Defence in Cindy Gladue case used for-hire U.S. forensic pathologist who questions validity of shaken baby syndrome

U.S. report linked pathologist’s testimony to discredited medical studies

(Cindy Gladue. Facebook)

EDITOR’s NOTE- Article updated on April 7, 2015, to clarify that the Crown did not specifically pay Alberta’s acting chief medical examiner Graeme Dowling.

Jorge Barrera
APTN National News
The defence lawyer for Bradly Barton, who was found not guilty in the death of Cindy Gladue, used a for-hire forensic pathologist from the U.S. who specializes in child murder trials and once testified shaken baby syndrome was a “controversial” theory.

An Edmonton jury found Barton, a 46 year-old truck driver from Mississauga, Ont. with a penchant for violent pornography, not guilty on March 18 of first-degree murder and not guilty of manslaughter in the death of Gladue.

The not-guilty verdict ignited outrage. Protests are planned cross-country Thursday calling for “Justice for Cindy Gladue.”

Gladue, 36, was found dead and bloody in a bathtub at the Yellowhead Inn in Edmonton on June 23, 2011.

During the trial, Barton’s lawyer Dino Bottos brought in Minnesota-based Janice Ophoven to counter testimony from Crown witness and Alberta’s acting chief medical examiner Graeme Dowling. Dowling testified an 11 centimetre cut in Gladue’s vaginal wall led to her death. He said the cut was made by a sharp object.

Police did not find any sharp object as evidence.

The evidence around the Gladue’s cut was so central to the Crown’s case it submitted Gladue’s preserved pelvis area as an exhibit. It is believed to be the first time in Canadian trial history that a human body part was presented as an exhibit.

Testifying for the defence, Ophoven said the wound was not caused by a sharp object, but by blunt force trauma. The testimony backed the defence theory that rough sex caused the cut in Gladue’s vaginal wall, which led to her death.

Court heard that Barton paid to have sex with Gladue.

The apparent conflict of expert medical testimony was used by Bottos in his closing remarks to the jury.

Janice Ophoven. KERO23 photo
Janice Ophoven. KERO23 photo

Bottos said in an interview with APTN that Ophoven had been used as an expert witness in other Alberta trials. He said Ophoven specializes in child deaths, but “advises that she consults on three or four or five adult deaths every year.”

Bottos said he is aware that prosecutors in the U.S. and Canada have “gone after” Ophoven’s credibility in the past, but he’s confident she is a solid expert.

“She has been cleared of all wrongdoing, has never been disciplined for any wrongdoing,” he said. “Her record is clean, she is an honourable person.”

APTN asked Bottos how much he paid Ophoven to testify.

“That is none of your business,” he said.

The Alberta Crown’s office issued a statement saying it never paid Dowlings during the Barton trial.

“(Ophoven) was qualified by the court to give expert testimony. The court permitted her to give evidence,” said the statement.

Ophoven makes most of her living as an expert witness for defence lawyers, according to evidence submitted during the 2013 Nebraska trial of Ryan Kozisek who was accused of killing his four-month-old daughter.

According to evidence from that trial -and reported by the York News-Times, Ophoven is paid about $12,000 US per case. The York News-Times reported Ophoven is paid, $4,000 to review a case, another $4,000 to make a report and $4,000 to testify.

Prosecutor William Tangeman then asked Ophoven if she copied and pasted opinions from one case to another.

Ophoven said she only copied and pasted “graphics, some backgrounds, but not opinions,” the newspaper reported.

During the same trial, Ophoven testified that shaken baby syndrome was a “controversial” theory that is the subject of “ongoing debate in the medical field.”

Last week, the Nebraska Court of Appeal ordered a new trial for Kozisek. He was convicted in 2013 and sentenced to up to 50 years in prison. The appeal court, however, rejected Kosizek’s arguments on the forensic testimony. Instead, it ordered the new trial based on testimony by his ex-wife.

The Nebraska Attorney General’s office said it could not provide its file on Ophoven because the case was being retried.

Ophoven’s testimony was also featured in a report by the U.S.-based National Centre for Prosecution of Child Abuse. The report, Overcoming Defence Expert Testimony in Abusive Head Trauma Cases, said one of the challenges prosecutors face comes from a “group of physicians who testify frequently and convincingly for the defense…even though many of their opinions are outside the consensus of the medical community.”

The report cites three examples of Ophoven’s defence testimony that relied on either discredited or experimental medical research.

In one instance, the report linked Ophoven’s testimony to a discredited 1987 study based on “crude models” that concluded that massive brain injuries couldn’t be caused by shaking alone.

The Public Health Agency of Canada states that shaken baby syndrome is a “preventable tragedy.” The agency states that incidences of shaken baby syndrome “may be severely underestimated due to missed diagnosis and underreporting.”

Ophoven could not be reached for comment.

The biography on her website states she is a “pediatric forensic pathologist” with over 30 years of experience and that she has “focused her clinical practice on understanding child abuse and injury to children.”

Barton’s acquittal has sparked outrage across the country. Rallies are planned for Thursday in Victoria, Edmonton, Regina, Saskatoon, Winnipeg, Ottawa, Toronto and St. John’s. There are also rallies planned in smaller centres like Lac La Biche, Alta., Lethbridge, Alta., and St. Paul, Alta.

“I really seems to have struck a nerve with people. It has something to do with the horror, not only in the way she was murdered, but how she was treated afterwards in court,” said Audrey Huntley, one of the organizers for the Toronto rally. “As well as the fact the killer walked free after having admitted to wounding her.”

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