Saturday, October 30, 2010

BREAK TIME! BACK IN ACTION END OF NOVEMBER; BEST WISHES, HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG;

PUBLISHER'S NOTE: Dear Reader: it's been about a year since I have taken a break in order to charge the batteries. It has been a fascinating year with gripping matters such as developments in the aftermath of the Goudge Inquiry into many of Dr. Charles Smith's case, the desperate struggle of Hank Skinner to have DNA tests conducted before he is executed in Texas, and the desperate evidence of the Texas authorities to suppress the fact that they used junk science to execute an innocent man. (Cameron Todd Willingham). In the meantime, please let me know about matters that may be of interest to our readers at my e-mail address at the bottom of this post. Looking forward to seeing you in November. Best wishes, Harold Levy.

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

Friday, October 29, 2010

BRENDA WAUDBY; INNOCENT WOMAN'S VALIANT FIGHT TO CLEAR HER NAME; PETERBOROUGH EXAMINER; PUBLISHER'S NOTE: BRENDA WAUDBY'S RAW DEAL;

"Citing new evidence and extenuating circumstances, Kirkpatrick said she's optimistic that the extension would be granted, giving Waudby a shot at appealing her conviction.

Waudby was wrongfully accused of murdering her child, 21-month-old Jenna Mellor, in September 1997.

But as time went on, the Crown's case began to unravel.

On June 11, 1999, Waudby pleaded guilty to one charge of child abuse.

On June 15, 1999, the Crown withdrew its charge of second-degree murder."

REPORTER SARAH DEETH: THE PETERBOROUGH EXAMINER;

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PUBLISHER'S NOTE: It is clear from the evidence called at the Goudge inquiry that Brenda Waudby - an utterly innocent individual who's baby daughter had been murdered by her babysitter - had been required to plead guilty to a charge of child abuse under provincial legislation before the Crown would withdraw the the second-degree murder charge on the basis of medical opinions which showed she could not possibly have committed the crime. It is also clear that Dr. Charles Smith's opinion that there were injuries which preceded the attack on Baby Jenna - which led to her being wrongfully charged with murder - was also the basis for the provincial charge, along with what the police claimed to be a confession. Instead of receiving the sympathy and compassion she deserved as a grieving mother whose baby daughter had been murdered, Ms. Waudby, a grieving mother, was herself charged with the horrific crime and not surprisingly became a pariah in her community. Brenda Waudby has been given a raw deal by Ontario's criminal justice system. We can only hope that the Court will give her the opportunity to strike the plea that she felt compelled to make in the circumstances, allow her to call the fresh evidence which she says clears her of this offence, and go the rest of the distance necessary to clear her name.

HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG.

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"Brenda Waudby has never stopped fighting to clear her name and at battle Thursday in Superior Court of Justice," the Peterborough Examiner story by reporter Sarah Deeth filed earlier today begins, under the heading, "Waudby fights to clear name."

"She's in the early stages of appealing a 1999 child abuse conviction," the story continues.

"Her lawyer, Julie Kirkpatrick, spoke briefly to the matter before Mr. Justice Chris Corkery.

Kirkpatrick has filed a motion asking for an appeal extension. The Crown has to either consent to the extension or a judge has to grant one.

Usually a defendant has 30 days to file a notice of appeal with the court. Anyone trying to appeal a conviction after the 30- day period must first apply for an appeal extension.

Citing new evidence and extenuating circumstances, Kirkpatrick said she's optimistic that the extension would be granted, giving Waudby a shot at appealing her conviction.

Waudby was wrongfully accused of murdering her child, 21-month-old Jenna Mellor, in September 1997.

But as time went on, the Crown's case began to unravel.

On June 11, 1999, Waudby pleaded guilty to one charge of child abuse.

On June 15, 1999, the Crown withdrew its charge of second-degree murder.

She sat in court in December 2005 when her former babysitter pleaded guilty to killing Jenna. She was there when he was sentenced to 22 months in jail in March 2006.

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She drove to Toronto every day to watch the Goudge Inquiry unfold. The inquiry examined the work of pathologist Dr. Charles Smith, whose "think dirty" method pointed police to Waudby.

She's watched and waited while the provincial government has begun the tedious job of handing out compensation to Smith's victims.

Waudby declined to speak to reporters Thursday.

Kirkpatrick said Waudby has been living under the stigma of this conviction for years.

"A lot of time has passed, and Brenda Waudby has been determined from the start to see justice done and clear her name. This is one of the last steps in that process," she said.

The local Crown attorney's office can't be involved in the appeal process, given its history with Waudby and the Mellor case.

Kirkpatrick said the Crown's office in Toronto would be responsible for assigning a prosecutor to the case.

The case has been adjourned to Dec. 9."

The story can be found at:

http://www.thepeterboroughexaminer.com/ArticleDisplay.aspx?e=2822694

IVAN HENRY: DNA EVIDENCE HELPS ACQUIT B.C. MAN OF RAPES AFTER 26 YEARS IN JAIL; TORONTO STAR;

"Another police investigation reopened doubts about Henry’s guilt following a 2002 operation called “Project Smallman.” Vancouver police re-investigated 25 unsolved sexual assaults committed from April 1983 to July 1988, a period when Henry was already in prison.

DNA evidence obtained during “Project Smallman” led to the arrest and conviction of another man identified only as DM because his identity is protected under a publication ban.

Crown prosecutors noted similarities between the Henry case and the “Project Smallman” findings and brought those similarities to the attention of B.C.’s criminal justice branch which appointed an independent lawyer to reinvestigate a potential miscarriage of justice in Henry’s conviction."

REPORTER PETTI FONG; THE TORONTO STAR;

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"VANCOUVER – A relieved and “happier than ever” Ivan Henry, who was acquitted Wednesday after spending 26 years in jail, says his first plans for freedom is seeing his grandson's soccer game,"
the Toronto Star story by reporter Petti Fong published on October 27, 2010 begins, under the heading, "B.C. man acquitted of rapes after 26 years in jail."

"Henry told his daughter Wednesday after hearing BC's highest court have ordered him released that he wants to watch a soccer game and go out for dinner," the story continues.

"A three panel of judges on the B.C. Court of Appeal quashed the convictions and acquitted Henry on all counts Wednesday as the now elderly and frail man and his daughters, who have been fighting for years to overturn the convictions, applauded the new ruling.

Henry’s sentence is believed to be the longest anyone in Canada has spent behind bars for a crime in which they were subsequently acquitted.

He said he's not angry after years of trying to get himself exonerated for crimes he didn't commit.

“It wouldn't heal me if I was angry,” a jubilant Ivan Henry said Wednesday as he hugged his two daughters outside court.

“I've got grandkids that I'm so proud of. I've got a little dog that I look after, and he's my friend.”

“I'd like to say to people who are still incarcerated, `Don't give up. Keep plugging ahead and work to get out and to learn what society's all about. It's not all a dirty world. We're all here to try and help each other.'”

Henry was convicted in 1983 of 10 counts of rape and indecent assault of eight women. The victims were alone at night when their assailant gained access to their basement or ground level suites. The offences included five counts of indecent assault, two counts of attempted rape and three counts of rape.

Henry was convicted by a jury and later declared a dangerous offender by a trial judge, which imposed on him an indeterminate sentence.

Henry, who represented himself in the initial court proceedings, filed appeals but none of them were successful until this latest one, which was heard earlier this year in Vancouver.

His appeal was based on a number of grounds including what was referred to in court as “consciousness of guilt.”

After Henry’s arrest in 1982, he refused to participate in a physical line-up. Police officers forced him into the line-up and one officer held him in a headlock as seen in a photograph that was entered as evidence in his appeal.

While in a headlock, Henry struggled and shouted and was restrained. One uniformed constable put his arm around Henry’s neck and forced his head up. His photograph was used in a photographic line-up and seen by some of the witnesses.

Another police investigation reopened doubts about Henry’s guilt following a 2002 operation called “Project Smallman.” Vancouver police re-investigated 25 unsolved sexual assaults committed from April 1983 to July 1988, a period when Henry was already in prison.

DNA evidence obtained during “Project Smallman” led to the arrest and conviction of another man identified only as DM because his identity is protected under a publication ban.

Crown prosecutors noted similarities between the Henry case and the “Project Smallman” findings and brought those similarities to the attention of B.C.’s criminal justice branch which appointed an independent lawyer to reinvestigate a potential miscarriage of justice in Henry’s conviction.

The courts ordered that an appeal be re-opened and a 12-day trial was held last June.

In ordering Henry’s conviction quashed, the B.C. Court of Appeal Wednesday found that the trial judge had made several errors including the judge’s instruction that Henry’s photo resisting participation in the police line-up could be used as evidence of “consciousness of guilt.”

While the court of appeal judges said the evidence from Project Small does not “exonerate” Henry, it is evidence capable of raising reasonable doubt that should have been enough to lead to his acquittal at the initial trial.

Henry was released from prison two years ago pending his appeal and has been living in North Vancouver with one of his two daughters. Tanya Olivares, 38 and her younger sister Kari Henry, 35, who were children at the time their father went to jail, have been fighting for their father’s appeal.

They are expected to talk later Wednesday about the family’s ordeal and whether Henry, who is now 64 and in ill health, will seek financial compensation for the time he spent in prison."

The story can be found at:

http://www.thestar.com/news/canada/article/881841--b-c-man-acquitted-of-rapes-after-26-years-in-jail

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

Thursday, October 28, 2010

ANTHONY GRAVES: DESPERATE PROSECUTORS TRIED TO USE SCENT EVIDENCE FROM A 17 YEAR-OLD CRIME SCENE TO SEND HIM TO HIS DEATH;

"The U.S. Court of Appeals for the Fifth Circuit overturned Graves' conviction, noting the considerable weakness of the state's case against him. That court also found that Sebasta withheld exculpatory evidence from the defense and knowingly put on false testimony. Yet as late as last year, prosecutors were still seeking to retry Graves anyway, this time based largely on a "scent lineup," in which they used dogs to sniff out burnt clothing removed from a 17-year-old crime scene."

RADLEY BALKO: REASON; (Wikipedia informs us that: "(Radley) Balko is senior editor at Reason magazine. Previously, he was a policy analyst for the Cato Institute, specializing in vice and civil liberties issues. He writes on drug policy, police misconduct, obesity, alcohol and tobacco, and civil liberties. He also writes on trade and globalization issues and more generally on politics and culture. He was also a biweekly columnist for Fox News from 2002 until 2009. His work has been published in the Wall Street Journal, Forbes, Playboy, TIME magazine, The Washington Post, the Los Angeles Times, Slate, Reason, Worth magazine, Canada's National Post, and the Chicago Tribune. He blogs at The Agitator, his personal weblog, and for Reason's Hit & Run blog. He has appeared on CNN, CNBC, Fox News, MSNBC, and National Public Radio. Balko's work on "no-knock" drug raids was profiled in The New York Times, and cited by U.S. Supreme Court Justice Stephen Breyer in his dissent in the case Hudson v. Michigan. He is also credited with breaking and reporting the Cory Maye case. His work on the Maye case was also cited by the Mississippi Supreme Court. He has also written extensively about the Ryan Frederick case and the raid on Cheye Calvo's home.")
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"After 18 years of incarceration and countless protestations of innocence, Anthony Graves finally got a nod of approval from the one person who mattered Wednesday and at last returned home — free from charges that he participated in the butchery of a family in Somerville he did not know and free of the possibility that he would have to answer for them with his life," Radley Balko's post published in "Reason" earlier today under the heading, "Texas has released a death row inmate," begins.

"The district attorney for Washington and Burleson counties, Bill Parham, gave Graves his release,"
the post continues.

"The prosecutor filed a motion to dismiss charges that had sent Graves to Texas' death row for most of his adult life. Graves returned to his mother's home in Brenham no longer the "cold-blooded killer," so characterized by the prosecutor who first tried him, but as another exonerated inmate who even in the joy of redemption will face the daunting prospect of reassembling the pieces of a shattered life.

"He's an innocent man," Parham said, noting that his office investigated the case for five months. "There is nothing that connects Anthony Graves to this crime. I did what I did because that's the right thing to do."

Graves was convicted of assisting Robert Earl Carter in killing a 45-year-old woman, her daughter, and her four grandchildren in 1992. Carter initially implicated Graves, but later recanted. Carter again insisted Graves was innocent just before he was executed in 2000. The man who prosecuted Graves apparently still believes he is guilty.

Charles Sebesta, then the district attorney, did not believe Carter. Even after he no longer held the post, Sebesta held to his beliefs, calling Graves "cold-blooded" and taking out an ad in two Burleson County newspapers in 2009 to dispute media reports criticizing the conduct of prosecutors.

The evidence against Graves was never overwhelming, depending mostly on Carter's earlier accusation and jailhouse statements purportedly overheard by law enforcement officers. Even Sebesta acknowledged it was not his strongest case.

"I've had some slam-dunk cases," he said in 2001. "It was not a slam-dunk case."

Yet he still sought—and won—a death sentence. (Sebesta has had problems in other cases, too.)

The U.S. Court of Appeals for the Fifth Circuit overturned Graves' conviction, noting the considerable weakness of the state's case against him. That court also found that Sebasta withheld exculpatory evidence from the defense and knowingly put on false testimony. Yet as late as last year, prosecutors were still seeking to retry Graves anyway, this time based largely on a "scent lineup," in which they used dogs to sniff out burnt clothing removed from a 17-year-old crime scene.

...prosecutors this summer brought in Fort Bend County Deputy Keith Pikett to conduct a "scent lineup" – a practice of dubious scientific validity that was recently the subject of a scathing report from the Lubbock-based Innocence Project of Texas. This type of lineup, with dogs supposedly matching a scent from a crime scene to a scent collected from a suspect, is junk science, the Innocence Project charges, while questioning Pikett's techniques in conducting the dog-led lineup. The procedure has indeed been implicated in a number of wrongful arrests and convictions. According to the report, released Sept. 21, Pikett has no formal training in the practice – nor does he apparently think any is necessary. Pikett has testified in court (in a matter unrelated to Graves) that there is no need for formal training or for scientific rules or protocols when conducting such lineups, and Pikett has rejected the importance of scientific studies regarding scent identification. Nonetheless, prosecutors across the state – including with the Texas Attorney General's Office – have relied on Pikett for "expert testimony" in a number of criminal cases.

I've previously written about Deputy Pikett and the junk science of scent linups here and here.

But hey, Graves was eventually exonerated and released, right? As Justice Scalia would assure us, this case is just more proof that the system is working."

The post can be found at:

http://reason.com/blog/2010/10/28/this-week-in-innocence

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

BRENDA WAUDBY: CLEARED WOMAN CHALLENGES CONVICTION UNDER FAMILY LAW LEGISLATION BASED ON OPINION OF DR. CHARLES SMITH; FRESH EVIDENCE CITED;

"Unlike the criminal charges of which she has already been cleared, these charges arise from the Children and Family Service Act.

"There's fresh evidence," says Ms Kirkpatrick.

Ms Waudby was charged 13 years ago with the murder of her 21-month-old daughter, Jenna Mellor. Evidence from pathologist Dr. Charles Smith contributed to her charges since he erroneously pinpointed the time of her fatal injury to have been while her daughter was in her care. The work of Dr. Smith has since been questioned in many cases and a number of convictions overturned.

It was later determined that the teenaged babysitter was responsible for the crime. He served a 22-month jail term and has since been released."

PETERBOROUGH THIS WEEK;

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"(PETERBOROUGH) Despite being cleared of murdering her daughter, Brenda Waudby has lived more than a decade under the conviction of child abuse," the Peterborough This Week story published earlier today under the heading, "Waudby appeals child-abuse conviction: Brenda Waudby wants her child abuse conviction overturned," begins.

"Now, she's trying to change that by appealing that conviction,"
the story continues.

"Ms Waudby made a brief court appearance Thursday morning with her lawyer, Julie Kirkpatrick, looking to get more time for an appeal, which was awarded since a Crown attorney from Toronto hasn't yet been assigned to her case, which is expected to happen next week.

The local Crown's office is unable to deal with her case due to their history prosecuting her with evidence that later pointed to another suspect.

Unlike the criminal charges of which she has already been cleared, these charges arise from the Children and Family Service Act.

"There's fresh evidence," says Ms Kirkpatrick.

Ms Waudby was charged 13 years ago with the murder of her 21-month-old daughter, Jenna Mellor. Evidence from pathologist Dr. Charles Smith contributed to her charges since he erroneously pinpointed the time of her fatal injury to have been while her daughter was in her care. The work of Dr. Smith has since been questioned in many cases and a number of convictions overturned.

It was later determined that the teenaged babysitter was responsible for the crime. He served a 22-month jail term and has since been released.

Ms Waudby is seeking compensation for her ordeal.

Ms Kirkpatrick says a lot of time has passed and Ms Waudby wants to see justice done and her name cleared.

"It's time for the court to take a fresh look," Ms Kirkpatrick says, adding there are too many assumptions out there about her client.

She has filed an affidavit that tells the whole story. Unfortunately, Peterborough This Week was unable to get a copy of the statement before deadline on Thursday. Check www.mykawartha.com for an update.

Ms Waudby returns to court Dec. 9."

The story can be found at:

http://www.mykawartha.com/news/article/895036--waudby-appeals-child-abuse-conviction

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

FACEBOOK SITE SET UP TO PRESS FOR ESTABLISHMENT OF A CRIMINAL CASES REVIEW COMMISSION IN AUSTRALIA;

A group, including the youngest daughter of Henry Keogh, has gone to the Internet through Facebook to gain support for the establishment of a Criminal Cases Review Commission in Australia.

The group says it has been motivated by, "a spate of highly publicized cases have led many to question how a justice system, meant to be impartial & professional, with all its apparent safeguards, get things so wrong and for so long."

Readers of this Blog are encouraged to register their support at:

http://www.causes.com/causes/539113?recruiter_id=77032847

In the "About" section of the Facebook page, we are told that:

"When someone is wrongfully imprisoned, there are many hidden victims. It’s not only the convicted person who does the time, whose life gets put on hold and turned upside down; it’s every member of their family too. So even if some people don’t care about the person in prison, they need to know, and remember that the collateral damage is very real and is just as, if not more devastating. And, it’s totally unacceptable.

I am the youngest daughter of Henry Keogh, who has been in prison for 15 years - convicted & imprisoned not just for a murder he didn’t commit, but for a murder that never even happened. It has been known for a very long time now there were grave mistakes; but what has the system done?
Ignored us, then fobbed us off in a multitude of shabby & dishonest ways, misled or even lied to the courts, the media, the parliament & public & continue to ignore us year after year.

In Britain, they established a CCRC in 1997 which has led to the overturning of convictions in some 300 cases. Of those, around 50 were murder cases and 4 involved people who had been hanged. The review of cases is completely independent of Parliament, the Government, the Crown and the Defence.

A CCRC subjects cases to a robust and thoroughly impartial review to consider whether there is new evidence or argument that may cast doubt on the safety of an original decision, but as it stands here in Australia, the people in power who can, and are supposed to put these things right:
* Don’t want to know, or won’t talk to you.
* Simply won’t accept that a mistake has been made
* And seem to lack the courage, any compassion and perhaps the integrity to correct a wrong no matter how obvious it may be.

My dad is not an isolated case, proving the point if it can happen once, it can happen again and again.
What I want to know, and what everyone should want to know is exactly what our political leaders, who have a statutory and moral duty to protect ALL citizens, are going to do to right this wrong & more importantly prevent this from happening again.

Too many politicians hide behind the cliché’: the system isn’t perfect, but it’s the best we’ve got.” Well there are many eminent legal, forensic & medical experts who are telling us that our application & execution of the justice system isn’t the best. In fact, it’s far from it. I am so sick of the same old hollow rhetoric that just buys time or fills a snappy little sound bite. Surely as a democratic community we deserve some honest & meaningful answers, followed up with real and immediate action? I refuse to be fobbed off anymore by the usual cliché’ cop outs, such as “the system gets it right more often that it gets it wrong” Seriously, is that really supposed to be good enough? After 15 years fighting for my dad I say NO. I wish our leaders would remember and use this cliché: “Evil prevails when good men do nothing.”

Another predictable little gem that gets trotted out with nauseating regularity is “Well the accused was judged by their peers and found to be guilty”. Surely that or any other judgement by one’s peers can only be fair, just, and reliable when the evidence presented to them is honest and factual. And in my dad’s matter, that just wasn’t the case. It wasn’t even close.

We need to constantly remind ourselves that this or any other system is not some amorphous, faceless entity that can’t be taken to task...unless we allow it. It’s made up of actual people who have real & specific responsibilities and obligations to ALL of us and when they don’t live up to their sworn duties they do serious damage to individuals, families and the community as a whole.
Please show your support by joining and inviting your friends, talking about it at your workplace, with your families, write about it in your blogs, call up talkback radio or email members of the legislative council – anything to support the Bill for the establishment of a CCRC.
Positions

1. Are you aware that Australia does not have any legal review procedure once a person has been convicted and has had an unsuccessful appeal?
2. Even where there is compelling evidence of innocence, the court of appeal cannot reopen the appeal. The High Court will not receive the evidence.
3. When the system has failed, it has failed spectacularly because of proven incompetence & negligence that was known and allowed to continue unchecked
4. Ann Bressington MLC will soon be introducing a private members Bill into the South Australian Parliament for the introduction of a review committee.
5. The CCRC is an independent body set up to review possible miscarriages of justice and decide if they should be referred to an appeal court."


There has also been a push for a Criminal Cases Review Commission in Canada - a country which has also seen spate of wrongful convictions in recent years - in which reviews are conducted internally by the Department of Justice.

Bibi Sangha, Kent Roach and Robert Moles, point out in their recently published book "Forensic Investigations and Miscarriages of Justice: the Rhetoric Meets the Reality," published by Irwin Law in Toronto, that six judicial inquiries have called for a review process which is independent of government such as a Criminal Review Commission. (I, for one, cannot think of any other recommendation which has received the support of so many inquiries?)

Sangha, Roach and Moles cite former Supreme Court of Canada Justice Peter Cory's recommendation in his report on the Sophonow Inquiry that, a "completely independent entity" such as the Criminal Cases Review Commission be established to "effectively, efficiently and quickly review cases in which wrongful conviction is alleged....if the State commits significant errors in the course of the investigation and prosecution, it should accept the responsibility for the sad which will inevitably flow from them."

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

Wednesday, October 27, 2010

DR. CHARLES SMITH; HOW DO YOU COMPENSATE INNOCENT, GRIEVING MOTHERS WHOSE REMAINING CHILDREN WERE SEIZED FROM THEM - SOME FOREVER - BY THE STATE?



"One question that cries out for an answer is how do you compensate the innocent mother's - like Louise Reynold's and Sherry Sherrett - whose remaining children were seized from them when they were charged on the basis of Dr. Charles Smith's flawed opinions and then put up for adoption by the state? (And how do you compensate the other innocent mother's such as Brenda Waudby and Liane Thibeault, who were put through the horror of having their not-yet-born children apprehended by the State?)

HAROLD LEVY; PUBLISHER; THE CHARLES SMITH BLOG;

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BACKGROUND: The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers. The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation. The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges. William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes. In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling. The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, mistating evidence, chronic tardiness, and the catastrophic misinterpretation of findings. The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence.

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PUBLISHER'S NOTE: I was very pleased about the recently announced $4.25 million compensation the Ontario government has awarded to William Mullins-Johnson. (Except to add that if it were up to me I would award him twice as much, and even that would not properly compensate him for the horror he and his family were put through by the Government and its agents in our name); One question that cries out for an answer is how do you compensate the innocent mother's - like Louise Reynold's and Sherry Sherrett - whose remaining children were seized from them when they were charged on the basis of Dr. Charles Smith's flawed opinions and then put up for adoption by the state? (And how do you compensate the other innocent mother's such as Brenda Waudby and Liane Thibeault, who were put through the horror of having their not-yet-born children apprehended by the state.) These things happened to these mothers on top of the horror of being wrongly branded as child-killers by the state and by the media, while trying at the same time to bear the grief and loss of a child. I am concerned that existing compensation systems for wrongful convictions are far too narrowly focused on the term of incarceration the wrongly convicted person has experienced - as contrasted with the loss of another child forever as a result of the State's horrific error, which I believe constitutes nothing less than a life-sentence experienced day after day. In my view, compensation for the latter should therefore be at least at the same level as the compensation awarded for lengthy wrongful imprisonment. There is something else going on here. The evidence at the Goudge Inquiry into many of Dr. Smith's cases established that Dr. Smith tended to pick on single women who did not fit into his view of the wholesome Christian family unit. I am also concerned that the Ontario government will re-victimize these women by branding them as bad mothers who, according to Smith's logic, would not have lost their child unless they were bad mothers anyway - and therefore don't deserve to be generously compensated for the brutal treatment they received at the hands of the State and its agents. How fair is that? How cruel?

HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com

Tuesday, October 26, 2010

JUDGE SHARON KELLER: PROSECUTORS ASK SPECIAL REVIEW COURT TO RECONSIDER ITS DECISION VOIDING AN ETHICS REBUKE; THE STATESMAN;


"Prosecutors Tuesday asked a special review court to reconsider its recent decision to void an ethics rebuke given to Presiding Judge Sharon Keller for her role in closing the Court of Criminal Appeals to a late execution-day appeal in 2007.

The motion for rehearing argued that the three-judge review court mistakenly dismissed Keller’s charges over procedural errors made by the Commission on Judicial Conduct.

The proper recourse, the motion argued, would have been to return the matter to the commission with instructions on the correct procedures to follow.

Dismissing the case was inappropriate because the court did not review the merits of the case against Keller, while the commission reviewed the evidence before reprimanding Keller for violating her duty as the judge, the motion said."

REPORTER CHUCK LINDELL: THE STATESMAN;

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BACKGROUND: Justice Sharon Keller has attained notoriety for allegations that she allowed convicted murderer and rapist Michael Richard to be executed on September 25, 2007 - notwithstanding his attempt to file a stay of execution - because the court clerk's office closes at 5. Keller is of particular interest blog because of the opinion she wrote for the majority in the Roy Criner case. Wikipedia informs us that: "Sharon Faye Keller (born in Dallas, Texas, 1953) is the Presiding Judge of the Texas Court of Criminal Appeals, which is the highest court for all criminal matters in the State of Texas. Because of her position, she has been involved in many high-profile and controversial cases, and has thus received widespread news coverage......In 1998, Keller she wrote the majority opinion in a 5-3 (one judge abstaining) decision that denied a new trial to Roy Criner. Criner had been convicted of sexual assault in 1990, but newly-available DNA testing had shown that the semen found in the victim was not his......Judge Tom Price, who ran for the Chief Judge seat, in a primary election, said that Keller's Criner opinion had made the court a "national laughingstock." Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes ... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved a get a new trial......Following the (appeal court's) refusal to order a new trial, the cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing.The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg. Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her (and who presumably killed her). These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence [that] raises substantial doubt about [Criner's] guilt," then-Governor George W. Bush pardoned him in 2000.

The thorough, unabridged Wikipedia article on Keller can be found at:

http://en.wikipedia.org/wiki/Sharon_Keller

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"Prosecutors Tuesday asked a special review court to reconsider its recent decision to void an ethics rebuke given to Presiding Judge Sharon Keller for her role in closing the Court of Criminal Appeals to a late execution-day appeal in 2007,"
the Statesman story by reporter Chuck Lindell published earlier today under the heading, "Court asked to reconsider its ruling on Keller," begins.

"The motion for rehearing argued that the three-judge review court mistakenly dismissed Keller’s charges over procedural errors made by the Commission on Judicial Conduct," the story continues.

"The proper recourse, the motion argued, would have been to return the matter to the commission with instructions on the correct procedures to follow.

Dismissing the case was inappropriate because the court did not review the merits of the case against Keller, while the commission reviewed the evidence before reprimanding Keller for violating her duty as the judge, the motion said.

“The proceedings should be remanded to the commission for reconsideration of the remedy appropriate for the violations that Judge Keller was found to have committed,” said the motion by Mike McKetta, an Austin lawyer who volunteered his time to act as examiner, or prosecutor, for the commission.

Chip Babcock, Keller’s lawyer, criticized the filing.

“It’s disappointing that the examiner won’t let this thing go,” Babcock said. “It doesn’t raise any legitimate basis for revisiting the court’s decision, and I expect the rehearing will be denied.”

Last July, the commission issued a “public warning” that criticized Keller for refusing a request to keep her court clerk’s office open past 5 p.m. so lawyers for death row inmate Michael Richard could file an appeal shortly before his execution.

Setting aside Babcock’s arguments that defense lawyers dragged their feet and ignored other options for filing past 5 p.m., the commission said Keller’s action’s violated court procedures and brought discredit to the judiciary.

But on Oct. 11, the three-judge review court, chosen at random to consider Keller’s appeal, found that commissioners chose the wrong punishment, opting for a warning when state law and the Texas Constitution limited their options to a “censure,” a more serious penalty.

In addition to voiding the warning, the review court forbade commissioners from reconsidering the charges against Keller, reasoning that they had already rejected censure because a majority obviously could not agree to assess the harsher punishment.

Tuesday’s motion suggested that such reasoning was purely speculative because members have never revealed how they voted or why they chose a warning.

The motion also asked the court to rescind its decision to let Keller recoup her legal costs from the state, noting that Texas law explicitly bans the practice when judges are investigated for potential wrongdoing."


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The story can be found at:

http://www.statesman.com/blogs/content/shared-gen/blogs/austin/investigative/entries/2010/10/26/court_asked_to_reconsider_its.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

DR. CHARLES SMITH; COMPENSATION; GAGNON FAMILY STILL WAITING FOR COMPENSATION FROM THE ONTARIO GOVERNMENT; THE SUDBURY STAR;


"Gagnon and his daughter, Liane Thibeault, were also victims of the pathologist's flawed work.

The money will never make up for the suffering his family experienced, but it will provide the family with some closure, Gagnon indicated.

Gagnon spent more than $100,000 in legal fees to defend his daughter after she was wrongly accused of killing her infant son, Nicholas, in 1995.

In total, he estimates he spent $330,000, including all of his retirement savings -- to mount the legal challenge and fight the Children's Aid Society for custody of Thibeault's daughter."

REPORTER CAROL MULLIGAN: THE SUDBURY STAR;

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BACKGROUND; The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers. The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation. The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges. William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes. In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling. The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, mistating evidence, chronic tardiness, and the catastrophic misinterpretation of findings. he cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."

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"A Sudbury man and his family are still awaiting word about the payment they will receive because they were victims of disgraced pathologist Dr. Charles Smith,"
The Sudbury Sttar story by reporter Carol Mulligan published earlier today under the heading, "Money won't make up for suffering," begins.

"Maurice Gagnon learned last week, as did all Ontarians, that William Mullins-Johnson received $4.25-million in compensation from the provincial government for the 12 years he spent in jail after being wrongfully convicted of the sexual assault and murder of his four-year-old niece,"
the story continues.

"Gagnon and his daughter, Liane Thibeault, were also victims of the pathologist's flawed work.

The money will never make up for the suffering his family experienced, but it will provide the family with some closure, Gagnon indicated.

Gagnon spent more than $100,000 in legal fees to defend his daughter after she was wrongly accused of killing her infant son, Nicholas, in 1995.

In total, he estimates he spent $330,000, including all of his retirement savings -- to mount the legal challenge and fight the Children's Aid Society for custody of Thibeault's daughter.

Thibeault's case was one of 19 child-death investigations Smith was found to have made mistakes in during a five-month judicial inquiry into his practise of pediatric forensic pathology.

In August, Ontario Attorney General Chris Bentley announced a payment schedule and a promise that applications for compensation would be processed within 90 days.

Gagnon said that his and Thibeault's lawyer has filed an application for compensation, which they expect to receive before Christmas.

"We all feel, 'Let's get it over-with,' " said Gagnon, saying his family wants to put the tragedy behind them.

Bentley announced this summer that individuals wrongly accused and convicted would be entitled of recognition payments of up to $250,000."


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The story can be found at:

http://www.thesudburystar.com/ArticleDisplay.aspx?e=2817029

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com

CAMERON TODD WILLINGHAM CASE; CALGARY HERALD CITES WILLINGHAM CASE AS LESSON FOR CANADIANS CONTMPLATING RETURN OF DEATH PENALTY;


"This month, a hearing was underway in Austin, Texas, to decide if the state wrongfully executed a man convicted of setting his house afire in a blaze which killed his three toddler daughters. Cameron Willingham was executed in 2004 -- two fire experts testified at the hearing that the fire was likely due to faulty wiring and not arson.

Canada must never go there. Capital punishment should not even be up for debate in this country."

EDITORIAL THE CALGARY HERALD.

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BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses were suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire. Legendary "Innocence" lawyer Barry Scheck asked participants at a conference of the National Association of Criminal Defence Lawyers held in Toronto in August, 2010, how Willingham, who had lost his family to the fire, must have felt to hear the horrific allegations made against him on the basis of the bogus evidence, "and nobody pays any attention to it as he gets executed." "It's the Dreyfus Affair, and you all know what that is," Scheck continued. "It's the Dreyfus AffaIr of the United States. Luke Power's music video "Texas Death Row Blues," can be found at:
http://smithforensic.blogspot.com/2010/09/cameron-todd-willingham-texas-death-row_02.html

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"Extreme cases make bad law, and that's why the double-murder case of Col. Russell Williams should not be regarded as an impetus for pondering a return to capital punishment in Canada," the Calgary Herald editorial published earlier today under the heading, "Death to this debate."

"Last week, as the details of Williams' horrific crimes were read into the record prior to his sentencing, William Mullins-Johnson, of Sault Ste. Marie, was awarded $4.25 million in compensation for the wrongful first-degree murder conviction which saw him spend more than 12 years behind bars, in connection with the death of his four-year-old niece, the editorial continues.


"One need only run down the list of miscarriages of justice to see why the death penalty must not be brought back. David Milgaard -- 23 years in prison after being wrongfully convicted in the death of Saskatoon nurse Gail Miller. Thomas Sophonow -- four years in prison and the ordeal of three trials, wrongfully convicted in the 1981 slaying of 16-year-old Winnipeg doughnut shop clerk Barbara Stoppel. Guy-Paul Morin -- first acquitted and then, at a re-trial, sentenced to life in prison for the 1984 death of Christine Jessop, and later exonerated by DNA evidence. Donald Marshall, Jr. -- wrongfully convicted of killing his friend, Sandy Seale, in Sydney, N.S. There are others.

If Canada had the death penalty, these innocent victims of miscarriages of justice, could be dead. The presence, for life, in our prisons of people like Williams, Clifford Olson and Paul Bernardo, have some Canadians clamouring for a return to capital punishment. The presence of those others, wrongfully convicted, is a reminder that Canada should never return to the days when capital punishment was law in this land.

In January 2000, then-Governor George Ryan of Illinois declared a moratorium on the death penalty. He said: "I now favour a moratorium, because I have grave concerns about our state's shameful record of convicting innocent people and putting them on death row . . . I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life. Thirteen people have been found to have been wrongfully convicted."

Thirteen people were nearly executed in Illinois for crimes they did not commit. Nor is there a utilitarian argument for capital punishment based solely on cost. Public Safety Canada says the annual cost of maintaining a prisoner in a maximum security facility is $147,135. Compare that to the astronomical court costs of appeal after appeal which is typical of a death-row inmate fighting to save himself from a date with the executioner.

This month, a hearing was underway in Austin, Texas, to decide if the state wrongfully executed a man convicted of setting his house afire in a blaze which killed his three toddler daughters. Cameron Willingham was executed in 2004 -- two fire experts testified at the hearing that the fire was likely due to faulty wiring and not arson.

Canada must never go there. Capital punishment should not even be up for debate in this country."


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The editorial can be found at:

http://www.calgaryherald.com/opinion/Death+this+debate/3725759/story.html?cid=megadrop_story

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

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

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE; (15); MAXINE JOHNSON'S DISTURBING FIRST-HAND ACCOUNT OF LOCATING THE MISSING EXHIBIT'S; FROM AN EARLY POST


PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on December 18, 2007, ran under the heading, "Maxine Johnson's disturbing first hand account of locating the missing Mullins-Johnson exhibits."

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Maxine Johnson, who once worked in a secretarial pool serving pathologists at the Hospital for Sick Children, has given disturbing testimony on her discovery of the missing Mullins-Johnson slides.

She told the Goudge Inquiry that she believes that on several occasions key forensic materials were placed on a shelf in Dr. Charles Smith's office at the Hospital for Sick Children in Toronto after the office had already been searched.

(There has been evidence at the Inquiry that Dr. Smith had access to his office during the period that the search was conducted);

By way of context, lawyers for the Association in Defence of the Wrongly Convicted had been seeking the evidence from Mullins-Johnson's first degree murder trial since early 2003, so they could be sent to an independent specialist for analysis in support of his application for a Ministerial Review.

Crown law officers had to enlist the support of the police to locate the materials after Smith, who had been sent them by the local Sault Ste. Marie pathologist, was unable to hand them over.

Without these exhibits Mullins-Johnson would not be able to prove that he had not murdered his 4-year-old niece Valin.

Here is a chronology of Maxine Johnson's efforts to locate the missing exhibits as per her testimony at the Inquiry:

Friday November 26, 2004;

Ms. Johnson is summoned a meeting attended by herself, Deputy Chief Coroner Dr. James Cairns, Dr. Smith, and Dorothy Zwolakowski, an official of the Chief Coroner's Office, to discuss the missing exhibits.

After advising the meeting that she had not seen any exhibits from the Mullins-Johnson case, she was asked to go immediately with Zwolakowski to conduct a search of Smith's office.

Johnson testified that they were able to locate "a couple of (microscopic) slides" that day.

Monday November 29, 2004;

Johnson locates twenty (20) microscopic slides on a shelf in Smith's office which she described as being "fairly messy" that day.

She testified that it didn't take long to find the slides "because Dorothy and I had spent a lot of time the day prior -- the -- of the Friday prior, sorry -- and we 1didn't find them, so I was really happy that all of a sudden, you know, they were there."

MAY 6, 2005;
Johnson is surprised to find an additional ten (10) glass slides and twenty-eight (28) paraffin blocks on a shelf in Smith's office while doing "just another clean up"- she wasn't looking for any of the Mullins-Johnson materials at the time.
the stuff.

She said she located them in a cupboard on the first shelf of a cupboard as seen while entering the office.

Maxine Johnson's testimony raised a troubling question in the mind of lawyer Phillip Campbell, who represents seven unnamed persons at the Inquiry; How could the forensic evidence from the Mullins-Johnson keep showing up in locations that had already been thoroughly searched?

Here is Campbell's cross-examination on the issue - and Johnson's startling reply.

MR. PHILLIP CAMPBELL: Okay. We all
listened to your evidence about find -- beginning your
search on Friday the 29th (sic) of November for the slides
once this had become the focus of everybody's attention
and then finding them on the morning of the 29th.
Again, I think some of us listening weren't
completely clear what your own perception of -- of that
was. You found the slides quickly and easily on the
Monday morning, is that right?

MS. MAXINE JOHNSON: Yes.

MR. PHILLIP CAMPBELL: Was it your own
appreciation of this, at that time, that -- on the Friday,
you had looked in the place where you found them on the
Monday?

MS. MAXINE JOHNSON: Yes.

MR. PHILLIP CAMPBELL: And did you draw
from that the inference that they had been placed in the
position where you found them between the Friday and the
Monday?

MS. MAXINE JOHNSON: Yes, I did because we
did spend a lot of time, and we did look everywhere for
those.

MR. PHILLIP CAMPBELL: Did you -- at the
time having formed that impression -- did you discuss it
with anybody else? With Dorothy or -- or anybody else who
was fam -- aware of this search in progress?

MS. MAXINE JOHNSON: Sure, I told Dorothy
that, you know, I thought it was kind of strange that we had looked, I mean, and we spent a lot of time looking and then all of a sudden --

COMMISSIONER STEPHEN GOUDGE: Did you look
in the same place on Friday --

MS. MAXINE JOHNSON: Oh, yes.

COMMISSIONER STEPHEN GOUDGE: -- that you
found them on Monday?

MS. MAXINE JOHNSON: Yes, we did. I
looked.

COMMISSIONER STEPHEN GOUDGE: Okay.

CONTINUED BY MR. PHILLIP CAMPBELL:

MR. PHILLIP CAMPBELL: And I'm not
completely conversant with this history, but you found a
good deal more related to the case some months later?

MS. MAXINE JOHNSON: Yes.

MR. PHILLIP CAMPBELL: And had you --
wherever you found that, had you looked in that location
on the November 26th and 29th searches?

MS. MAXINE JOHNSON: Yes, we did.

MR. PHILLIP CAMPBELL: And you formed the
same inference that between the end of the November 26th
to 29th search, and your later discovery of this material,
it had been put in the position where you finally found
it?

MS. MAXINE JOHNSON: Yes.

Assuming that this inference is correct - the obvious question is who would have had a motive to keep positioning the forensic materials in a position where they would have been found and turned over to the Chief Coroner's Office.

Smith is an obvious suspect - if Johnson's sworn evidence is to be believed.

He is the last person known to have had the materials and he is aware at this time that that the police have been seeking them.

He must know that there could be serious consequences if prosecutors ever concluded that he had deliberately frustrated a police investigation.

Moreover, there has been evidence before the inquiry that Smith told Deputy Chief Coroner Cairns that he had kept a key exhibit in the Waudby cases at his home - and as reported in a previous Blog, police were discussing the possibility of laying charges against Smith - apparently in connection with that piece of evidence.

On the other hand, not a single witness has testified that they saw Smith place any forensic materials on the shelf - and no witnesses have been called at the Inquiry
to back up Johnson's testimony.

Smith's lawyers did not cross-examine Johnson on any of her testimony;

Dr. Smith will have the chance to offer his side of the story when he takes the witness stand on January 28;

A final point;

The Overview Report on the Mullins-Johnson case notes that Crown lawyer Phillip Downes, prepared a memo to file regarding a telephone call he had with Dr. Smith on December 29th, 2003.

The memo states:

"Spoke by telephone to Dr. Smith at 9:45 a.m. today.

He had requested his assistant to search the archive for the material.

Their first search had proved fruitless.

He thinks samples may not be there.

He will take another look when his assistant returns next week."


As the transcript indicates, Johnson did corroborate the information given by Smith to Downes.

MR. ROBERT CENTA: Now, Ms. Johnson, you said earlier that as
of -- from 2001 onward, Dr. Smith often looked to you to
provide secretarial assistance?

MS. MAXINE JOHNSON: Yes, he did.

MR. ROBERT CENTA: And in December 2003,
who would Dr. Smith likely have asked to assist him with
this kind of task?

MS. MAXINE JOHNSON: Myself.

MR. ROBERT CENTA: And do you have any
recollection of Dr. Smith asking you to search the archive
for slides and blocks related from his consultation report
on Valin's case?

MS. MAXINE JOHNSON: No, I do not.

Harold Levy...hlevy15@gmail.com;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE: (14); NOTEABLE QUOTES; (ONTARIO COURT OF APPEAL); FROM AN EARLY CHARLES SMITH BLOG POST;


PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 15, 2007, ran under the heading, "Noteable uotes."

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Dr. Michael Pollanen (Ontario's chief pathologist):

On new provincial guidelines that reject the notion accepted by some pathologists that pathologists should "think dirty." Pollanen told the Court of Appeal that the new guidelines effectively say, "Don't think dirty; Think objectively. Think truth." Pollanen testified that he would have told Sault Ste. Marie police after the autopsy that the cause of death was "pending" because tissue samples had not yet been examined and toxicology tests had not yet been performed - instead of making an immediate pronouncement as was done in the Mullins-Johnson case. Pollanen cautioned that until all the results are in, "you cannot exclude a natural cause of death. Mullins-Johnson was arrested and charged with first-degree murder within twelve hours of the discovery of his niece Valin Johnson's body. "The cause of death must not be speculative either way," Pollanen said.

William Mullins-Johnson:

On his arrest:

"I culdn't believe my ears. I was in total shock. About 6.30 that evening, police came in the front door. They announced I was being arrested for first-degree murder. They grabbed me and took me out. They wouldn't let me put my shoes on...It felt so surreal. They (police) kept screaming at me that I did this and I did that. I kept responding, I didn't do it."

When asked by his lawyer (James Lockyer) if he thought that Valin had been molested and murdered;

"You get these police officers, these doctors saying that she had been molested, she had been strangled. They're supposed to be the protectors of society and all this stuff. So, yes, I believe she was.But I knew it wasn't me."

How did he cope in penitentiary?

"I thought I would go to the federal penitentiary and die. I tried to have a daily routine. I didn't want to associate with anyone because I didn't think anyone would want to associate with me. I expected to get my throat cut. I would call my mother at least once a week to let her know that I am still alive."

How did the murder charge affect his family?

"It split my family. It had my brother thinking that I had killed his little girl. It had me thinking that my brother had killed his little girl."

How did it feel to learn from Dr. Pollanen's report that Valin had neither been sexually assaulted or murdered?

"This was the first time that I saw the light at the end of the tunnel...I saw the end of the tunnel...As tragic a loss as she is, nobody violated her and I am happy for that."

On September 21, 2005, the day he was released on bail from the 361 University Avenue courthouse after so many years behind bars.

"It was eleven years to the day that I had been convicted," Mullins-Johnson said. "It was eleven years to the day. Full circle.

"It was the bluest sky I had ever seen."

On the ordeal he went through:

"It was worse than a scarlet letter."



Lawyer James Lockyer:

On the hasty laying of the murder charge:

"There was a rush to judgement...(before) the forensic tests were in...There was no stopping of the train when it left the station."

"William Mullins-Johnson should not have been charged...No one dreamt that he could have commited such a heinous crime."

Prosecuter Michal Fairburn:On the reasonableness of prosecution:

"It was entirely understandable and appropriate at the time for the Crown to prosecute this case based on the scientific evidence available."

On the Crown's efforts to investigate the Mullins-Johnson's claim that he was the victim of a miscarriage of justice:

"No stone was left unturned in exploring this case."

On the lack of a specific pathological cause of death:

"It is disquieting that we do not know what Valin died of. We might never know. What we know is that there is no evidence of homicide in this case."

Words of apology after the Court quashed the conviction and entered its acquittal:

"On behalf of the Ministry of the Attorney General I wish to extend our sincere, our profound and our deepest apologies to Mr. Mullins-Johnson and to his family for the miscarriage of justice that has occurred in this case and all that he has had to endure as a result. There can be no doubt this miscarriage of justice has exacted an incredible toll on Mr. Mullins-Johnson, on his mother, Mrs. Laureena Hill and his entire family. For this we are truly, we are profoundly sorry."

Her message to Valin's parents:

"Our deep sympathies to the family of Valin Johnson on the tragic loss of their beautiful daughter.

Chief Justice Dennis O'Connor for the Court:
"It is regrettable that as a result of the flawed pathological evidence you were wrongfully convicted and you spent so long in custody."

WILLIAM MULLINS-JOHNSON RETROSPECTIVE: (13) DR. CHARLES SMITH IN ALL HIS GLORY AN EARLY CHARLES SMITH BLOG POST.

PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 28, 2007 - ran under the heading, "Dr. Charles Smith in all his glory."

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JUSTICE BRUCE NOBLE: "DOCTOR, I BELIEVE FIRMLY IN THE ADVERSARIAL SYSTEM SO I AM NOT GOING TO INTERFERE WITH IT EXCEPT TO SAY THANK YOU FOR COMING. I KNOW YOU WERE BUSY. I KNOW THERE WERE PROBLEMS."

DR. CHARLES SMITH: "I APPRECIATE YOUR PATIENCE, SIR";

JUSTICE BRUCE NOBLE; "THAT'S ALL RIGHT, AND THE JURY AND I ARE VERY THANKFUL FOR YOUR HELP. ALL RIGHT. THANK YOU. YOU MIGHT JUST MAKE YOUR FLIGHT;"

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SMITH'S FAILURE TO APPEAR IN COURT FOR HIS TESTIMONY;

William Mullins-Johnson's trial for the first-degree murder of his 4-year-old niece Valin is a classic example of the deference paid to Dr. Charles Smith - often at the expense of the accused.

Smith failed to show up at the Sault Ste. Marie courthouse pursuant to his subpoena on Sept. 13, 1994, to testify as an expert witness for the prosecution.

Any other witness would have been roasted by the Judge for not showing up to testify.

Not Dr. Charles Randal Smith.

"...But he's not available today and there may be a possibility that he's not well, a probability that we might have another day's delay, but I'll speak to you about that," Prosecutor Glen Wasyliniuk told Superior Court Justice Bruce Noble on Sept. 13, 1994;

Wasyliniuk went on to specify that although Smith had been prepared to attend that morning, "He advises that at the Hospital for Sick Children there are three pathologists, one of whom is in Germany. There were two for today, there was a death in the family of one of them, not Dr. Smith's family but, he advises that a pathologist has to be at the hospital and he cannot leave the hospital, there are operations and whatever, and would not be available today and he advises that Thursday was a day that he had schedules for holidays, he will attend here."

Even though Smith had long been subpoenaed to testify and his absence was disrupting a first-degree murder trial, Noble acquiesced, saying:

"It is a matter of utmost importance for the public that in large hospitals such as the service by Dr. Smith, a pathologist, be on hand for critical examinations of tissues during surgery and I quite understand...."

SMITH'S FAILURE TO PREPARE A REPORT;

Wasyliniuk informed Court of another problem: Smith had been asked to examine microscopic slides sent to him by the local pathologist who performed the autopsy (the same slides he is alleged to have misplaced) but had not prepared the requisite formal report which would permit defence counsel to properly prepare for the case. (See earlier posting: Judge Shocked By Smith's Delay In Producing Post-Mortem Report.")

Defence lawyer T.G. O'Hara, cautioned the Court that "Dr. Smith is going to be testifying in an area that I don't know what he's going to say about," and indicated that he would need extra time to consult with his own expert before he cross-examined Smith.

Noble then called in the jurors and told them that he had been advised by the prosecutor that there was a problem is securing the attendance that day of the Crown's next witness, who he described as, "a medical expert pathologist at the Sick Children's Hospital in Toronto."

Noble was presenting Smith - "his name is Dr. Smith" - to the jurors as an expert witness, even though he had not yet conducted an evidentiary hearing to qualify him as an expert.

There is no indication in the trial record that Noble made any inquiry as to whether the prosecution had take any steps to ensure that Smith would bring a report to court.

To the contrary, when Noble informed the jurors that O'Hara needed more time to prepare because he had not been provided a report, he told the jurors, "Members of the jury, there is one small problem here which is no criticism.

Ordinarily professional witnesses provide a report, usually immediately before their court attendance which encapsulates the evidence they are about to give, and in this case Doctor Smith being very busy and under considerable pressure, and probably for other good reasons that do not occur to me at the moment, was not able to provide that report, and that is certainly not a criticism, because it is his evidence that is going to motivate the determination of this matter and that you have heard today and not any report but, because of that Mr. O'Hara has asked for some time to prepare his cross-examination and I have advised him that I would rise early and perhaps extend the noon recess to permit him time so that he could organize and conduct his cross-examination. Hopefully to shorten it."

The pressure imposed on O'Hara by Smith's failure to produce a report may have had serious consequences.

We now know, in hind site, that Smith's evidence that Valin-Johnson had been sodomized and then strangled allowed the jury to convict Mullins-Johnson of first degree murder - to convict him of a crime that never occurred.

Wasilyniuk's direct examination of Smith takes forty-four (44) pages of the court record;

O'Hara's cross-examination took only ten (10) pages: Pages 524 to 534;

THE DEFENCE AGREES SMITH SHOULD BE QUALIFIED AS AN EXPERT;

Prosecutors are required to satisfy the Court that the proposed witness the requisite degree of experience to be qualified as an expert witness.

They usually do this by taking the proposed witness through his or her C.V. in terms of factors such as training, specialized degrees, work experience, research background, books and periodical articles, and expert testimony given in other courts.

But O'Hara spared Wasilyniuk the task of having to prove Smith's qualification to the Court by agreeing that he was qualified.

"Again, Your Honour, for the assistance of my friend I have no difficulty with the Doctor's qualifications as a pathologist or his qualification to to give opinion evidence in that area," he told Court. "I'm sure my friend will want to bring his qualifications to the jury's attention. For the purpose of the record his expertise is admitted."

To be fair, 1n 1994 defence lawyers would not have had any reason to challenge Smith's qualifications as an expert witness - although there was the obligation on behalf of the client to carefully scrutinize the evidence;

He was head of a prestigious forensic pathology unit in one of the world's great children's hospitals, he had both a national and international reputation in his field, and his record was unblemished.

In short, his bubble had not yet burst.

But some serious questions about Smith's qualifications could have been raised at that hearing.

For example, Smith told Court that he had received "a diploma in pathology" in 1980.

A diploma is the basic degree in pathology - and does not indicate in any way that the bearer has an expertise in forensic pathology, with expertise in determining matters such as the cause and time of a child's death.

O'Hara did not ask Smith a single question as to the post-graduate courses available to pathologists who wished to have certificates of expertise in forensic pathology - or press him as to his own knowledge of the area.

YOUR TRAVELLING ARRANGEMENTS, DR SMITH?

During the course of prosecutor Wasilyniuk's cross-examination of Dr. Smith, Justice Noble raised a concern about Smith's travel arrangements.

Court Clerk: "Doctor Smith, please return to the court," the transcript begins.

"The Court; "Doctor Smith, before Mr. Wasyliniuk continues with you, I am concerned about your travelling arrangements, do you have a return ticket for Toronto, sir?

A. Yes. I do.

The Court: What time is it?

A. I think it's 4.00 p.m. this afternoon.

The Court: All right, I will keep this in mind;

A. Yeah, if need be perhaps--

The Court: I think there is a later flight, but we will see--

A. There is, yeah...

It's hard too imagine that this conversation is taking place in a first-degree murder trial where a man, if convicted, can spend the rest of his life in jail.

Surely the message should have been - "Dr. Smith, we regret any inconvenience, but an accused man is at jeopardy, and we will take all the time necessary to ensure that he has a fair trial and that justice is ultimately done.'

THANK YOU, DR. SMITH;
As the following section of the transcript shows, after giving his evidence Dr. Smith left the courtroom basking in Justice Nobles's expression of gratitude - on behalf of the Court and the jury.

The Court: Doctor, I believe firmly in the adversarial system so I am not going to interfere with it except to say that I thank you for coming. I know you were busy, I know there were problems --
A. Oh, I appreciate your patience, sir.

The Court: That's all right, and the jury and I are very thankful to you for your help. All right, thank you. You might just make your flight.
Thank you."

There is the judge reinforcing the image of Dr. Smith as a neutral and credible witness who is there for the public-minded purpose of helping the jury.
The jurors might as well have convicted Mullins-Johnson right then and there.

Harold Levy;

Monday, October 25, 2010

WILLIAM MULLINS-JOHNSON RETROSPECTIVE (12); GIVING EXPERT EVIDENCE A BAD NAME; FROM AN EARLY CHARLES SMITH BLOG POST;


PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 5, 20017, ran under the heading, "Smith's credibility boosted in courtroom" Mullins-Johnson's lawyers claim."

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"MOREOVER, EXPERT EVIDENCE CAN EASILY OVERWHELM A JURY WITH ITS AURA OF INFALLIBILITY, PARTICULARLY IN AN AREA AS COMPLEX TO A LAY PERSON AS PEDIATRIC PATHOLOGY. MANY KNOWN CASES OF WRONGFUL CONVICTION HAVE BEEN BASED, IN WHOLE OR IN PART, UPON INCORRECT EXPERT OPINION. THE JURY'S ASSESSMENT OF THE COMPETENCE AND OBJECTIVITY OF DR. SMITH AS A FORENSIC PEDIATRIC PATHOLOGIST, AT LARGE AND IN THE AUTOPSY IN THIS CASE, IS CENTRAL TO THE DETERMINATION OF WHETHER OR NOT THE CROWN HAS PROVEN BEYOND A REASONABLE DOUBT THE GUILT OF EITHER, OR BOTH, OF THE DEFENDANTS;"

SUPERIOR COURT JUSTICE BRIAN TRAFFORD: KPORWODU AND VENO;

Apart from the rush to judgment by the police, expert witnesses called by both the prosecution and the defence lie at the heart of the miscarriage of justice suffered by William Mullins-Johnson and his family;

As the Court says, in one of the most extraordinary conclusions I have ever read in a judgment, "In short, without the expert evidence there is no case against the appellant and no evidence of a crime. The non-expert evidence, if anything, is inconsistent with guilt and, again, is not indicative of a crime."

That means it was the scientists with their white lab coats and microscopes who came on the scene after Valin Johnson died and therefore had no connection to the facts leading to her death who's evidence wrongfully convicted William Mullins-Johnson - while the evidence of the true flesh and blood witnesses pointed to his innocence.

Something is terribly wrong with that picture.

The perverse role played by the expert evidence called by both the prosecution and the defence in the case is made clear in the reasons for judgment of the Ontario Court of Appeal in the Mullins-Johnson reference released last week.

"A number of experts, including Drs. Rasaiah, Smith and Zehr, testified for the Crown at the trial," Justices Dennis O'Connor, Marc Rosenberg, and Robert Sharpe. (See previous posting: Conduct Of Other Experts Scrutinized By Mullins-Johnson's Lawyers);

"Their unanimous view was that various findings from the examination of Valin’s body and the autopsy showed that she had been sexually assaulted over some period of time. (See previous posting: Extremely Dogmatic Expert Testimony Played Role In Mullins-Johnson Case, Lawyers Say);

Drs. Rasaiah and Smith also testified that Valin had been suffocated by her killer.

The defence called two pathologists, but the evidence of the defence experts was not compelling and in some respects bolstered the Crown case.

The first expert, Dr. Rex Ferris, accepted that Valin had been subjected to chronic sexual abuse but suggested that she had not been sexually abused at the time of her death.

His evidence at trial that the cause of death was unexplained was inconsistent with a report he prepared prior to trial in which he suggested that Valin had been strangled. (See previous posting: Mullins-Johnson: Famed Forensic Pathologist Admits He Erred);

The second expert, Dr. Fred Jaffe, testified that Valin had not been subjected to recent sexual abuse and that the cause of death could not be determined.

His evidence suffered from certain frailties and was not accepted by the jury.

As we have said, the appellant has always maintained his innocence. After the Supreme Court of Canada dismissed his appeal, he contacted the Association in Defence of the Wrongfully Convicted.

AIDWYC took up his case and retained an eminent pathologist, Professor Bernard Knight, to reinvestigate the case.

To do so, Professor Knight needed the various photographs, slides and other materials from the autopsy.

For reasons that are chronicled in the record, there was some delay in locating that material, but the material was finally found and provided to Dr. Pollanen to be passed on to Professor Knight.

Fortunately, Dr. Pollanen first did his own investigation.

He concluded that the various bruises and injuries said to be the result of abuse and murder were no more than the result of normal processes following death or were caused by procedures connected to the post-mortem investigation.

For example, the dilation of the child’s anus that was thought to be so indicative of anal penetration and chronic sexual assault (recall Dr. Zehr and her comment that this was one of the worst cases of child sexual abuse she had seen) is a normal finding in children after death. (See previous posting: Die Was Cast Against William Mullins-Johnson Even Before The Autopsy Began);

The acute injuries to the child’s anus and vagina observed at the autopsy were the result of artefacts related to dissection or tissue preparation.

In other words, the findings said to establish sexual abuse were the result of natural changes to the body after death or of the post-mortem examination process itself.

Similarly, the various bruises to Valin’s chest, neck and head, which were said to show that she had been physically abused during her life and manually suffocated, were the result of post-mortem artefact's related to lividity (the settling of the blood in the body after death).

The multiple bruises described by Dr. Rasaiah were no more than detailed descriptions of lividity marks. They were not the product of a criminal assault.

Dr. Pollanen passed on the slides and other materials to Professor Knight. He agreed with Dr. Pollanen.

In late 2005, Dr. Ferris was given the opportunity to meet with Dr. Pollanen and re-examine the materials.

In a report he provided in January 2006, Dr. Ferris reversed his trial opinion and agreed with the opinion of Dr. Pollanen that Valin had not been sexually assaulted and there was no pathological evidence of homicidal suffocation.

By January 2006, the Chief Coroner’s review of other cases in which Dr. Smith had provided an opinion was already underway.

The Office of the Chief Coroner asked three other leading expert pathologists to independently examine the Valin Johnson materials.

They came to the same conclusions as Drs. Pollanen and Ferris and Professor Knight......"

The Court says later in its decision that, "There is no doubt that the new expert opinions in this case are credible and highly cogent.

They go to the very core of whether there was an offence committed in this case.

The opinions have been provided by some of the leading Canadian and international experts in forensic pathology and pathology"."


This is hugely ironic.

Just a few years ago judges throughout Ontario, if not the country, would have been saying that about Dr. Charles Randal Smith.

Harold Levy;

WILLIAM MULLINS-JOHNSON RETROSPECTIVE (11): EXTREMELY DOGMATIC "EXPERT" TESTIMONY PLAYED ROLE. THE FROM AN EARLY CHARLES BLOG POST;


PUBLISHER'S NOTE: In view of the $4.25 million compensation William Mullins-Johnson that was announced on October 21, 2010 by the Ontario government, I am re-running some early posts relating to the case. The following post - published on October 5, 20017, ran under the heading, "Smith's credibility boosted in courtroom" Mullins-Johnson's lawyers claim."

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Lawyers for William Mullins-Johnson have cited the dangers of unbalanced expert testimony in a factum filed in the Ontario Court of Appeal.

"Frequently the experts’ assertions in cases such as the Appellant’s are extremely dogmatic," the brief says..

"In Valin Johnson’s case, Dr. (Patricia) Zehr (a general practitioner with a speciality in obstetrics and gynecology) told Sgt. Welton that the appearance of what she described as anal penetration on Valin was the “worst she’s ever seen”.

Dr. Smith expressed the opinion that there was a “clear” cause of death, based on a pre-mortem “fissure” in Valin’s rectal canal that only he and Dr. (Marcellina) Mian (A pediatrician at the Hospital for Sick Children) saw as such.

In the English quartet of cases known as R. v. Harris, a consultant pediatrician described gross pre-retinal haemorrhages in the eyes of Lorraine Harris’ 16 month old deceased son as being
“so extensive that he could not recall seeing any that were worse.”

Ms. Harris’ manslaughter conviction was quashed by the Court of Appeal. A similar claim was made in the accompanying case of Raymond Rock’s deceased daughter.

In one of the other accompanying cases, that of Michael Faulder, a Crown doctor described a head injury of Mr. Faulder’s son as requiring a “massive and violent force comparable to a child being hit by a car travelling at 40 m.p.h.”


The same doctor had also expressed her certain opinion that the child had been the victim of shaking. Gage L.J. said:

During the summing up at trial the jury were told that Dr. San Lazaro was ‘very, very experienced’ and ‘specialises in child protection and abuse’ cases.

They were also reminded that Dr. San Lazaro had said ‘I am as certain as you can be in medicine’ in her opinion that this was a shaking injury.

This ‘certain’ opinion from the Crown’s principal witness is now rejected by Crown experts who are equally firm in their own opinion.

Dr. Lazaro’s opinions, like those of Professor Meadows and Dr. Charles Smith, have become the subject of intense scrutiny.


Gage L.J. explained the criticism of her work in Harris:

Dr. San Lazaro’s credibility and impartiality have subsequently been seriously challenged in the case of Lilley & Reed v. Newcastle City Council...It is indeed the case that Mr. Justice Eady considered Dr. San Lazaro’s role in a substantial child sexual abuse investigation and, having heard her give evidence, found that, in order to meet what she perceived to be the needs of the children she examined, she was prepared to throw “objectivity and scientific rigour to the winds in a highly emotional misrepresentation of the facts”. She was, according to Eady J’s findings, “unbalanced, obsessive and lacking in judgment.”

In Cannings, Judge L.J. put this issue this way:

And what was confidently presented to the jury as virtually overwhelming expert evidence providing the necessary proof that Jason and Matthew’s deaths resulted from the infliction of deliberate harm, should now be approached with a degree of healthy scepticism..."



See post: Ontario Court of Appeal Will Hear the Mullins-Johnson Reference on October 15;

Harold Levy;