“Do you realize that children were taken from their parents as a result of your evidence?” asked Suzan Fraser, a lawyer for Defence For Children International – Canada. “Are those children deserving of an apology?”

“Yes,” Dr. Smith said, although he did not actually offer one.

The unexpected exchange concluded five days of testimony during which Dr. Smith responded to hundreds of tough questions about 20 criminal cases in which he botched autopsy conclusions or trial testimony. “If I can help fix a wrong … yes,” Dr. Smith said.

Shaeree Sherret-Robinson, who was wrongly convicted of infanticide based on Dr. Smith’s conclusions, said in an interview yesterday that the loss of her eldest son, Austin, 13, left a painful void in her life.

“No matter what happens, the opportunity to see him grow up will never happen,” Ms. Sherret-Robinson said in an interview. “Childhood comes with some of the best memories [but] I will not have the opportunity to get him back until he is 18.”

Ms. Sherret-Robinson agreed to give up her son for adoption in 1999, three years after she was charged with the murder of her younger son, Joshua. “I do not think there is much that can happen at this point with respect to getting my son back,” she said.

Now that she has been exonerated, it would be cruel to take legal measures to get Austin back “from the only family he knows,” Ms. Sherret-Robinson said.

In a similar case that Ms. Fraser cited to the inquiry, the mother of a dead child identified as Sharon gave up a three-year-old for adoption in 1999. “She felt that she had no choice, because her prospects of being released were so remote,” Ms. Fraser said.

In a third case, where a child known as Jenna had died, the Children’s Aid Society also seized her sister, Ms. Fraser said. The child was returned two years later, after murder charges laid against the mother as a result of evidence from Dr. Smith were dropped.

Dr. Smith agreed yesterday that multiple mistakes he made in autopsies involving criminal cases may well be mirrored in an unknown number of cases involving Crown wardship or other custody proceedings.

“If I’ve made a mistake in one place, I could certainly make them in another,” Dr. Smith conceded.

Ms. Fraser said in an interview yesterday that she can only speculate how many children may have been taken from their parents because of faulty conclusions Dr. Smith drew about the deaths of their siblings.

She noted that the CAS became involved in 13 of the 20 cases Mr. Justice Stephen Goudge is reviewing. “There was definitely CAS involvement outside of the 20,” she added.

“We are looking for recommendations establishing a process of reconciliation for children wrongfully separated from their parents,” Ms. Fraser said. “The children need to be informed of what happened to them. It is their right.”

When Ms. Fraser specifically asked Dr. Smith whether he was aware of Austin’s adoption yesterday, he appeared befuddled. “I don’t know just how specific my knowledge of that was,” he said. “My understanding was that he was taken away, but I couldn’t tell you what the decision on that was.”

Ms. Sherret-Robinson said the answer appalled her. “How can he not know?” she asked in an interview. “Your name is in the press all the time, and yet you don’t read the stories?

“There has never been all that much attention paid to my losing my eldest son because of Smith’s actions. It is hard to deal with in so many ways. I would give anything in the world to be able to see him, but I doubt that will happen, as well.”

Ms. Fraser said in the interview that she will ask Judge Goudge to recommend that the Minister of Children and Youth Services, or an equivalent body, “review all CAS files to determine where forensic pathology played a role in a child protection proceeding.”

However, she said no established process exists for dealing with cases in which apprehension or adoption orders were made on the basis of flawed pathology evidence.

“The child has no ability to set aside a permanent order, because how would they know about it?” she said. “The child – even though the UN Convention of the Rights of the Child says that they have a right to their identity – has no way of knowing that they might have been wrongfully separated from their parents.”

Kirk Makin
Globe and Mail
February 1, 2008

It took 14 years for his day to come, but William Mullins-Johnson seized his opportunity to confront the doctor who helped put him behind bars for a murder he had not committed – pathologist Dr. Charles Smith.

In an electrifying scene on a day that was drenched in drama, Mr. Mullins-Johnson spontaneously rose to his feet at the Goudge inquiry yesterday as Dr. Smith – visibly shaken and unable to meet his eyes – attempted to stammer out an apology.

His voice booming in the silent inquiry room, Mr. Mullins-Johnson said that he had been fearful every day of his 12-year prison term that he would be killed by other prisoners who believed that he had sodomized and strangled his four-year-old niece, Valin.

”You put me in an environment where I could be killed on any day,” he said.

The conviction had not just taken his freedom, Mr. Mullins-Johnson added. It permanently destroyed his relationship with his brother and sister-in-law.

”I don’t expect that you would forgive me, sir, but I do want to ask for that,” Dr. Smith replied weakly. “I’m sorry. I want to make it very clear to you that I am particularly sorry for the role I played in the decision that affected you.”

”I do forgive you, but I’ll never forget what you did to me,” Mr. Mullins-Johnson said as the parents of dead children patted him on the back in encouragement.

”I forgive you – for my own healing.”

”That is very kind of you,” Dr. Smith said, as Mr. Justice Stephen Goudge adjourned the hearing to let the pathologist recover.

”Thank you, sir.”

The remarkable scene played out after James Lockyer, a lawyer for nine parents and care-givers victimized by Dr. Smith’s mistakes, neared the end of the most aggressive cross-examination the inquiry has yet witnessed.

Interrupting Dr. Smith as he was expressing sorrow over his mistakes in the Mullins-Johnson case, Mr. Lockyer said that his apologies had a hollow ring.

”Can you look at Mr. Mullins-Johnson and say that?” he challenged.

”Could you point him out?” Dr. Smith said, losing his composure.Mr. Mullin-Johnson rose as Mr. Lockyer pointed to him.

In an interview shortly afterward, Mr. Mullins-Johnson called the incident “totally surreal. When the opportunity presented itself to stand in front of him, I knew it would never come again.

”If I continue to carry a grudge, it will destruct me. I said what had to be said to him. I had an opportunity to look him in the eye and tell him what this did to me.”

Earlier, Mr. Lockyer goaded Dr. Smith out of the hesitant, self-possessed manner he had displayed in three days of testimony, accusing Dr. Smith of enjoying “sticking the knife” into defendants at homicide trials.

”Excuse me for interrupting,” Dr. Smith burst in heatedly. “That is absolutely false, Mr. Lockyer. There is no enjoyment in this whatsoever. Testifying in court is a tragic situation. There is no enjoyment whatsoever.”

”The real tragedy, Dr. Smith – as we’re finding out now – more often than not, was your own evidence,” Mr. Lockyer shot back.

Mr. Lockyer alleged that Dr. Smith was an overconfident, arrogant, self-inflated witness who routinely disparaged opposing experts with better qualifications than his.

He said that Dr. Smith’s claim that he loathed the adversarial atmosphere of the courtroom “is best described as a whopper. I’m going to suggest that, just to read your testimony, it can be seen how you enjoyed the limelight while you were testifying.”

Ridiculing his use of “buzzwords” to dilute his culpability or imply that his mistakes were honest errors, Mr. Lockyer read an excerpt from courtroom testimony in which Dr. Smith described a reputable expert as “a paid mouth.”

”That was uncharitable,” Dr. Smith conceded.

”Outrageous!” Mr. Lockyer exclaimed. “Outrageous to say that – not just uncharitable. I’m not going to let you get away with that.”

”This was a view that was held,” Dr. Smith said.

”By you,” Mr. Lockyer retorted. “If anyone tried to take you on, you would just be insulting about them and their expertise. … You have a habit of being critical of people who were genuine forensic scientists.

”I suggest that you were trying to conjure up the image of a man in white coat who was approaching his work with cool neutrality.”

There was no respite for Dr. Smith as the day wore on. Lawyer Carolyn Silver accused him outright of lying to the Saskatchewan College of Physicians and Surgeons in an attempt to continue practising medicine.

Ms. Silver, who represents the Ontario College of Physicians and Surgeons, said that Dr. Smith concealed the fact that he was censured by his Ontario peers.

”I misinterpreted the questions,” Dr. Smith said. “I put down answers that I thought were correct.”

”It wasn’t misleading, it was untruthful, wasn’t it?” Ms. Silver demanded. She said that his self-serving explanations for his evasive response to inquiries from the college were either “hallucinations or fabrications.”

”I recognized it was an error,” Dr. Smith said. “It was a mistake. I am embarrassed by it.”

Dr. Smith’s next interrogator: Peter Wardle, a lawyer who is suing Dr. Smith on behalf of several people who accuse him of destroying lives by playing amateur detective.

”You were not a police officer,” Mr. Wardle said loudly. “You were not a Crown attorney. You were supposed to be a pediatric pathologist.”

Mr. Wardle said that Dr. Smith was equally cavalier with his opinions when parents of dead children faced Children’s Aid Society proceedings aimed at removing their other children from their care.

He produced a 1999 memo written by a CAS worker after she informed Dr. Smith that a Peterborough, Ont., woman who was wrongly charged with killing her daughter had just had a son.

”Well, I guess I’ll be doing his autopsy, too,” the CAS worker quoted him as saying.

”Does that give us some sense of the inner Dr. Smith and your attitude to these cases?” Mr. Wardle asked. “You are making sweeping accusations about what is going to happen to a newborn baby.”

”I have no recollection of this, and I’m embarrassed by it,” Dr. Smith replied.

CTV.ca News Staff
January 28, 2008

Disgraced pathologist Dr. Charles Smith, whose child death investigations resulted in a number of wrongful convictions, testified today that his training as a pathologist was “woefully inadequate.”

Smith is testifying at a public inquiry in Toronto into systemic errors in the field of pediatric forensics.

The inquiry was ordered after serious doubts were raised about opinions given by Smith in roughly 20 cases of suspicious child deaths. In more than 12 of those cases, Smith’s decisions led to criminal investigations or convictions.

Smith opened his testimony with an apology for his “mistakes.”

”I do accept full responsibility for my work, for my opinions and for my action,” said Smith.

”I do recognize that many people have questions for me and I will answer and provide testimony as best I can to help clarify these questions.’’

He admitted that his training in forensic pathology was “minimal,’’ that he was basically “self taught’’ and that his behaviour at times was unprofessional.

Smith also said that despite the numerous cases in which he gave expert testimony, he now recognizes that he was “profoundly ignorant” of the role of expert witnesses and the way the criminal justice system works.

However, when asked about being described in the media as someone who saw abuse in every child’s death, he said the description was “grossly erroneous.”

The inquiry has heard months of testimony from experts and former colleagues.

Victims seek answers

One father spent more than a decade in prison for the death of his niece before being exonerated, and several mothers spent years in prison before the cases against them fell apart.

Sherry Sherret, who was convicted of killing her son based on an autopsy by Smith, travelled to Toronto to attend the hearing in hopes of getting some answers.

”I guess (I hope to receive) the answers,” she told CTV’s Canada AM.

”Why? If you needed help, why didn’t you ask, why did you choose to do this? Why did you not ask for the help, say, ‘could someone else go over this just to make sure it’s right,’? It’s just confusing as to why, honestly.”

Sherret’s own conviction in the death of her young son, who was sleeping in a playpen when he died, turned her life upside down, she told Canada AM.

She lost custody of her older son, who she hasn’t seen since 1999 and is now being raised by his adoptive family. Sherret also spent several years in jail, and at times felt her life was over.

”It’s been a long journey,” she said, noting that she has since remarried and has a young daughter, but still looks forward to her son’s 18th birthday, when she can see him again.

William Mullins-Johnson was also convicted based on Smith’s findings. He spent 12 years in jail for the death of his niece before his conviction was quashed after six experts found no evidence to support Smith’s finding that the girl had been sodomized and asphyxiated.

Lawyer Peter Wardle told The Canadian Press the parents and families affected by Smith’s mistakes will be expecting more than just an apology.

”Many of them have waited 10 – in one case 20 – years to hear him give his side of the story,” said Wardle, who represents several of the families.

”They all have questions they want answered.”

Although his clients felt the apology delivered in November was “too little, too late,” they’re anxious to hear what Smith has to say, Wardle added.

The mandate of the inquiry is broader than just Smith’s work, however.

Its objective is to take a look at errors that exist in Ontario’s pediatric pathology system. Smith is facing a room full of lawyers seek

Seymour A
Calgary Herald
January 8, 2008

An association of Ottawa defence lawyers is calling for an independent review of all the homicide autopsies handled by a senior forensic pathologist after serious questions about his work were recently raised at a public inquiry.
Ontario’s former chief forensic pathologist, Dr. David Chiasson, told a provincial commission that he had “significant concerns” about the work of Dr. Brian Johnston dating back as far as 1994 and had unsuccessfully sought to have him removed from his position as head of the Eastern Region forensic pathology unit 10 years ago.
However, Johnston continued to work as the director of the unit until last January, shortly before regional coroner Dr. Andrew McCallum ordered all of Ottawa’s criminally suspicious deaths to be autopsied by medical officials in Kingston or Toronto.

Now, defence lawyers in Ottawa want a thorough review of Johnston’s work by professionals without ties to the coroner’s office because they fear the doctor’s findings could contain errors that have led to the jailing of innocent people – which has already happened in one case.

”Anybody who did a case where he was a pathologist has got to be worried that maybe something went wrong,” said Mark Ertel, president of the Defence Counsel Association of Ottawa. “There should be some real review done of all the cases he did to make sure nothing went wrong.”

Johnston, who continues to work in the unit but is scheduled to retire soon, declined to comment.

A review of Johnston’s work could potentially involve more than 100 homicide cases in Ottawa and eastern Ontario since he was head of the unit for more than a decade.

Ertel’s call for a review follows testimony at the Goudge Commission, a provincial inquiry examining systemic problems in Ontario’s coroner system.

Handwritten notes by Chiasson entered into evidence at the inquiry described Johnston’s autopsy reports as confusing, poorly organized and repetitious.

He added that they resulted in “unwarranted conclusions” not supported by the evidence.

Chiasson also described Johnston as having an “isolationist” attitude; he called him someone who refused to ask for assistance. Attempts to make him go for remedial training were also refused.

Chiasson testified he had concerns about Johnston’s findings in two cases in particular. In one of those cases, murder charges were laid against an innocent man.

Johnston found that 40-year-old Marcel Vanasse had been strangled in 1998, but Chiasson told the inquiry that when he reviewed the file, it was clear there were other potential explanations for the death. It was later ruled that Vanasse died of a combination of a drug overdose and coronary heart disease.

In a 1998 memo to the province’s chief coroner, Chiasson sought to have Johnston removed from his position as head of the Eastern Region forensic pathology unit.

However, he also testified it was not his intent to have Johnston removed from the unit entirely.

The “ideal approach” was to have him work under the supervision of “somebody we had confidence in as a forensic pathologist,” he testified.

Johnston wasn’t removed due to a shortage of qualified forensic pathologists.

Makin K, Canadian Press
Globe and Mail Newspaper
December 31, 2007

For decades, the Ontario chief coroner’s building in downtown Toronto stood dignified and untarnished, a beacon of quiet competence in a justice system that has reeled from one wrongful conviction to another.

Placed under the microscope of repeated public inquiries, police, prosecutors and judges were blamed and shamed, yet the chief coroner remained untouched. Coroners and pathologists, plying their mysterious trade in morgues and autopsy rooms, became the stuff of prime-time TV drama and journalistic admiration.

Then came pathologist Charles Smith.

His track record of botched autopsy results – at least 20 criminal cases in which his findings led to dubious criminal prosecutions of parents – has given the urbane, smooth-talking doctor a corridor of his own in the wrongful conviction hall of fame.

As sensational as these cases were, however, few expected the Goudge commission to become a riveting spectacle when it was launched last spring. Mr. Justice Stephen Goudge’s mandate appeared to preclude him scrutinizing the 20 cases, thrusting him instead into an earnest probe of “systemic” issues.

Yet, at the halfway point in the inquiry’s public hearing phase, words like “dull” and “abstract” are the last that apply. Each gruesome death has been painstakingly examined, and blame for the entire affair has gone well beyond Dr. Smith. The inquiry has systematically stripped away the grandeur of the chief coroner’s office, revealing a clubby, overworked group of doctors who operated with scant supervision or oversight.

Judge Goudge has it within his grasp to produce the most wide-reaching, influential report of any inquiry yet to tackle the failings of the justice system. He may well recommend a radical restructuring of the entire coroners’ system, the central nervous system through which deaths are investigated and homicide investigations launched.

Judge Goudge’s job will be made easier by the fact that the current chief forensic pathologist, Michael Pollanen, arrived with strong qualifications and a vow to eliminate opinion and speculation from both autopsy reports and courtroom testimony. He also presented the commission with an elaborate and well-received list of proposed changes.

Already, Judge Goudge has displayed a keen interest in:

• the inadequacy of autopsy reports;
• a dearth of qualifications for forensic pathologists;
• a dire shortage of doctors willing to accept the low pay and courtroom stresses of the profession;
• vast shortcomings in the way expert testimony is provided to the courts.

Like every inquiry, the Goudge commission has acquired its own personality. It is not a freewheeling inquisition punctuated by finger-pointing and fiery invective.

’Think Dirty’

It is run with military precision. Judge Goudge rigorously polices the time each lawyer has been allotted, once even warning a lawyer who took a swig of water that “the clock is running.” There is no time for aggression or hyperbole.

On a smaller scale, the inquiry is homing in on key questions that go to the heart of the enigma that is Dr. Smith. What mission or personal crusade drove him? How did he create and sustain the Pediatric Pathology Unit – his own personal fiefdom, located in Toronto’s Hospital for Sick Children and funded by the chief coroner’s office? To what extent was his bloated sense of his own ability attributable to media adulation and peers who turned a blind eye?

In testimony, Dr. Smith has emerged as a self-confident figure who seized upon the vacant field of forensic pathology in the early 1980s to forge a career. At the time, Ontario’s chief coroner was conducting more than 15,000 death investigations annually, using a patchwork of regional pathologists and coroners paid on a fee-for-service basis. The situation cried out for full-time professionals.

Simultaneously, awareness of child abuse was exploding. Social agencies and medical organizations issued chilling warnings that parents were getting away with gross acts of child abuse against vulnerable infants.

The scene was set for Dr. Smith to become the go-to guy in a system that had adopted a brand new motto: “Think Dirty.” In courtrooms across the province, he championed the existence of shaken baby syndrome – a new diagnosis that was being used to explain why some infants were inexplicably found dead in their cribs.

Dr. Smith lectured to police, prosecutors and medical people. A devout fundamentalist Christian whose passionate regard for children caused him to lose his cool if he heard a baby referred to as “it,” he enchanted journalists and juries alike. At one moment, he could expound on unpronounceable medical syndromes; then, effortlessly switching gears, he would recount a personal anecdote about his own children.

Frustrated defence lawyers looked in vain for experts willing to take him on. To face Dr. Smith in a murder prosecution often meant making a trip to the Crown attorney’s office to hammer out a plea agreement. Dr. Smith’s career, prestige and ego soared.

Then, opinions and testimony began to go awry. As doubts arose about his accuracy, colleagues seemed to be as incapable of seeing it as Dr. Smith was. More than anything else, the inquiry has made it clear that Dr. Smith was not the exclusive cause of what went wrong at the chief coroner’s office. He was simply its worst symptom.

Dr. Smith’s defence appears to rest on three pillars. First, that he was actively encouraged, enabled and approved by chief coroner James Young and deputy chief coroner James Cairns. Second, that his conclusions must be judged in the context of a time when forensic pathology was still evolving. Third, that pathology will always be an inexact science, that reasonable, competent practitioners can disagree.

An overworked office

What has come across through letters, memos, reports and live testimony is an indelible image of an overworked office where lax procedures and personal loyalties had become engrained. Rushing from one case to another, Dr. Young and Dr. Cairns appeared either in disbelief or too busy to pay attention to danger signs about Dr. Smith – chronically late reports, or judges who assailed his testimony.

Bureaucratically, the situation was ripe for disaster. Dr. Smith had one foot in the chief coroner’s office and the other in Sick Kids’ pathology division. It left him operating in a grey area, without adequate supervision. Lacking training in forensic pathology, Dr. Young and Dr. Cairns could scarcely assess his findings. Meanwhile, the couple of peers at Sick Kids who might have blown the whistle on his shortcomings felt they were either too junior to intervene or were wary that their meddling would be unwelcome.

Add to that a chronic shortage of pathologists. Seemingly adept and keen about his work, Dr. Smith was a godsend, an indispensable commodity. Guaranteed a virtual free hand, he effectively became his own supervisor.

The two most riveting witnesses to testify at the inquiry thus far, Dr. Young and Dr. Cairns, brought contrasting styles to the box.

Dr. Young was, for the most part, unapologetic and somewhat aloof. He portrayed himself as an intensely busy bureaucrat whose multiple responsibilities, hundreds of speaking engagements and “tens of thousands” of media interviews prevented him from closely reading reports and correspondence.

”I’m a scanner, not a reader,” he told Judge Goudge. “I’m not detail-oriented. I can juggle a lot of balls at the same time.”

Explaining why he failed to spot Dr. Smith’s growing record of error, the former chief coroner said he ignored media exposés of the Smith affair and, rushing about in his bureaucratic bubble, simply failed to detect warning signs.

When Dr. Young finally began to see a pattern, he gave Dr. Smith a stiff talking to. Forensic pathologists each occupy a different perch on a large tree, he told his erring colleague: “Your views are at the far end of one branch. I want you hugging the trunk from now on.”

The ‘retroscope’

Dr. Young was fond of chiding lawyers not to use a “retroscope” – a make-believe instrument that can be used to second-guess decisions that were, at the time, understandable. Yet if there is one event in the entire Smith affair that cried out for use of the retroscope, it was the Amber case.

The case against a 16-year-old babysitter charged in 1988 with murdering a child in her care was thrown out in 1991 by an alert judge who accepted the emphatic testimony of an international cast of experts. It was a humiliating defeat for Dr. Smith – his first. If heeded properly, it would have sent tremors through the coroners system and prevented much of the vast misery that was yet to come.

If Dr. Young came across as an absentee landlord, Dr. Cairns was the janitor who ignored screams coming from the basement. The de facto chief operating officer at the Office for the Chief Coroner of Ontario for most of the two decades that Dr. Smith was growing in stature, Dr. Cairns was the day-to-day enabler who might have nipped the Smith crisis in its early stages, but didn’t.

Genial and apologetic, Dr. Cairns admitted having overlooked one worrisome aspect of Dr. Smith’s eroding act after another. On several occasions, Judge Goudge interrupted Dr. Cairns’s narrative to ask: “By this time, had you lost faith in Dr. Smith?” The answer, repeatedly, was no.

In one telling exchange toward the end of his time on the witness stand, Dr. Cairns was asked by commission counsel Linda Rothstein whether he really ought to have disqualified himself from evaluating Dr. Smith’s work, given the closeness of their relationship.

”It not only should have disqualified me, it probably should have disqualified the whole office,” Dr. Cairns replied.

Some questions are answered, but many others remain involving a doctor who botched so many criminal autopsies, yet could score near-perfect marks in reviews of his non-autopsy work; who left seasoned judges convinced that his judgment was sound, yet who brought his 10-year-old son to watch a baby’s exhumation; who kept scraps of bones and tissue in his notoriously messy office; who stopped responding to phone calls from police and prosecutors desperate for his reports.

The true identity of Dr. Smith may at last be revealed when he is sworn in late next month. Until then, the enigma steadily deepens, the only certainty being that the office that learned to Think Dirty will not get away clean.

The Amber case

In 1988, 16-month-old Amber, of Timmins, Ont., died while in the care of her 12-year-old babysitter, S. M., who said the child had fallen down the stairs.

The death came at a time when the still-controversial shaken baby syndrome was working its way into forensic consciousness, and pathologist Charles Smith, who was deemed an expert, concluded that Amber died from brain injuries caused by severe shaking.

Nine other experts disagreed

In acquitting S. M. in 1991, Mr. Justice Patrick Dunn tore a strip off Dr. Smith, who had worked with other pathologists at the Hospital for Sick Children in Toronto on the case.

Judge Dunn attacked Dr. Smith on 16 points, including his failure to consider any other possibilities for the cause of death, and for concluding that Amber had been shaken to death even before performing the autopsy.

Sacramento Bee

A federal appeals court that last year overturned the conviction of a woman accused of shaking her grandson to death has upheld its decision.
Shirley Ree Smith was convicted in December 1997 and was sentenced to 15 years to life at a women’s state prison in Chowchilla.
During her trial, experts for both sides gave conflicting testimony about the 7-week-old boy dying from being shaken, from sudden infant death syndrome or from an old brain injury that re-bled.
After reviewing that evidence, a three-judge panel of the 9th Circuit U.S. Court of Appeals decided that shaken baby syndrome “was wholly unsupported by the physical evidence” and overturned Smith’s conviction.
The state appealed, sending the case to the U.S. Supreme Court, which urged the federal appeals court to review the case again.
On Tuesday, it reaffirmed its decision.