Pathologist's testimony 'mind-boggling,' 'false'

Review of disgraced Ontario doctor's conclusions forces prosecution to concede second-degree-murder conviction cannot stand

KIRK MAKIN

From Wednesday's Globe and Mail

September 19, 2007 at 4:30 AM EDT

Testimony by disgraced pathologist Charles Smith at a 1998 murder trial was inept, hyperbolic and prodded a jury into wrongly convicting a father of intentionally killing his son, according to two of the country's top pathologists.

As a result, the Crown now concedes that Marco Trotta's conviction for second-degree murder cannot stand in light of the fresh evidence.

"The respondent acknowledges that the fresh evidence is credible and bears upon a potentially decisive issue," prosecutor Lucy Cecchetto said in a brief filed with the Supreme Court of Canada, where an appeal of the convictions of Mr. Trotta and of his wife Anisa will be heard next month.

The Crown will ask the court to uphold Mr. Trotta's convictions for manslaughter, aggravated assault and assault causing bodily harm, as well as Ms. Trotta's convictions for criminal negligence causing death and failing to provide the necessities of life.

In her brief, Ms. Cecchetto insisted that there is ample evidence to show that Mr. Trotta inflicted repeated blows on Paolo - breaking or fracturing bones, and leaving prominent bruises and bite marks - while Ms. Trotta stood silently by and acquiesced to the abuse.

Ms. Trotta has already served her five-year sentence. Mr. Trotta, who received a 15-year sentence, was released on bail last spring after serious doubts arose in connection with 20 cases in which Dr. Smith played an instrumental role.

The fresh revelations are contained in affidavits and statements made by Ontario's Chief Forensic Pathologist, Michael Pollanen, and Newfoundland's Chief Medical Officer, Simon Avis.

Dr. Smith's trial testimony is described as "mind-boggling," "irresponsible" and "false."

The pathologists say it is not possible for any forensic pathologist to make a reliable link between various injuries that eight-month-old Paolo suffered and his death on May 29, 1993.

"I cannot see how anyone - particularly anyone with the status that Dr. Smith enjoyed at that time - could possibly reach that conclusion," Dr. Avis said.

"I still, to this day, stand in wonder."

Dr. Avis concluded that there "was certainly no evidence at autopsy to indicate any recent trauma or any trauma that could, in any way, shape or form, cause or contribute to his death. ... The jury heard contradictory, misleading and inaccurate pathological evidence under the guise of Dr. Smith's expertise."

Coming on the eve of a public inquiry into Dr. Smith's work, the evidence bears witness to profound shortcomings in the way autopsies and suspicious infant death investigations take place.

The documents reveal that Paolo's original autopsy was botched by pathologist David Chan, who failed to find evidence of suspicious injuries and concluded that Paolo's cause of death was sudden infant death syndrome.

A year afterward, the Trotta's newborn child - Marco Jr. - was admitted to a hospital in Kingston suffering from a fractured femur and multiple bruises.

Dr. Smith ordered an exhumation of Paolo's remains and found multiple signs of abuse.

In an attempt to win a new trial for their clients, defence lawyers James Lockyer and Michael Lomer approached Dr. Avis and Dr. Pollanen two years ago to have them review Dr. Smith's work.

Dr. Avis said it is inexplicable that Dr. Smith could have mistaken an old, partly healed skull fracture for an injury Paolo might have sustained as recently as 10 minutes before he was found dead in his crib. He said that even a layman could scarcely have made such a basic mistake.

"To examine Paolo Trotta's skull - to see the fracture and to opine that that fracture is from minutes to, at most, two days old - simply boggles my mind," Dr. Avis said.

Dr. Pollanen said that Dr. Smith jumped to erroneous conclusions and engaged in baseless speculation.

"The overall analysis ... in my view, would be that there is no factual foundation in the medical evidence to conclude that head injury or an asphyxial event - such as pressure on the neck, suffocation, smothering - was the cause of death," he said.

Mr. Lockyer and Mr. Lomer state in a legal brief that Dr. Smith "misdiagnosed through over-interpretation of findings at the exhumation, and his evidence was grossly imbalanced. Almost all of his interpretations of Paolo's injuries were erroneous."

The brief is highly critical of the fact that while Dr. Smith's autopsy report listed Paolo's cause of death as "undetermined," he then painted an emotive picture for the jury of two main possibilities that could explain Paolo's death. "One is that he died of a head injury, presumably on a non-accidental basis," Dr. Smith testified.

"And the second is that he died of an asphyxial event."

Until someone comes along with another credible explanation, Dr. Smith told the jury, "I have to regard Paolo's death as being non-accidental in nature."

Dr. Pollanen said this type of testimony is improper in a criminal trial.

"Making a judgment about an unlawful killing is not the duty or responsibility of the pathologist," he said.

"It is not for the pathologist to usurp the role of the trier of fact."

In her brief to the court, Ms. Cecchetto said that should it refuse to simply strike the murder and manslaughter charges and leave the other convictions intact, then the court should order a new trial.

She said that the vast amount of evidence showing the abuse Paolo suffered is still capable of persuading a jury to convict Mr. Trotta of murder.

"The evidence that Paolo had suffered a lifetime of systematic abuse and devastating injuries at the hands of his father, and that his mother knew, was overwhelming," she said.

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'MEDICAL PROFESSION FAILED PAOLO'

Testifying at Marco Trotta's 1998 trial for the murder of his son, pathologist David Chan did not try to candy-coat the errors he made years earlier when he conducted an autopsy on the dead infant.

"The record indicates that Dr. Chan, inexperienced in pediatric pathology, committed a number of errors which, when confronted with medical and radiological evidence and the history of Paolo Trotta, he recognized," Crown prosecutor Lucy Cecchetto acknowledges in a legal brief to the Supreme Court of Canada.

"It cannot have been easy for Dr. Chan to admit the errors he made."

Coupled with the mistakes made by pediatric pathologist Charles Smith at a second autopsy in 1994, the Trotta case is a textbook example of why the exacting science of pediatric pathology is under siege.

Dr. Chan, who works at Oshawa General Hospital, conceded in testimony that he:

Failed to notice three skull fractures;

Did not detect a healing fracture to the humerus;

Neglected to check carefully for a previous record of abuse of the eight-month-old child, a routine act that would have triggered close scrutiny into Paolo's death;

Failed to preserve Paolo's brain or make slides of the brain tissue, a mistake that crippled reinvestigations of the case;

Erroneously considered the child's brain-weight - 940 grams - to be normal.

After conducting a second autopsy in 1994, Dr. Smith concluded that the brain was abnormally heavy, indicating that it had swelled after sustaining a recent blow.

Dr. Chan promptly reversed field and agreed.

To muddy the waters further on the brain weight issues, pathologists Michael Pollanen and Simon Avis have since concluded that it is an outmoded and misleading method of detecting abuse.

"These 'normal ranges' were established between 40 and 60 years ago, and do not reflect modern knowledge," Dr. Avis said in a document filed with the Supreme Court. "The conclusion that the brain weight of Paolo Trotta reflects cerebral edema is not valid."

In a Crown brief to the Court, Ms. Cecchetto summed up the autopsy fiasco candidly: "The medical profession failed Paolo in life and in death."

She said that these failures dated back to Paolo's first hospital admission, when he was just two months old.

Doctors took note of facial bruises and a skull fracture, she said, but somehow failed to detect a second skull fracture.

"Abuse was suspected, given the nature of the fracture and bruising," Ms. Cecchetto said. "However, Paolo was ultimately released to his parents under CAS supervision.

"The second skull fracture would have reinforced the concerns relating to abuse.

"The CAS involvement was terminated as a result of incomplete and inaccurate information from the family doctor, as well as the CAS's own inadequate investigation."

Kirk Makin

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Forensic errors

Many a wrongful conviction has been caused by forensic pathologists who erred or drew unwarranted conclusions about a suspicious death. The most sensational examples include:

RONALD DALTON

The Newfoundland man spent eight years in prison for the murder of his wife. He was acquitted at a retrial, after new evidence indicated the victim choked on cereal, as opposed to being strangled.

WILLIAM MULLINS-JOHNSON

Mr. Mullins-Johnson spent 12 years behind bars for the murder of his four-year-old niece, Valin, after doctors and pathologists concluded that the child had been raped and killed.

A decade later, a review of forensic evidence in the case concluded that Valin died mysteriously in her sleep - perhaps after breathing in some of her own vomit, but without any foul play.

GUY PAUL MORIN

The Ontario man was charged with the 1984 murder of nine-year-old Christine Jessop. An autopsy conducted by top Ontario pathologist John Hillsdon Smith led police to draw certain conclusions about the nature of the killer and his window of opportunity to commit the crime.

Five years later, a second autopsy turned up a massive skull fracture, knife marks on two ribs, damaged vertebrae and a horrific breastbone injury - all of which had been overlooked by Dr. Hillsdon Smith. The new results pointed toward a different killer.

Kirk Makin