MORE STORIES HIGHLIGHTED IN THE PRESS WHERE NON ACCIDENTAL INJURY THEY DIAGNOSED WERE MISTAKEN FOR CHILD ABUSE
Couple denies abusing son as they battle state for custody
MCMINNVILLE, Ore. – The state accuses two McMinnville parents of abusing their child, but the couple insists they’re innocent.
The state took custody of Linda and Daniel Dossey’s baby boy, Joss, after the couple brought him in with a fever in November and say doctors found what appeared to be fractures in the child’s leg and ribs. But the couple says their son has a medical condition called neonatal rickets.
The couple says they were shocked after a doctor told them Joss had a broken femur.
“We’re like he’s been kicking around fine,” said Linda. “He seemed a little fussy but not in pain.”
Linda said the doctors’ response to the child’s injuries was it “must have been shaking. That this was (a) grabbing motion that must have occurred that caused the shaking.”
The Dosseys say social services interviewed them and took Joss the next day.
“We’re grasping for anything,” Linda said. “We know that our son has something medically wrong here. Figure it out.”
Looking for an explanation, the couple found a specialist in Illinois who reviewed Joss’ medical file and diagnosed him with neonatal rickets, a rare medical condition that can cause weakened bones.
The specialist testified on their behalf at a custody hearing last month but his expert opinion wasn’t enough to get their son back.
“It hurts. That’s all you can say is it just hurts like beyond anything,” Daniel said.
The Dosseys say there is no proof they abused their son but they have to go through mental evaluations with the state next month. Until then, Joss remains in foster care.
“You’re innocent until proven guilty. We know we didn’t do anything, this will be easy, and then know that it’s not really that easy,” Linda said.
DHS won’t comment on the case. According to OHSU, where Joss was treated before going to foster care, it cannot comment on the specific case but it follows state law, which requires reporting any suspected child abuse.
By Jason van Rassel,
CALGARY — A former Calgary pathologist whose findings were reviewed by justice officials is being sued by the family of a toddler whose case sparked the probe.
A statement of claim filed in a Calgary court Wednesday alleges Dr. Michael Belenky’s mistaken finding the two-year-old’s accidental death was a homicide cast the family under a pall of suspicion and resulted in child welfare authorities placing the toddler’s stepbrother in foster care.
The lawsuit is seeking nearly $2 million in damages on behalf of the surviving stepbrother and his family, including his father and his paternal grandparents.
“It was a nightmare,” said the child plaintiff’s grandmother, who referred any further questions to the family’s lawyers.
Belenky is one of several defendants named in the suit, which also alleges negligence by the provincial attorney general, the office of the chief medical examiner and child welfare authorities.
The Calgary Herald has been unable to reach Belenky for comment regarding the lawsuit’s claims, which are unproven in court.
Child welfare legislation prevents publishing the name of the plaintiffs or the boy, who died on April 4, 2009.
The boy suffered a fatal head injury while being looked after by his stepfather at their Calgary home three days before his death.
“The Certificate of Medical Examiner completed by Belenky, dated July 20, 2010 stated that the immediate cause of death of the deceased infant was ‘blunt head injuries’ and that the manner of death was ‘homicide,’” reads the statement of claim filed Wednesday in Court of Queen’s Bench.
Suspicions over the toddler’s death prompted child welfare workers to apprehend his stepbrother and place him in foster care.
The stepbrother’s paternal grandparents received temporary guardianship and the boy went to live with them in B.C. in June 2010.
However, child welfare authorities apprehended the boy again a month later and put him back in foster care.
The family’s statement of claim alleges the boy was taken again because they would not agree to demands to cut off contact between him and his father.
The lawsuit claims child welfare authorities and a worker involved in the case were negligent, and “did not have reasonable and probable grounds to believe (the boy) was in need of intervention(s).”
A Calgary homicide detective assigned to the case first raised concerns about the term “non-accidental” used in one of Belenky’s reports.
The investigator, Det. Ron Ho, told the Calgary Herald last year he requested a meeting with Belenky in August 2010 to discuss the terminology.
In January 2011, Ho wanted further clarification about the report, but Belenky had previously left the medical examiner’s office in Calgary for unrelated reasons.
Another medical examiner who looked at the case for police raised questions about the findings, leading Alberta Justice in Jan. 31 to announce a review of all criminal files handled by Belenky.
In March 2011, authorities overturned Belenky’s original finding in the toddler’s death and determined it was accidental, that he likely suffered the fatal head injury falling from a piece of furniture.
After that finding, the surviving stepbrother, now five years old, was returned to his father following nearly two years in foster care.
“The chief medical examiner failed to ensure that Belenky and the CME (chief medical examiner) employees were properly qualified,” reads the statement of claim.
“The chief medical examiner allowed Belenky and the CME employees to conduct the examination when he knew or ought to have known that they lacked the skills, training or other resources necessary to conduct the examination,” it continues.
Belenky, 47, was educated in his native Russia and received further medical training during residencies in the U.S.
Alberta Justice officials confirmed last year Belenky did not have a certification in forensic pathology from the Royal College of Physicians and Surgeons of Canada.
However, board certification was not a requirement when Alberta Justice hired Belenky in 2008.
The lawsuit alleges Belenky subsequently failed in attempts to qualify for the designation.
“(Belenky) failed his certification exams to become qualified to practice as a pathologist and/or medical examiner while in the employ of the chief medical examiner,” the claim alleges.
Since the review of Belenky’s files, Alberta Justice has also launched a probe of cases handled by another former forensic pathologist, Dr. Evan Matshes.
The investigation, launched earlier this month, was prompted by questions from an insurance company about an accidental death finding.
After an internal probe raised further questions in four non-criminal cases, three files were then sent to U.S. pathologists for a peer review.
During 13 months in the Calgary medical examiner’s office, Matshes conducted 426 death investigations, including 13 criminal cases, which are being reviewed first.
Matshes, who is board certified, left the medical examiner’s office in September 2011 for reasons unrelated to the review.
Abuse: the worst accusation to level at a parent
Taking your child to hospital can leave you open to being accused of causing their injuries.
By James Le Fanu
7:30AM GMT 26 Dec 2011
Parents nowadays are inundated with so much well-meaning advice from so many sources, it seems almost impertinent to proffer any more. But they do need to be aware of how to combat the hazards, when taking their children to hospital, of being accused of having caused their injuries.
Six years ago in this column, I described the case of a young couple, Mary and Andrew, who took their four-week-old son, Josh, to hospital after noting while changing his nappy that there was something “funny” about the upper part of his leg. This was duly X-rayed, revealing not just a fractured femur but several more around the growing ends of his bones, or metaphyseal fractures.
The police were summoned and the couple taken to the local station, where they were locked in separate cells and charged with assault and grievous bodily harm. Their son’s injuries, they learnt, were apparently “characteristic” of being deliberately inflicted by violent shaking and wrenching and twisting of the limbs.
Josh, however, was clearly not a battered baby in any commonsensical understanding of the term, being well cared for by affectionate parents and without the slightest hint of the sort of circumstantial evidence – bruising, pain and swelling of the limbs – that might reasonably be expected were these fractures caused by excess physical force.
The pattern of injuries is much more suggestive of some unknown, undiagnosed or overlooked disturbance of bone development in the early weeks of life. But the parents’ protestations of innocence naught availeth against the medical experts and, as with so many others similarly accused, they were convicted and their son taken into foster care.
And so it has gone on, causing more grief and suffering than can be imagined to all concerned – until a landmark trial at the Old Bailey earlier this month involving another young couple, Rohan Wray and Chana Al-Alas, who were accused of murdering their four-month-old son Jayden. Concerned he was not well, they had initially taken him to casualty at London’s University College Hospital where they were told he had flu, then to their GP three days later, who could find nothing seriously amiss but advised they take him back to hospital – which they duly did.
Soon after, he had a prolonged seizure before lapsing into a coma. Further investigations revealed a fracture of the skull, a number of several metaphyseal fractures, and swelling and bleeding on the surface of the brain. His condition deteriorated further and he was transferred to Great Ormond Street Hospital, where he died two days later.
The parents were duly charged with having deliberately caused these fatal injuries in the short period between taking him to their GP and then on to hospital for the second time. The implausibility of this scenario, and the suspicion that there might be something else to account for his injuries, was heightened with the surprise finding of the autopsy that he had rickets, the widespread softening of the bones due to vitamin D deficiency.
The trial opened at the beginning of October and ran for six weeks, with 60 medical and professional witnesses giving evidence. The jury heard of the good moral standing of the couple, the lack of circumstantial evidence of neglect, how lack of oxygen during his seizure could have damaged the brain – and, most significantly, how recent research in the United States has confirmed that vitamin D deficiency can indeed result in those “characteristically abusive” metaphyseal fractures.
The case collapsed and, with the charges withdrawn, the couple walked free. No medical experts are going to admit they might have been wrong, for to do so would be to concede that they had been instrumental in so many other miscarriages of justice in the past. But it would be good to think that the outcome at the Old Bailey might finally signal the end of these wrongful accusations – a cheery note on which to close the year.
17 February 2003
On 9 November 1999, Sally Clark was left facing life imprisonment after being found guilty of murdering her two baby sons. Only on 29 January this year did her nightmare end when the Court of Appeal, at the second attempt, quashed her conviction and set her free.
With legal bills already totalling £2m and the prospect of an expensive compensation claim to come, just what went wrong with the judicial process, and how did the defence team overcome what, at times, seemed like insurmountable hurdles?
“For the first 20 months after the second baby died, Sally faced apparently uncontradictable evidence that she had shaken Harry to death,” says John Batt, a 73-year-old consultant and founding member of London firm Batt Holden, and an old friend of Clark’s father. Batt has spent the last three and a half years working five to six hours a day as part of Clark’s defence team.
The initial prognosis did not look good. Dr Alan Williams, the Home Office forensic pathologist, and Michael Green, professor of forensic pathology at Sheffield University, both concluded that Harry had suffered widespread retinal haemorrhages, meaning there could be no doubt that he had been shaken to death.
As a result, Green also changed his original cause of death for Clark’s first baby, Christopher, from natural causes to death by smothering. “Sally was in the seemingly hopeless position of telling everybody she had never, ever shaken her adored son Harry; and yet there was this apparently damning evidence that she had,” says Batt.
It was not until three weeks before the trial began that Professor Luthert from Moorfields Eye Hospital looked at the slides and declared that there were no retinal haemorrhages, but Green strenuously disagreed with him and insisted that he could not have seen all the slides.
Clark’s solicitor Michael Mackey, a partner at Manchester-based Burton Copeland, spent virtually the whole of the last two weeks before the trial trudging up and down the country trying to discover what had happened to each slide. Only on the very last day before the trial began did Green sign a statement that he was wrong about the retinal haemorrhages.
“At that point Julian Bevan QC [lead counsel for Clark] thought the prosecution would offer no evidence and the case wouldn’t carry on. But Robin Spencer QC [lead counsel for the prosecution] wouldn’t have it,” says Batt.
It was then that the statistic, that the chances of two cases of Sudden Infant Death Syndrome (Sids) occurring in a comfortably off family were one in 73 million, began to assume its vital significance.
The prosecution’s star witness, Professor Sir Roy Meadow, produced the statistic from a draft report, ‘Confidential Enquiries into Stillbirths and Infant Deaths’ (Cesdi), the largest single study of cot deaths ever undertaken anywhere in the world, which studied 470,000 live births in five different areas of England over a three-year period.
“There’s no doubt that the statistic [one in 73 million] appeared in that report in its draft form,” says Batt. “What Meadow didn’t disclose was that further on in the report was the statement that, among the 350-odd cot deaths there had been, there were five that were second deaths in the same family. This gave odds of about 1:70, not 1:73m, as the chance of having a second cot death if you’ve had one. The chance of winning £10 on the lottery is one in 50 and it happens to 100,000 people every week,” he says.
In addition to the expert evidence, Williams continued to provide some assistance to the prosecution. Throughout the trial he insisted that there were retinal haemorrhages, although he changed his opinion to Harry having been smothered and/or shaken to death. It was not until after the trial, explains Batt, that the defence team discovered that Williams had got the retina muddled up with the choroid. “It’s next door to the retina and is a very vascular vessel, and what he [Williams] was looking at were not the haemorrhages,” says Batt.
Coupled with this, the prosecution put forward certain inconsistencies that it argued pointed to Clark’s guilt. “The point was made by Robin Spencer QC that everyone knew where they were when Kennedy was assassinated, but that, in my opinion, was the wrong question. Jackie Kennedy should have been asked what time her husband got up in the morning and what time he had breakfast, and if she gave the wrong answer some of today’s child abuse experts would say that was a sign that she was implicated in his death,” argues Batt.
So by a majority verdict the jury convicted Clark. Belief that the verdict was the right one was heightened at sentencing, when Clark’s alcohol problem was introduced by the prosecution. This, says Batt, is one of a number of deplorable tactics employed by the prosecution.
“Alcohol played no role in Sally Clark’s trial because the judge ruled that there was no evidence that it played any part in the death of either Christopher or Harry,” insists Batt. “Nobody would have known that Sally Clark had an alcohol problem, mainly following the deaths of her babies and being charged with their murder, unless Robin Spencer QC at sentence had introduced it in order to maximise the bad publicity.”
Batt’s argument is emphasised by Clare Montgomery QC in her skeleton argument for the second appeal: “The prosecution chose to introduce and emphasise at sentencing and at the first appeal the suggestion that Sally Clark was abusing alcohol. Not only was the evidence introduced without any defence opportunity to challenge it, but it also served no purpose other than ensuring maximum publicity (Judge Harrison having ruled that alcohol had played no part in the death of the children).”
Certainly, sections of the media leapt on the opportunity. On 10 November 1999, the Daily Mail ran with the headline: ‘Driven by drink and despair the solicitor who killed her babies’. Incidentally, on 30 January 2003, the day after Clark’s acquittal, its coverage was rather more measured: “In the aftermath of the trial Sally was portrayed as a ‘lonely drunk’ who missed her well-paid job as a solicitor and resented her children for keeping her at home.”
Court of Appeal, part one: what went wrong?
In July 2000, after a five-day hearing before Lord Justice Henry and Justices Bracewell and Richards, the Court of Appeal threw out Clark’s appeal. Batt says now that, as soon as the first appeal hearing got underway, there were signs that things would not go their way, but that the defence team refused to see the signs.
“When we applied for leave [to appeal] we had a differently constituted court, and they gave Spencer a hard time and gave Bevan an easy ride,” Batt explains. “But by the time it got to the definitive hearing, those roles were reversed. They smiled on Spencer and gave Bevan a very hard time.
“They were hugely critical of Bevan for not having objected to the [one in 73 million] statistic. They said, as did in fact the court [at the second appeal], that it was incredible that it was ever allowed in evidence – it was clearly inadmissable. But Spencer said quite rightly last week that it was never objected to and, of course, the credibility of it as a ground of appeal issue is diminished if no objection is taken to it in the first instance.”
So if this was the case, then why didn’t Bevan raise it? Batt will only say that Bevan did not object because he must have thought the figure was too ridiculous to be taken seriously. “The problem is the person who gave evidence,” he says. “If given by a schoolboy it wouldn’t have mattered, but it was given by one of most experienced professional witnesses in the business. Meadow is amazingly convincing because he remained so reluctant to condemn.”
What the appeal judges were provided with was a report from two defence-appointed statisticians, which said that if 1:73m was right for two cot deaths, then the figure for two murders was 1:2.2bn. Unfortunately for the defence, the Court of Appeal chose to focus on the fact that the principle of rarity was accepted by both sides and allowed that to govern the court’s determination that the statistics must have been a “sideshow”.
“The Court of Appeal in the first hearing was misled into believing that although 1:73m was wrong, the issue of rarity had been accepted by the defence. So exactly how many numbers there were in front of six noughts didn’t really matter,” says Batt.
It was only at the second appeal hearing that the court accepted that rarity itself is a live issue and that, in fact, two cot deaths are not rare. “The court was told and accepted that the chance of two cot deaths are probably somewhere between one in a hundred and one in 400,” says Batt.
It was not until May 2001 that Clark, and her family and defence team, had some good news to shout about. Batt, who had never previously appeared before the Solicitors Disciplinary Tribunal, was tasked with making the case not to strike Clark, a convicted double murderer, off the solicitors’ roll. The tribunal, in an unprecedented move, agreed and merely suspended her.
“That decision alone was the turning point in the entire case. Certainly in the media history of the event, that will be seen as the turning point,” says Batt. “The following day was a slow news day, so we got on the front page of The Daily Telegraph.”
Grounds for a second appeal
Another year passed before, in July 2002, the Criminal Cases Review Commission (CCRC) referred Clark’s case back to the Court of Appeal.
Clark’s husband Steven said at the time: “We’re confident that compelling new evidence, which reveals a natural cause of death but which was withheld from the defence at the trial, will overturn the earlier false convictions, clear Sally’s name and secure her release from prison.”
This new medical evidence was a laboratory report, not disclosed to the defence at the time of the original trial. It showed that Harry, the second baby to die, had lethal levels of bacterial infection in his body and died of natural causes, casting doubt on both convictions.
This medical report had taken two years of discovery and owed much to the perserverance of Marilyn Stowe, a partner with Leeds-based Graham Stowe Bateson, who had offered her services pro bono following Clark’s conviction. She was tasked with getting Harry’s medical notes out of Macclesfield Hospital – not a simple proposition.
“First of all, the hospital referred to the police to see whether it was obliged to hand them over, then to leading counsel to see if it was obliged to hand them over; and at one point Steve [Clark] was told that the two babies were dead and the mother was in prison for murdering them, so what possible reason could he have for wanting the notes,” recalls Batt.
The defence team had sought the reports because evidence emerged that carbon monoxide from a gas log fire could have played a role in the deaths of both babies.
Eventually Stowe’s persistence paid off. On examination of the notes the crucial evidence that a microbiology report existed was discovered. In fact, the evidence had been there all along as had the microbiology report itself.
“On a photostat of one document that went to the Crown Court during the trial, there’s clearly the top of the microbiology report, because the words microbiology report appear, partially masked by the documents on top of it. So we can say, beyond any question of doubt really, that that report that was not disclosed was actually present at the trial and should undoubtedly have been referred to,” says Batt triumphantly.
Before the second appeal, the defence team made one final significant change – they dropped lead counsel Bevan. “You can’t back a loser more than twice,” says Batt on the team’s decision to replace Bevan with Clare Montgomery QC. “It’s not really a reflection on Julian Bevan QC, for whom I have a high regard, but I was surprised at his selection because he’s best known as a prosecutor. There’s no doubt that when the first appeal failed we needed some new thinking.
“Obviously we thought about all the lawyers involved, but had to have continuity and the huge reservoir of knowledge that there was in Mike Mackey – the decision to keep him was the right one. If we’d gone to somebody else we might not have got the result we did.”
Batt is quite happy to claim the credit for Montgomery’s selection – not that you can go wrong with the real first lady of Matrix Chambers. “I used every friend I knew in the law to persuade her to do it, although I had no idea if I was pushing at an open or shut door,” admits Batt.
Despite Montgomery being only 10 minutes into her submissions and being asked by the Court of Appeal to present her case in an entirely different way, the second appeal was concluded successfully in half the allotted time.
“The Court of Appeal had to decide one central issue,” says Batt. “Was the cause of death now propounded by our experts a credible theory or entirely off the wall? Only if it was entirely off the wall would there be any doubt about quashing the conviction.
“The appeal was about half an hour or so old when one of the judges said to Clare Montgomery, ‘Am I right in thinking that the jury at the trial asked two questions about whether any tests had been done for natural disease?’ Yes. And he said, ‘Am I right in thinking that the jury was given the wrong answer in both questions?’ Yes. And then he said, ‘Well, isn’t that an end to the matter?’ And Clare said yes,” explains Batt.
So the appeal could have been concluded after just 30 minutes. Again Batt condemns the prosecution’s tactics, blaming it for dragging the case out for a further two days. “The case would have lasted four days if Robin Spencer QC had had his way,” argues Batt. “I am hugely critical of the way leading counsel for the Crown responded to this appeal. It must have been clear to him and to his junior, and to those instructing him, that two reports on which the CCRC had referred the case back were from respectable and eminent pathologists. They certified not only that an overwhelming bacterial infection was the cause of death of the second baby, but in the case of Dr Morris, he went so far as to say that ‘no other cause of death is sustainable’.”
Batt’s criticism is less a personal attack on Spencer than a fundamental objection to any involvement of the criminal justice system in cases such as Clark’s.
In any event, after three and a half years in prison, Clark will not have been unduly put out by the two extra days it took Justices Kay, Holland and Hallett to quash her conviction and finally set her free.
|Taking the law out of the equation|
|John Batt fervently believes that cases such as Sally Clark’s should no longer be dealt with by the criminal justice system.
The miscarriage aspect of such cases is much more likely, he argues, because of their inherent characteristics. “Every mother who suffers a cot death believes she is responsible for it,” he says. “The sense of guilt is overpowering. At the slightest suggestion by police, doctors, health visitors or anybody else, she will put up her hands and say, ‘Of course it’s my fault’. Ambitious prosecutors can turn that very swiftly into damning circumstantial evidence of guilt, and exactly that happened in Sally’s case. Everything she said that could possibly be construed as a sign of guilt was.”
The strong likelihood of a conviction also means that the Crown Prosecution Service (CPS) and prosecuting counsel are keen to pursue such cases.
“[The CPS] has an incentive to bring a case because they can justify resources,” says Batt. “Leading and junior counsel know that securing a conviction for a double murder – and they’re nearly all doubles, some are trebles, and there’s one quadruple in the pipeline – will immensely enhance their career prospects, so there will be competition to take these cases.
“A leading silk many years ago said to me, ‘Convicting the guilty is easy, but convicting the innocent takes real talent’. It’s absolute rubbish in these cases; it’s the other way around. You never get a chance to convict the guilty, because they plead guilty to infanticide and they don’t even go to prison. The only ones that get to trial are the ones that deny it.”
Batt’s solution is to follow Sweden’s lead, where such cases are not dealt with by the criminal courts at all but by a panel of doctors from every possibly relevant discipline, who decide whether the mother did anything to harm the baby, and if so what her appropriate treatment is. “But also they decide if there’s no evidence that the mother has harmed the baby, and they decide it empirically and not in an adversarial situation,” adds Batt.
He then points to a UK initiative by Professor Peter Fleming, which brings together all the relevant professionals – social services, police, coroner, doctors, pathologists – for case conferences to brainstorm what the real evidence in the case is, in the hope that they can eliminate cases such as Clark’s.
“In my view, that should be universally adopted throughout the country,” he says. “It might even become the law of the land, because however much it costs, it’s a fraction of the cost of prosecuting an innocent mother and a minute fraction of the cost of keeping her in prison for the rest of her life. It’s the cheapest and most cost-effective way of avoiding future miscarriages of justice.”