Dr. Smith did make significant errors while investigating child deaths, but only in five cases — not 20 as previously alleged, the pathologist’s lawyers assert. And he was not solely responsible for wrongful prosecutions in any of the fatalities, they say in submissions to a public inquiry that has been dissecting his work.The 323-page submission, released with other written arguments Thursday, even questions the widely publicized review of the specialist’s work by esteemed outside experts, calling some of their criticism “unduly harsh.”The legal brief urges the inquiry to correct the “fallacies” of that review, which concluded Dr. Smith made clear mistakes in 20 criminally suspicious child deaths he investigated between 1991 and 2001. Those findings prompted the province to create the commission itself.”The public deserves to understand the full scope of the systemic failures, which ought not to be hidden behind an exaggeration of Dr. Smith’s alleged inadequacies,” says the submission.”It would be unfair to Dr. Smith to conclude that he alone was responsible for any alleged miscarriages of justice.”What is more, he was the only witness at the inquiry’s hearings who “unequivocally” took responsibility for his missteps, the document argues.In other submissions, lawyers for some of those charged with killing children based on the pathologist’s findings blasted the Ontario coroner’s office for not cracking down on Dr. Smith earlier, and said the system’s failures had a fallout “beyond comprehension.”The briefs from groups with standing at the inquiry will be followed by oral arguments early next week, then with Justice Stephen Goudge’s report. Justice Goudge has been granted a five-month extension on his due date, to Sept. 30, the commission revealed Thursday.Parents or other caregivers were accused of homicide in almost all of the 20 cases identified by the outside review last year, although many have since been cleared.The experts from Alberta, Great Britain and Finland said Dr. Smith made glaring errors and clearly had no training in forensic pathology.The pathologist’s lawyers argue, though, that he made no significant errors in 14 of the cases, given the state of the science at the time. In the five others examined by the public inquiry, his errors had “varying implications” to the investigations and other pathologists made the same mistakes in three of them, the brief says.It notes that the pathologist has been widely blamed for the wrongful conviction of William Mullins-Johnson, who was exonerated last year after being convicted of murdering his niece and spending 12 years in prison. In fact, “this assertion is completely unfounded,” since his involvement in the case was limited, the lawyers argue.They also defend his actions in the case of a 12-year-old babysitter charged in Timmins, Ont., with the death of a 16-month-old girl. The judge in the 1991 case acquitted her and lambasted Dr. Smith’s testimony as misguided and dogmatic.The submission, though, argued that the pathologist’s opinion that the baby could not have died from a fall down a few stairs - as the babysitter had testified - was justified given the state of forensic science at the time.Lawyers for some of those accused in the problematic cases point the finger of blame in their written submissions at Ontario’s chief coroner’s office, which oversaw Dr. Smith but for years largely ignored evidence that his work was flawed.”The results of these systemic failures are almost beyond comprehension: wrongful convictions, prosecutions that never should have taken place, children separated from their mothers, a murder charge stayed for delay and families stigmatized and traumatized,” the document says.Lawyers for the Association in Defence of the Wrongfully Convicted urge in their submissions that the province review every autopsy of a child in Ontario since 1981 where someone was convicted of homicide.Given Dr. Smith’s role as an “icon” in the field and head of the province’s pediatric forensic pathology unit, it is reasonable to expect that other pathologists made similar errors during his tenure, the brief says.National Post
Tags: failure, parents
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