Readers of this blog may well be interested in a recently published book by Dr. Patricia Horsham entitled, "Accused to Acquitted: The Clue is in the Evidence."
The three part series on Horsham, by reporter Kelly Roesler, was published on May 27, 2008 under a note that said, "Determined to protect children, Dr. Patricia Horsham discovered that the system can go wrong in abuse cases and set out to clear up wrongful accusations, Kelly Roesler writes."
"As a regular expert witness for the defence in child-abuse cases, Ottawa pediatrician and lawyer Dr. Patricia Horsham has endured being "chewed up" in court by prosecutors, suffered the derision of her physician colleagues and felt the stigma of being labelled a traitor who "went over to the other side," the story began.
"Despite this, she has remained resolute in her quest to seek the truth, using her considerable medical and legal expertise to sift through layers of evidence and, as a result, has exonerated many wrongfully accused caregivers and refuted diagnoses of child abuse," it continued.
"Now, she recounts in a new book the cases and experiences behind her motivation, her passion and pride in helping to clear parents and caregivers wrongfully accused of abusing children, and in the process, help reunite families devastated by such allegations.
Dr. Patricia Horsham, who also has a law degree, says a watchdog is needed to review child-abuse evidence before cases go to court and lives are torn apart.
The effects (of wrongful accusations) can be profound," said Dr. Horsham in a telephone interview.
"The children of the wrongfully accused are also suffering. Dad and mom have been dragged out of the house, and sent away, the family's disrupted.
"Also, if the victim is a child of the accused, there's trauma all around, and they have to try and build back this relationship."
The damage of wrongful accusations can be far-reaching and life-changing, she said, not only for the victim but for those who have been accused.
"Yes, the child's been victimized, but the accused also has a family, the accused has also been traumatized, and the book has gives you an indication of that.
"Everybody feels that an adult who's been wrongfully accused can just walk away and shrug their shoulders if you say: 'Sorry, we've made a mistake.'"
Dr. Horsham -- viewed as a medical-legal pioneer after adding a law degree to her résumé in 1991, after a lengthy career at the Children's Hospital of Eastern Ontario -- has just launched her self-published book, Accused to Acquitted: The Clue is in the Evidence.
The book describes the interplay of the legal and medical systems in child abuse cases and details the experiences of those who have wrongfully been accused of abuse, and their subsequent acquittals.
"The evidence speaks for itself," she said. "People need to see the celebration; these parents have been through it, and -- Hallelujah! -- these are the results: Parents got their kids back, a mother's been able to have her third child and adoptions have been cancelled."
The book flows from Dr. Horsham's years of experience as a child-abuse expert in criminal and family court trials.
Originally, she often acted as a prosecution witness, having seen many cases of sexual abuse in her work at the hospital. Her goal was to be a vocal advocate for children, she said.
"I worked with the Crown in diagnosing abused children, ready to go to trial and give evidence. But the defence lawyers came in, and I thought, in my simplicity, we had an open-and-shut case. It wasn't open and shut; we lost the case and I couldn't understand why. "
After watching numerous abuse cases thrown out of court on technicalities, she decided to become a lawyer, to better understand the system and work to improve it.
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The second part of reporter Roesler's story proceeds under a note which says that, "Determined to protect children, Dr. Patricia Horsham discovered that the system can go wrong in abuse cases and set out to clear up wrongful accusations."
"As she finished her law degree, she began receiving calls from defence lawyers asking for her help," the story continues.
""I don't know if it was some invisible hand that guided these cases to me, but I was called by defence lawyers -- this one spoke to that one and that one spoke to the other one, and they call me."
Her approach was to look at each case individually, concentrating only on the facts of the case at hand. She soon began to pick up on discrepancies. "Gradually, it started dawning on me that there were errors made or omissions made (in child- abuse cases)."
The combination of her medical background and legal experience has given her a keen objectivity essential in delivering a fair assessment of these cases, she said.
"I can look in on the medical profession, and their approach to a child; I can also see what happens from the legal point of view. I can see that each side carries some of the blame."
It begins when a child visits the emergency room, suffering physical trauma. A physician's suspicion could be aroused when there is a delay in seeking medical attention and if the story the mother or caregiver gives does not correlate with the visible degree of trauma.
"It raises the red flag. So the physician does that; the kid is admitted to hospital, the social services come in, take the suspicion of abuse, and they go out of the hospital and start investigating the family."
But the doctor, not being legally trained, doesn't realize the importance of wording, she said. "From the time he reports the suspicion to social services, and they go out and start investigating, they forget that it was a suspicion. So they deal with the parents and the accused as if it were confirmed abuse.
"And the doctors don't realize that a suspicion should be further clarified -- there's nothing mandating physicians to clarify or to investigate or to confirm suspicion. They just report the suspicion and leave it up to the CAS to do the rest."
And social services leaps on this suspicion, she said, going full steam ahead without waiting for further medical verification of abuse. "CAS workers forget about the word 'suspicion,' and work on the case as if this is confirmed. He or she doesn't know that there are other things going on in the hospital that will prove this is not an abusive case. He or she doesn't know, may not come back and is not advised. They just go for it."
It's only when the case goes to court that experts such as Dr. Horsham are able to review all of the information and judge whether child abuse has occurred. She wants this changed and is calling for the mandatory education of physicians who deal with these cases, as well an ombudsman or watchdog within the hospital or medical-legal community, to whom these cases could be referred before charges are filed.
"No one is really responsible, in law or otherwise, to call off the investigations by the police and social services. This act is a very big and very responsible decision and requires someone qualified enough to confidently tell the police and social workers that the suspicion has been disproved long before the case goes to trial."
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The third part of Roesler's story is headed by a note which indicates that, "Determined to protect children, Dr. Patricia Horsham discovered that the system can go wrong in abuse cases and set out to clear up wrongful accusations."
"As she finished her law degree, she began receiving calls from defence lawyers asking for her help," the story continues;
""I don't know if it was some invisible hand that guided these cases to me, but I was called by defence lawyers -- this one spoke to that one and that one spoke to the other one, and they call me."
Her approach was to look at each case individually, concentrating only on the facts of the case at hand. She soon began to pick up on discrepancies. "Gradually, it started dawning on me that there were errors made or omissions made (in child- abuse cases)."
The combination of her medical background and legal experience has given her a keen objectivity essential in delivering a fair assessment of these cases, she said.
"I can look in on the medical profession, and their approach to a child; I can also see what happens from the legal point of view. I can see that each side carries some of the blame."
It begins when a child visits the emergency room, suffering physical trauma. A physician's suspicion could be aroused when there is a delay in seeking medical attention and if the story the mother or caregiver gives does not correlate with the visible degree of trauma.
"It raises the red flag. So the physician does that; the kid is admitted to hospital, the social services come in, take the suspicion of abuse, and they go out of the hospital and start investigating the family."
But the doctor, not being legally trained, doesn't realize the importance of wording, she said. "From the time he reports the suspicion to social services, and they go out and start investigating, they forget that it was a suspicion. So they deal with the parents and the accused as if it were confirmed abuse.
"And the doctors don't realize that a suspicion should be further clarified -- there's nothing mandating physicians to clarify or to investigate or to confirm suspicion. They just report the suspicion and leave it up to the CAS to do the rest."
And social services leaps on this suspicion, she said, going full steam ahead without waiting for further medical verification of abuse. "CAS workers forget about the word 'suspicion,' and work on the case as if this is confirmed. He or she doesn't know that there are other things going on in the hospital that will prove this is not an abusive case. He or she doesn't know, may not come back and is not advised. They just go for it."
It's only when the case goes to court that experts such as Dr. Horsham are able to review all of the information and judge whether child abuse has occurred. She wants this changed and is calling for the mandatory education of physicians who deal with these cases, as well an ombudsman or watchdog within the hospital or medical-legal community, to whom these cases could be referred before charges are filed.
"No one is really responsible, in law or otherwise, to call off the investigations by the police and social services. This act is a very big and very responsible decision and requires someone qualified enough to confidently tell the police and social workers that the suspicion has been disproved long before the case goes to trial.""
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Dr. Horsham, who was the author of an opinion on one of the cases that was considered by the Goudge Inquiry, was a co-author of a 1993 research paper on "Shaken-Baby Syndrome" which was highly critical of Dr. Smith - and a criminal justice system which so easily accepted his flawed testimony.
I discussed this paper in a posting which appeared on Friday November 9, 2007, under the heading, "Lawyers Warned "To Guard" Against Dr. Charles Smith's Testimony Back In 1993," as follows:
"NEVERTHELESS, MEMBERS OF THE PROFESSION WHO PROSECUTE OR DEFEND SUCH AN ALLEGATION (BABY-SHAKING SYNDROME) MUST BE ALIVE TO THE VERY CONTROVERSIAL MEDICAL BASIS OF THE PHENOMENON ITSELF, NOT TO MENTION THE POSSIBILITY OF A RARE PROCESS OF ILLNESS OR INJURY TO ACCOUNT FOR THE SYMPTOMS;"
FROM "THE SHAKEN-BABY SYNDROME - A RESEARCH GUIDE":
The authors of a paper on "Shaken-Baby Syndrome" published in the Criminal Law Quarterly in 1993 followed a passage of Dr. Charles Smith's testimony with a warning.
"At bottom, counsel must guard against such testimony which consists of educated guesses", the authors write. "Any opinion as to the number of shakes must be predicated upon a sound understanding of biomechanics."
Biomechanics is a specialty in itself: the science concerned with the action of forces, internal or external, on the living body;
The authors of the paper, published in Volume 36 at Page 108, were:
0" Gilles Renaud: Counsel,Crimes Against Humanity and War Crimes Section, Department of Justice, Ottawa;
0: Myriam Renaud, a member of the Ontario Bar; and,
0: Dr. Patricia Horsham, described as a Child Abuse Specialist at Children's Hospital in Eastern Ontario.
Dr. Smith's testimony comes under scrutiny in a section of the paper called, "the forces involved in Shaken-Baby Syndrome."
In one case, for example, the judge in the Lawrence case described Smith's very definite evidence on bio-mechanical matters as follows.
"He (Smith) described as "tremendous" the force that must have been used to kill the little girl.
The degree of force required to produce lesser injuries in animals involves forces of 13 to 15 times the force of gravity...
He said it would more likely take minutes than seconds to administer the amount of shaking that was required to kill the child...
He thought that there would be 25 or 30 shakes, probably more than that, and more likely much more than that.
He described...how hard one would have to work at killing the child to deliver the actual force that was needed to kill (her;"
(Testimony like this must be a prosecutor's dream!);
The authors also give the example of a case involving a 20-month-old boy weighing more than 12 kilos at the relevant time (the Cadieux case) in which Smith was asked to comment on the force required to occasion lethal shaking;
"He (Smith) responded, "They would have to be strong. If they weren't an adult, they would have to be a well-built teenager I would think.
"He (Smith) added, The extent of the injury that's required, or the extent of force that's required is very significant. It is not a trivial injury, it's not...a normal type of injury."
Smith ventures even further into the area of biomechanics in this case, according to the authors, when he reflects on the age range of the youth, saying, "That may be related to the fact that it takes, it's more work, it takes more injury to inflict that type of injury."
As yet another example of Smith's straying beyond his area of expertise, the authors discuss the Dovak case, in which Smith testified that,"It's fascinating to see the G-forces with the acceleration or deceleration type injuries or forces that come to play here and the significant differences between acceleration-deceleration from shaking versus a blunt impact, which obviously has much greater forces."
"And so I, you know their conclusions, I think are very interesting," Smith continued. "That is that it may be the 10 0r 2-G forces of the shaking, but rather it may take some help beside that."
Smith's evidence in these cases takes on a fascinating perspective when viewed in the context of his testimony during the trial in the Timmins case - one of the cases considered during the Chief Coroner's review;
(This case involved a 12-year-old Timmins girl who was charged with manslaughter after a 16-month-old child she was babysitting suffered injuries in her home and later died.
Smith concluded the youth had shaken the baby to death.
But nine experts described by Provincial Court Judge Patrick Dunn as "at the top of their fields" testified that death was caused by an accidental fall.
Dunn acquitted her.)
The authors say that: "It must be noted that during the trial of R. v. M. (S). Dr. Smith remarked that he was not an expert in bio-mechanics.
He (Smith) added in discussing the possible number of shakes leading to a fatality of a 16-month-old girl weighing 25 Lb:
"I'm just pulling that figure out of the air, Mr. Renaud.
"I don't want to engage in a discussion of the number of shakes because it's not simply the number that's important.
I believe it's also other biomechanical factors which I know so little about...
The whole area of bio-mechanics I think I have underscored here is one which I have looked at interesting statements in the literature statements in the literature but I'm not an expert..."
This is the point at which the authors warn counsel to guard against Smith-type testimony, "which consists of little more than educated guesses" and is the antithesis of "sound understanding of biomechanics."
The authors acknowledge that, "a criminal prosecution (or a child protection application) may be initiated responsibly in cases of suspected child abuse where the young baby or infant is admitted to the hospital emergency ward with indications of retinal haemorrhaging, bilateral subdural haematomas and the absence of visible trauma and no satisfactory explanation to account for the symptoms," subject to a big "nevertheless."
"Nevertheless, members of the profession who prosecute or defend such an allegation must be alive to the very controversial medical basis of the phenomenon itself, not to mention the possibility of a rare process of illness or injury to account for the symptoms."
Judge Dunn was had no doubts about the necessity to consider other causal factors than "baby-shaking syndrome."
"I turn first to some of Dr. Smith's assumptions, he wrote.
"The defence doctors all showed they could consider the possibility of shaking.
They knew there were elements present in this case that could be taken as suggestive of of that diagnosis, if they were seen in isolation.
On the other hand, Dr. Smith would not consider the possibility of a subdural haemorrhage and brain swelling from a small fall, but then even he admitted he is not current in the biomechanical understandings of falls.
He would allow for the possibility of a subdural haemorrhage, but with bruising, in a fall of one story, as he said, or from a full flight of stairs as he suggested on another occasion.
There is an expression lawyers use, justice must not only be done, but must be seen to be done.
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."
"In the final analysis," the authors conclude, "it is hoped that this review will have identified some of these subtleties and to have oriented counsel to the literature (and experts) who may be of assistance in cases involving the so-called "shaken-baby syndrome";"
"Accused to Acquitted: The Clue is in the Evidence," is self-published and can be obtained by email through medlaw2@rogers.com.
Harold Levy...hlevy15@gmail.com;
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