Dr. Smith and the shadow of a doubt
Did testimony of a pathologist later to be discredited help a murderer escape justice?
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.