Editorial on Smith et al

November 29, 2007 permalink

Following the retirement of Gary Putman, the Orangeville press is more inclined to deal with the failures of child protection. The editorial below suggests reviewing 200 examinations of child deaths, not just by Dr Charles Smith, but by all pathologists connected to his team at what now appears to be Toronto's Sick Hospital for Children.

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Orangeville Citizen

Editorial, November 29, 2007

Why 'junk science' has no place in our courtrooms

LET'S HOPE the recommendation gets the attention it deserves from Justice Stephen Goudge, who is currently conducting a public inquiry into the role played by Dr. Charles Smith in securing criminal convictions based on his erroneous autopsy findings.

Although the Goudge commission's mandate deals with only about 20 cases where Dr. Smith's now-discredited testimony led to criminal charges against caregivers (usually parents) whose infants died mysteriously, two forensic pathology experts recommended last week that Ontario thoroughly re-examine up to 200 autopsies on dead children.

Under the proposal, the review would concentrate on convictions based on the findings of others than Dr. Smith, particularly by those on his team of pathologists at Toronto's Hospital for Sick Children who shared his "think dirty" philosophy, which saw criminal activity behind unexplained phenomena that had been labelled Sudden Infant Death Syndrome (SIDS).

Ironically, such a review would include another "Smith" case - the manslaughter conviction of Jeffrey Smith, a teen-aged father of twin girls, one of whom died mysteriously on March 22, 1994, just four months after the twins were born three months prematurely, and after both had been rush to hospital many times with a variety of ills, none of which suggested they had been abused.

In that case, the only reason Jeffrey Smith was charged, apart from the pathologists' testimony, was that he was the only one home at the time Katie Smith died. In the jury trial, where he faced a charge of second-degree murder, there wasn't a scintilla of evidence that he had ever become angry at the twins, much less struck them.

Based on what we now know, Katie's death was almost certainly from natural causes related to the prematurity of her birth. The fact that the jury rejected the Crown's bid for a murder conviction, finding only manslaughter, is surely small comfort to Mr. Smith, who now is still labelled a child killer in the eyes of the law.

(The jury verdict was upheld by the Ontario Court of Appeal which, in the interests of "finality," refused to order a new trial at which a British expert, unavailable to the defence during the 10-week trial, would explain her finding that the death was from natural causes.)

The call for review of the other autopsies came from Dr. John Butt, one of three renowned forensic pathologists who conducted a detailed review last year of 43 autopsies Dr. Smith performed between 1991 and 2004. It followed two weeks of revelations at the inquiry about substandard practices and a discredited "think dirty" philosophy that prevailed in the Office of the Chief Coroner during the 1990s, a philosophy which we think could be traced to the Sick Kids team.

Northern Ireland's top pathologist, Jack Crane, agreed that reviewing every criminally suspicious case may be essential to repair public confidence and ensure that no one has been wrongly convicted of killing a child.

"It might be quite an undertaking and require very considerable resources to do it," Dr. Crane said. "But if there are concerns ... to enhance confidence in pediatric pathology, it might be necessary."

James Lockyer, a lawyer for eight people who say they have been wrongly convicted of killing their children in cases involving Dr. Smith, has signalled that he will urge Justice Goudge to recommend a full autopsy review.

On the same day, Mr. Lockyer asked Dr. Butt, Dr. Crane, and a third reviewer, Dr. Christopher Milroy, why defence lawyers, prosecutors and Dr. Smith's fellow pathologists could not bring themselves to blow the whistle on his shortcomings or failed to notice them.

Dr. Butt said that doctors are notoriously unwilling to testify against their brethren. "I don't know how to overcome it," he said. "It is an issue of culture. It is an issue of intimidation. There is a certain revering of figures that starts in medical school."

He said pathologists are also accorded so much respect within the court system that they become comfortable testifying about medical matters that go far beyond their knowledge and training.

"The more the doctor is encouraged to answer questions that he may not know the answer to - and gets away with it - the more the cult of personality grows."

Nor is the problem of "experts" securing convictions based on "junk science" limited to pathologists or criminal courts in Ontario.

Last week, the CBS program 60 Minutes dealt with the fact that for years the Federal Bureau of Investigations (FBI) had been securing convictions based on a now-discredited theory that bullets used in murders could be traced to a single box.

The "bullet lead analysis" was used by the FBI for 40 years in thousands of cases, and some of the people it helped put in jail are likely innocent. One such is Lee Wayne Hunt, now 22 years into a life sentence for murder in North Carolina.

Mr. Hunt was convicted in 1986 of murdering two people based on the testimony of two questionable witnesses and what turned out to be erroneous ballistics testimony from the FBI lab. For years, the FBI believed that lead in bullets had unique chemical signatures, and that by breaking them down and analyzing them, it was possible to match bullets, not only to a single batch of ammunition coming out of a factory, but to a single box of bullets. And that is what the FBI did in the Hunt case.

"I think everybody in the courtroom assumed that this was valid evidence," Mr. Hunt's lawyer said. Clearly, such evidence has no place in any courtroom.

Source: Orangville Citizen