Dr. Smith and the shadow of a doubt

Did tes­ti­mony of a pathol­o­gist later to be dis­cred­ited help a mur­derer es­cape jus­tice?

The Hamilton Spectator - - FRONT PAGE - SU­SAN CLAIRMONT

IT IS WELL KNOWN that the bo­gus ev­i­dence of dis­graced pe­di­atric pathol­o­gist Charles Smith led to peo­ple be­ing wrong­fully con­victed of killing chil­dren.

But what if he also caused a killer to be wrong­fully ac­quit­ted?

The trou­bling ques­tion is raised now as Shelly Kuzyk, 45, faces an ag­gra­vated as­sault charge af­ter an in­fant she was babysit­ting was brought to McMaster Chil­dren’s Hospi­tal with mul­ti­ple bro­ken bones.

In a Hamil­ton court­room 18 years ago, a jury found Kuzyk not guilty of sec­ond-de­gree mur­der in the death of an­other child in her care, 15month-old Tristin Tooke. Dur­ing that trial Smith was called as a pow­er­ful ex­pert wit­ness by the de­fence and his tes­ti­mony may have been the key to the jury’s de­ci­sion to find Kuzyk not guilty.

Though the 1999 trial was care­fully cov­ered by me­dia at the time, what was never re­ported was that Smith’s tes­ti­mony was so shock­ingly out of whack with what the Crown’s med­i­cal ex­perts tes­ti­fied to that the dis­crep­ancy prompted the Hamil­ton po­lice to write a let­ter to the re­gional coroner.

The po­lice asked that “this mat­ter be re­viewed

with the in­tent to re­duce the op­por­tu­nity for ex­perts from the same of­fice pro­vid­ing wildly con­flict­ing opin­ions about the tim­ing of in­juries dur­ing crim­i­nal in­ves­ti­ga­tions.”

The po­lice never re­ceived a re­sponse to that let­ter, says Staff Sgt. Steve Hrab.

Hrab was the homi­cide de­tec­tive in charge of in­ves­ti­gat­ing Tristan’s 1997 homi­cide. He ar­rested Kuzyk for mur­der. His name is on the let­ter sent to the coroner’s of­fice. By fluke, he is now in charge of the cur­rent ag­gra­vated as­sault case against Kuzyk.

All the doc­tors who tes­ti­fied at the mur­der trial, in­clud­ing Smith, agreed Kuzyk’s ver­sion of events was im­pos­si­ble. She claimed Tristan re­ceived his fa­tal head in­juries by rolling off a wa­terbed onto a car­peted floor.

But the is­sue at stake was the tim­ing of Tristin’s fa­tal in­juries.

Dr. Chi­tra Rao, a world renowned ex­pert in foren­sic pe­di­atric pathol­ogy, did the au­topsy. She told the trial the boy sus­tained his in­juries in a four- to six-hour pe­riod when Kuzyk was known to be alone with the child. Doc­tors who tried to save Tristan’s life agreed with that time frame. Smith, how­ever, ex­panded the win­dow of op­por­tu­nity by sev­eral more hours, open­ing up the pos­si­bil­ity Kuzyk’s ex-fi­ancé had caused the in­juries dur­ing a brief visit with the child.

The ex-fi­ancé was never charged and de­nied hurt­ing the baby boy.

It was, that jury heard, the first time Smith had ever tes­ti­fied on be­half of the de­fence. He was lauded as the ul­ti­mate ex­pert in his field by de­fence lawyer Roger Ya­chetti (who told The Spec this week he has no con­cerns with his client’s ac­quit­tal), by Jus­tice David Crane and by him­self.

“You will for­give me for boast­ing,” Smith said at one point. “I do more pe­di­atric foren­sic work than any­one else in the coun­try.” The prob­lem is, he did it very, very badly. Smith’s fall from grace is one of the big­gest med­i­cal and le­gal scan­dals in Cana­dian his­tory. His ca­reer be­gan un­rav­el­ling in about 2003 (four years af­ter Hamil­ton po­lice raised con­cerns) when peers un­cov­ered se­ri­ous and pro­lific flaws in his work.

Even­tu­ally, at least a dozen peo­ple would have their child mur­der con­vic­tions over­turned, the On­tario gov­ern­ment would fi­nan­cially com­pen­sate the wrong­fully con­victed and their fam­i­lies, Smith would be stripped of his med­i­cal li­cence and a mas­sive pub­lic in­quiry would ex­am­ine Smith’s fail­ures and the state of foren­sic pathol­ogy in Canada.

(The in­quiry re­vealed Smith had no spe­cial train­ing in foren­sics, un­like Hamil­ton’s Rao who did.)

The Col­lege of Physi­cians and Sur­geons said Smith’s opin­ions were “ei­ther con­trary to, or not sup­ported by the ev­i­dence,” were “mis­lead­ing” and that he acted “as an ad­vo­cate” rather than of­fer­ing un­bi­ased opin­ions.

Soon af­ter the not-guilty ver­dict and years be­fore the Smith scan­dal, the Crown be­gan an ap­peal of Kuzyk’s ac­quit­tal on the mur­der charge, but then aban­doned the process, say­ing there were no solid grounds.

Lawyer As­gar Manek, who is rep­re­sent­ing Kuzyk on her cur­rent charge, says his client’s le­gal his­tory “should rest in peace.”

“It’s not rel­e­vant for this trial,” he says, adding he is lean­ing to­ward a jury trial.

While the Crown would le­gally be able to ar­gue that “sim­i­lar fact ev­i­dence” should be pre­sented to the jury if Kuzyk had been con­victed on the pre­vi­ous mur­der charge, that can­not be done when there is an ac­quit­tal. Any at­tempt to in­tro­duce ev­i­dence about the mur­der charge at a new trial could cause a mis­trial, Manek says.

An ap­peal must be done on the ba­sis of an er­ror in law oc­cur­ring, and in 1999 the Min­istry of the At­tor­ney Gen­eral said there were no ap­peal­able er­rors.

In hind­sight though, there is a flaw that wasn’t ap­par­ent. And that is the cred­i­bil­ity of Smith.

First, Jus­tice Crane, in his charge to the jury, said Smith had “a spe­cial­ity in foren­sic pe­di­atric pathol­ogy.” In fact, Smith did not qual­ify as a spe­cial­ist in foren­sics at all.

The judge also said: “Dr. Smith has out­stand­ing cre­den­tials, and it is his opin­ion that Tristan’s in­juries could have pos­si­bly been in­flicted as early as 6 p.m.” This gave ju­rors per­mis­sion to con­sider the pos­si­bil­ity Kuzyk’s ex-fi­ancé caused the fa­tal in­juries.

Whether Smith’s ev­i­dence was the key to the ac­quit­tal, only the six men and six women of that jury will ever know.

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