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Concerns over experts remain despite acquittal

|Written By Tim Shufelt

With another overturned conviction for the death of a child, the justice system in Ontario moves a little closer to making amends for one of its darker periods.

But the same conditions that led courts to criminalize the innocent remain today, according to the country’s foremost advocate for the wrongfully convicted.

James Lockyer says the “aura of infallibility” around Crown expert witnesses still lingers, creating the kinds of circumstances that unjustly sent his client to jail for the death of her son.

“Crown experts still are allowed to proffer opinions that shouldn’t see the light of day.”

Lockyer was at the Ontario Court of Appeal last week as his client, Sherry Sherrett-Robinson, was acquitted of infanticide almost 14 years after she found her four-month old son, Joshua, dead in his playpen.

In the face of damning autopsy findings reported by disgraced forensic pathologist Charles Smith, the Trenton mother pleaded guilty to infanticide. She spent a year in jail.

Smith testified in Sherrett-Robinson’s preliminary hearing that he found four suspicious injuries in the autopsy that led him to conclude that Joshua had been intentionally asphyxiated.

However, after the boy’s body was exhumed and re-examined, all of the injuries were determined to be either consistent with accidental asphyxia or caused by Smith himself during the autopsy.

The court declared that Sherrett-Robinson was the victim of a miscarriage of justice. The Crown agreed to an acquittal.

Lockyer says the entire case against his client rested on erroneous evidence manufactured by “a man who thought he had a mission.”

Sherrett-Robinson’s plight is the perfect example of the misguided blind faith and absolute deference courts can grant expert witnesses, he adds.

“Certainly, if I had been representing her back in 1996, I would have been worried she would have been convicted based on Smith’s evidence.”

Despite Court of Appeal Justice Stephen Goudge’s inquiry into Ontario’s child forensic pathology system and the reforms and remedies announced by the provincial government in response, courts still give Crown experts unwarranted credibility, Lockyer says.

“I wouldn’t say it’s remarkably different.”

Ironically, any new skepticism of scientific testimony introduced into the system seems to be applied more to experts called by the defence than those called by the Crown, Lockyer adds.

Others, too, identify disparities in accessing expert witnesses as a big problem.

John Struthers, a Toronto criminal lawyer and murder trial veteran, says there isn’t enough provincial funding for defence teams to hire scientists of the same calibre as those used by the Crown.

“We still have an adversarial system. In an adversarial system, you have to have balance, and we don’t,” Struthers says.

At the same time, considering how scientific evidence has stolen some of the focus away from witness testimony - what Struthers calls the “CSI effect” - that imbalance burdens an accused with a systematic disadvantage, he says.

“Juries very much are now looking for science. You have a doctor testifying before the jury, and it’s mesmerizing.”

In January 2000, Smith testified in a preliminary hearing against a client of Struthers accused of killing a child in her care.

The woman reported that the three-year-old boy had tumbled from the couch and hit his head on a coffee table.

Smith asserted that children don’t die from falls of less than three or four stories, so the caregiver must have caused the child’s head injury.

A panel of pathology experts later described his conclusion as “grossly erroneous.” Although Smith’s claim was absurd even to a layperson, there was no doubting the gravity of the doctor’s looming testimony on the eve of the trial.

“It was terrifying,” Struthers says. “I believed this woman was innocent, and she was being totally railroaded by this charlatan.”

On other remedies already proposed in response to the Goudge report, Lockyer says the province is dragging its heels.

Last December, the Ontario government established a committee led by Ontario’s former associate chief justice Coulter Osborne to examine a compensation framework for victims of Smith’s erroneous medical findings.

So far, there’s no word on progress, Lockyer says.

“I’m afraid they don’t seem to have done anything. I’ve never even spoken to them.”

He previously made an inquiry with the committee, he adds, but didn’t hear back.

“It’s been extraordinarily unsatisfactory and quite brutal. These people need help and they can’t get it.”

In an e-mailed response, a spokesman for the Ministry of the Attorney General said the committee is indeed working on the issue of compensation.

“The government is looking forward to receiving the committee’s recommendations as soon as possible so that we can proceed in the fairest and fastest way possible,” the statement said.

“As it is important to get this right for everyone involved, an arbitrary deadline has not been set.”

The ministry also noted that the team reviewing shaken-baby deaths has completed an initial review of all 142 cases and dismissed those that “don’t involve any issues of criminality or where the convicted person is deceased.”

An international panel of medical professionals is also planning on meeting in Toronto next spring to review the cases and will report its findings to the attorney general, the statement said.

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