Dr. Charles Smith testified for the state of Ohio in a 2000 child-murder case where the accused man – Christopher Fuller – narrowly escaped being executed.

After he was convicted of aggravated murder and attempted rape of his three-year-old daughter, Randi, the jury at Mr. Fuller's trial recommended that he be put to death. The trial judge, however, turned down the request and sentenced Mr. Fuller to life imprisonment.

The shocking revelation emerged Friday at the Goudge Commission, after lawyer Julian Falconer stumbled across it in a data base comprising 30,000 documents that was given to lawyers with legal standing at the inquiry last September.

The key document was a Sept. 22, 2000, letter from district attorney John Holcomb to Dr. Smith expressing gratitude for his ”truly outstanding work.”

”I can well imagine that pediatric forensic pathology must rank amongst the most unpleasant fields of medicine in which to practise, but society is indeed fortunate that a man of your calibre has chosen to do so,” it said.

The revelation threw the inquiry into a tizzy on its last scheduled day of testimony. Counsel for groups who represent the wrongly convicted and criminal lawyers expressed regret that they had not noticed the letter earlier in the data base, but implored Mr. Justice Stephen Goudge to briefly reopen certain areas of questioning to allow further exploration of the issue.

Lawyer Louis Sokolov, representing the Association in Defence of the Wrongly Convicted, said that the use of Ontario resources to provide assistance in death-penalty cases in the United States is a matter of grave importance that necessitates a thorough review of past practices and policies.

A lawyer for the Ontario Office of the Chief Coroner, Brian Gover, opposed the application to allow questioning on the Fuller case. He said that it would be unfair to former Chief Coroner James Young – who returned to the inquiry Friday morning to give a brief response on an unrelated matter – to force him to answer questions about a whole new issue.

Mr. Gover was joined by inquiry counsel Mark Sandler, who said there is already ample evidence on the inquiry record to allow it to make recommendations on how Ontario government experts should behave when it comes to assisting governments outside Canada in death-penalty prosecutions.

”The legal system has to live with the possibility of error,” Mr. Sokolov said, in opposition to their positions. He said that when it comes to the death penalty, however, the issues that bear on expert testimony are unique, because the outcome is some final.

Mr. Sokolov and James Lockyer – a lawyer for nine families who say they were victimized by Dr. Smith's many errors during his 20 years as Ontario's top pediatric forensic pathologist – said they have already been in contact with Mr. Fuller's lawyer in Ohio.

Mr. Lockyer said that he has contacted Mr. Fuller's lawyer and that discussions are under way about how the discrediting of Dr. Smith could affect Mr. Fuller's conviction.

In the Ohio case, the dead child – Randi Fuller – was determined to have died of ”asphyxia” caused by a neck and chest compression. The case involved forensic evidence that included the identification of minute hemorrhages as evidence of asphyxia, and a ”dilated anus” as evidence of a probable sexual assault.

Precisely the same evidence was a key to the 1992 conviction of an Ontario man, William Mullins-Johnson, in the sex slaying of his niece, Valin Johnson. Mr. Johnson was exonerated last September after the Ontario Court of Appeal was told that Dr. Smith's evidence on these points was dangerously wrong.

According to evidence at Mr. Fuller's trial, he initially told police that he found Randi unconscious on the bathroom floor one evening and attempted to resuscitate her in a panic.

In a second statement to police, he admitted to striking her after she struggled against his attempts to force her to engage in sexual conduct.

In a formal application to reopen the questioning of Dr. Young and to recall deputy chief coroner James Cairns to the inquiry, a coalition of groups said: "Despite best efforts to familiarize themselves with the database documents, counsel for the applicants were unaware of the existence of the Holcomb letter prior to Feb. 1, 2008.

"Nor, were counsel aware that Dr. Smith had testified in the United States generally, or in death penalty cases, more specifically."

The groups who made the application were Aboriginal Legal Services of Toronto and Nishnawbe Aski Nation Coalition; AIDWYC; the Criminal Lawyers Association; and the nine families represented by Mr. Lockyer.

Mr. Sandler told the inquiry that lawyers for Dr. Smith have informed him that the Fuller case is the only death-penalty case in which their client has played a role.

Mr. Sokolov responded, however, that, given Dr. Smith's general record for accuracy, he was not prepared to accept this assurance at face value.

After adjourning for half an hour to consider the application, Judge Goudge rejected the application.

He said that the issue would take the inquiry too far outside of its mandate – to inquire into "systemic" problems in the coroner's system – and that it would be unfair to Dr. Young to spring questions on him about the Fuller case.

Judge Goudge also said that there is considerable evidence already on the record at the commission dealing with Ontario experts' assisting prosecutions outside Canada.

He noted that Ontario's current Chief Forensic Pathologist – Dr. Michael Pollanen – testified last fall that he gives expert evidence from time to time outside Canada. If parties represented at the inquiry want to make specific recommendations that bear on these activities in future, he said, they can do so.

In a letter he sent Friday to Goudge inquiry counsel, Mr. Sokolov said: "The timing of Dr. Smith's evidence in the Fuller case is extremely troubling, given the fact that it occurred long after Dr. Smith's frailties as a pathologist ought to have been apparent to the Office of the Chief Coroner and the Hospital for Sick Children.

"The fact that the accused potentially faced the death penalty in the Fuller case and was sentenced to life in prison obviously raises the concern of additional miscarriages of justice beyond those in this jurisdiction. The obvious question is whether there are additional cases like Fuller of which we are not aware."

In his sentencing decision in that case, Judge Matthew Crehan of Ohio's Butler County Court said: "There was no physical or medical evidence as to past or present sexual molestation found on the body of the child. The cause of asphyxiation and the bruising on the child's body indicate the asphyxiation was caused by a neck and chest compression as testified by the pathologists, However, the mechanism of asphyxiation could not be established."

Judge Crehan said that, according to the defence, Mr. Fuller – 31 at the time – had been dropped on his head as a child, suffered from Asberger's Disease and was depressed. He had no previous criminal record.

"Mr. Fuller testified that he was very sorry about Randi's death," Judge Crehan said. "Mr. Fuller asked his wife and daughter's forgiveness, as well as God's."

The judge said that the notion of a father's committing a sexual assault on his child and then killing her is a horribly aggravating sequence of events.

"How anyone could do this to a child is beyond this court's comprehension," he said. "Were that the only factor to take into consideration, this court would have no hesitation in inflicting the death penalty on Mr. Fuller.

"The court must weigh the background, character and history that Mr. Fuller has amassed during the 31 years that he has lived on this Earth, and determined if his life is worth saving even in the face of the aggravating circumstances surrounding this crime of aggravated murder."