 In Canada: Review of pathologist's work could
add to ranks of wrongly accused in 2006
Sunday, January 1st, 2006 While Waudby lay distraught in hospital, a key piece of evidence in the death of 21-month-old Jenna lay unexamined in the office of a trusted pediatric pathologist at Toronto's renowned Hospital for Sick Children. "It was horrible," Waudby recalled of that day in May 1999 when her newborn was taken from her. "I was never allowed to be alone with him, even at the hospital." Several years later, Waudby, who saw the second-degree murder charge against her dropped before going to trial, awaits the results of a coroner's review into the work of Dr. Charles Smith. Waudby, 40, says a DNA analysis of pubic-like hair found on Jenna's body - evidence that went missing during Smith's investigation - would have meant the charge that derailed her life would never have been laid. "You just don't put things in your drawer or leave them on the top of your desk. People's lives were at stake for those little pieces of evidence," Waudby said in an interview from her Peterborough, Ont., home. While forensic pathology and DNA evidence is glamorized on television shows and called upon in the courts as definitive proof of a crime committed or not committed, innocent people continue to be charged and wrongfully convicted across the country when that evidence is misused, ignored or made unavailable at trial. There's little argument DNA evidence is airtight - David Milgaard, arguably Canada's most high-profile wrongfully accused, was eventually exonerated by it after spending 23 years in prison for a crime he didn't commit. Guy Paul Morin was also cleared by DNA after languishing in prison for the death of nine-year-old Christine Jessop. This past year, the conviction of Kyle Unger in 1990 for the murder of Brigitte Grenier, a 16-year-old Manitoba girl, was called into question. DNA testing has found that hair samples presented at his trial couldn't possibly have belonged to Unger, who was released on bail from a B.C. prison in November while his case is reviewed by the federal Justice Despartment. While DNA has become a powerful tool in the hands of both the defence and prosecution since the first conviction based on the science was obtained in 1989, human error and scarcity of resources has yet to be expunged from the criminal justice system. "The real problem has always been the lack of eyes," said lawyer Cindy Wasser of the Association in Defence of the Wrongly Convicted. "There's a real shortage of pathologists, period." In Ontario, it's been announced that 44 of Smith's cases would be reviewed by the coroner's office after an audit of his work turned up numerous incidents of misplaced forensic samples from autopsies. The results have the potential to add more names to the ranks of the wrongfully accused and convicted in the coming year, most notably that of William Mullins-Johnson. The Sault Ste. Marie, Ont., man spent 12 years in prison for the death of his four-year-old niece after Smith testified for the Crown during his trial. Key forensic evidence that Mullins-Johnson could have used to defend himself had been misplaced. It was found earlier this year in an envelope Smith's office. Further testing found the girl died of natural causes. Mullins-Johnson has been released on bail while Federal Justice Minister Irwin Cotler reviews his case. Another Cotler review has put the case of Steven Truscott back before the courts. Convicted of murder and sentenced to death in 1959 at the age of 14, Truscott has been battling for years to clear his name. His case is working its way through the Ontario Court of Appeal. But DNA evidence won't be used in the Truscott case - all the exhibits from his trial have long since been destroyed. Recognizing that the work of one pathologist in Toronto has raised the spectre of even more Milgaards, Truscotts and Morins being unjustly brought before the criminal justice system, a group of lawyers, pathologists, police and coroner's office officials have struck an advisory board to create safeguards. Many of their recommendations have been ratified by working pathologists and will be put into practice early next year. "We did guidelines, a protocol on how to do an autopsy, how to keep notes and files and where to keep samples ... not in your desk, for example, not at home. It's odd that it had to be stated, but it did," said Wasser. "Part of the protocol will be, where a pathologist has a difficult case to review... that someone else needs to review it as well and talk about it." In Waudby's case, the adult hair sample found on her daughter spent years concealed in an envelope in Smith's desk. "It's gross negligence. The question is, on who's part? The police knew that they had a hair. They knew they gave it to Smith. Why didn't something happen then?" said Wasser, who adds it's outside of the coroner's mandate to seek those answers. "That's why I want the attorney general to call a public inquiry. I want those questions answered." Although Waudby never went to prison, she did endure 2 1/2 years awaiting trial for the death of her daughter - a time span in which all three of her remaining children were taken from her custody at some point. "The stigma never goes away, it's always attached," said Waudby, whose children have since been returned to her. "I'm not looking exactly for exoneration, I'm looking for the person that's responsible to be charged. That's what justice is about." A list of Canadians who have been exonerated after being wrongfully convicted, and others who are trying to clear their names:
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