with a rotational component, such as with some falls, are 50 times greater than the forces that can be generated by shaking alone, and still 40 times greater than shaking when the impact is onto a soft surface. Another study determined that impact injuries to an infant’s head did not always result in any injury to the skull or scalp.
Even more compelling are the studies involving documented short distance falls that resulted in the triad of symptoms, with no external head injury. The documentation included falls witnessed by disinterested third parties and falls that were caught on film.
These studies all indicate that the triad of symptoms that are said to be the signature of SBS can also result from accidental short distance falls. The biomechanical studies go even further to suggest that the triad of symptoms attributed to SBS cannot be caused by shaking alone. Despite this body of scientific evidence expert SBS doctors continued to testify at criminal trials and routinely denied that the injuries could be caused by anything other than intentional assaultive shaking.
Process excluded non-SBS explanations
To make matters worse, those doctors and scientists who had effectively debunked SBS as a mechanism of causation for the triad of symptoms were not called to testify at criminal trials. This identifies two problems when the legal and medical system over lap: the inability of counsel to access all of the relevant medical literature on a given subject; and the lack of any mechanism within the medical profession for monitoring expert medical opinions given in criminal trials. The former may be due to a lack of time, funding or knowledge on the part of counsel. The latter is a systemic problem within the medical community whereby there is no requirement for the hypothesis that underlies a medical theory to be universally accepted before it can be offered as an “expert” medical opinion.
It has only been in the last few years that this division in the medical profession surrounding SBS has come to light in criminal trials. Courts have now heard evidence from doctors and scientists that calls into question the very nature of SBS and any link between the triad of symptoms and assaultive conduct. As a result of the scientific studies debunking SBS prior convictions that were based on SBS have been overturned in some jurisdictions and reviews of other convictions continue.
Unlike a decade ago, we now have a pool of physicians, at least in the United States, who can testify about the mechanism of injuries in infants to counter the evidence of the SBS advocates.8 Unfortunately, there are still expert medical witnesses who continue to act as advocates for SBS and testify that it is the only possible explanation for the triad of symptoms. Instead of testifying in an objective manner such experts take on the role of disproving the accused’s explanation for the infant’s injuries.
There appears to be a significant lack of training or guidelines for doctors testifying in an expert witness capacity. The issue of doctors testifying as advocates is not new, and is one that has been raised in the medical community in the past. John Plunkett M.D., a forensic pathologist in Minnesota, has published several papers on the myth of SBS. He has also criticized his fellow physicians for testifying in criminal cases as to causation (shaking) instead of limiting their opinion to a diagnosis (child died from a subdural hematoma) and mechanics (rapid deceleration injury). In 1998 Dr. Plunkett submitted a letter to the American Journal of Forensic Medicine Pathology criticizing the profession for the manner in which doctors were acting as advocates in SBS cases:
We need to differentiate between what we scientifically know to be true, and what we think or hope to be true. We don’t need advocates in front of audiences, including juries, demonstrating the mechanism of shaking in a syndrome we do not understand. We don’t need a third or fourth National “Shaken Baby Conference” to promote more unfounded theories for infant head injuries and to suggest prosecution methods to counter “untruth” defences. The concept of a “shaken infant syndrome” deserves to be examined and re-examined, even when we finally think we have it “right”.
Too many of my colleagues (and most other physicians and almost the entire general public) think our profession is the “whodunit” discipline. It is not. Forensic pathology is the “what happened” specialty. When our focus is the “who” we forget the “what” or may consider it unimportant. Worse, we may alter our explanation/interpretation of the “what” to make it conform to our opinion of the “who.” The need to consider alternative explanations ceases, doors to further inquiry close: do not go beyond, you will find nothing there. Objectivity fails because we are forced to defend an advocacy role, be it for the state or the defendant. We must not forget that our only responsibility is to bear witness within the limits of science.
Towards a “demonstrably reliable” standard of expert evidence
While situations like SBS will hopefully be rare, it raises the issue of the admissibility of expert medical testimony in criminal cases. In his paper submitted to the Goudge Inquiry titled “Pathological Science? Demonstrable Reliability and Expert Forensic Pathology Evidence,” Dr. Gary Edmond suggests that judges should not admit expert evidence adduced by the prosecution unless it is demonstrably reliable. That is, the prosecution must demonstrate that the techniques and theories used by its experts and the opinions they present in court are reliable. Reliable in this context means the opinion is one that is based on scientific evidence and is accepted by the medical community.
This approach has been utilized in the United States and evidence of SBS was excluded in a case where the triad of symptoms was present but there were no other signs of abuse. The difficulty with this approach is that it still requires defence counsel to present medical evidence contrary to the expert opinion proposed by the state on a case by case basis. The underlying problem doesn’t change: the existence of various expert medical opinions that are based on theories as opposed to scientific evidence. Dr. Edmond concludes his paper with the following:
If courts and reformers are genuinely interested in reducing wrongful convictions, improving accuracy, and enhancing fairness, regardless of organizational and structural changes to forensic science and medicine, then refining and enforcing admissibility standards will have a major systemic effect. Requiring demonstrably reliable expert evidence would compel institutionalized forensic science and medicine to reform their approaches to investigation, evidence, and proof. The need for demonstrable reliability is, in reality, just another way of requiring forensic scientific, medical, and technical evidence to be based on solid foundations. Mirroring developments in the mainstream biomedical sciences, it seems desirable for techniques, theories, and opinions relied upon by the state to be evidence-based.
Such standardization within the medical profession would hopefully result in limiting expert opinions to diagnosis and mechanics of injury and prohibit speculation as to causation. Reform of this magnitude will take years to realize. In the meantime, counsel may be able to challenge the admissibility of medical testimony where the opinion is not based on scientifically tested evidence.
Other issues have been identified during the Gouge Inquiry that contribute to inaccurate expert medical testimony that can be remedied more easily: forensic education requirements for judges and lawyers involved in serious criminal cases; early participation by a defence expert in forensic examinations; videotaping of forensic procedures; and greater resources from legal aid for defence counsel to retain experts both as witnesses and consultants.
The issues referred to in this paper are not limited to SBS or to medical experts. In any area where the scientific community is divided the same cautions apply in accepting expert opinions. This is an evolving issue in that expert opinions change with further studies and advancements in technology. What is now considered to be fact may soon be fiction. The current state of affairs places a significant burden on counsel to be up to date on the latest medical research and to challenge expert opinions that encroach into the realm of advocacy. With assistance from the medical profession through standardization and guidelines for expert witnesses this burden can be eased and may prevent wrongful convictions.
Susan Wishart MSc LLB and Mayland McKimm JD Q.C. are partners in the firm of McKimm & Wishart in Victoria, B.C., and practice primarily in the area of criminal defence law.
All of the research papers are available on the Goudge Inquiry website:
Source:
http://www.cba.org/CBA/newsletters/pdf/07-08_criminaljustice_witnesses.pdf
Dr. Charles Smith was long regarded as one of Canada’s best in forensic child pathology. A public inquiry was called after an Ontario coroner’s inquiry questioned Smith’s conclusions in 20 of 45 child autopsies. (Frank Gunn/Canadian Press)
On a typical case, he might have to decide whether a child had been shaken to death or accidentally fallen from a highchair.
Dr. Charles Smith was once considered top-notch in his field of forensic child pathology. In 1999, a Fifth Estate documentary singled him out as one of four Canadians with this rare expertise.
For 24 years, Smith worked at Toronto’s Hospital for Sick Children. In the hospital’s pediatric forensic pathology unit, he conducted more than 1,000 child autopsies.
But Smith no longer practises pathology. An Ontario coroner’s inquiry reviewed 45 child autopsies in which Smith had concluded the cause of death was either homicide or criminally suspicious.
The coroner’s review found that Smith made questionable conclusions of foul play in 20 of the cases — 13 of which had resulted in criminal convictions. After the review’s findings were made public in April 2007, Ontario’s government ordered a public inquiry into the doctor’s practices.
That inquiry, led by Justice Stephen Goudge and concluding in October 2008, found that Smith “actively misled” his superiors, “made false and misleading statements” in court and exaggerated his expertise in trials.
‘Smith was adamant that his failings were never intentional. I simply cannot accept such a sweeping attempt to escape moral responsibility.’—Justice Stephen Goudge
Far from an expert in forensic child pathology, “Smith lacked basic knowledge about forensic pathology,” wrote Goudge in the inquiry report.
“Smith was adamant that his failings were never intentional,” Goudge wrote. “I simply cannot accept such a sweeping attempt to escape moral responsibility.”
Two years later, the Ontario government announced compensation for families affected by Smith’s mistakes.
Individuals will be entitled to a maximum of $250,000 each. A child of someone wrongfully accused who was removed from the family home as a result is entitled to up to $25,000.
A family member directly affected by a relative’s involvement in the criminal justice system is entitled to up to $12,500. Legal costs incurred by the wrongly accused may also be reimbursed.
Some have accused Smith of taking on a role larger than pathologist. The lawyer for Brenda Waudby said he was on a crusade and acted more like a prosecutor. Waudby was convicted in the murder of her daughter after Smith analyzed the case.
Brenda Waudby was wrongly accused of killing her 21-month-old daughter Jenna in 1997. (Frank Gunn/Canadian Press)
A pubic-like hair found on her daughter disappeared during Smith’s investigation. It was discovered he had kept the hair in his office before police found it five years later. In the end, the charges against Waudby were dropped and the child’s babysitter was convicted.
Smith said he had a passion for uncovering the truth in child deaths. The Ontario pathologist told media lampooning him he had “a thing against people who hurt children.” He welled up when speaking about a mother looking for the cause of her baby’s death.
Smith had been in search of his own personal truths. He was born in a Toronto Salvation Army hospital where he was put up for adoption three months later. After years of looking for his biological mother, he called her on her 65th birthday. But she refused to take his call.
Smith’s adoptive family moved often. His father’s job in the Canadian Forces took them throughout Canada and to Germany. He attended high school in Ottawa, and graduated from medical school at the University of Saskatchewan in 1975.
Hired by Toronto’s Hospital for Sick Children in 1979, Smith worked in surgery for a year and then moved on to pathology training. A pathologist studies diseases and illnesses by assessing matter such as cells, tissues, organs and fluids. Pathologists also examine biopsy material, and give a subsequent diagnosis.
When it comes to autopsy reports, the field of pathology can be a subjective one. It’s based on research and opinion, and it’s especially controversial in Canada, where there is no formal training or certification process. Only a handful of practitioners in Ontario are entrusted with the job — and they’ve learned by doing.
With child victims, forensic analysis is rarely cut and dried. It can take an infant up to 24 hours to die of a shaking incident, which is a crime that doesn’t leave evidence the way a regular killing might.
After his initial training at Sick Kids, as the Toronto hospital is known, Smith began conducting child autopsies in 1981. He started with children who had died of accidental and natural causes. By the late ’90s, Smith saw more forensic child cases than any other pathologist across the country.
Smith’s unit used arrest warrants to reinvestigate cases of sudden infant death syndrome (SIDS). He oversaw the autopsies of exhumed babies that led to new murder charges.
In one such case, Smith appeared before a court in the death of six-month-old Sara Podniewicz. He concluded she had been dead for up to 15 hours before her parents reported the death. The parents had told a 911 operator the girl had died just moments before. Smith’s analysis led to second-degree murder charges.
In December 2009, Sherry Sherrett-Robinson was acquitted of killing her son whom Smith had concluded died of asphyxia a decade earlier. Smith suggested Sherrett-Robinson’s son, Joshua, suffered a skull fracture and neck hemorrhages. Ontario’s chief forensic pathologist, Dr. Michael Pollanen, however, told the Ontario Court of Appeal that he did not find a skull fructure and noted the neck hemorrhages were caused during the autopsy process.
In 1991, a family in Timmins, Ont., was the first to raise questions about Smith’s work. He had concluded their one-year-old baby had died from being shaken. The child had been under the care of a babysitter who said the baby had fallen down stairs.
In court, experts challenged Smith’s opinion, which had resulted in the babysitter’s charge of manslaughter. The judge in the case stated Smith should have taken other causes into consideration.
Once the most prolific pathologist, Smith began getting a reputation for late cases, and his disorderly desk produced samples that had gone missing.
In 2002, he received a caution from the Ontario College of Physicians and Surgeons. The college said he was being “overly dogmatic” and had a “tendency towards overstatement.”
In June 2005, Dr. Barry McLellan, Ontario’s chief coroner, started the review of 45 child autopsies conducted by Smith between 1991 and 2002. The review, released in April 2007, found that Smith had made mistakes in 20 cases involving the deaths of children. The review cast doubt on criminal convictions in 13 of the cases.
“I am very surprised with the overall results of the review, and concerned,” McLellan said. “In a number of cases, the reviewers felt that Dr. Smith had provided an opinion regarding the cause of death that was not reasonably supported by the materials available for review.”
The chief coroner said the results of the review were being shared with defence and Crown attorneys involved in all of the relevant criminal cases.
After resigning from Sick Kids in 2005, Smith accepted a pathology position in Saskatoon. He was fired after three months. A tribunal later reinstated him, but without a licence, Smith was unable to practise.
Smith told media his marriage ended in light of stress from the highly publicized events. He had lived with his wife and two children on a farm north of Newmarket, Ont.
As a member of the Christian and Missionary Alliance, Smith says he has been fuelled by his life’s purpose — finding out the truth for parents who have lost babies.
Read more: http://www.cbc.ca/canada/story/2009/12/07/f-charles-smith-goudge-inquiry.html#ixzz13tGyVMvi
A Toronto man who was wrongfully convicted of killing his four-year-old niece because of testimony by now disgraced pathologist Charles Smith will get $4.25 million in compensation, Ontario Attorney General Chris Bentley announced Thursday.
William Mullins-Johnson speaks to reporters outside the Ontario Court of Appeal in July 2007. Mullins-Johnson, who was wrongly convicted of killing his niece, will receive $4.25 million in compensation. (Aaron Harris/Canadian Press)William Mullins-Johnson spent 12 years in prison after he was convicted in 1994 on evidence from the doctor that suggested he had raped and strangled his niece, Valin.
Mullins-Johnson was exonerated by the Ontario Court of Appeal in October 2007 after it was determined the child died from natural causes.
In overturning Mullins-Johnson’s conviction, the court found there was no evidence he was guilty of any crime.
Bentley apologized to Mullins-Johnson for a “miscarriage of justice.”
“On behalf of the government of Ontario, I offer my deepest and most sincere apologies to Mullins-Johnson and his family for the miscarriage of justice that occurred and the pain they had to endure. Mullins-Johnson has been working hard to rebuild his life and we wish him well as he continues that process,” Bentley said in a statement.
Mullins-Johnson was one of several people who were wrongfully accused of killing children based on flawed evidence from the onetime leading forensic child pathologist, who had conducted more than 1,000 child autopsies while at Toronto’s Hospital for Sick Children.
Mullins-Johnson has launched a lawsuit against several doctors, including Smith.
After resigning from Sick Kids in 2005, Smith accepted a pathology position in Saskatoon. He was fired after three months. A tribunal later reinstated him, but without a licence, Smith was unable to practise.
He is believed to still be living in Saskatchewan.
With files from The Canadian Press
The alarm first sounded on Dr. Charles Smith 16 years ago.
A Timmins judge had rejected Smith’s evidence in acquitting a 12-year-old girl of manslaughter in the death of a child she had been babysitting.
Justice Patrick Dunn had harsh words about Smith, who had wrongly determined that the 16-month-old girl had died from shaken baby syndrome when in fact she had suffered from an accidental head injury. He poked holes in Smith’s findings, evidence and testimony.
This is the oldest of 20 cases in which Smith erred that are now coming under scrutiny at the Inquiry into Pediatric Forensic Pathology in Ontario.
Sadly, it was only in the lead-up to the inquiry that former chief coroner Dr. Jim Young says he read Dunn’s judgment.
Had he read Dunn’s judgment before, Young says, he would have likely hired outside experts in pediatric forensic pathology to undertake a review.
This is one of many reasons that help explain how Smith could go on to err in 19 more cases, 12 of which resulted in criminal convictions. Former chief coroner Jim Young has apologized for “miscarriages of justice” that resulted.
In the Timmins case, the babysitter had been hired in the summer of 1988 to look after the little girl. Because of a publication ban at the inquiry, the babysitter can be identified only as SM and the toddler as Amber.
SM had taken the Red Cross babysitting course, was a good student and lived with her parents close to Amber’s home.
On the afternoon of July 28, Amber woke up from a nap babbling. SM got her from her crib and changed her. They then walked toward a flight of five stairs. Amber pulled away from SM and tumbled down the stairs, according to SM.
Amber was flown to the Hospital for Sick Children, where she died two days later.
SM’s parents used all their savings to defend their daughter, hiring experts from around the world. Justice Dunn found their evidence more credible.
In his 75-page judgment, Dunn wrote that Smith refused to consider the possibility that Amber had suffered her injuries in a fall and he (Smith) was stuck on the position that shaking had caused her death.
“There is an expression that lawyers use that `justice must not only be done, it must be seen to be done,’” Dunn wrote.
“It would behoove Dr. Smith in making such an important decision as a diagnosis of shaking that would lead to a manslaughter charge, to show he seriously considered possibilities other than shaking,” he continued.
Among Dunn’s many concerns with Smith’s work on this case was his constantly changing definition of the aspects of shaken baby syndrome; his wrong assertion that no autopsy was needed to confirm the diagnosis; and the fact that he was not up on the latest research in the area.
Young, who now works as a special adviser to the federal government on emergency preparedness, told the inquiry that he didn’t know of Dunn’s decision before because there is no process in place for such judgments to be sent to the chief coroner.
Even so, there were other missed opportunities to find out about Dunn’s ruling: It was mentioned in a May 2001 Maclean’s magazine article; it was also referred to in a November 1999 edition of the CBC’s the fifth estate; and it was contained in a separate November 1999 complaint about Smith, a copy of which had landed on Young’s desk. The former coroner told the inquiry he read the article and complaint, but missed the sections referring to Smith. And he said he was away when the CBC show aired.
In the years after Dunn’s 1991 decision, Smith’s mistakes mounted.
William Mullins-Johnson
The most egregious so far involves William Mullins-Johnson, who was wrongly convicted in the death of his 4-year-old niece based on evidence from Smith. He was acquitted last month after spending 12 years in prison.
The inquiry has heard there were myriad red flags about Smith’s work over the years. As well, there were a number of contributing factors that led to the flawed death investigations.
One of the most surprising revelations has been that Smith had no training in forensic pathology despite hanging out a shingle saying he was a pediatric forensic pathologist. He was educated only in pediatric pathology, which would prepare him to diagnose disease and conduct autopsies in a hospital setting.
The skill set required to do autopsies under a coroner’s warrant in criminally suspicious cases or homicides is vastly different.
But that lack of training isn’t entirely Smith’s fault. Dr. Michael Pollanen, Ontario’s chief pathologist, testified that the Royal College of Physicians and Surgeons of Canada has only recently designated forensic pathology as an official sub-specialty. Canada is decades behind other jurisdictions, including the U. S. and Britain, on this front.
The inquiry has heard that there were other reasons Smith continued making mistakes, including:
Dr. Charles Smith
Lack of oversight during 20 years in the coroner’s office.
The “guru” status he had developed in the field.
The severe shortage of pathologists doing this kind of work.
The “think dirty” policy in place in the coroner’s office in the mid-’90s – encourage those working on death investigations to consider foul play.
Young had argued that the College of Physicians and Surgeons had no jurisdiction to investigate complaints involving Smith or any other doctor working for it. In 2000, the Health Professions Appeal and Review Board ruled that the college could undertake such investigations.
When Young was asked by commission counsel Mark Sandler about his office failing to see the flags, the former chief coroner said other stakeholders weren’t alerting him. “We were not hearing from Crown attorneys in large numbers. … We were not hearing from police officers. We weren’t hearing from the Defence Bar. …”
The flawed work of pathologist Charles Smith led to serious questions about the cases of 19 children who died in unusual circumstances.
In 2008, Mr. Justice Stephen Goudge concluded that Charles Smith was an arrogant, unqualified pathologist whose biased, inconsistent and unprofessional testimony precipitated a string of wrongful murder charges and convictions.
Judge Goudge recommended that the Ontario government look into providing swift redress for people who “through no fault of their own … suffered tragic and devastating consequences.”
Here are some of the people who were charged in the deaths of children based on Dr. Smith’s findings.
Oneil Blackett
Oneil Blackett pleaded guilty in 2001 to the manslaughter of his 13-month-old daughter Tamara Thomas.
Tamara was in a full-body cast from a broken thigh when Mr. Blackett tried to force her to drink a bottle of chocolate milk on Feb. 8, 1999. He rammed the bottle into her mouth until the child began to vomit milk and blood, then gave up, leaving the child in her play pen.
When Tamara’s mother came home, the toddler was cold and not breathing. A post-mortem by Dr. Smith concluded she died from asphyxia associated with multiple traumatic injuries. Mr. Blackett was charged with second-degree murder.
Despite concerns about the validity of Dr. Smith’s testimony, Mr. Blackett agree to plead guilty to manslaughter as a sign of remorse, his lawyer said. He was sentenced to three-and-a-half years in prison, on top of the 15 months he had already served awaiting trial.
Richard Brant in Moncton in 2009.
Richard Brant
Richard Brant was convicted of aggravated assault in 1995 for the death of his two-month-old son, Dustin.
Mr. Brant was taking Dustin for a walk when he noticed red foam around the baby’s nose. Dustin died two days later, on Nov. 18, 1992.
Dr. Smith concluded Dustin had been shaken to death, despite the fact that the baby’s brain had rotted away after morgue staff mistakenly left it in a container of water. His findings contradicted the findings of a neuropathologist who had examined the child’s brain and concluded he had likely died of pneumonia.
Mr. Brant said he felt compelled to plead guilty to aggravated assault to avoid a possible manslaughter conviction. He conceded he had accidentally jostled Dustin during a physical struggle with his wife.
In January, 2009, the Ontario Court of Appeal granted Mr. Brant permission to reopen the case and fight his conviction.
William and Mary Colville
William and Mary Colville found their three-and-a-half-month-old daughter Tiffani dead in her crib in their Kingston, Ont., home on the morning of July 4, 1993,
A pathologist at the local hospital said while the baby died of undetermined causes, there were no suspicious circumstances.
After the girl was buried, police learned that a radiologist had overlooked rib fractures on Tiffani’s x-ray. Her body was exhumed and Dr. Smith performed a second autopsy. He found multiple rib fractures and diagnosed the cause of death as asphyxia.
Police charged Tiffani’s parents with manslaughter, aggravated assault, and failing to provide the necessaries of life.
In 1995, the court dismissed the first two charges, and the Colvilles pleaded guilty to failing to provide the necessaries of life. Mary Colville received a suspended sentence and two years’ probation. William Colville was sentenced to five months in custody.
Lianne Gagnon
Lianne Gagnon was never charged in relation to the death of her 11-month-old son, Nicholas. But she lost custody of another child during a sustained police investigation.
Nicholas lost consciousness after likely hitting his head after crawling under a sewing table on Nov. 30, 1995. By the time he arrived at a hospital, he was in full cardiac arrest.
A pathologist initially found that the cause of death was undetermined and the findings were consistent with sudden infant death syndrome. However, Dr. Smith concluded the boy had died from a non-accidental bump to the head. An independent expert later ruled the cause of death as undetermined and found that Dr. Smith had made several errors.
While no charges were ever laid, child-welfare officials apprehended Ms. Gagnon’s second child and her parents had to use their life savings to get the child back.
Dinesh Kumar in his home in Toronto. Dinesh is attempting to be absolved from the death of his five week old son he plead guilty to harming in 1992.
Dinesh Kumar
Dinesh Kumar was 26 when he pleaded guilty in 1992 to negligence causing the death of his five-week-old son Gaurov.
Gaurov screamed in his sleep on the night of March 18, 1992, and Mr. Kumar rushed to the crib to find the boy gasping and looking bluish. When Mr. Kumar picked up his son, the boy gasped and went limp. The baby was rushed to hospital, and was confirmed brain-dead. He was removed from life support two days later.
Dr. Smith concluded the boy died from shaken baby syndrome, and Mr. Kumar was charged with second-degree murder. Mr. Kumar later agreed to plead to a lesser charge, rather than face trial testimony from Dr. Smith.
In 2008, the Ontario Court of Appeal said it was “very understandable” Mr. Kumar would make such a plea bargain, and new evidence cast doubt on Dr. Smith’s findings in the case. The case is currently under appeal.
Maureen Laidley, and her lawyer John Struthers, during a small press conference at his Bay St. office in 2001.
Maureen Laidley
Maureen Laidley was charged with second-degree murder in the death of her boyfriend’s four-year-old son, Tyrell Salmon.
Tyrell fell and hit his head on a marble coffee table while jumping on the couch on Jan. 18, 1998. The next morning, Ms. Laidley brought him to the hospital, where he died four days later.
Dr. Smith performed an autopsy and concluded Tyrell had died of a head injury, but found the injury was too severe to have been caused by a household accident.
Almost a year later, police charged Ms. Laidley with second-degree murder. The charge was withdrawn on the eve of her trial after three other pathologists concluded the bump was likely caused by falling on the coffee table.
Tammy Marquardt at Grand Valley detention centre in 2009.
Tammy Marquardt
In 1995, Tammy Marquardt was convicted of second-degree murder and sentenced to life in prison for the death of her two-year-old son, Kenneth. After spending 14 years in jail, she was freed on bail in March, 2009.
Kenneth died on Oct. 9, 1993, after Ms. Marquardt called 911 in a panic to report that she had emerged from the shower to find the boy tangled in his bedclothes, struggling for breath and calling, “Mommy.” The boy had a history of epileptic seizures.
Dr. Smith concluded Kenneth had been asphyxiated as a result of smothering or neck compression. Two other pathologists, however, later found that the cause of death was undetermined.
Ms. Marquardt’s two other sons – one born while she was awaiting trial, the other shortly after she was sent to prison – were seized by child-welfare authorities.
In April, 2009, the Supreme Court of Canada sent the case to the Ontario Court of Appeal to weigh fresh evidence and whether Ms. Marquardt’s conviction constituted a miscarriage of justice.
C. M.
C. M. pleaded guilty in 1994 to the manslaughter death of her newborn baby, referred to in case files as ‘Baby M’.
Ms. M. was 21 when she went into the bathroom of her family’s home in Pickering, Ont., with what she thought were stomach cramps. At about 10 p.m. on Nov. 8, 1992, she gave birth to a boy. She later said she didn’t know she was pregnant.
Her parents found her in the early hours of the morning, covered in blood. Ambulance attendants found Baby M’s body in the toilet. Dr. Smith performed an autopsy later that morning, and concluded the cause of death was asphyxia. That evening, police charged Ms. M. with second-degree murder.
Medical reports presented to the court said there was no concrete indication to show if Baby M died in the toilet or if he’d become entangled in the umbilical cord. Ms. M. was given a suspended sentence and three years’ probation, and was ordered to perform 300 hours of community service.
William Mullins-Johnson takes a moment before speaking to reporters in front of Osgoode Hall. Mr. Mullins-Johnson was acquitted by the provincial Court of Appeal after 12 years in prison for the 1993 death of his four-year-old niece.
William Mullins-Johnson
William Mullins-Johnson was convicted of first-degree murder and served 12 years in prison in the death of his four-year-old niece, Valin.
Mr. Mullins-Johnson babysat Valin and her brother at the home near Sault Ste. Marie, Ont., on the night of June 26, 1993. The next morning, their mother found the girl dead in bed.
Dr. Smith was one of three pathologists who concluded Valin had been asphyxiated and sexually assaulted. The cause of her death is undetermined.
Mr. Mullins-Johnson was released in 2005 when it was discovered that Dr. Smith had lost tissue samples that could have proved Valin had died of natural causes.
Mr. Mullins-Johnson was exonerated in October, 2007, after the Ontario Court of Appeal called his conviction a “terrible miscarriage of justice.”
Louise Reynolds, outside the Kingston Courthouse where the Crown Counsel withdrew the homicide charges against her in the death of her daughter Sharon.
Louise Reynolds
Louise Reynolds was convicted of second-degree murder in the death of her seven-year-old daughter, Sharon. She spent two years in jail.
Sharon’s body was found in the basement of her Kingston, Ont., home on June 12, 1997.
Dr. Smith concluded that 80 cuts on Sharon’s body had been caused by scissors or a knife. Despite knowing that a pit bull lived in the basement, Dr. Smith ruled out an animal as the cause of her injuries.
Ms. Reynolds was exonerated after Sharon’s body was exhumed, revealing at least some of her injuries were bites from a pit bull. She later launched a lawsuit.
Maria Shepherd
Maria Shepherd spent two years less a day in jail after pleading guilty to manslaughter in the death of her three-year-old stepdaughter, Kasandra.
Kasandra was found unconscious on April 9, 1991. She died two days later.
The Filipina immigrant acknowledged she had hit the child in a moment of frustration, but claimed it was a minor blow that she couldn’t have imagined would have led to the child having seizures and dying.
Dr. Smith concluded Kasandra died from a blow to the head. However, another pathologist later found evidence to suggest she died of natural causes, such as epilepsy.
Ms. Shepherd said her lawyer had warned her against trying to plead not guilty, saying Dr. Smith “was a force to be reckoned with.”
In May, 2009, the Ontario Court of Appeal granted Ms. Shepherd’s request to reopen her case and seek exoneration.
Sherry Sherrett-Robinson was acquitted of killing her baby boy a decade after she served eight months in jail for infanticide.
Sherry Sherrett-Robinson
Sherry Sherrett-Robinson was convicted of infanticide in 1999 for the death of her four-month-old son after Dr. Smith testified that he found signs consistent with homicide on the body of Joshua Sherrett. She spent a year in jail.
Last December, Ms. Sherrett-Robinson was acquitted of infanticide by the Ontario Court of Appeal. The court told Ms. Sherrett-Robinson it was “profoundly regrettable” she was wrongly convicted based on errors by Dr. Smith. The court heard it was possible that Joshua suffocated in his crib after becoming entangled in bedclothes.
“The tragedy of this four-month-old child’s death is compounded by the fact that his mother was wrongly convicted of infanticide, served a year in jail and she lost her other child,’ Mr. Justice Marc Rosenberg said at the time.
After Ms. Sherrett-Robinson was charged, her eldest son was seized and put up for adoption. She is not permitted to seek him out until he is 18.
Marco Trotta leaves the Fenbrook Institute outside Gravenhurst with the help of his wife Anisa.
Marco and Anisa Trotta
Marco Trotta was convicted of second-degree murder, aggravated assault and assault causing bodily harm and sentenced to life in prison for the death of his eight-month-old son, Paolo. His wife, Anisa, was convicted of criminal negligence causing death and failing to provide the necessities of life and sentenced to five years in prison.
Paolo was found dead in his crib on May 29, 1993. A pathologist initially ruled he died from sudden infant death syndrome. But the investigation into his death was reopened a year later when Mr. and Ms. Trotta brought their newborn to hospital with a fractured femur.
The baby’s body was exhumed and Dr. Smith found the cause of death was undetermined, but found multiple fractures and suspected foul play. Police charged Mr. and Ms. Trotta. However, two pathologists later discredited Dr. Smith’s botched autopsy and testimony. Among other discredited findings, Dr. Smith mistook an old, partly healed skull fracture for a recent injury.
In 2007, the Supreme Court of Canada ordered a new trial for Mr. and Ms. Trotta, citing Dr. Smith’s mistakes.
Brenda Waudby leaves an inquiry hearing in Toronto in 2007.
Brenda Waudby
Brenda Waudby was charged with second-degree murder in the death of her 21-month-old daughter, Jenna Mellor.
Ms. Waudby left Jenna in the care of a 14-year-old babysitter on Jan. 22, 1997. That night, the toddler died in hospital. A pubic hair was found in her groin area.
Dr. Smith performed an autopsy and concluded the girl had died of blunt abdominal trauma. Ms. Waudby was charged in September, 1997, based, in part, because Dr. Smith determined the girl likely died at a time when she was with her mother. The Crown withdrew the charge after experts suggested the girl had suffered fatal injuries when she was not in Ms. Waudby’s care.
Five years after the murder charge against Ms. Waudby had been withdrawn, and after Dr. Smith had testified that he knew nothing about the pubic hair, he found the hair in an envelope in his desk.
Jenna’s babysitter pleaded guilty to manslaughter in 2006 and confessed he had punched, poked and burned the girl to the point of death. Charges of sexual assault were withdrawn because of insufficient evidence. He cannot be named because he was a minor at the time.
With a report from Stephanie Chambers
Source:
http://www.theglobeandmail.com/news/national/ontario/charles-smiths-blunders/article1668235/
Testimony by disgraced pathologist Charles Smith at a 1998 murder trial was inept, hyperbolic and prodded a jury into wrongly convicting a father of intentionally killing his son, according to two of the country’s top pathologists.
As a result, the Crown now concedes that Marco Trotta’s conviction for second-degree murder cannot stand in light of the fresh evidence.
“The respondent acknowledges that the fresh evidence is credible and bears upon a potentially decisive issue,” prosecutor Lucy Cecchetto said in a brief filed with the Supreme Court of Canada, where an appeal of the convictions of Mr. Trotta and of his wife Anisa will be heard next month.
The Crown will ask the court to uphold Mr. Trotta’s convictions for manslaughter, aggravated assault and assault causing bodily harm, as well as Ms. Trotta’s convictions for criminal negligence causing death and failing to provide the necessities of life.
In her brief, Ms. Cecchetto insisted that there is ample evidence to show that Mr. Trotta inflicted repeated blows on Paolo – breaking or fracturing bones, and leaving prominent bruises and bite marks – while Ms. Trotta stood silently by and acquiesced to the abuse.
Ms. Trotta has already served her five-year sentence. Mr. Trotta, who received a 15-year sentence, was released on bail last spring after serious doubts arose in connection with 20 cases in which Dr. Smith played an instrumental role.
The fresh revelations are contained in affidavits and statements made by Ontario’s Chief Forensic Pathologist, Michael Pollanen, and Newfoundland’s Chief Medical Officer, Simon Avis.
Dr. Smith’s trial testimony is described as “mind-boggling,” “irresponsible” and “false.”
The pathologists say it is not possible for any forensic pathologist to make a reliable link between various injuries that eight-month-old Paolo suffered and his death on May 29, 1993.
“I cannot see how anyone – particularly anyone with the status that Dr. Smith enjoyed at that time – could possibly reach that conclusion,” Dr. Avis said.
“I still, to this day, stand in wonder.”
Dr. Avis concluded that there “was certainly no evidence at autopsy to indicate any recent trauma or any trauma that could, in any way, shape or form, cause or contribute to his death. … The jury heard contradictory, misleading and inaccurate pathological evidence under the guise of Dr. Smith’s expertise.”
Coming on the eve of a public inquiry into Dr. Smith’s work, the evidence bears witness to profound shortcomings in the way autopsies and suspicious infant death investigations take place.
The documents reveal that Paolo’s original autopsy was botched by pathologist David Chan, who failed to find evidence of suspicious injuries and concluded that Paolo’s cause of death was sudden infant death syndrome.
A year afterward, the Trotta’s newborn child – Marco Jr. – was admitted to a hospital in Kingston suffering from a fractured femur and multiple bruises.
Dr. Smith ordered an exhumation of Paolo’s remains and found multiple signs of abuse.
In an attempt to win a new trial for their clients, defence lawyers James Lockyer and Michael Lomer approached Dr. Avis and Dr. Pollanen two years ago to have them review Dr. Smith’s work.
Dr. Avis said it is inexplicable that Dr. Smith could have mistaken an old, partly healed skull fracture for an injury Paolo might have sustained as recently as 10 minutes before he was found dead in his crib. He said that even a layman could scarcely have made such a basic mistake.
“To examine Paolo Trotta’s skull – to see the fracture and to opine that that fracture is from minutes to, at most, two days old – simply boggles my mind,” Dr. Avis said.
Dr. Pollanen said that Dr. Smith jumped to erroneous conclusions and engaged in baseless speculation.
“The overall analysis … in my view, would be that there is no factual foundation in the medical evidence to conclude that head injury or an asphyxial event – such as pressure on the neck, suffocation, smothering – was the cause of death,” he said.
Mr. Lockyer and Mr. Lomer state in a legal brief that Dr. Smith “misdiagnosed through over-interpretation of findings at the exhumation, and his evidence was grossly imbalanced. Almost all of his interpretations of Paolo’s injuries were erroneous.”
The brief is highly critical of the fact that while Dr. Smith’s autopsy report listed Paolo’s cause of death as “undetermined,” he then painted an emotive picture for the jury of two main possibilities that could explain Paolo’s death. “One is that he died of a head injury, presumably on a non-accidental basis,” Dr. Smith testified.
“And the second is that he died of an asphyxial event.”
Until someone comes along with another credible explanation, Dr. Smith told the jury, “I have to regard Paolo’s death as being non-accidental in nature.”
Dr. Pollanen said this type of testimony is improper in a criminal trial.
“Making a judgment about an unlawful killing is not the duty or responsibility of the pathologist,” he said.
“It is not for the pathologist to usurp the role of the trier of fact.”
In her brief to the court, Ms. Cecchetto said that should it refuse to simply strike the murder and manslaughter charges and leave the other convictions intact, then the court should order a new trial.
She said that the vast amount of evidence showing the abuse Paolo suffered is still capable of persuading a jury to convict Mr. Trotta of murder.
“The evidence that Paolo had suffered a lifetime of systematic abuse and devastating injuries at the hands of his father, and that his mother knew, was overwhelming,” she said.
***
‘MEDICAL PROFESSION FAILED PAOLO’
Testifying at Marco Trotta’s 1998 trial for the murder of his son, pathologist David Chan did not try to candy-coat the errors he made years earlier when he conducted an autopsy on the dead infant.
“The record indicates that Dr. Chan, inexperienced in pediatric pathology, committed a number of errors which, when confronted with medical and radiological evidence and the history of Paolo Trotta, he recognized,” Crown prosecutor Lucy Cecchetto acknowledges in a legal brief to the Supreme Court of Canada.
“It cannot have been easy for Dr. Chan to admit the errors he made.”
Coupled with the mistakes made by pediatric pathologist Charles Smith at a second autopsy in 1994, the Trotta case is a textbook example of why the exacting science of pediatric pathology is under siege.
Dr. Chan, who works at Oshawa General Hospital, conceded in testimony that he:
Failed to notice three skull fractures;
Did not detect a healing fracture to the humerus;
Neglected to check carefully for a previous record of abuse of the eight-month-old child, a routine act that would have triggered close scrutiny into Paolo’s death;
Failed to preserve Paolo’s brain or make slides of the brain tissue, a mistake that crippled reinvestigations of the case;
Erroneously considered the child’s brain-weight – 940 grams – to be normal.
After conducting a second autopsy in 1994, Dr. Smith concluded that the brain was abnormally heavy, indicating that it had swelled after sustaining a recent blow.
Dr. Chan promptly reversed field and agreed.
To muddy the waters further on the brain weight issues, pathologists Michael Pollanen and Simon Avis have since concluded that it is an outmoded and misleading method of detecting abuse.
“These ‘normal ranges’ were established between 40 and 60 years ago, and do not reflect modern knowledge,” Dr. Avis said in a document filed with the Supreme Court. “The conclusion that the brain weight of Paolo Trotta reflects cerebral edema is not valid.”
In a Crown brief to the Court, Ms. Cecchetto summed up the autopsy fiasco candidly: “The medical profession failed Paolo in life and in death.”
She said that these failures dated back to Paolo’s first hospital admission, when he was just two months old.
Doctors took note of facial bruises and a skull fracture, she said, but somehow failed to detect a second skull fracture.
“Abuse was suspected, given the nature of the fracture and bruising,” Ms. Cecchetto said. “However, Paolo was ultimately released to his parents under CAS supervision.
“The second skull fracture would have reinforced the concerns relating to abuse.
“The CAS involvement was terminated as a result of incomplete and inaccurate information from the family doctor, as well as the CAS’s own inadequate investigation.”
Kirk Makin
From Wednesday’s Globe and Mail***
Forensic errors
Many a wrongful conviction has been caused by forensic pathologists who erred or drew unwarranted conclusions about a suspicious death. The most sensational examples include:
RONALD DALTON
The Newfoundland man spent eight years in prison for the murder of his wife. He was acquitted at a retrial, after new evidence indicated the victim choked on cereal, as opposed to being strangled.
WILLIAM MULLINS-JOHNSON
Mr. Mullins-Johnson spent 12 years behind bars for the murder of his four-year-old niece, Valin, after doctors and pathologists concluded that the child had been raped and killed.
A decade later, a review of forensic evidence in the case concluded that Valin died mysteriously in her sleep – perhaps after breathing in some of her own vomit, but without any foul play.
GUY PAUL MORIN
The Ontario man was charged with the 1984 murder of nine-year-old Christine Jessop. An autopsy conducted by top Ontario pathologist John Hillsdon Smith led police to draw certain conclusions about the nature of the killer and his window of opportunity to commit the crime.
Five years later, a second autopsy turned up a massive skull fracture, knife marks on two ribs, damaged vertebrae and a horrific breastbone injury – all of which had been overlooked by Dr. Hillsdon Smith. The new results pointed toward a different killer.
Kirk Makin
Source:
Linda Nguyen
The Ontario government announced Tuesday it will launch a formal review into shaken baby syndrome cases to determine if any judicial errors resulted from the investigations.
Ontario Attorney General Chris Bentley said a team of medical and legal experts including Ontario Court Justice Donald Ebbs and the province’s chief forensic pathologist will head the inquiry into the 142 “shaken baby” cases investigated during 1986 to 2006.
A second team led by Ontario’s former associate of chief justice, Coulter Osborne, will also look into whether compensation should be paid to those who were wrongfully convicted in the cases.
The reviews follow 169 recommendations made by Justice Stephen Goudge in his final report on the injustices committed by disgraced pathologist Dr. Charles Smith during his tenure as the province’s chief pathologist from 1991 to 2001.
“Justice Goudge has given us an excellent roadmap for progress, and we are following it so that Ontarians who may have been affected by these terrible human tragedies can find the justice they deserve,” he said in a statement. “We will take every opportunity to ensure that justice is done.”
These current cases under review were not investigated by Smith but involved other pathologists, Bentley said.
No timeline was given on when the reviews will be completed.
Smith was found to have committed serious errors in 20 of 45 criminally suspicious deaths he investigated during this period.
Though Smith lacked basic knowledge about forensic pathology, he was considered one of Canada’s leading experts in the field and his findings helped lead to homicide charges against parents and caregivers – many of which were unwarranted.
Goudge’s recommendations were aimed at improving the forensic pathology in the province and included: establishing a governing council to oversee the duties and responsibilities of the coroner’s office and the creation of an accredited one-year university training program.
He also called on the province to address the acute shortage of forensic pathologists by recruiting and paying higher salaries.
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