Life can bring many different sorts of tragedies. It would be difficult to rank them, but surely being wrongfully convicted or accused of homicide must be high on the list. Even higher must be the same wrongful conviction or accusation when the victim is alleged to be your own infant child.
John Chipman’s book Death in the Family chronicles the stories of several parents who suffered precisely that tragedy. Connecting all of the cases is the contribution of disgraced former pathologist Charles Smith, the man whose many errors prompted a formal inquiry in 2007-08 into the state of pediatric forensic pathology in Ontario, led by Justice Stephen Goudge.
Chipman’s book recounts the impact of Smith’s errors on the lives of the parents affected: shattered individuals who were falsely vilified as child abusers. They were interrogated, accused and imprisoned. They were ostracized. Their lives were dissected. Their other children were taken from them.
Chipman’s book continues a fine tradition of storytelling in wrongful conviction literature. It is a tradition that offers us a glimpse of the depth of damage, and the extent of the wrong, suffered by those whom the criminal-justice system fails. The stories can be distressing yet, curiously, uplifting at the same time. Unimaginable wounds are inflicted but the truth comes out in the end. The ending is never truly a happy one. The victim of the miscarriage of justice is almost always injured in ways that are permanent and profound. The effects are felt by the wrongly accused and many others around them. But it is empowering to understand the injustice from the perspective of those most affected by it. It is only then that we can truly begin to appreciate the impact of mistakes and the imperative to avoid them.
I have read many books detailing miscarriages of justice. Chipman’s book is one of the best. It offers a vivid, absorbing and heart-wrenching peek into the experiences of the people it discusses. It is well researched and written, but what makes it especially compelling is that it often reads like a suspense novel – a novel in which one kind of knows the ending but aches and agonizes nonetheless as the story progresses.
Chipman’s book is also important in highlighting a crucial vulnerability in the criminal-justice system. To a significant extent, the courts are at the mercy of forensic experts on whom they must often rely for critical evidence. To be sure, the experts can often be the heroes, scientifically demonstrating (to a greater or lesser degree) the guilt or innocence of the suspected perpetrator. But when science is misused, misinterpreted or misunderstood, lawyers are not always able to detect and expose the problem. Scientific literacy is a continuing challenge for members of the bar and a lawyer will rarely know as much as an expert about a specific forensic discipline.
I had the opportunity to see Smith testify once. I was junior counsel on a shaken-baby case and Smith was called by the Crown at the preliminary hearing. What struck me most was how confident and comfortable he was. Many seasoned witnesses can be very professional, but they can also come across as somewhat stilted. That is hardly surprising. Testifying in a courtroom can be an intimidating experience, especially when you know that someone’s job is to test and possibly contest your evidence. But Smith seemed unfazed by the whole experience, able to parry questions with the ease of someone who has seen and done it all. He did not come across as the most knowledgeable expert and he could be inflammatory. But his self-assured manner made him a potent witness when combined with the complexity of the matters of which he spoke. He was, in short, the most dangerous kind of witness.
Thanks in part to the Goudge Inquiry and the commitment of many medical and legal professionals, the state of pediatric forensic pathology in Ontario is much improved from the time when Smith was involved. But it would be foolish to forget that not so many years ago, Smith was able to rise to the status of an almost untouchable expert with the power to rip apart the lives of parents and families, even when he got it wrong. Death in the Family will help us remember.
Christopher Sherrin is an associate professor in the faculty of law at the University of Western Ontario. He is the former director of the Innocence Project at Osgoode Hall Law School of York University.Report Typo/Error
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