Lawyers take pathologist to task for lies and errors

Charles Smith once lectured colleagues on how to be an expert witness

Last Updated: Tuesday, January 29, 2008 | 6:59 PM ET

CBC News

Ontario pathologist Charles Smith admitted on Tuesday that he "lost perspective" in one case he examined and made untrue statements about what a trial judge said in another case.

Charles Smith, shown arriving for the beginning of his testimony on Monday, admitted to not following his own advice that an expert witness should not be an advocate.
(Frank Gunn/Canadian Press)

Smith faced tough questioning by commission counsel Linda Rothstein during his second day of testimony at the Toronto hearing tasked with examining numerous cases he worked on while in pediatric forensics at the city's Hospital for Sick Children.

In a 1992 letter, Smith alleged that Judge Patrick Dunn personally told him that a babysitter charged with the death of a toddler known only as Amber was "guilty as sin."

He also said at a preliminary inquiry in 1998 on a separate murder case in Belleville, Ont., that Dunn had stated he was hasty with the work done by Smith and others in the hospital.

But in a sworn affidavit to the inquiry last month, Dunn denied ever speaking about evidence with Smith.

Smith agreed with that statement on Tuesday, saying, "I am ashamed of that remark."

"The statements I made were wrong," Smith said. "The statements I made were based on what I thought I heard, or selectively learned."

The case involved the death of a 16-month-old Timmins, Ont., girl who died in 1988 from brain injuries. Smith concluded the injuries were caused by shaking, while the babysitter, who was 12 at the time of the death, said Amber fell down the stairs.

Dunn acquitted the babysitter in 1991 and in his verdict he criticized Smith's methods.

Boss criticized Smith's work

Smith also confessed that he "lost perspective" while working on another case — the 1995 death of an 11-month-old boy known only as Nicholas.

The pathologist determined the boy's death was caused by "non-accidental" blunt force trauma.

The boy's mother came under suspicion in the case, causing her to lose custody of her second child. She maintained the boy went into distress after hitting his head.

"At that time, I was so close to the matter that I had lost perspective, though I don't know that at the time I recognized that," said Smith.

Other pathologists later found errors in Smith's finding and eventually the mother won back custody.

Dr. James Young, the former chief coroner who oversaw Smith's forensic work, criticized him and told him to be more careful about making a diagnosis.

Smith said it became clear his approach to the case had been wrong, but said he couldn't remember whether the case prompted him to make any actual changes to his approach.

Once lectured on how to be an expert witness

The inquiry also heard Tuesday that Smith, who said a day earlier that inadequate training left him ignorant about the criminal justice system, once lectured others on how to be an expert witness.

Rothstein showed the inquiry a speech Smith delivered in 1992 titled "See You in Court: The Invitation You Can't Refuse."

Among other things, the speech instructs that it would be unethical for a medical expert to speak with a judge about the case or become an advocate for either the prosecution or defence.

"You are not being paid to be an advocate," the 17-page speech says. "The quintessence of a good expert witness is a person who provides information in such a way that the jury cannot determine, from his [or] her body language and tone of voice, whether he is being paid by the prosecution or the defence."

A day earlier, Smith admitted at the hearing that he was "profoundly ignorant" and used to think his role as an expert witness in a trial was to support the prosecution. He said he didn't realize his role was an impartial one.

But on Tuesday he said, "What I knew and my execution as an expert witness in court indicates I certainly didn't do a good job in many situations as compared to what these notes would indicate."

More oversight needed, Smith says

Asked by Justice Stephen Goudge, who heads the inquiry, what would have improved his performance, Smith said there is a need for more training and oversight as a forensic pathologist and expert witness.

Smith said it was naive to assume that a person can give expert testimony in a courtroom without training.

"I would never expect a person who read a chapter about an autopsy to walk in and do an autopsy," Smith said, adding most of his knowledge was textbook based. "Nowhere in medicine do we expect a person to perform a difficult task without training."

The inquiry into Smith was called after a team of forensic experts reviewed his work and found questionable conclusions of foul play in 20 of his child autopsies, 13 of which resulted in criminal convictions.

The review, which focused on 45 child autopsies Smith conducted between 1991 and 2002, was made public in April 2007. During that time, Smith was considered a leading expert on pediatric forensics at Toronto's Hospital for Sick Children.

During Monday's testimony, Smith apologized several times to people wrongfully accused or convicted in cases he handled.

But he also criticized the review for "unfairly" singling him out because it didn't probe the work of other pathologists or even police.