Twelve years ago, William Mullins-Johnson was sentenced to life in prison for the rape and murder of his four-year-old niece. Ever since, he has insisted on his innocence.
Now, an independent pathologist's review has found Valin Johnson was not murdered. Nor was she sexually assaulted. Lawyers for the Association in Defence of the Wrongly Convicted (AIDWYC) have asked the Federal Minister of Justice to quash Mr. Mullins-Johnson's conviction and filed an application yesterday seeking his immediate release on bail.
They believe the Sault Ste Marie, Ont., man was found guilty largely on the basis of inaccurate testimony from medical professionals, including Dr. Charles Smith, a forensic pathologist whose work in 40 homicides and suspicious deaths is the subject of an extraordinary investigation by Ontario's Chief Coroner.
At trial, Dr. Smith said Valin died of mechanical asphyxia (strangulation or smothering) and had suffered acute, penetrating anal trauma shortly before death. But a report by Dr. Michael Pollanen, director of forensic pathology for the coroner's office, which was begun in December last year and made available to the public in court documents yesterday, says those findings are wrong.
Mr. Mullins-Johnson, who turns 35 this week, has spent most of his adult life in prison for a crime he says he didn't commit. In an interview yesterday at Warkworth Institution, his home since 1995, Mr. Mullins-Johnson said his life and family have been torn apart.
He has no contact with his brothers, including Paul, Valin's father. For years he's been afraid a fellow inmate would kill him because of the nature of his conviction. In 1994, he exiled himself to four months of solitary confinement at Joyceville prison after fellow inmates said he would be murdered the next day.
Now, he's at Warkworth, a protective custody jail 150 kilometres northeast of Toronto populated by sexual offenders who would be in danger elsewhere.
"I'm winded after all these years of saying [I'm innocent]and shaking the bars," he said. "Until my name gets cleared, I'm still a lifer. That's the way I have to look at it."
Mr. Mullins-Johnson speaks slowly and with a mild stutter. Flecks of gray are beginning to show in his dark hair. He says he has moved beyond anger, but has trouble sleeping. The injustice of his situation creeps into his thoughts, he said.
"I'm just glad that somebody listened to me. Nothing was done to that girl. Nothing. Not by me, not by anybody."
He said it was a tragic situation that needed a scapegoat.
"It wouldn't surprise me if race entered into it," he said, adding that if he had been white, police would have investigated longer.
"But they probably looked up my record and saw my past conviction. An Indian guy with a prior. What's more juicy than that?"
What follows is an account of Mr. Mullins-Johnson's encounter with the justice system, based on documents his lawyers filed in Ontario Superior Court yesterday.
On Saturday, June 26, 1993, Mr. Mullins-Johnson awoke around noon. He had been living at his half-brother Paul Johnson's home in Sault Ste. Marie for nearly three months. He was 22 and had been raised by his Ojibwa mother and a large extended family in the Batchewana First Nation.
He also had spent nearly two years in prison for robbery. He paid $150 a month to sleep on the couch and often babysat his brother's children, aged 3, 4 and 6.
His sister-in-law, Kim Lariviere, roused him that day as the family was heading out to a baseball tournament. She asked that he have supper ready when the family came home, and that he babysit for a few hours afterward.
After supper, Mr. Mullins-Johnson sat down on the couch to watch cartoons with his niece Valin and her siblings. Valin wandered off to bed on her own, already zipped into her one-piece white pajama suit. She had recently had a fever and had been playing outside.
At 8 p.m., he checked on her and saw her sleeping soundly, her head resting on her forearm.
When Ms. Lariviere came home at 9:30 p.m., she didn't check on Valin. At 7 o'clock the next morning, Ms. Lariviere looked in on her daughter and saw vomit on the bed and the floor. When she turned Valin over, her face was purple. She was dead.
Five hours later, an autopsy was under way at the local hospital. Dr. Bhubendra Rasaiah, a hospital pathologist with no experience in forensics, observed a large opening in the rectum and signs of bruising around the vagina.
Dr. Patricia Zehr, an obstetrician and gynecologist with no experience in pathology, was called in. She concluded Valin was the victim of "chronic" sexual abuse, the worst she had ever seen. Dr. Rasaiah, using a body temperature analysis, pinpointed the time of death at between 8 p.m. and 10 p.m., when Valin was in the care of Mr. Mullins-Johnson.
By 6:30 p.m., Mr. Mullins-Johnson was in custody. He sobbed as he was taken away in a police cruiser, saying, "I didn't touch her, she went to bed and that's that."
A few hours later, he recalled yesterday, he asked the officer escorting him to his cell to shoot him in the back of the head. It would be easier than what he was going through, he said.
Dr. Smith was an expert witness at the trial. He had examined photos and tissue samples, and as he laid out his curriculum vitae to establish his expertise for the jury he said, "I probably do a little bit more of this kind of work than anyone else in the country."
According to James Lockyer and David Bayliss, AIDWYC lawyers for Mr. Mullins-Johnson, the most significant part of Dr. Smith's testimony was his finding of an injury in Valin's rectum caused by a round, blunt object, which he said occurred at or within minutes of her death. Along with all the medical experts, save one called by the defence, Dr. Smith concluded Valin was the victim of chronic sexual abuse.
In its closing statement, the defence conceded that this was true. In his instructions to the jury, the judge also said he had no doubt Valin had been abused.
Mr. Lockyer describes the case as a rush to judgment, in which medical experts, including Dr. Smith, "fitted the facts" to suit its prosecution.
As Dr. Pollanen's review of Dr. Smith's findings states, no semen was found on Valin or her pyjamas. No DNA from Valin was found on Mr. Mullins-Johnson's clothing. And the vomit on Valin's pajamas suggests she had them on when she threw up. Most significantly, as Dr. Pollanen says, there is "no evidence of acute penetrating anal trauma in Valin Johnson," nor any certain proof that, as Dr. Smith asserted, the cause of death was mechanical asphyxia.
The defence argued at the first trial that Valin may have choked on her own vomit. Dr. Pollanen concludes the cause of death is unascertained. The marks and bruises on her throat when she was discovered were consistent with the collection of blood in those areas after death and there was no positive evidence of death from strangulation or smothering. He adds that nothing at the scene suggests a violent death. While he says it is reasonable to consider strangulation or smothering, it is also reasonable to consider natural causes.
"Based on the scene photographs, one possible occurrence is sudden natural death during sleep," Dr. Pollanen writes. Valin had suffered two days of fever, he said. He also suggests as possible causes myocarditis (failure of heart muscles), fulminant bacterial infection, fluid electrolytic derangement or an underlying metabolic abnormality, or primary arrhythmia disorder.
The time of death determined by Dr. Rasaiah, which placed Mr. Mullins-Johnson at the scene, is also criticized by Dr. Pollanen and Bernard Knight, a leading Welsh pathologist hired by AIDWYC. According to the brief filed in court yesterday, Dr. Rasaiah was a hospital pathologist with no professional qualifications in forensic pathology.
"Prof. Knight was prepared to say that Valin may have died some time between 10 p.m. and 5 a.m., and more likely later in this time frame than earlier," the documents state.
Dr. Smith recently resigned from Toronto's Hospital for Sick Children, three months after the Chief Coroner began an inquiry into his work. For nearly 20 years, he was the leading expert on child deaths in Ontario, but judges and medical professionals have recently raised doubts. He has been reprimanded by the College of Physicians and Surgeons. Cases in which he was involved have collapsed for lack of evidence.
One woman spent two years in prison awaiting trial after her daughter was killed and Dr. Smith concluded her injuries were caused by scissors. He later altered his view to say it was possible a pit bull killed the girl. In 2003, he was removed from the team that conducts coroner's autopsies. And, in another case in 2002, a judge said Dr. Smith over-interpreted findings made at autopsy and overstated or misstated the findings of other experts.
In the brief filed in court yesterday, the AIDWYC lawyers write: "In the case of Valin Johnson, Dr. Smith committed many of these sins, including over-interpreting and misinterpreting autopsy findings and over-stating and misstating the findings of other experts. This case has all the hallmarks of his modus operandi of finding murder where it does not exist."
Dr. Smith could not be reached for comment yesterday.
"Essentially, this was a murder that never happened," said Mr. Bayliss, an AIDWYC lawyer. He wonders how many similar mistakes have been made.
Mr. Mullins-Johnson expects the new evidence will set him free, but he's afraid of getting his hopes up. The Attorney-General in Ottawa will decide, under section 696 of the Criminal Code, whether to order a new trial.
Mr. Mullins-Johnson dreams of going to university and one day managing a hockey team. But he shakes his head. He knows this case will follow him forever.
Joe Friesen