SBS: Onrario: Shaken baby convictions cause ‘concern’

 Mar 14 2011

 

Allison Cross Staff Reporter

 

Problems with four “shaken baby” death cases have sparked concern over possible miscarriages of justice. Two of these cases included testimony before a jury by disgraced former pathologist Charles Smith. Criminal convictions were levied in all four cases, according to an Ontario review of child fatalities. “We’ve notified the parties involved and we’re prepared to expedite (legal) proceedings if the parties decide to (take it to court),” said Attorney General Chris Bentley, in an interview. “I won’t presume to know what they will or won’t wish to do.” Bentley has also forwarded the findings to Ontario’s chief prosecutor. The “Shaken Baby” Death Review Committee report, released Monday, comes on the heels of a series of recent child death exonerations prompted by Smith’s faulty forensic pathology work. The review examined 48 criminal convictions that relied on evidence of abusive head trauma — commonly referred to as shaken baby syndrome. The cases in question took place between 1986 and 2006, and were examined by medical and legal experts, including Dr. Michael Pollanen, the province’s chief forensic pathologist. Forty-eight cases were whittled down to 10. Those 10 underwent a more in-depth review by an international medical panel. The review itself was launched in 2008 at the recommendation of Justice Stephen Goudge, who headed the Inquiry into Pediatric Forensic Pathology in Ontario. That inquiry was prompted by mistakes Smith made in 20 child death investigations, 12 of which resulted in convictions. Goudge’s final report called on the province to review shaken baby deaths from the past 25 years to determine if any wrongful convictions resulted from evidence of shaken baby syndrome — a diagnosis some have called a questionable science. An evolution in the science surrounding the injury, and the subsequent controversy, warranted a thorough review of shaken baby death cases, the Goudge Report said. Monday’s report explained why the four cases were a cause for concern. Two cases contained “atypical features,” and the medical panel could not agree on whether the cause of death was the result of head trauma. In the third case, the panel agreed head trauma was the cause of death, but couldn’t agree on whether a short fall could have caused the injuries. In the fourth case, the panel determined that although the diagnosis of head trauma was accurate, the expert evidence and medical opinion on which the diagnosis was based during trial was incorrect. Bentley would not name the individuals involved in the four cases and said it will be up to them whether they come forward to the public. None of those convicted in the cases are currently in custody, the report says. Lawyer James Lockyer said Monday he “might have expected a few more” than four cases to raise concerns. Lockyer, director of the Association in Defence of the Wrongly Convicted, has worked on the cases of several Ontarians who were exonerated after being wrongly convicted based on Smith’s testimony. Depending on how those convicted in the four cases decide to proceed, Bentley said his ministry could, for example, help the cases move through the Ontario Court of Appeal more quickly than normal. “As the Charles Smith cases were reviewed, we worked with counsel who had been retained to speed matters up,” he said. In terms of how individuals will be supported and compensated, Bentley said that will be determined if and when any of those convicted in the four cases come forward. Child advocate Suzan Fraser would like to see a firm commitment from the government to help surviving children affected by any miscarriage of justice due to pathology errors. “This was a review by adults of the criminal cases regarding the rights of adults,” said Frazer, a lawyer in Toronto. “What remains missing for me . . . is the potential for kids to have been affected by the work of pathology in a way that wasn’t criminal. Maybe they were separated from their parents or their families. We still don’t have any commitments from the government to look at their interests and how they were affected.” http://www.thestar.com/news/crime/article/953990--shaken-baby-convictions-cause-concern-report