Steven Hayne

A Tale of Two Forensic Scandals: Ontario vs. Mississippi

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Jonathan Turley has the awful story of Sherry Sherret Robinson, a Canadian woman wrongly convicted in 1996 of killing her infant son due to the bogus testimony of a disgraced pathologist named Charles Smith. Robinson served a year in prison and was forced to give up custody of her other child.

Smith has since been exposed as a fraud. Robinson was finally exonerated this week by a court in Ontario. Her other son was given up to a foster family after her conviction, who has raised him for the last 13 years. She won't get him back. She has asked only that he be told the truth about her.

Read Robinson's blog here. Former Toronto Star reporter Harry Levy has been covering Charles Smith scandal on a blog devoted to Smith and other forensic nightmares.

Smith was a frequent witness in Canadian courts, commonly testifying for prosecutors in child death cases, where his testimony proved crucial in making homicides of deaths that could just as easily have been accidents. A disreputable pathologist can do incredible damage in these cases, since it's usually his testimony that makes or breaks the case. Because the question isn't who killed the child but whether the child was killed at all, there will never be DNA testing or new evidence to exonerate the suspect (of, for that matter, confirm his guilt). In U.S. courts at least, it's extremely difficult to get a new trial without new evidence. Simply noting that an expert you had the opportunity to cross examine has since been shown to have given questionable testimony in other cases usually isn't enough.

The big difference between the Charles Smith scandal and the Steven Hayne/Michael West forensic disaster I've been reporting on in Mississippi is that once questions arose about Smith's competence, Ontario's coroner launched an inquiry into Smith's practices. That led to a wider inquiry ordered by Ontario's government. The results of that inquiry are now being used to revisit cases where Smith's testimony may have led to a wrongful conviction, like Robinson's.

Mississippi state officials have ordered no such investigation. On the contrary, they've repeatedly insisted that any such inquiry isn't necessary, and there's no reason to question the prior work of the two doctors, despite their role in at least two wrongful convictions and the considerable and still accumulating evidence of their incompetence. The state did buckle to public pressure and finally fire Hayne last year, but as I reported earlier this year, now faces an effort by the state's coroners, assisted by Mississippi Attorney General Jim Hood, to bring him back. There are also two men currently on death row in Mississippi for murdering children in their care where, like Smith's, Hayne's testimony was critical to securing their convictions. In both cases, Hayne's trial testimony has since been questioned by more reputable pathologists. Mississippi's courts don't seem to care. They've rejected appeals and post-conviction petitions from both men.

The integrity of the criminal justice system isn't necessarily undermined by the fact that fraudulent experts and bad testimony occasionally creep into criminal trials. That's going to happen. But when the courts and government learn of these problems and not only do nothing to address them but actively engage in trying to cover them up, it's time to start questioning the legitimacy of the entire system.

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  1. But when the courts and government learn of these problem and not only do nothing to address them but actively engage in trying to cover them up, it’s time to start questioning the legitimacy of the entire system.

    Jailhouse snitches, bogus experts and perjuring LEOs all show it’s not a justice system. Far too often, it’s a conviction system. “Fuck justice, look at my won/lost record”.

  2. Dear ServerSquirrel:

    What have you done NOW?

    My preferred mode- Seamonkey browser, on Puppy Linux, has suddenly begun crashing every time I attempt to load H&R. I (naturally) blame you.

    I don’t like using Windows; please undo your latest “fix”.

    Love and Kisses

  3. On Topic:

    Radley, do you send copies of your work to Eric Holder? If so, has he ever responded, or shown any interest whatsoever in these matters?

  4. But when the courts and government learn of these problems and not only do nothing to address them but actively engage in trying to cover them up, it’s time to start questioning the legitimacy of the entire system.

    Question away. Only the names change, the faces remain the same.

  5. Where’s an angry mob with torches and pitchforks when you need one?

  6. I’m starting to doubt Reason’s testimony on this issue.

  7. Simply noting that an expert you had the opportunity to cross examine has since been shown to have given questionable testimony in other cases usually isn’t enough.

    *facepalm*

  8. I was laying in bed with a girl and reading this article. (Classy, no?)I got her to read it and she was gasping in all the right places. I showed her the Cato raidmap, too; ditto.

    She exclaimed that she didn’t know about these things and that they were a problem. She was especially appalled at Kathryn Johnston.

    She wants me to feed her more literature on the topic of police militarization and the injustice system.

    I have converted another. Thanks Rad.

  9. I was laying in bed with a girl and reading this article. (Classy, no?)I got her to read it and she was gasping in all the right places. I showed her the Cato raidmap, too; ditto.

    She exclaimed that she didn’t know about these things and that they were a problem. She was especially appalled at Kathryn Johnston.

    She wants me to feed her more literature on the topic of police militarization and the injustice system.

    I have converted another. Thanks Rad.

  10. ev

    Shame on you for double boasting.

  11. Shocking but no surprise. (Is is possible to be shocked into numbness? ref: Obama) Anway. The thing that bothers me most about these reports is that there is NOBODY proposing a policy change for us to discuss. Report. Move along. For example, if an “expert” witness is later found to be unreliable, couldn’t you call that perjury and obstruction of justice? Doesn’t there need to be a law regarding this? Police personnel characters seem to be exposed to this attack all the time.

  12. What is it about prosecutors, who would obviously see someone remain in jail on a questionable conviction, than admit they simply might have been wrong?

    And this isn’t the first time that questionable forensic testimony has been exposed.

    I wonder if they prosecutors see forensics as the “magic” arrow in their “quiver”. Playing on the public”s belief that it’s “incorruptible” and “never failing” (too much TV).

  13. But when the courts and government learn of these problems and not only do nothing to address them but actively engage in trying to cover them up, it’s time to start questioning the legitimacy of the entire system.

    Define “entire system.” Radley Balko, are you indicting the “entire system” based on what happened in Mississippi? That’s irresponsible. Your writing up until that last paragraph was sound, but you needed the last paragraph to give your posse a reason to go all Howard Beale.

    I recently sat on the jury of a criminal trial that lasted 4 weeks. Psychiatric experts were trotted out by the goblin-esque prosecutor, and 2 out of 3 of them were unconvincing, if not a little suspicious. We, the jury, saw right through them. Based on bad evidence — most of it hinging on expert testimony — we acquitted the defendant. If I define the “entire system” based on that experience, then your hypothesis about the complete rottenness of the “entire system” is empty.

    1. I was referring to Mississippi’s criminal justice system.

      1. Got it. Thank you for clarifying.

  14. U.S. courts are an adversarial system, or so law profs like Alan Dershowitz insist.

    Of course, we could insist that lawyers pursue justice instead of winning – and expect the defense lawyer to disclose what his blabbermouth client said that revealed her guilt…

  15. This is one of the maaaaaaany reasons i am an anarchist

  16. MY COUSIN WAS RECENTLY SENTENCED TO 60 YEARS IN JAIL IN MERIDIAN MS. THE WITNESS WAS CONVICTED ON 2 SALES OF DRUGS AND A RAPE OF A VULNERABLE HE SAID OVER AND OVER HE E=WAS TESTIFYING BECAUSE THEY PROMISED TO MAKE HIS CHARGES GO AWAY. AND THE VIDEO IS BLANK THEY USED IN COURT. 2 BLACK JURORS. THE POLICE OFFICERS LIED ALSO. I WISH YOU COULD READ THE COURT TRANSCRIPT AND VIEW THE FILM. WE NEED HELP IN MS THEY RE THROWING AWAY OUR YOUNG BLACK MEN. PLEASE HELP

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