DLM
03-30-2005, 06:19 AM
Pathologist lost vital evidence
Tissue sample crucial for exoneration
of man convicted in murder of 4-year-old
HAROLD LEVY
TOR.STAR STAFF REPORTER Mar. 30, 2005. 06:44 AM
A controversial Toronto pathologist has misplaced evidence that lawyers believe could exonerate a man who has spent 12 years in prison for the murder of his 4-year-old niece.
Dr. Charles Smith's work investigating the deaths of children in Ontario has already been the subject of a review by the coroner's office. His findings have been questioned before, in cases where murder charges against mothers accused of killing their own children were later stayed or withdrawn.
Now an organization that fights to clear people who may have been wrongfully convicted wants to reopen another case that hinged on Smith's evidence. And it wants a probe into the more than 1,000 cases in which Smith was involved.
Ontario Chief Coroner Barry McLellan told the Star that Smith — who did not return calls to his office at the Hospital for Sick Children — no longer performs autopsies for his office.
Smith was reprimanded by the Ontario College of Physicians and Surgeons in 2002 after a panel said it was "extremely disturbed by the deficiencies in his approach" in three cases — including one where he collected a hair during an autopsy and kept it in a drawer for more than five years until police retrieved it.
But he was the province's leading expert on pediatric forensics when William Mullins-Johnson was found guilty, in September 1994, of the first-degree murder of Valin Johnson of Sault Ste. Marie. He was convicted after a jury trial in which scientific evidence played a major role in determining the time of death, the cause of death and whether the girl had been sexually assaulted.
That conviction is now being examined by the Association in Defence of the Wrongfully Convicted. Cindy Wasser, a director of the association, said the organization will be seeking a pardon from federal Justice Minister Irwin Cotler.
Wasser said the association also wants a full probe of all the criminal cases in which Smith has conducted an autopsy or given an opinion.
Mullins-Johnson, then 24, was convicted after a 2 1/2-week trial, protesting his innocence throughout.
The jury heard evidence that he babysat Valin, 4, and her 3-year-old brother from 7:30 to 9:30 p.m., June 26, 1993. When the girl's mother returned home, she did not check on her daughter. At 7 a.m. the next day she found Valin dead in bed.
The jury heard that a local pathologist performed an autopsy on Valin. Then "consultation reports" were sought from Smith and four other specialists, based on tissue samples and other evidence from the autopsy.
Smith was the only consultant to conclude Valin was sexually assaulted at the time of death. That contradicted the defence's point that Valin, who had a history of vomiting in bed, might have died of natural causes.
Since the jury was required to find that there had been a sexual assault in order to return a verdict of first-degree murder, Smith's view carried the jury.
The Ontario Court of Appeal upheld the conviction in 1996. The Supreme Court dismissed a further appeal in 1998.
Toronto lawyer David Bayliss, who is part of the team seeking to clear Mullins-Johnson, said other experts could have used the tissue samples to review Smith's work. Bayliss believes the latest scientific methods, including DNA analysis, may show either that there was no crime, or that, if there was one, his client did not commit it.
But McLellan said the tissue can't be produced because Smith, who was given the evidence by the pathologist who did the autopsy, cannot find it.
"The tissue has not been found," McLellan said. "Charles simply indicates that he does not know where the tissue is."
Bayliss said the loss of the evidence leaves him wondering, "How can a senior pathologist who routinely does forensic autopsies in homicide cases be so disorganized about the collection and preservation of critical biological exhibits?
"That's scary," he said.
Dr. Glenn Taylor, head of the Hospital for Sick Children's pathology division, confirmed that until December 2004 the hospital had no system for keeping track of "medical legal" exhibits sent there for tests.
Asked whether other exhibits may have been misplaced, Taylor said "it's possible" but hasn't been investigated yet.
The Mullins-Johnson case isn't the first in which evidence ended up in Smith's possession.
Brenda Waudby of Peterborough was charged with beating her 2-year-old daughter Jenna to death on Jan. 22, 1997, on the basis of Smith's professional opinion as to what time the injuries were inflicted.
But the second-degree murder charge was dropped on June 15, 1999, when a prosecutor cited "certain medical evidence that has shifted dramatically."
Five other medical experts said the toddler's injuries were inflicted on the evening of her death, when she was in the care of a 14-year-old boy.
Waudby alleged later in a complaint to the College of Physicians and Surgeons that Smith concealed a strand of dark male pubic-like hair he found in the area of Jenna's vulva during the autopsy, keeping the hair in a desk drawer for more than five years until it was recovered by a Peterborough police officer.
Police have yet to lay further charges. Waudby is suing Smith and three police officers.
The college reprimanded Smith on Nov. 18, 2002, after xpert pathologists examined the Waudby case — and two others.
One, in 1988, 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 other case examined by the college arose in Sudbury, where, in 1995, then 22-year-old Lianne Thibeault's 11-month old son Nicholas stopped breathing after bumping his head under a table. He was pronounced dead at hospital.
A Sudbury coroner called the death sudden and unexplainable.. Smith, after reviewing the case at the chief coroner's request, concluded the death was not accidental and had the body exhumed for another autopsy.
Acting on Smith's opinion, the Children's Aid Society moved to seize another baby from Thibeault after birth.
Thibeault was never charged, and the baby was returned to her in June 1998 after an independent forensic pathologist from Missouri — an expert in child abuse-related deaths — disagreed with Smith's opinion.
Smith came under public scrutiny a year before the college's reprimand, following two other controversial cases.
In one instance, a second-degree murder charge against Maureen Laidley was stayed by prosecutors just before a jury trial was about to begin.
In another case, Louise Reynolds of Kingston, was charged with killing her daughter Sharon, 7, after Smith concluded that the girl had been stabbed to death in 1997. The murder charge was withdrawn after other pathologists concluded the girl was killed by a dog.
Reynolds, who is suing Smith, another doctor and the Kingston police force over the case, spoke to the Star yesterday.
"I think they should reopen every case that man has ever done," she said. "They need to go over the work and see if anyone one else is going through hell."
Wasser said she understands Reynolds's anger. "Nothing can be more devastating to a grieving parent," she said, "than to be labelled the child's killer."
Tissue sample crucial for exoneration
of man convicted in murder of 4-year-old
HAROLD LEVY
TOR.STAR STAFF REPORTER Mar. 30, 2005. 06:44 AM
A controversial Toronto pathologist has misplaced evidence that lawyers believe could exonerate a man who has spent 12 years in prison for the murder of his 4-year-old niece.
Dr. Charles Smith's work investigating the deaths of children in Ontario has already been the subject of a review by the coroner's office. His findings have been questioned before, in cases where murder charges against mothers accused of killing their own children were later stayed or withdrawn.
Now an organization that fights to clear people who may have been wrongfully convicted wants to reopen another case that hinged on Smith's evidence. And it wants a probe into the more than 1,000 cases in which Smith was involved.
Ontario Chief Coroner Barry McLellan told the Star that Smith — who did not return calls to his office at the Hospital for Sick Children — no longer performs autopsies for his office.
Smith was reprimanded by the Ontario College of Physicians and Surgeons in 2002 after a panel said it was "extremely disturbed by the deficiencies in his approach" in three cases — including one where he collected a hair during an autopsy and kept it in a drawer for more than five years until police retrieved it.
But he was the province's leading expert on pediatric forensics when William Mullins-Johnson was found guilty, in September 1994, of the first-degree murder of Valin Johnson of Sault Ste. Marie. He was convicted after a jury trial in which scientific evidence played a major role in determining the time of death, the cause of death and whether the girl had been sexually assaulted.
That conviction is now being examined by the Association in Defence of the Wrongfully Convicted. Cindy Wasser, a director of the association, said the organization will be seeking a pardon from federal Justice Minister Irwin Cotler.
Wasser said the association also wants a full probe of all the criminal cases in which Smith has conducted an autopsy or given an opinion.
Mullins-Johnson, then 24, was convicted after a 2 1/2-week trial, protesting his innocence throughout.
The jury heard evidence that he babysat Valin, 4, and her 3-year-old brother from 7:30 to 9:30 p.m., June 26, 1993. When the girl's mother returned home, she did not check on her daughter. At 7 a.m. the next day she found Valin dead in bed.
The jury heard that a local pathologist performed an autopsy on Valin. Then "consultation reports" were sought from Smith and four other specialists, based on tissue samples and other evidence from the autopsy.
Smith was the only consultant to conclude Valin was sexually assaulted at the time of death. That contradicted the defence's point that Valin, who had a history of vomiting in bed, might have died of natural causes.
Since the jury was required to find that there had been a sexual assault in order to return a verdict of first-degree murder, Smith's view carried the jury.
The Ontario Court of Appeal upheld the conviction in 1996. The Supreme Court dismissed a further appeal in 1998.
Toronto lawyer David Bayliss, who is part of the team seeking to clear Mullins-Johnson, said other experts could have used the tissue samples to review Smith's work. Bayliss believes the latest scientific methods, including DNA analysis, may show either that there was no crime, or that, if there was one, his client did not commit it.
But McLellan said the tissue can't be produced because Smith, who was given the evidence by the pathologist who did the autopsy, cannot find it.
"The tissue has not been found," McLellan said. "Charles simply indicates that he does not know where the tissue is."
Bayliss said the loss of the evidence leaves him wondering, "How can a senior pathologist who routinely does forensic autopsies in homicide cases be so disorganized about the collection and preservation of critical biological exhibits?
"That's scary," he said.
Dr. Glenn Taylor, head of the Hospital for Sick Children's pathology division, confirmed that until December 2004 the hospital had no system for keeping track of "medical legal" exhibits sent there for tests.
Asked whether other exhibits may have been misplaced, Taylor said "it's possible" but hasn't been investigated yet.
The Mullins-Johnson case isn't the first in which evidence ended up in Smith's possession.
Brenda Waudby of Peterborough was charged with beating her 2-year-old daughter Jenna to death on Jan. 22, 1997, on the basis of Smith's professional opinion as to what time the injuries were inflicted.
But the second-degree murder charge was dropped on June 15, 1999, when a prosecutor cited "certain medical evidence that has shifted dramatically."
Five other medical experts said the toddler's injuries were inflicted on the evening of her death, when she was in the care of a 14-year-old boy.
Waudby alleged later in a complaint to the College of Physicians and Surgeons that Smith concealed a strand of dark male pubic-like hair he found in the area of Jenna's vulva during the autopsy, keeping the hair in a desk drawer for more than five years until it was recovered by a Peterborough police officer.
Police have yet to lay further charges. Waudby is suing Smith and three police officers.
The college reprimanded Smith on Nov. 18, 2002, after xpert pathologists examined the Waudby case — and two others.
One, in 1988, 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 other case examined by the college arose in Sudbury, where, in 1995, then 22-year-old Lianne Thibeault's 11-month old son Nicholas stopped breathing after bumping his head under a table. He was pronounced dead at hospital.
A Sudbury coroner called the death sudden and unexplainable.. Smith, after reviewing the case at the chief coroner's request, concluded the death was not accidental and had the body exhumed for another autopsy.
Acting on Smith's opinion, the Children's Aid Society moved to seize another baby from Thibeault after birth.
Thibeault was never charged, and the baby was returned to her in June 1998 after an independent forensic pathologist from Missouri — an expert in child abuse-related deaths — disagreed with Smith's opinion.
Smith came under public scrutiny a year before the college's reprimand, following two other controversial cases.
In one instance, a second-degree murder charge against Maureen Laidley was stayed by prosecutors just before a jury trial was about to begin.
In another case, Louise Reynolds of Kingston, was charged with killing her daughter Sharon, 7, after Smith concluded that the girl had been stabbed to death in 1997. The murder charge was withdrawn after other pathologists concluded the girl was killed by a dog.
Reynolds, who is suing Smith, another doctor and the Kingston police force over the case, spoke to the Star yesterday.
"I think they should reopen every case that man has ever done," she said. "They need to go over the work and see if anyone one else is going through hell."
Wasser said she understands Reynolds's anger. "Nothing can be more devastating to a grieving parent," she said, "than to be labelled the child's killer."