WRONGFUL CONVICTIONS IN CHILD HOMICIDE CASES: LESSONS LEARNED FROM THE GOUDGE INQUIRY

The successful prosecution of a person charged with the unlawful killing of a child often rests on the testimony of the forensic pathologist called as an expert witness.  Issues in these emotionally-charged cases are made particularly complex as the events leading up to the death are rarely witnessed, explanations offered by the caregiver may not account for the findings at autopsy and the conclusions open for analysis may themselves be the subject of inexact science or evolving levels of certainty based on current research.

Accordingly, any deficiencies or errors in the methods followed or opinions expressed by the pathologist have the capacity to result in a wrongful conviction for an offence punishable by a lengthy period of incarceration.  The potential for such a witness to cause miscarriages of justice extending over many years will continue so long as his or her participation in the criminal justice system remains unaddressed.  The impact on many lives will undoubtedly be profound.

Such are the lessons to be learned from the Inquiry into Pediatric Forensic Pathology in Ontario (the Inquiry) convened as a result of the involvement of Dr. Charles Smith in several criminal proceedings between 1991 and 2001.  A brief summary of the issues, an examination of some of the Recommendations which may be applicable outside of Canada and an overview of recent developments in child homicide cases may increase awareness of potential problems.  It is hoped that this could lead to the implementation of such measures as may be necessary to prevent their recurrence in the years to come.

Background of Events

Dr. Charles Smith commenced full-time employment as a pediatric pathologist at the Hospital for Sick Children (HSC) in Toronto in 1981.

Notwithstanding his complete lack of formal training in forensic pathology both before and after this date, he took on the responsibility for many of the autopsies of suspicious deaths of children.  In 1992, Dr. Smith was appointed Director of the Ontario Pediatric Forensic Pathology Unit established by the Office of the Chief Coroner of Ontario (the Office) together with the HSC.  Over the years that followed, Smith’s reputation in forensic cases involving children was enhanced as he published articles and gave lectures on issues involving child abuse.  He was responsible for conducting post-mortems and providing written reports, consulting with police and Crown Attorneys as well as local and regional pathologists and testifying in court proceedings.

His interaction with Chief Forensic Pathologist Dr. David Chaisson was limited.  Dr. Chaisson worked out of the Office and had no supervisory role regarding Smith’s performance of his duties.

Dr. James Young and Dr. James Cairns, the Chief Coroner and Deputy Chief Coroner of Ontario respectively, were themselves not trained as pathologists and thus lacked in the qualifications necessary to conduct any meaningful review of Smith’s work or the validity of his opinions.  As revealed by testimony at the Inquiry, Cairns developed a level of confidence in Smith through the course of their relationship which led him to support Smith through mounting criticism over the years.  Young chose not to review court rulings and media articles calling into question Smith’s expertise, concerned that the loss of Smith would create a vacancy which would be difficult to fill given the shortage of pathologists willing to take over his duties.

Between 1981 and 2001, Smith offered expert opinion evidence in various criminal and child protection proceedings on issues including:

-           shaken baby syndrome

-           the unlikelihood that a short-distance fall was the cause of fatal head injury

-           asphyxial death

-           injuries having been inflicted by stabbing as opposed to dog bites

-           sexual trauma

-           timing of infliction of a series of injuries

-           newborn infants surviving for a period of time after birth in circumstances of suspected infanticide

While some matters ended in convictions, acquittals or the withdrawal of charges, others were the subject of negotiated pleas of guilty to lesser offences for reduced sentences.

Problems with Smith’s opinions were raised in several instances.

Smith was one of several Crown witnesses at a lengthy trial of a teenage girl charged with the killing of a child whom she had babysat.  His evidence was that the child had died as a result of shaking without impact.  The defence called 10 experts supporting the position that the death had resulted from a fall.  The trial concluded with a not guilty verdict, the trial judge expressing strong criticism of Smith’s lack of expertise and impartiality.  When this was reported in subsequent media coverage, Smith advised his superiors that he had actually spoken with the trial judge about the case and had received some supportive remarks, a depiction which was subsequently refuted years later at the Inquiry and which Smith conceded had never, in fact, taken place. 

A charge of murdering her daughter was withdrawn against a woman in Kingston after several years on the basis that a review of Smith’s evidence that the child had been stabbed to death was called into question by other experts who, following a second autopsy, concluded that the injuries occurred as a result of dog bites.  He ultimately acknowledged his erroneous beliefs and his lack of familiarity with the distinguishing features of such injuries.  He conceded that his testimony at the preliminary inquiry, dismissing any suggestion of dog bites as being no more likely than bear bites, as being unqualified and unfounded.  He acknowledged having assumed an adversary role, notwithstanding that he had actually given lectures to other experts about the importance of maintaining impartiality. 

Similarly, criminal charges and child protection proceedings in two separate cases were terminated following the receipt of expert opinions from forensic pathologists calling into question the validity of Smith’s position that each child had died as a result of non-accidental head trauma.

One of the most troubling cases involved a mother charged with the murder of her daughter.  Smith gave evidence as to the timing of several inflicted injuries which, together with certain admissions by the mother as to having used force on the child in the past, formed the basis for the charge.  At autopsy, Smith took possession of a hair found in the vaginal area of the child, which hair was observed by police and others who were present.  Following the preliminary hearing, an expert retained by the defence provided an opinion that the injuries had been inflicted within a short time span prior to death, thus making it impossible for the mother to have committed the offence.  Upon being given this conclusion, Smith concurred on the timing of the injury.  The Deputy Chief Coroner for Inquests reviewed the matter and came to a similar conclusion.  As a result, the Crown withdrew the charge.

When the matter was re-investigated by the police over the next two years, it came to light that Smith had the hair in his possession when he had given evidence but made no mention of it.  In fact, he had testified that had he been aware that the physician in attendance at autopsy was concerned that the hair may have been an indication of sexual abuse, he (Smith) may have had a different opinion regarding his post-mortem examination.  On being made aware of what had happened, Dr. Cairns confronted Smith and was not satisfied with the explanation he received.  A male babysitter was ultimately convicted in the death of the child.

On a charge of murder by a man accused of killing his niece, Smith relied upon signs of anal gaping and fresh injuries found by the local pathologist at autopsy to support his opinion that the child had been recently sexually assaulted and had died as a result of asphyxia, possibly due to strangulation, which would have been at a time when she was in her uncle’s care.  A conviction resulted and appeals were unsuccessful.  Over the years that followed, requests were made by counsel for the Association in Defence of the Wrongly Convicted for the slides of the tissues taken at autopsy.  After ignoring multiple requests for the materials, Smith finally denied having them, claiming that he had returned them to the local pathologist .  They were later found by his office staff.  Subsequent advances in forensic pathology and a review by Dr. Michael Pollanen of the Office of the Chief Coroner of Ontario revealed that the findings which had been characterized as indicative of sexual assault were, in fact, post-mortem artefact and there was nothing to support the conclusion of asphyxiation.  On October 19, 2007, the Ontario Court of Appeal quashed the conviction and entered an acquittal.

Other problems arose regarding Smith’s work as a pathologist, in one instance resulting in the staying of criminal charges against a boy’s caregiver on the strength of three defence experts contradicting Smith’s opinion that the child could not have suffered the fatal head injury as a result of a short-distance fall as described by his mother and, in another, leading to a stay of proceedings of charges of murder against a child’s parents due to the trial being unreasonably delayed because Smith failed to provide reports as requested. 

The cumulative effect of this series of cases was Smith’s removal from the roster for the performance of autopsies and his subsequent resignation as Director of the Pediatric Forensic Pathology Unit. 

In 2005, following his appointment as Chief Coroner, Dr. Barry McLellan ordered a full review, including the examination of Smith’s reports, records and testimony, to be conducted by five internationally-recognized forensic pathologists.  In 20 of the 45 cases which they examined, the reviewers disagreed with the opinions of Dr. Smith.  Twelve of those cases had resulted in convictions.

The Public Inquiry

On April 25, 2007, pursuant to the Public Inquiries Act, the Government of Ontario ordered an inquiry into the systematic failings which may have occurred in connection with the oversight of pediatric forensic pathology in the province.  The terms of reference of the Inquiry prohibited any finding of liability and did not permit any legal conclusions.  The Honourable Mr. Justice Stephen Goudge, a member of the Ontario Court of Appeal, was appointed as Commissioner.  He, in turn, retained several lawyers to assist as Commission Counsel.

Several parties were granted standing to appear at the Inquiry, including the Office of the Chief Coroner, the Ministry of the Attorney-General, the Hospital for Sick Children, the College of Physicians and Surgeons, the Association in Defence of the Wrongly Convicted, the Ontario Criminal Lawyers’ Association, representatives of families and individuals affected by Smith and, of course, Dr. Smith himself.

At the direction of the Commissioner, independent research studies were conducted on topics including current controversies in pediatric forensic pathology, the importance of a standard of reliability for the admission of expert evidence, the interaction between forensic pathology and the criminal justice system and illustrations of wrongful convictions in other jurisdictions.

Overview reports summarizing all relevant details for each of the 20 cases were compiled and filed as exhibits.  The format for the 60 hearing days varied.  While certain witnesses such as Drs. Young, Cairns and Smith were heard individually, others, including physicians, counsel and police were heard in panels.  At the end of the Inquiry, a series of policy roundtables was convened.  This permitted a less-formal, policy-oriented discussion to take place with representatives of the medical and legal professions as well as academics, government officials and forensic scientists.  Topics addressed included the organization of pediatric forensic pathology in Ontario, accountability and oversight, best practices of pediatric forensic pathology and the presentation of expert scientific testimony.

Following the receipt of both oral and written submissions, the Commissioner released his Report on September 30, 2008.  It may be accessed at www.goudgeinquiry.ca[1] and may be ordered, both in hardcopy and on CD-ROM, at www.publications.serviceontario.ca.

Highlights and Recommendations

The Commissioner identified several aspects of Smith’s involvement which contributed to wrongful convictions.  These included:

-           Smith’s lack of qualification and training in forensic pathology

-           the absence of any meaningful supervision and oversight

-           misdiagnosis of asphyxia on the basis of equivocal findings[2]

-           misinterpretation of post-mortem artefact[3]

-           misdiagnosis of head injury, including the rejection of plausible accidental causes of trauma[4]

-           the use of the default diagnosis, concluding non-accidental trauma in the absence of any other explanation for his findings[5]

-           failure to give proper consideration to evidence contradictory to his conclusions[6]

-           failure to disregard irrelevant or prejudicial information, often provided to him by police investigators as well as failure to record information provided verbally

-           mishandling of exhibits in order to ensure their availability for subsequent testing

-           failure to complete reports and respond to requests by Crowns and police for explanations and clarification of opinions in a timely manner

-           problematic performance as a witness, including inadequate preparation, overstatement of qualifications, giving testimony beyond his expertise, use of inexact or overly-casual language, lacking impartiality in his role as objective expert and expressing critical attacks on his professional colleagues.

Commissioner Goudge also commented on the lack of any statutory scheme whereby Smith could have been held accountable by the Chief Coroner by means of an effective mechanism to address complaints.  In his view, the role of Chief Forensic Pathologist required statutory authority for meaningful oversight of all forensic pathologists and the establishment of a proper organizational structure delineating roles for a Deputy Provincial pathologist, regional pathologists, a peer review process and quality control over post-mortem examinations and related duties.  A registry of forensic pathologists authorized to conduct post-mortems should be established, including a commitment to accept being retained by defence counsel.

With respect to the Office, a Governing Council ought to be established to make significant personnel and budgetary decisions as well as to administer a public complaints process.

Since the release of the Report, the Ontario Government has enacted Chapter 15 of the Statutes of Ontario, amending the Coroners Act and implementing many of the recommendations regarding the statutory reorganization of the Office, the creation of the Ontario Forensic Pathology Service and the defined role of the Chief Forensic Pathologist.[7]

The Commissioner made a series of recommendations as to best practices for forensic pathologists to follow, including:

-           an orientation towards “thinking truth” as currently implemented by the Office, rather than the model of “thinking dirty” which had been the philosophy of the Office regarding investigation of suspected child abuse for at least part of the period of time of Smith’s involvement (Recommendation 69);

-           where attendance by the pathologist at the scene is not possible, the use of “real time” transmission of video and digital images would enable the pathologist to have the benefit of important observations of the scene and body at the critical initial stages of the investigation (Recommendation 71);

-           all communication of information to the pathologist, whether by police or coroner ought to be in writing or, if not feasible, ought to be otherwise recorded.  The pathologist is expected to be aware of and take care to avoid confirmation bias in considering information provided as to background and other circumstances (Recommendations 74-76);

-           all aspects of the post-mortem examination must be fully recorded so as to be transparent and reviewable.  While this did not mean the autopsy should be audio or videotaped, photography, note-taking and careful preservation and storage of all specimens, samples and exhibits is required pursuant to the guidelines which are presently established by the Office (Recommendation 77);

-           timelines for the completion of post-mortem reports, as well as sanctions for non-compliance, should be established.  Consultation with other forensic services as to their lab and reporting requirements would be beneficial, particularly in urgent cases (Recommendations 80-81).

The importance of clarity and thoroughness in the communication of opinion by the pathologist to other professionals involved in the criminal justice system formed the basis for the Commissioner’s recommendations on the essential contents of the post-mortem report.  Care must be taken to express the concepts in a manner which may be understood by the non-expert (Recommendation 84). 

In this regard, a comprehensive report, outlining in fair and clear language the level of the expert’s confidence in the opinion expressed, detailing alternative conclusions which have been considered and why they have been rejected and identifying any current areas of controversy in forensic science and referring to such literature as may have been essential to the formation of the opinion, was one which would best serve to assist the justice system.  Unlike the format of post-mortem reports, as was the practice during Smith’s tenure, the report should set out the basis for conclusions reached on all issues of importance as well as the evidence relied upon and, as appropriate, the extent to which the opinions of others formed a part of the opinion.  The evidence-based approach utilized by Chief Forensic Pathologist Dr. Michael Pollanen in establishing Autopsy Guidelines in 2005 (revised in 2007), emphasizing reliance on peer-reviewed literature and empirical study, was considered preferable to opinions based largely on clinical experience and unvalidated impressions (Recommendations 86, 90, 91, 94,96).

Commissioner Goudge noted the difficulties experienced in the formulation of terminology to prevent misunderstanding of the level of certainty being expressed, a particularly difficult exercise given the standard of proof applicable in criminal cases.  He urged multidisciplinary consultation between experts and counsel to explore alternatives to phrases like “consistent with”, which are often misunderstood by laymen.  He also encouraged education and training for all concerned to achieve a better understanding of each profession’s role in the process and find more effective methods of communication (Recommendations 86,99,127).

He recommended the establishment of protocols similar to those in use by the Ontario Centre of Forensic Sciences seeking the comments of counsel on all matters in which an expert has testified.  As necessary, this could involve the ordering of transcripts of testimony for review by the Office (Recommendations 116, 126).

He also recommended that in appropriate cases, experts being called by each party might meet prior to trial to identify areas of agreement and contention.  Judges may be able to facilitate such discussions where experts and counsel are willing to engage in such a process (Recommendation 139).

Of particular importance to defence counsel are the Recommendations regarding the trial Judge’s role as gatekeeper with respect not only to the admissibility of the opinion proffered but the qualification of the witness to give it.  In particular, the Report included the following:

Recommendation 129:  When a witness is put forward to give expert scientific evidence, the court should clearly define the subject area of the witness’s expertise and vigorously confine the witness’s testimony to it.

Recommendation 130:  A concern about the reliability of evidence is the fundamental component of the law of evidence…Trial judges should be vigilant in exercising their gatekeeping role with respect to the admissibility of such evidence.  In particular, they should ensure that expert scientific evidence that does not satisfy standards of threshold reliability be excluded, whether or not the science is classified as novel.

Recommendation 132:  The trial judge’s gatekeeping function may be facilitated, in some cases, by written descriptions in the expert reports of the nature of the relevant discipline and how it engages with the various criteria of reliability.  In forensic pathology, these descriptions could include areas of controversy relevant to the case and a reading list of scientific literature on the subject. [8]

Developments in Child Homicide and Forensic Science Issues subsequent to the Goudge Inquiry

A.        Ontario

Systemic Reviews

The Ontario Government established the Shaken Baby Death Review Team in December, 2008.  Consisting of the former Associate Chief Justice of the Ontario Court of Justice and including representation by Ontario’s Chief Forensic Pathologist, the Coroner’s office and Crown and defence counsel, the Team has undertaken the review of criminal convictions in prior “shaken baby” death cases.  Experts from a variety of medical and scientific disciplines have examined transcripts, file records and other materials in over 140 cases to determine whether there are concerns about the validity of the convictions given the developments in scientific opinion.

Other cases in which Smith had involvement for the period of 1981-1991 are also being reviewed to determine the validity of any convictions which resulted.

The Ministry of the Attorney-General of Ontario has also established a Child Homicide Review Team consisting of senior prosecutors with experience in such cases whose mandate is to review suspicious deaths of children under 12 where the cause of death is not immediately apparent, examining issues including time and manner of death to determine whether there exists a viable basis for prosecution before any charges are initiated.

Appellate Authorities

Sherry Sherret-Robinson had pleaded guilty to infanticide having faced a charge of murder arising from opinion evidence given by Charles Smith.  His opinion was that her child had died as a result of asphyxia and he testified that he observed other injuries.  Child protection officials took custody of her older son and she was sentenced to one year in jail.  On the basis of the review conducted by the pathologists who appeared at the Goudge Inquiry, fresh evidence demonstrated that the skull fracture Smith claimed to have seen was a normal developing cranial suture.  The haemorrhages to the neck were dissection-related artefacts from the autopsy. There was, in fact, no swelling of the brain and the findings regarding petechial haemorrhages and congestion of the lungs are common in infant deaths, not indicative of an intentional act.  It appeared that death occurred as a result of accidental asphyxial means in an unsafe sleeping environment.  The Crown conceded that the appeal should be allowed, the conviction quashed and an acquittal entered.  The Ontario Court of Appeal stated:

“The fresh evidence shows that the appellant’s conviction was wrong and that she was the subject of a miscarriage of justice.  It is profoundly regrettable that, as a result of what has been shown to be flawed pathological evidence, the appellant was wrongly convicted.”[9]

In its first decision since the release of the Goudge Report, the Ontario Court of Appeal had occasion to deal with the issue of the admissibility of expert evidence, specifically regarding the significance of a teardrop tattoo below the eye of an accused as having relevance to the issue of identity in a gang shooting.  Reversing the decision of the trial judge excluding the evidence as lacking in sufficient reliability, the Court stated:

“Scientific validity is not a condition precedent to the admission of expert opinion evidence.  Most expert evidence routinely heard and acted upon in the courts cannot be scientifically validated.  For example, psychiatrists testify as to the existence of various mental states, doctors testify as to the cause of an injury or death, accident reconstructionists testify to the location or cause of an accident, economists or rehabilitation specialists testify to future employment prospects and future care costs, fire marshals testify about the cause of a fire, professionals from a wide variety of fields testify as to the operative standard of care in their professions or the cause of a particular event.  Like Dr. Totten, these experts do not support their opinions by reference to error rates, random samplings or the replication of test results.  Rather, they refer to specialized knowledge gained through experience and specialized training in the relevant field.  To test the reliability of the opinion of these experts and Dr. Totten using reliability factors referable to scientific validity is to attempt to place the proverbial square peg in the round hole.” [10]

The Court did, however, go on to list questions which may be relevant to a reliability inquiry where an opinion such as that in the case at bar is being offered:

-           To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training?

-           To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field?

-           What are the particular expert's qualifications within that discipline, profession or area of specialized training?

-           To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available?

-           To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury?

-           To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced?

-           To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert?

-           To what extent has the witness, in advancing the opinion, honoured the boundaries and limits of the discipline from which his or her expertise arises?

-           To what extent is the proffered opinion based on data and other information gathered independently of the specific case or, more broadly, the litigation process?[11]

At the time of publication of this paper, the decision has not yet been considered in the context of opinion evidence with respect to issues arising from a child homicide prosecution.  Accordingly, the capacity to challenge the admissibility of such an opinion, whether on cause of death, timing of infliction of injury, degree of force involved, unlikelihood of alternative medical causes or significance of prior history of bleeding, remains open for consideration.  The questions raised by the Court in Abbey may be illustrative of the development of concern regarding the reliability of any aspect of an expert’s opinion, notwithstanding that the subject may previously have been admitted in evidence.

Continuing Education

On March 26-27, 2010, the Attorney-General funded a Seminar on Current Issues in Science and Law in Child Death Cases.  The program included presentations on expert evidence and evidence-based medicine, the practice of a pathologist, current issues and controversies in medical evidence and perspectives of pediatricians and forensic pathologists on child abuse and head injury.  It also included demonstrations and commentary on examination in chief and cross-examination of a pathologist on a child homicide case and small group discussions by prosecutors, defence counsel, pathologists and judges on best practices, common problems, effective communication and experts’ pre-trial conferences.  The DVD of the program will be made available to counsel through the Ontario Legal Aid Plan.

B.        English Appellate Authority

On June 17th, 2010, following an extensive hearing involving additional evidence from a series of expert witnesses, the English Court of Criminal Appeal decided three separate appeals against conviction in child abuse cases involving allegations of shaking.

In R.v. Henderson[12], the Court upheld a manslaughter conviction against a caregiver described as a “well-respected childminder of whom witnesses spoke highly”.  Of significance was the fact that in addition to “the triad” (widespread bilateral retinal haemorrhages, thin film subdural haemorrhages and encephalopathy), which the court recognized as a “strong pointer of non-accidental injury”, there was also evidence of retinal folds and traumatic axonal injury in the cortico-spinal tracts which was identified by beta-app staining.

The Court essentially rejected the evidence adduced by the defence as to the non-specificity of the former and alternative explanations for the latter, concluding that the prosecution evidence to the effect that these features constituted additional evidence of trauma, justified the verdict of the jury. 

The Court added that the “summing-up” by the trial judge clearly identified the bases on which the jury could accept or reject the evidence, specifically directing them as to the need to “bear in mind that medical evidence in relation to non-accidental head injury is developing…and uncertain and that it may not be possible to identify the cause of death.”  He directed them that they had to be sure that “unexplained death could be excluded” and that there was no obligation on the defence to advance any particular theory as to cause of death.[13]

In R. v. Butler, the Court came to a different conclusion, setting aside a conviction for the offence of causing grievous bodily harm.  Central to the reasoning of the Court was the evidence that the child recovered fully following the discovery of retinal haemorrhages which “told against a major shaking incident” as full recovery would not have been expected had there been such an incident.  There was evidence of both fresh and old blood seen on examination.  In the opinion of one of the experts, the chances were even as between non-accidental head injury and unknown causes.  The issue of what force would have been necessary was difficult; further, as one expert testified, a re-bleed would require lesser force.  The summing-up by the trial judge was also considered to be defective in that it failed to direct the jury as to the possibility of an unknown cause which they would have to reject in order to convict.  The fresh evidence did not have to be considered having regard to what was called at trial.

In R. v. Oyediran, the Court upheld a manslaughter conviction against the father of a child on the basis that there was evidence on which the jury could have rejected the defence claim that the child had fallen from his mother’s arms, given the “complex, developing and (as yet) necessarily uncertain” evidence of biomechanics regarding injuries expected from a fall as distinct from shaking.  In addition, there was evidence of an unexplained fracture of the child’s left arm which could not be explained by the fall and which, in the opinion of at least one expert,  had occurred at about the same time.  This injury, together with what should have been expected as to a significant change in the child’s behaviour after a serious brain injury, had gone unreported and apparently unnoticed by the child’s father.

The Court took pains to emphasize that the judgment constituted legal, not medical authority and “neither adds to nor subtracts from the strength of the evidence afforded by the triad.”[14]

C.        The U.S. Experience

Appellate Authority

Perhaps the most significant appellate authority on this issue is the decision of the Wisconsin Court of Appeals in State v. Edmunds.[15]

Based essentially on evidence of the triad, the accused caregiver was convicted of first degree reckless homicide and sentenced to 18 years.  Motions and appeals were dismissed in 1997.

Based on recent developments in “shaken baby syndrome”, she filed a motion for a review of the conviction.  An evidentiary hearing was convened in circuit court during the course of which she presented expert evidence from six witnesses describing the controversy in the medical community.  One of the witnesses was the pathologist who had originally testified for the prosecution but who now held a different opinion having regard to his experiences since the original trial.

Issues raised by the defence included:

a.       Was the triad “pathognomonic” of abusive trauma by shaking?  Did such evidence mean specifically and exclusively that such shaking had occurred?

b.      Alternatively, has the research shown that shaking alone cannot generate sufficient force to cause the injuries involved?

c.       Are there other causes which “mimic” child abuse and which may explain all signs previously related to shaking, either with or without impact?  Could an infection or clotting disorder having caused the subdural haemorrhage?

d.      In particular, are retinal injuries exclusively diagnostic of shaking or are there other causes of retinal folds and retinoschisis as, for example, short -distance falls?

e.       What was the significance of the fact that the child had apparently suffered a brain injury several weeks before her death?  Could a chronic subdural hematoma re-bleed?  Could that have occurred through choking, infection or even spontaneously?  Further, what significance does the fact that there were signs of injury having been experienced 24-28 hours before death have on the culpability of a caregiver who had only been with the child for an hour?

f.       Was the child particularly vulnerable to intracranial bleeding by virtue of the fact that she had a particular condition in which she had enlarged spaces in her brain, resulting in a predisposition to bleeding?

g.      Could she have suffered a laryngospasm in the course of aspirating formula, resulting in brain swelling and bleeding and retinal haemorrhage?

h.      Could the degree of force needed to cause these injuries have been much less than that described by prosecution experts at trial?

i.        Whereas prosecution witnesses testified that there could be no lucid interval between the traumatic episode and loss of consciousness, thereby rendering the accused the only one who could have caused the injuries, subsequent research indicated a much longer time period was possible.  In fact, the original pathologist himself had dealt with a case in which a child hospitalized with triad-related injuries had been described as clingy and fussy for some 16 hours after admission during the course of which time staff had not detected signs of brain injury.  What time period was now considered reasonable?[16]

After discussing the issues from the standpoint of the factors involved in appellate review on the basis of what could be characterized as newly-discovered evidence, the Court concluded:

“…there has been a shift in mainstream medical opinion since the time of Edmunds’s trial as to the cause of the types of injuries Natalie suffered.  We recognize, as did the circuit court, that there are now competing medical opinions as to how Natalie’s injuries arose, and that the new evidence does not completely dispel the old evidence.  Indeed, the debate between the defense and State experts reveals a fierce disagreement between forensic pathologists, who now question whether the symptoms Natalie displayed indicate intentional head trauma, and pediatricians who largely adhere to the science as presented at Edmunds’s trial.  However, it is the emergence of a legitimate and significant dispute within the medical community as to the cause of those injuries that constitutes newly discovered evidence.”[17]

A new trial was ordered.  The State discontinued the prosecution.

Prof. Deborah Tuerkheimer’s research on the problems of wrongful convictions in shaken baby cases outlines in detail how scientific developments have called into question not only whether an individual may be wrongfully convicted but whether there was any crime committed in the first place.  Prosecutors continue to receive training based on opinions which have now been called into question and experts called on to support the prosecution’s case may adhere rigidly to viewpoints which may no longer be unchallengeable.  Reliance may be placed on confessions which, themselves, may not be reliable.  Resources may not be available to the defence to mount a meaningful challenge to opposing experts.  Juries may be called upon to decide between competing opinions by equally-qualified witnesses on emotionally-charged issues.  Legal principles limiting the scope of appellate review and the introduction of new evidence may make the reversal of a conviction extremely difficult.[18]

Significantly, the criminal justice system, having placed considerable reliance on medical evidence as providing virtually the entire basis for a prosecution in a child homicide case, is not well-equipped to address and incorporate changes occurring through the process of ongoing scientific research.

Prof. Tuerkheimer proposes several ways in which these challenges may be met, including:

a.       A comprehensive inquiry by the National Academy of Sciences or a newly-created National Institute of Forensic Sciences[19]

b.      The dissemination of information about scientific developments to judges, prosecutors and defence counsel[20];

c.       The development of institutional mechanisms for tracking and evaluating cases in which the basis for a prosecution places significant reliance on scientific claims as has occurred in shaken baby cases;

d.      Closer judicial scrutiny of expert evidence to confirm the scientifically-valid basis for the opinion presented. [21] Definitive statements such as negativing the possibility of a lucid interval ought to be excluded;

e.       Juries should be given clear instruction on how to weigh contested expert testimony;

f.       Evidence on the unreliability of police confessions should be permitted in the appropriate cases;

g.      The defence should have access to qualified experts.

h.      Innocence Commissions with quasi-judicial authority should be established to review those convictions whose validity has been undermined.  In this regard, she cites the work already initiated by the Ontario government as a result of the Goudge Inquiry.  The advantage of such an institution is that a system-wide critique may be addressed;

i.        Reduced barriers to habeas relief, including a freestanding innocence claim and wider review of evidence sufficiency, should be established, as well as the additional ground of “the interests of justice” as a basis for appellate relief by the ordering of a new trial.

Prof. Tuerkheimer concludes:

“The cautionary tale of SBS demonstrates the need for the system to shift its orientation to better harmonize the realities of science and the dictates of criminal justice.  If we heed the call, we will find ourselves in the midst of a fundamental transformation.  Unlike the famous criminal justice revolution of the past, movement toward a new equilibrium does not originate from on high.  Rather, it is bottom-up, diffuse and easily overlooked.  Nonetheless, one central organizing principle of this movement may be distilled: various features of our system for determining guilt are antithetical to the dictates of justice.  A reasoned response is past due.”[22]

Lessons Learned (or to be Learned)

1. Limitations on the resources for the training of a forensic pathologist may result in someone lacking in qualifications filling the role where needed.
2. When this occurs, it may be years before the person’s limitations may be discovered.  This is particularly the case when there is no meaningful oversight by qualified supervisors and no mechanism in place to address problems as they may arise.
3. The unqualified pathologist may have enormous impact on a great many lives.  These include not only the individuals who may be wrongly convicted after trial but may also include those who may choose to plead guilty for fear of greater punishment in the event of conviction, family members of those prosecuted or place under suspicion, family members of the deceased who have an expectation of justice and all participants in the criminal justice system who would have anticipated and relied upon the expertise and professionalism of the expert.
4. Prosecutions which have, as their basis, forensic opinion evidence, are subject to the vagaries of evolving scientific research.[23]  The standards for the qualification of an expert and the admission of the evidence in question may not provide an adequate basis for challenge on issues including the reliability of each aspect of the opinion as well as the expertise of the witness to express it.  Accordingly, the forum of a courtroom may prove problematic for a meaningful assessment of the validity of the opinion, much less the application of the evidence to the determination of guilt to the standard of proof beyond a reasonable doubt.
5. It is not only difficult for the expert to be fully familiar with scientific developments, it is even more of a challenge for defence counsel to be apprised of new research, particularly when there may be limitations on the resources required to retain a properly-qualified expert to present the evidence.
6. The language used by a witness to present the degree of certainty of an opinion with precision and accuracy continues be problematic.
7. Issues involving pediatric forensic pathology are not limited to the shaken baby syndrome.  There is a wide range of additional areas of controversy, any one of which may be the central issue in a prosecution. 
8. The mechanism for post-conviction review requires government commitment of significant resources.

[1] The Honourable Mr. Justice Stephen T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario, Report (Toronto: Ontario Ministry of the Attorney General:2008)

[2] Inquiry into Pediatric Forensic Pathology in Ontario, supra at pp.148-52

[3] Inquiry into Pediatric Forensic Pathology in Ontario, supra at pp.145-47

[4] Inquiry into Pediatric Forensic Pathology in Ontario, supra at pp.152-53

[5] Inquiry into Pediatric Forensic Pathology in Ontario, supra at pp.156-58

[6] Inquiry into Pediatric Forensic Pathology in Ontario, supra at pp.153-56

[7] Coroners Amendment Act, 2009, S.O. 2009, c.15

[8] Inquiry into Pediatric Forensic Pathology, supra, at pp. 475-500

[9] R. v. Sherratt-Robinson [2009] O.J. No. 5312 at para.9

[10] R. v. Abbey [2009] O.J. No. 3534 at para.109

[11] R. v. Abbey, supra, at para.119

[12] [2010] EWCA Crim 1269

[13] R. v. Henderson, supra, at paras. 76-79

[14] R. v. Henderson, supra, at para.7

[15] 2008 WI App 33; 746 N.W.2d590

[16] State v. Edmunds,, supra, at para. 15; see also Appellant’s Brief, pp. 11-24

[17] State v. Edmunds, supra, at para.23

[18] Deborah Turkheimer,” The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts”, 87 Wash. U. L.R. 1.  The brief summary of some aspects of the article do not do justice to the extensive and invaluable efforts of Prof. Tuerkheimer on this subject.

[19] Turkeheimer, “The Next Innocence Project”, supra at pp.57-8.  In this regard, reference may also be made to the National Research Council of the National Academies February, 2009 Report, “Strengthening Forensic Science in the United States: A Path Forward”, available at http://www.nap.edu/catalog.php?record_id=12589.  While not mentioned by Prof. Tuerkheimer, reference may also be made to the NACDL “Principles and Recommendations to Strengthen Forensic Evidence and Its Presentation in the Courtroom”, adopted by the Board of Directors Feb.27, 2010).

[20] Deborah Tuerkheimer, “Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency, March 27, 2010, Alabama Law Review, forthcoming, available at: SSRN: ssrn.com/abstract=1579394 at pp. 82-89

[21] The issue of the admissibility of expert evidence supportive of a diagnosis of SBS, notwithstanding that there is significant controversy on the area, is addressed in depth by Edward Imwinkelried, “Shaken Baby Syndrome: A Genuine Battle of the Scientific (And Non-Scientific) Experts, October 2009, which may be downloaded at: http://ssrn.com/abstract=1494692.  The author concludes that the evidence is still properly admissible due, in part, to the statement by Justice Blackmun in Daubert that proffered scientific evidence can be “shaky”, yet admissible: Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579,596 (1993)

[22] Tuerkheimer, “Criminal Justice at a Crossroads”, supra, at p.89

[23] An overview of many of the issues is addressed in Stephen Cordner, Jonathon Ehsani, Lyndal Bugeja and Joseph Ibrahim, “Pediatric Forensic Pathology: Limits and Controversies”, Inquiry into Pediatric Forensic Pathology in Ontario, Independent Research Studies, supra, Vol. 1