|
Dr.
Charles Smith | Dr. Joel Yelland | Dr.
Roy Meadow | Louise Reynolds
| Angela Cannings | Trupti Patel | Scotland
cases | Sally Clark |
Still to be exonerated: Darren Koehn
| Stacey Dodd | | Brenda
Waudby |
Anthony Kporwodu
and Angela Veno
Court frees parents in
murder case
By KIRK MAKIN, Globe and
Mail, April 15, 2005
A Toronto couple walked free
of murder charges in the death of their three-month-old child
yesterday after the Ontario Court of Appeal threw out their case
on grounds of excessive delay.
"The prospect of freeing
someone on a charge of first-degree murder without a trial on
the merits is almost unthinkable," the court conceded, before
doing precisely that for Anthony Kporwodu.
It stayed a second-degree murder
charge against his wife, Angela Veno, in the March 6, 1998, death
of their daughter, Athena. The baby had suffered injuries that
included 35 rib fractures, a lacerated liver and bruises to her
head.
"This appeal brings into
sharp focus the dire consequences that follow when persons charged
with serious crimes are not tried within a reasonable time,"
the court said.
Mr. Kporwodu was charged on
May 3, 1999. Ms. Veno was charged on May 15, 2000.
Mr. Justice Michael Moldaver
noted that society has been deprived of a proper trial in an
extremely serious crime, while the two defendants were devastated
and will remain under a cloud.
Judge Moldaver said their relationship
deteriorated under the strain, their other child was seized by
Children's Aid officials, and Ms. Veno had an abortion to prevent
them doing the same with a new baby.
Judge Moldaver, Madam Justice
Eileen Gillese and Mr. Justice Russell Juriansz pinned most of
the blame for the delay on Toronto pathologist Charles Smith,
saying his inexplicable tardiness added two years on to a case
that was relatively simple.
The work of Dr. Smith has come
under increasing suspicion. Ontario Chief Coroner Barry McLellan
said in an interview yesterday that by mutual agreement, Dr.
Smith ceased doing autopsies in all cases as of December, 2003.
He said that a thorough review of more than 50 cases Dr. Smith
has conducted involving deaths at Toronto's Hospital for Sick
Children is well under way.
However, Cindy Wasser, a lawyer
for Ms. Vena, said officials must do far more to investigate
the hundreds of cases Dr. Smith was involved in over the years.
"No matter what way you look at it, he has caused miscarriages
of justice," she said.
"The accused and the public
are entirely dependent on the correctness of these experts,"
added John Rosen, another lawyer for Ms. Vena. "We have
to be sure this evidence is good evidence."
Ontario Superior Court Judge
Brian Trafford first stayed the murder charges on June 23, 2003.
At the time, he faulted Dr. Smith, Crown prosecutors, Ontario's
deputy chief coroner, homicide investigators and a lawyer for
the coroner's office.
However, Judge Moldaver said
that Judge Trafford overstated the case, in particular, his allegations
of duplicity, obstruction and bad faith against Crown counsel
Rita Zaied and coroner's lawyer Denise Dwyer. This error ended
up causing several months of delay in itself, Judge Moldaver
said, because new Crown counsel had to be briefed.
However, Judge Moldaver said
he did not accept a claim by prosecutors and police that developments
involving Dr. Smith's competence were unforeseen. He said it
was no mystery that two of Dr. Smith's murder cases were in disarray.
Still, he said, their conduct fell short of negligence.
Many of the worst problems
in the case radiated from a shocking finding Dr. Smith revealed
on July 20, 1999, more than a year after Athena's death: a liver
injury sustained within 12 hours of her death.
The news changed crucial Crown
theories of timing, and directly implicated Ms. Veno in the murder
for the first time. Dr. Smith was asked to confirm his finding
in writing, yet, "For reasons that remain a mystery to this
day, it took Dr. Smith until April 4, 2000, to produce a 11/2
page addendum containing the new information," Judge Moldaver
said.
Appeal judge raps prosecutor
for delays in trial
By KIRK MAKIN, Globe
and Mail, JUSTICE REPORTER, January 21, 2005
An Ontario prosecutor's staunch
refusal to co-operate with defence lawyers at a high-profile
murder trial was "absolutely mind-boggling," an Ontario
Court of Appeal judge said yesterday.
Mr. Justice Michael Moldaver
made the remark during an appeal by the Crown of murder charges
being thrown out because of constitutionally unreasonable delays
that lasted almost six years.
Anthony Kporwodu and Angela
Veno were charged after their three-month-old daughter, Athena,
was found dead in March of 1998. The baby suffered injuries that
included 35 rib fractures, a lacerated liver and bruises to her
head.
In staying the charges against
the couple in 2003, Mr. Justice Brian Trafford of the Ontario
Superior Court cited numerous abuses by the Crown, police and
two coroners.
"Would you describe the
behaviour by the Crown as vexatious . . . or just silly?"
Judge Moldaver yesterday asked Crown counsel Michal Fairburn,
who is arguing the appeal for the Crown.
The judge said that the attitude
of the prosecutor in the trial, Rita Zaied, was "to just
keep going as if there was all the time in the world: 'We'll
just fight everything.' "
Ms. Fairburn conceded that
relations between both sides in the case were unnaturally antagonistic,
but she said it was unfair for Judge Trafford to have blamed
almost every delay on the Crown.
However, Judge Moldaver persisted,
saying that Ms. Zaied was determined not to engage in the sort
of mid-trial talks with defence lawyers that are customary and
vital to help narrow and focus legal issues.
"This is what bothered
Justice Trafford, quite frankly," he said. "There appears
to have been no co-operation whatsoever with very responsible
defence counsel to narrow down the issues here."
Ms. Zaied was ultimately removed
from the case by her superiors because Judge Trafford's criticisms
had "rendered her ineffective," Ms. Fairburn said.
Defence counsel Marlys Edwardh
told the judges yesterday that the trial went off the rails because
Ms. Zaied "put her head in the sand" and failed to
heed the characteristic warning signs of a possible miscarriage
of justice.
"When she had a big problem,
she didn't confront it in a professional way," Ms. Edwardh
said.
She said the big problem was
pediatric pathologist Charles Smith, whose credibility came into
serious question early in the case. At a time when Dr. Smith
was conveying findings from Athena's autopsy, his reputation
was under severe media attack over errors, biased and false findings
in other baby-death cases.
Ms. Edwardh said that a full
year after Athena died and Mr. Kporwadu was charged, Dr. Smith
suddenly gave new details about the timing and extent of Athena's
injuries to Ms. Zaied
Ms. Edwardh said that Ms. Zaied
advised Toronto Police homicide officers they should charge Ms.
Veno with murder, yet they declined to do so unless Dr. Smith
produced a written report with his new findings.
"The refusal of the officers
is remarkable," Ms. Edwardh said. "It discloses a kind
of concern I think is highly unusual."
She said that any professional
prosecutor would immediately have sought out an expert to review
Dr. Smith's findings, and then promptly disclosed the growing
problem to the defence. Instead, Ms. Edwardh said, Ms. Zaied
stonewalled on disclosing vital information to the defence.
"It's a no-brainer, frankly,"
Ms. Edwardh said. "You don't sit on it."
Instead, she said, Ms. Zaied
waited many months, while Dr. Smith dithered over putting his
new findings into writing. When Ms. Zaied finally asked a U.S.
pathologist to review Dr. Smith's findings, Ms. Edwardh said,
it resulted in a further delay of seven months.
- Appeal court hears allegations
of devious ploy by prosecutor
- 'Unconscionable deal'
was offered partway through trial, defence counsel says
By KIRK MAKIN, JUSTICE
REPORTER, January 22, 2005
Ontario prosecutors and coroners
played dirty pool to try to obscure gaping holes in their case
against a couple accused of killing their baby, lawyers for the
pair alleged yesterday.
Wrapping up a fiercely contested
hearing in the Ontario Court of Appeal, defence
counsel John Rosen accused Crown prosecutor Rita Zaied
of offering him "an unconscionable deal" partway through
the 2003 trial of Anthony Kporwadu and Angela Veno, who were
accused of first-degree murder in the death of their three-month-old
daughter.
Mr. Rosen alleged that Ms.
Zaied offered the defence team access to important files they
had been seeking, but only if the defence admitted in court
that it had been wrong to use legal motions to procure the records.
Such an admission would have
placed the blame for a yearlong delay on the shoulders of the
defence. His voice booming with indignation, Mr. Rosen told the
appellate judges that he refused the offer.
"Ms. Zaied knew we were
getting close to this stuff," Mr. Rosen said. "What
did she do? She called us into a boardroom to make an unconscionable
offer. . . . The prosecution knew that what we were after was
relevant and important. Instead of assisting us as an officer
of the court, she obstructed our every effort along the
way."
The Crown is appealing the
2003 decision by Mr. Justice Brian Trafford of the Ontario Superior
Court to stay the murder charges against Mr. Kporwadu
and Ms. Veno on the basis of unconstitutional delays totalling
almost six years.
The couple were charged after
their daughter, Athena, was found dead in March of 1998. The
baby had suffered injuries that included 35 rib fractures, a
lacerated liver and bruises to the head.
In staying the charges, Judge
Trafford cited numerous abuses by the Crown, police and two coroners.
Mr. Rosen said yesterday the
records the defence had been trying to wrest from the Crown pertained
to an internal review by the Ontario Coroner's Office of previous
autopsies conducted by pediatric pathologist Dr. Charles Smith,
whose credibility was in question at the time.
"I have done over 300
homicides, but I had never had one with Dr. Smith," Mr.
Rosen said. "I don't know why that is -- just good luck,
I guess. But if he had said that the sky was blue today, I'd
have to go out and check it, given his record."
Mr. Rosen told the court
that Ms. Zaied's backroom offer followed many months in which
she had played cat-and-mouse with the defence over the records
it wanted.
"This Crown attorney stuck
her head in the sand and obstructed us on every possible thing,
and she was aided and abetted by counsel for the Ontario Coroner's
Office, Denise Dwyer," he said.
Mr. Rosen also alleged that
OCO officials had merely pretended to conduct a review of Dr.
Smith's previous cases. He said that after the defence subpoenaed
deputy chief coroner James Cairns to the murder trial to testify
about the OCO's purported review, Dr. Cairns had to cobble together
documents that would resemble a genuine review.
"There never was a review,"
Mr. Rosen alleged.
Crown lawyer Michal Fairburn
told the court yesterday that there was "nothing
sneaky or bad" about the prosecution. "This is a classic
case of where there is smoke, there is only smoke," she
said.
Appeal court judges Michael
Moldaver, Eileen Gillese and Russell Juriansz have reserved judgment
in the case.
Crown blasts judge
in baby case
- Jurist threw out murder
charges against pair due to delay
Prosecutors trying to revive case at court of appeal
An Ontario Superior Court judge
who threw out first-degree murder charges against a Toronto couple
accused of killing their three-month-old daughter "utterly
overlooked" society's interest in bringing them to trial,
an appeal court has been told.
Justice Brian Trafford paid
"nothing more than lip service" to well-established
legal principles for determining whether a trial delay is unreasonable,
Crown counsel Michal Fairburn told a three-judge panel of the
Ontario Court of Appeal.
He also misused the most powerful
Charter weapon at his disposal - the ability to stay criminal
charges - to punish the Crown for conduct he did not like, she
said.
Watching from the back of the
courtroom yesterday as the Crown tried to resurrect its case
were Anthony Kporwodu and Angela Veno, whose daughter Athena
died on March 6, 1998.
An autopsy conducted by controversial
pediatric pathologist Dr. Charles Smith found she had 32 rib
fractures, brain injuries, a lacerated liver and a broken toe.
In throwing out charges in
June 2003, Trafford, a former high-ranking Ontario prosecutor,
said the conduct of the Crown, the Ontario coroner's office and
Toronto police deprived the couple of an opportunity to demonstrate
their innocence for an "unconscionable" 70-month period,
from the time of Athena's death to when the case was finally
expected to go to trial.
Their loss in human terms was
almost "palpable," he added. They not only lost their
daughter. After a homicide investigation commenced, their toddler
Julius was seized by the Children's Aid Society and ultimately
sent to live with his paternal grandparents in Ghana.
Veno became pregnant again
but ended up having an abortion after a CAS worker told her that
child would likely also be seized.
The pair was left unable to
resolve their grief, Trafford said.
The Crown appealed his ruling
and a hearing, which is slated for three days, began yesterday.
The case is raising questions
about how courts should assess whether a trial delay is unreasonable,
a sensitive subject for Ontario's justice system since the notorious
1990 Askov case led to the wholesale staying of thousands of
charges.
It's also focusing on the conduct
of Smith, who played a critical role in the case and whose work
in other criminal cases has been questioned.
In this case, Trafford said
Smith's nearly two-year delay in completing an autopsy report
was not only "shocking" in its own right but led to
the unauthorized cremation of Athena's remains, contrary to her
parents' wishes. They found out when the crematorium called and
asked them to come and pick up an urn containing her ashes, Trafford
noted.
He also had harsh words for
Crown attorney Rita Zaied, saying she put up an "unprincipled"
resistance to requests from the couple's lawyers for reports
from other autopsies Smith had performed.
Just before Smith was about
to take the witness stand at the couple's preliminary hearing
in 2001, murder charges against two other women accused of killing
their children were withdrawn in the face of concerns about his
work, the court was told yesterday.
One was Louise Reynolds, of
Kingston, Ont., who was charged with killing her seven-year-old
daughter, Sharon, in 1997. The charge was withdrawn after a leading
expert on bone marks contradicted Smith's findings and supported
Reynolds' claim that her daughter was killed by a pit bull.
Although Trafford found Smith
was in a position to offer a preliminary opinion on Athena's
cause of death by May 1998, his final report was not delivered
until the spring of 2000 when he was under threat of being called
to court to explain the delay, the court was told yesterday.
The timing was not "ideal"
and while the Crown did everything it could to get Smith to deliver
his report it bears some blame for the delay, Fairburn conceded.
But while the overall delay was "unfortunate," it was
not unreasonable, she told justices Michael Moldaver, Eileen
Gillese and Russell Juriansz.
Trafford said the couple had
been waiting for Smith's report in order to determine whether
they should arrange for a second autopsy. That, in turn, is why
they wanted their daughter's body preserved.
The hearing continues.
- Crown taken
to task in court
Knew about concerns over doctor: Defence
Couple charged, then
freed, in death of baby
TRACEY TYLER, LEGAL AFFAIRS
REPORTER, Toronto Star, Jan. 21, 2005
The Crown knew as early as
the summer of 1999 that a prominent pathologist and key witness
against a Toronto couple suspected of killing their baby was
tainted by concerns about his competence, the Ontario Court of
Appeal has been told.
Two to three years of court
time could have been saved if the Crown had confronted the controversy
around Dr. Charles Smith, lawyer Marlys Edwardh told the court
yesterday.
"Instead, this was a case
where Crown counsel put her head in the sand," she said.
Smith was the key witness in
the prosecution of Anthony Kporwodu and Angela Veno, who were
charged with first-degree murder in the March 6, 1998 death of
their 3-month-old daughter Athena.
After more than five years
of inching its way through the justice system, the case came
to an abrupt end on June 23, 2003, when Justice Brian Trafford
threw out the charges. The Superior Court judge said the conduct
of the Crown, Toronto police and Ontario coroner's office caused
irreparable prejudice to the couple and meant they would have
to endure an "unconscionable" 70-month delay before
getting a chance to prove their innocence in court.
The reasons for the delay included
assistant Crown attorney Rita Zaied's "unprincipled"
resistance to defence requests for information about other cases
involving Smith, he said. The Crown is appealing his ruling and
asking the appeal court to reinstate the charges.
Crown lawyer Michal Fairburn
told the court earlier this week that the Crown's office was
not aware of potentially widespread problems with Smith's work
until partway through Kporwodu and Veno's preliminary hearing
in 2001, when murder charges against two other women accused
of killing their children were withdrawn because of concerns
about his competence.
That development led the prosecution
to ask for an adjournment in the preliminary hearing. Before
going any further in the case, the Crown wanted to get an independent
expert to review Smith's conclusions about what caused Athena's
death. The case was delayed another nine months while a pediatric
pathologist from the United States was retained.
Although the Crown accepted
responsibility for the delay when the case was before Trafford,
it has changed its position.
But Edwardh, who represents
Kporwodu, said the notion that Zaied didn't know about concerns
over Smith's work is "untenable" - given how it was
the subject of gossip among lawyers and the focus of an investigation
by CBC's the fifth estate.
Most striking of all, she argued,
was a refusal in July 1999 by Det. Sgt. Matt Crone, a senior
officer investigating Athena's death, to charge Kporwodu and
Veno with murder based on Smith's verbal opinion alone. His refusal
came in July 1999, around the time charges against a Peterborough
woman accused of killing her baby were withdrawn.
In his ruling, Trafford noted
that an unauthorized cremation took place at the end of March
1998, because the regional coroner didn't revoke a coroner's
certificate that released Athena's body. He found the state had
a duty to inform her parents that her remains could be held in
the morgue, but the information was never passed along.
But yesterday, Justice Michael
Moldaver of the appeal court said blaming the state seems to
be "stretching" it. Athena's body was clearly in her
parents' control at the time of the cremation, which must have
occurred either because her parents didn't express their wishes
clearly or the funeral home didn't follow instructions, he said.
If they were really concerned
about preserving it, "all they had to do was retain a lawyer."
Edwardh said the accused couldn't
afford to hire a lawyer.
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
