SBS: Ontario Appeal court acquits Dustin Brant (another Dr Charles Smith case)

Pat Hewitt,

A man who pleaded guilty in the death of his infant son because of findings by now-disgraced pathologist Charles Smith says he's feeling "a lot lighter" after Ontario's highest court quashed the conviction Wednesday.

The Ontario Court of Appeal acquitted Richard Brant of aggravated assault, saying that his conviction was "unreasonable" and "a miscarriage of justice."
Brant, now 38, was charged in 1993 with manslaughter in his baby's death the previous year. He eventually pleaded guilty to the lesser charge and was sentenced to six months in jail.
Clutching pictures of his son Dustin, Brant said he was relieved his name had finally been cleared.
"Good, very good to get all this weight off my shoulders," Brant said outside the courthouse. "Make sure that nobody has any more doubts. You know I'm innocent, I did nothing so it makes me feel a lot better, a lot lighter now."
Justice Marc Rosenberg told Brant that this has been "a terrible ordeal for you" as the court set aside his conviction for the two-month-old boy's death.
Both the Crown and defence asked the three-judge panel to acquit Brant, who had always maintained his innocence despite his plea.
Brant was walking with Dustin in his stroller when he found the boy lifeless with thick, red foam around his nose in November 1992, court heard. The baby was rushed to Belleville General Hospital and was taken off life support the next day.
Smith — who was considered a pre-eminent child forensic pathology expert at the time — put forward a powerful case that the baby had died from shaken baby syndrome.
Defence lawyer James Lockyer told the appeal court Smith had ignored autopsy results from the neuropathologist who had found the baby died of pneumonia and respiratory failure, and suggested those results be filed "in the garbage".
His client was facing an impossible dilemma — a manslaughter conviction or a six- month sentence for aggravated assault, said Lockyer.
Both the defence and Crown told the court there is no evidence that Brant had ever harmed Dustin.
An inquiry found that errors in Smith's work were responsible for several people being wrongfully convicted and sent to prison. His medical licence was revoked earlier this year.
Brant, who now works as a truck driver in Moncton, said the last 19 years have been difficult.
Early on there were "the bad looks, the time incarcerated," he said.
He doesn't think of Smith, but said he should be held responsible.
"I think he needs to go to jail for a little while to see what he put a lot of people through," said Brant. "He ruined a lot of people's lives."
Brant intends to seek compensation, said Lockyer.
"It's not going to make up for what he's been through, but it's something," the lawyer said.
http://www.google.com/hostednews/canadianpress/article/ALeqM5i12Gh2qH2MEY-DfVIBJuaQqpibCw?docId=6753826

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

SIDS: Ontario: Rayden Bush

Lou Whitmire

MANSFIELD — A 5-month-old baby boy died today at his  home from what is thought to be Sudden Infant Death Syndrome.
Richland County Coroner Dr. Stewart Ryckman said there was no obvious trauma seen on the body of Rayden Michael Bush, and called it a SIDS-type death. An autopsy will be done Thursday in Summit County.

SIDS is a syndrome marked by the sudden death of an infant that is unexpected by history and remains unexplained after a thorough forensic autopsy and a detailed death scene investigation.

“There’s no evidence of anything foul,” he said from the duplex, which the parents of the child were just moving into today.

The baby, born Sept. 9, is the son of Jason Bush, 19, and Jessica Wingrove, 21.

Rayden was apparently asleep on a mattress on the floor upstairs with his sister Addisyn Bush, 2, and their father when the father noticed the baby was not breathing and called 9-1-1, Ryckman said.

Their landlord, Wally Toward, was at the house because the gas company was turning on the gas today for the family, he said.

Employees of Wal-Mart Superstore in Ontario, where the baby’s mother worked, were on the scene Wednesday afternoon. They brought her home from work.

Mansfield police Juv. Det. Jeff Shook is handling the case.

lwhitmire@nncogannett.com
419-521-7223
http://www.mansfieldnewsjournal.com/article/20110216/NEWS01/110216008/Police-Springmill-Street-baby-death-not-suspicious?odyssey=tab%7Ctopnews%7Ctext%7CFRONTPAGE

SBS: Ontario: April Luckese

Louie Rosella : Jan 11, 2011
Last Wednesday was supposed to be Duy-An Nguyen's last day at daycare.
It ended up being the last day anyone would ever see her awake and full of life.
On Friday, the 14-month-old Mississauga girl died at the Hospital for Sick Children in Toronto after being taken off life support. She had suffered “severe head trauma,” after being violently shaken, according to family members.
"This has been so sad and devastating for the entire family, especially the parents," said the girl's uncle, Johnson Nguyen. "My sister is dying inside."
Emotion prevented Dan Nguyen, a cousin, from continuing on after beginning, "when you have to bury your own little child..."
The baby’s death came two days after she was found unconscious and unresponsive at a Mississauga home. The Asta Dr. duplex, in the Cawthra Rd./QEW area, belongs to April Luckese, 35, who also operates an unlicenced daycare, April’s Daycare, out of the home.
Today, one day before the toddler is to be buried, Luckese, a married mother of two, appeared in Brampton court charged with second-degree murder in the girl's death.
She was remanded into protective custody by Justice of the Peace Hilda Weiss and will return to court Jan. 21, possibly for a bail hearing.
Luckese’s lawyer, Bruce Daley, said he was concerned for Luckese’s safety and requested his client be placed in segregation while in custody.
“When a person is in custody, quite often on a charge like this, other inmates are not particularly kind,” he said. “So I wanted to be as protective as the system would allow.
“At the moment, she's presumed to be innocent and she ought not be put in any physical jeopardy whatsoever.”
Luckese was initially charged with aggravated assault endangering a life and released on $15,000 bail. On Friday, she was arrested again and charged with murder.
The Nguyens had planned that Wednesday — the day Duy-An was injured — would be her last in Luckese's care, the uncle said, adding the family had made other daycare arrangements. She had only been there for two days.
Meanwhile, outside Luckese's home, someone taped a teddy bear to a tree in the front yard, along with a red sign that reads: “Every Canadian mother is heartbroken. Du-Yan (sic) Nguyen R.I.P.”
Johnson Nguyen said his sister, An, and her husband, Loc Nguyen, were paranoid about leaving their child in someone else's care. The couple approached April’s Daycare only after An’s maternity leave expired and she returned to work selling hearing aids, Nguyen said.
But after using Luckese’s services for just two days, An Nguyen received permission to start bringing her child to work, her brother explained.
“She was so excited, because she knows that she can take her along (to work now),” he said. “But she never got that chance.”
Duy-An was already unconscious at about 4:30 p.m. last Wednesday when Trevor Doyle arrived at Luckese’s home to pick up his two-year-old son from April’s Daycare.
He recalled a “weeping” Luckese coming down the stairs cradling Nguyen. She told him the baby wouldn’t wake up.
“She turned the baby to me so I could see the baby’s face,” Doyle said, adding he didn’t see any visible signs of injury. “I (held) the arm and could feel a very slight pulse.”
Doyle said he demanded someone call 9-1-1.
Within minutes, paramedics arrived. Shortly after entering the home, a paramedic came “sprinting” out with the baby in his arms, according to Doyle.
The child's mother arrived shortly after, he said, and spoke with police before climbing inside the ambulance to be with her daughter.
Doyle said he then went back to the front door, where Luckese appeared.
“She repeated that she was sorry. She said, ‘I’m sorry, I’m sorry,’” Doyle said, adding he didn't know what she was apologizing for.
Peel Regional Police Cst. Wayne Patterson said an autopsy has been completed, but police won't reveal the cause of death.
However, family members have stated investigators told them the girl was violently shaken prior to her death.
Police sources say they upgraded the charge to murder due to Luckese's position as a child caregiver and, they allege, her knowledge of the potentially fatal consequences of Shaken Baby Syndrome.
lrosella@mississauga.net
http://www.mississauga.com/news/article/927605--toddler-fatally-shaken-family

SBS: Ontario: Dinesh Kumar

KIRK MAKIN:  Globe and Mail Update: Jan. 07, 2011

Dinesh Kumar, seen with his wife, Veena, in 2008, pleaded guilty to murder in the death of his son 1992. The Crown will drop the case against him. (Ashley Hutcheson for The Globe and Mail) Later this winter, Dinesh Kumar will finally get to proclaim his acquittal in the death of his baby son almost two decades ago by posting a notice at the Hindu temple he attends. “They should know that I’m not a criminal,” the 44-year-old Toronto man said.

Mr. Kumar is full of optimism after learning that the Ontario Crown is moving to overturn his 1992 conviction for the death of his five-week-old son, Gaurov, as a result of doubts that have surfaced concerning medical testimony used against him.
In a court document unsealed Friday, Crown counsel Gillian Roberts said that changes in medical knowledge about infant brain injuries have seriously undermined Mr. Kumar’s conviction.
She said that in view of medical controversy that surrounds the notion of shaken baby syndrome, “no reasonable jury could convict the appellant of any form of homicide in relation to his son, Gaurov.”
At a court hearing to be held in the coming weeks, the Crown will formally ask that Mr. Kumar be acquitted of criminal negligence causing death.
After the contents of the Crown submission were unsealed, Mr. Kumar was ecstatic that his ordeal is near an end. “I’m feeling great,” he said in an interview. “I can’t explain how happy I am. I have suffered so much. I thought I would die with this criminal record, but now I know that it’s clear.”
Mr. Kumar said that his family and friends always believed in his innocence, but some members of his community were less convinced. “They think that when you get blamed for this kind of crime, everybody points at you as if you need to be punished,” he said.
The Kumar case was among 20 cases Mr. Justice Stephen Goudge scrutinized at an inquiry into errors and botched autopsies conducted by Charles Smith during his two decades as Ontario’s top forensic pathologist.
James Lockyer and Alison Craig, lawyers for the Association in Defence of the Wrongly Convicted, received permission last year to reopen the case. They maintained that Dr. Smith’s theory – that baby Gaurov was a victim of shaken baby syndrome – was scientifically unsustainable.
Mr. Kumar had emigrated from India just two years prior to the death of his baby. He married, and Gaurov was born shortly afterward.
Just five weeks later, Gaurov screamed in his sleep one night. Mr. Kumar said he rushed over to the child’s crib to find him gasping and bluish. Doctors determined later that night that Gaurov was brain dead. A day later, on March 20, 1992, he was removed from life support.
There was little time for Mr. Kumar and his wife, Veena, to mourn. Based on Dr. Smith’s autopsy conclusions, police quickly homed in on Mr. Kumar as a killer. On June 26, 1992, he was arrested.
The case stood in marked contrast to many other wrongful conviction cases because of the fact that Mr. Kumar had pleaded guilty. He insisted Friday – and in court affidavits – that he believed he had no hope of counteracting damning testimony Dr. Smith was set to deliver for the Crown.
The temptation to plead guilty was enhanced by an extraordinarily lenient sentence offered by the Crown. Mr. Kumar received 90 days in jail for criminal negligence causing death – a far cry from the term of life imprisonment he had faced for second-degree murder.
Ms. Roberts said it will never be known whether Mr. Kumar is genuinely innocent in the death, but his legal culpability is in serious doubt.
“In short, the justice system has worked exactly as it should in this case,” she said in the court document. “It accepted a valid guilty plea in a case based on valid current medical knowledge. It has now acted to respond when the prevailing understanding of that medical knowledge has changed and the appellant has explained his guilty plea.
“This case is not like other Dr. Smith cases where significant mistakes were made,” she added. “To the contrary, the medical evidence on which the case was based in 1992 reflected the prevailing views of the day. In 2010, evidence has evolved so that what was viewed as diagnostic in 1992 is now viewed only as strongly suspicious, and we can no longer say why baby Gaurov died.”
Mr. Kumar and his wife decided against having any more children after Gaurov died because they could not stand the thought of losing another child.
http://m.theglobeandmail.com/news/national/toronto/crown-seeks-to-overturn-mans-conviction-in-his-sons-death/article1861433/?service=mobile

SIDS: Kozlof & Riddell charged with manslaughter in Ontario

ERICA BAJER

They seem like the perfect parents.

That's why manslaughter charges against Justin Kozlof and Candice Joy Riddell are incomprehensible to family and neighbours. Kozlof, 25, and Riddell, 26, are charged in connection with the death of their three-week-old son Kavan Riddell-Kozlof on Thursday. "This blew me away because he's so good with kids," said Tom, Kozlof's step-father, who attended the couple's brief court appearances Monday. They are scheduled for bail hearings Tuesday. "I can't see him doing it," said Tom, who didn't wish to have his last name published. "You can't make a judgment — who knows what really happened. "I don't want nobody to judge either one of them. The truth will come out." He said Kavan is the couple's second child together. They also have a one-and-a-half-year-old daughter named Kyra. "He was a cutie," Tom said of Kavan, who was eight pounds and nine ounces when he was born on Oct. 26. "He was a long baby — with long fingers and toes." Tom, who raised Kozlof since the time he was an infant, said he'll stand by his son throughout this ordeal. Neighbours Megan Davis and Joanne Vanovereek can't believe the couple is charged.

"I've never seen a dad like Justin," Davis said. "He was always with his kids." She said the family could often be seen going to the park and for walks. "This is hard to wrap your head around," she said. Vanovereek said everyone around the couple's Sheldon Avenue apartment complex believed the baby died of Sudden Infant Death Syndrome. "I would never have dreamed (they would be charged)," she said. "I don't believe that, I can't believe that." Neighbour Debra Donaldson was also shocked to hear of the charges.
"They are a really nice couple," she said. "They looked like they just totally loved each other." Her heart goes out to the family. "The hardest part is it's a parents' worst nightmare come true," she said. "I couldn't imagine what they are going through or how they're feeling — devastated." Donaldson said she heard that the parents went to check on Kavan early Thursday morning and he wasn't breathing. "The child was in distress when our officers arrived," said Insp. George Flikweert, head of the Chatham-Kent Police Service's major crime unit. "There were attempts to revive the child." He said the 911 call was made from inside the home and the baby was taken to Chatham-Kent Health Alliance where he was later pronounced dead. Police said an autopsy was conducted by a forensic pathologist in London on Thursday and Friday. The parents were arrested Saturday. The inspector said this was the first time police were called to the couple's home. Flikweert said while police know the cause of Kavan's death, it isn't being released. Information about the circumstances surrounding the death also weren't released. "Manslaughter means there's culpability in a death . . . that a person had a hand in someone else's death," he said. Flikweert said information about the charges wasn't released sooner because police wanted to canvass the area first. "We didn't want to compromise our investigation," he said. "We want people's pure recollections." The case remains under investigation.
http://www.chathamdailynews.ca/ArticleDisplay.aspx?e=2856849#

SBS: STATES SHOULD REVIEW ALL CONVICTIONS AS IS CURRENTLY UNDER WAY IN ONTARIO

SHAKEN-BABY SYNDROME: STATES SHOULD REVIEW ALL CONVICTIONS AS IS CURRENTLY UNDER WAY IN ONTARIO; DEBORAH TUERKHEIMER

"What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.

In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States." (Publisher's note: Ms. Tuerkheimer is referring to the Goudge Inquiry which reviewed many case of the disgraced pathologist Dr. Charles Randal Smith.")

DEBORAH TUERKHEIMER; OP-ED; NEW YORK TIMES; Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan."

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Background: The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers. The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation. The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges. William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes. In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling. Several of the cases involved the harm caused to innocent persons because of Smith's use of the so-called "shaken-child syndrome" to ground a finding of criminality. The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, misstating evidence, chronic tardiness, and the catastrophic misinterpretation of findings. The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."

http://smithforensic.blogspot.com/2010/09/shaken-baby-syndrome-states-should.html