Happy Girl: The Latimer Dialogues 3

But why was this relevant, and indeed why was the testimony of the doctors about Tracy’s condition, if the issue was simply whether or not Robert Latimer had broken the law, as the prosecutor had suggested? Latimer had committed the deed; there was no doubt about that. And it was in direct violation of the law.

But both lawyers and the judge were acutely aware of one possibility that could, possibly, lead to a not-guilty verdict. It is called jury nullification. In legal systems based on English law, a jury is entirely free to come to any verdict it wishes to come to. Nullification comes into play when juries are sympathetic with a defendant and think that strict application of the law would be unjust. The trials of Henry Morgentaler for carrying out illegal abortions in Ontario and Quebec in the 70s and 80s are the best-known examples of jury nullification in Canada. Four different juries refused to convict a man who had clearly, deliberately and admittedly broken the law.

Brayford could not explicitly argue for jury nullification, however, because defence lawyers in Canada are no longer allowed to argue for or even suggest nullification (as happened in the Morgentaler trials). Juries are still fully allowed to practice nullification, but no one now is allowed to tell them about it or suggest it to them

The best Brayford could do, then, was to gain the jury’s sympathy for his client and hope that the jury, not likely to be aware of its power to nullify, might just decide on their own that they could not bear the idea of finding this man guilty of murder, even though technically, of course, he was. This was Brayford’s only real hope.

The testimony of Laura Latimer, then, and garnering sympathy for the plight of the family, and providing understanding of the grim situation Tracy was in, was highly relevant to the only real possibility of acquittal.

Now, when Tracy was born, had it been a normal pregnancy?

Yes, it was uneventful.

And how long did it take?

It took 24 hours; she wasn’t born until the next day.

Okay. Tell us what happened as the labour developed.

The fetal heart monitor was broken, so I didn’t have that. I bled all the time I was in labour, and they thought that the baby’s heart rate was 140 and that mine was 80. Then they discovered that was mistaken, that it was actually mine that 140 and the baby’s was 80. At that point the decision was made that she needed to be born right away, so they called the doctor. Well, he came, he used forceps, and the baby was born right away.

And how quickly did you learn that Tracy had had enough deprivation of oxygen that there was a problem?

When she was born, I saw her right away, and usually a baby will have their knees drawn up to their tummy, but she was flat, just literally flat. Her mouth was hanging open, she looked like she was dead. And they started to work on her right away, they got her breathing, they wheeled her by me. I wasn’t allowed to hold her or anything, but they allowed me to see her for a minute, and then they took her away. Then later Bob told me that he saw the baby’s hand twitching, and the nurse said she was hypoglycemic, because of that twitching. Then, at 4 in the morning the doctor and nurse came and woke me up, and then told me the baby was having seizures, and she would have to be transferred immediately to University Hospital.

And that meant that the baby was going to be transported, like 90 miles, to Saskatoon, is that correct?

That’s right, they sent an ambulance out for her, the ambulance had a doctor and a nurse, and they took Tracy in an incubator to Saskatoon.

And that same day, did you get discharged from the hospital and go with Bob to be admitted to the University Hospital?

Yes, we followed the ambulance, we went in the car.

Now what transpired at the University Hospital?

They gave Tracy enough drugs to make her comatose, to try to reduce the swelling in the brain, to try to stop the seizures. So she was there about 8 days, she was comatose the whole time. After about 5 days they let us hold her, but she wasn’t awake, she was comatose. And then about the day before she was discharged they let her come out of the drug-induced coma – she was on phenobarb – she wasn’t having any seizures at the time. They knew that there had been brain damage, they knew because her reflexes and her muscle tone weren’t normal, but at that point they didn’t really know if it was a lot or a little. They said the first year of her life would be important to determine that, that if she reached certain milestones then we could be reasonably sure that the damage wasn’t too severe.

Okay, and once Tracy was taken home, how did she make out with seizures in the first few months?

She had no seizures when she came home. She was a happy little baby – she was happy.

And when did seizure activity again develop and become a problem?

She was about 4 months old, and we started to notice her hand was twitching, twitching all the time, and so we took her to the doctor in North Battleford, and he agreed that it was troublesome, like he believed it was seizures. He made an appointment for us to go see a neurologist in Saskatoon. The appointment was not until 6 weeks from that date, and we came home. We couldn’t stand to wait 6 weeks, so we phoned the University Hospital, and they said bring her. So we brought her that day, instead of waiting we brought her. They admitted her. When she was admitted she was having seizures every minute she was awake, it was twitching just all the time, constant twitching.

Laura went on to describe how Tracy stayed in the hospital for three weeks as doctors tried various medications to stop the seizures. Then Tracy went home, still having constant seizures. The doctors said that one seizure does not cause brain damage, but that many of them, over a period of time, can cause more brain damage. So, they kept on trying different medications. One seemed to work, at first – for 20 minutes Tracy had no seizures. Laura mentioned that hopeful moment:

I can remember holding her in my arms, and it was the first time I’d held her, and held her still. Then, after 20 minutes, the seizure started up again.

Finally, a medication was found that reduced the seizures to five or six a day, and that is the condition she remained in for the rest of her life. Brayford asked Laura if Tracy ever reached any of the milestones that are normally looked for in infants.

When she was small she could roll, she could roll across the room, she would bat at things with her left hand, but she didn’t purposely reach over to pick up something, and bring into her mouth, or anything like that. She never stood, or never sat, alone.

Did she ever lose the ability to roll over, and or move herself?

Yes, she did – when she was about four and she had her first surgery . . . Before the surgery Tracy used to love to lay on her tummy and play, she liked to kick and play with her toys. She would hit toys, we used to hang them for her, and she would hit them, that was one of her pleasures in life, one of her few pleasures in life.

Did that surgery do anything in regard to her pleasures in life?

She lost control of her right leg, you had to hang on to it all the time, if you didn’t the leg would fling out. When it flung out it seemed to hurt her, she would cry, and she would bend over, her whole body would bend over with the leg. And she couldn’t – she never did – never could roll again, she couldn’t roll around.

From a perspective of increasing or decreasing her pain, what was the effect of that surgery?

It increased her pain, and I always kind of wondered if it made her scoliosis progress quicker.

What was the next surgery that was done on Tracy?

When she was about 9 they cut a lot of muscles, to try to stop the constant pulling. They cut muscles in her toes – not all her toes – but some of her toes, cut muscles in her heel cords, they cut muscles in the outside of her left knee, they cut her abductor muscles, and they also cut one on her waist. She was in a body cast, from under her armpits to her toes. It had an opening at the crotch area, so you could diaper her. It had a broomstick between her legs, partly to hold the legs apart, and partly so you could have something you could hang onto when you picked her up.

She was in a body cast for six weeks … when she was in the cast, I was worried sick, because she couldn’t be positioned on her side, she had to lie flat on her back. I was afraid that she might throw up, or that she might have a seizure, or she might choke on her saliva. I can remember talking to the physiotherapist about it, and really there is nothing that could be done. They were just concentrating on Tracy’s muscles and on her bones.

Laura was then questioned about Tracy’s back operation which took place in 1992 when she was 11 years old.

Tracy was starting to become more and more twisted – everything inside her was being cramped, her lungs, her stomach, everything. She was getting sick, she used to have bronchitis or pneumonia every year, she would be sick for like a month. It was becoming harder and harder to keep any food down her. We used to always have a bucket there when we fed her, because she would get a certain amount of food down, and back up it would come, then you have start over again. She had this thick, thick phlegm, you could reach in and just pull it out, and it would seem to gag her…

Then she described how the operation affected Tracy, and what would have happened had they not operated. Tracy would die. Mark Brayford asked what the process of going through the operation was like.

It was awful. We couldn’t just go in there and be with her, we had to wait in the waiting room. Once every hour, one of us was allowed to go in for about 10 minutes and then you had to leave. The first few times I went in she wasn’t awake, her face was all swollen and puffy, she looked awful. Bob couldn’t bear to go in, he couldn’t bear to see her like that. About the third time I went in she was awake, it was awful, she was crying, she was moaning, and it was awful. They were trying to give her painkillers trying to get her, I guess, back to sleep again.

What was the shape of her body when she came out of the surgery?

She was rigid as a board. Before the surgery she was flexible, like you could sit and rock with her and she loved to be rocked, she loved to sit and rock. Bob used to rock her for hours – he used to hold her. But after the surgery she was just like a board, just like a plank.

Could you explain any of this to Tracy before – what was going to happen?

No.

Like, could she understand anything that was going to happen?

No, she couldn’t, she couldn’t understand anything. I can remember the morning of the surgery, bathing her, had to bathe her with an iodine bath on her back, twice, and she was happy, and she was looking around. I can remember I was just sick, just sick, because I knew what was coming, Tracy didn’t know, she didn’t know what was coming.

And how did you feel when she woke up and you looked her in the eye after she was there, rigid as a board?

I felt awful, it was like she was saying help to me, like it was just awful, it was – I felt sick.

What would happen if she had a seizure when she was rigid like that?

She would still have it, even though those rods were there. You can’t stop a seizure, you can’t hold someone’s hand and stop the twitching in that hand, it’s relentless, it goes on no matter what. So she still, every day, had seizures.

Now, as far as the operation being a success, as far as untwisting her, and uncramping her lungs and her stomach, so that she didn’t vomit so often, and so she could breathe better, from that perspective was the operation successful?

In some ways the operation helped her. It helped her lungs – she never had a cold or bronchitis again as long as she lived. It helped her with her eating, she would throw up but not as often as she used to. But the hip still dislocated. And Tracy was never the same again, never, she was never the happy person she used to be, ever, ever again. She couldn’t cuddle anymore, she couldn’t rock – she was never the same.

As far as her level of pain that you believed she was experiencing, had this operation increased it or decreased it?

It had significantly increased it.

And what was the condition of her hip already at the time of the operation?

Tracy was having muscle spasms. Her hip was dislocating sometimes but it wasn’t all the time out. I can remember after her bath sometimes Bob would have her on the bed, and he would have her hairdryer and he would put heat over that area, and her leg would relax, and he could get it back in sometimes. It was going in and out.

Once the pelvis had been attached to the rods, and her back straightened out, then what happened to the right hip?

It still went out, it got so it was out all the time.

Did you perceive that this is something Tracy could feel or not?

Absolutely Tracy could feel it. Tracy was in a lot of pain. Tracy was miserable. She used to be a happy little girl, and she’d turned into someone who just sat slumped, just waiting to be moved. She was – she was very unhappy.

And so this operation occurred approximately 13, 14 months before death. Was it anticipated there would be more surgery, even then?

Even then they knew they have to do something about that hip. No one ever said this is the last surgery – I mean they were just trying to keep her going, that’s all, it was just trying to slow down the progression of the disease, it wasn’t trying to cure her, or stop it, or anything like that.

Laura became pregnant again in the year following the back operation. Toward the end of her pregnancy she could no longer manage to handle Tracy and, with Robert busy with harvesting, they decided put Tracy into a group home for a few months. When Tracy came home at the beginning of October1993, she had lost one sixth of her weight, she had bed sores and she was not eating properly. She appeared not to recognize her brother Brian, who previously had spent much time entertaining Tracy and playing with her. She was at home for two weeks before the fateful meeting Laura and Tracy had with Dr. Dzus, and then it was about another two weeks before Tracy’s death.

What about you and Bob – how happy or unhappy had Tracy made your life?

Tracy enriched our lives, Tracy made us become better people, like you know when you have a little baby you have to do everything for the baby, and that’s how it was with Tracy all her life. For Bob and me, when she was young and we would get awful news about her, or you know the seizures weren’t being stopped, or whatever, we were good for each other. Like if one of us was really, really depressed, the other person would be up, and they would say, you know, we’ll get through this, like you know Tracy will get through, we’ll be all right. We supported each other. The last year of her life that wasn’t happening anymore – that last year we were getting sadder and sadder, it was awful.

Was there a period, initially, when you felt bad about what happened to Tracy at birth?

Yes, I grieved, I grieved hard for a year. In the daytime when I was with Tracy, I couldn’t be sad. But at nighttime I would go to bed, I would think about the little girl I had lost, and I would cry. I cried myself to sleep every night for a year. Then I just quit, I just made up my mind that we just accept like this is how things were for Tracy, and things got easier then.

What about Bob, how did he cope with Tracy’s difficulties?

Bob loved Tracy dearly, he was always there for her, he’d pick her up and rock her, but the pain – her pain – was very upsetting to him… Tracy used to enjoy her bath but that was starting to become torture for her.

Could you explain this to us, why would the bath now become torture?

Her leg had to be held perfectly still – the person who bathed her didn’t have enough hands, literally, hold her and bath her. Her leg had to be held perfectly still, if it wasn’t she would scream in pain. She had a pressure sore at the base of her spine. So it was just awful for her. I can remember standing in the bedroom and listening to her cry, I can remember feeling desperate, feeling just awful. And she would come out, and she was so thin, she was so terribly, terribly thin, and I can remember how desperate I felt.

What had they done as far as pain management for her when she came out of the hospital?

She was sent home on Tylenol, just regular Tylenol. It seemed obscene, but they couldn’t give her stronger medication . . . she had bouts, more than once, where she vomited blood, so they were worried about her stomach. Also, she always had trouble with constipation – they just didn’t feel her system could tolerate stronger medication. But the Tylenol didn’t seem to have any effect at all – it didn’t seem to do anything.

How did you feel about having her hooked up to a feeding tube?

Years and years earlier there had been some talk about it, because Tracy was vomiting and vomiting, and she couldn’t stop. What did happen that time was they found one of the anti-seizure drugs had reached a toxic level in her system, and so they took her off the drug, and the vomiting stopped. At the time it kind of upset us, because they were willing to put this feeding tube to treat a symptom, but they weren’t treating the problem. But, anyway, at that time we made up our minds that we would never, ever have her on a stomach tube.

Have you ever thought about having Tracy live somewhere other than with you people?

I thought that when she was 18 or so she would go and live in a group home. It would have been very, very hard for her, because she loved her family and because she ate the best for me. We did actually apply – this is looking into the future, this wasn’t anything immediate.

How was Bob, as far as coping with the idea of Tracy going away to live in a group home?

Bob didn’t want her to, and especially when she was in pain, he couldn’t bear to have her in pain somewhere else. This was not going to be the answer for Tracy – I mean it would not be in Tracy’s best interests. He did not want her to go at all.

Did you ever perceive that Bob didn’t act in Tracy’s best interests?

Never.

Did you ever, even once, see Bob get angry with Tracy?

Never.

Brayford questioned Laura about her meeting with Dr. Dzus on October 12, 1993, when she learned that in all likelihood the hip joint could not be saved and that a salvage job was necessary – entailing cutting off the femur.

The leg would still be there, but that part of the bone would be gone. When she told me that I was stunned, I was absolutely stunned. I was not expecting it in the least. I started to cry, and I couldn’t stop crying. I just thought that now they’re going to start to mutilate our little girl, it just seemed obscene, it just seemed like something you wouldn’t do to your pet, like you wouldn’t do it to your dog or cat. If you did you probably be charged with being cruel to an animal. It just seemed unthinkable, it just seemed unbelievable, like I couldn’t stop crying.

This examination, was it pleasant for Tracy?

No, Tracy screamed.

Now, you had seen the effects of the other surgeries, and you had seen the recovery periods. In your mind, what did you think was going to happen, as far as Tracy’s level of pain, after they cut off the top of the bone and left her leg dangling there?

I guess I had no faith whatsoever that this was going to help Tracy, and I asked the doctor if this would be the end of the surgeries, if this would be the last surgery, and she said no. There would be more and more surgeries down the road. And so far all Tracy’s surgeries had always made her worse.

When you went home, and Bob came in from the field, did you discuss with him the option that had been laid out for you?

I didn’t talk to him about it right away. I was sick over it, and I wanted to talk to him, but he was combining that day and he didn’t come in until dark. He ate, the kids were around, he had a person working for him and she was around. So we didn’t talk about it until we went to bed that night. I told him, I told him what the doctor said. He was horrified. We held each other and we cried. I said to him that really, I thought it would be better for Tracy if she died, it would be the best thing for her. I said to him that I wished I could call Dr. Jack Kevorkian.

Did Bob say much to you at this point?

No.

Was there any discussion that he might put Tracy to sleep?

No, no. We didn’t talk about that at all.

Did you truly feel what you had told Bob?

Yes, I wished it for her, I wished it for her every day. I can remember lying in the tub, and I’m thinking I wished I had a shot or something for her. But I knew I didn’t have the courage, I knew I didn’t have the courage to do it, but I wished it for her, I wished it for her every day. I was her mom, and that’s what I wanted for her.

When Tracy died, at that point did you know that it was anything other than natural?

No, I thought she died of a seizure or something. I didn’t know.

And how did you feel?

When I went to Tracy, I sat down on her bed, and I went to pick her up, and her legs were relaxed, relaxed like they’ve never, ever been in all her life, and it made me look at her again, and her face was an odd colour, and I knew, I knew she was gone, and I was so happy for her. I couldn’t believe that it had happened for her, I was so happy for her. I thought finally something has gone Tracy’s way – I was so happy for Tracy.

Brayford asked about Laura’s reaction when she first heard that Bob had caused Tracy’s death.

Was that a shock to you at that point?

I was in total shock. It was like someone had yanked the rug out from under my feet. I was angry, I was angry for couple days, because I was thinking about what Bob had done to me and the kids. I was selfish, I was thinking very selfish things. I wasn’t thinking about Tracy at all.

What did you mean by what Bob had done to you and the kids?

I didn’t know how we were going to go on, like I just didn’t know what was going to happen to us – I was just being selfish, I was just thinking about ourselves.

And how did your emotions evolve, over time?

I started to think about Tracy. Tracy had been the one hurting, not us. I started to think about what a loving father Bob had always been to Tracy. I’m a religious person, and I started to think about how our loving father gave Tracy to a loving Father, and then this great peace came over me, and I’ve been at peace ever since. Whenever I think about Tracy, then I’m all right.

In your mind, was there any other humane option for Tracy?

No, no, that was the best thing for Tracy, the best thing that could happen to her. The doctors were experts in their fields, but they were just looking at her bones. She was more than a skeleton, she was more than muscles, she was a little girl. So, I was happy for Tracy. I didn’t grieve, I couldn’t grieve. I grieved when she was born, but I couldn’t grieve after she died. I was happy for her.

Next came the cross-examination of Laura. Prosecutor Neufeld was dealing with a very sympathetic witness who threatened his case, not by presenting evidence that Robert had not intentionally ended their daughter’s life, but by making the action appear to be humane and merciful. Just as Brayford was trying to give his client the best chance of an acquittal, Neufeld saw his job as presenting the best possible case for the prosecution, which entailed trying to counter the sympathy that Laura had undoubtedly built up for the Latimers. Neufeld talked about how the Latimer family celebrated the birthdays of all her children including Tracy, and how they would try to treat her, as best they could, as a normal, “whole” child. He pointed out how Laura became very active in learning about cerebral palsy so that she would be prepared for problems that would come in the future. As Laura said, she became Tracy’s advocate, trying to make her life better. Neufeld painted a picture of relative normalcy, and that many parents had to cope with the same sort of thing.

I take it you learned, in all your reading and study about cerebral palsy, that you are not alone?

Yes.

That there were thousands of children in North America and in the world who had conditions much the same as Tracy’s?

That’s right.

And would you agree that, throughout your dealings with Tracy, and through her schooling and care, that you wanted her to have the same experiences as any other child?

I tried.

And I would suggest you did pretty well, didn’t you?

We did our best.

Sure. You tried to take her wherever you went.

Yes.

You tried to have her experience the outdoors and you tried to have her experience interaction with other people?

Yeah, if we were in the living room watching TV we tried to have her in there or if we were in the kitchen eating, we wanted her in there. These, like all these things, I mean these are more for when she was younger, and healthier. When she became unhealthy they weren’t practical anymore. She used to love to sit by the bonfires, she used to love to watch the fire, but she couldn’t do that after the hip was dislocated, she couldn’t, it was too uncomfortable for her. We used to go out often, take her in the car, go visit somebody or something, but it became not a pleasure for Tracy anymore, as her health went downhill.

And so do I understand it, that after she had a back surgery, you didn’t do any of these things anymore for her?

Well, there would be times she would have to go in the car, but it wasn’t – we didn’t take her for a car ride just for the fun of it, it wasn’t fun for her anymore. She could still sit in her wheelchair outside, there were some things she could still do.

Okay. and in fact she rode the school bus to school every day, is that correct?

That’s – yeah, it was actually a developmental centre.

Okay, my apologies. What I meant was the Wilkie developmental centre.

She did.

It certainly was your expectation and in fact it was your dream that Tracy would progress through the developmental centre and eventually, when she became of age, she would move into the group home and live there, is that correct?

That’s what is my dream for her was when she was young, yes. As she got older her health problems made some of that dream impractical.

But moving into the group home was not impractical?

Neufeld pointed out that Tracy had stayed in the group home for three months that summer before she died, suggesting in effect that it had not been out of the question then. Laura countered by pointing out that Tracy had lost a sixth of her body weight during that time. Neufeld said that her weight was never stable and that it fluctuated from time to time. Laura agreed that it did.

You were extremely pleased with the results of the back surgery, weren’t you?

I was pleased with parts of it. I was pleased because she never got another cold, she didn’t get bronchitis that year. I was pleased with that part of it.

So there was a whole year, or nearly a year, that she did not get the normal sort of cold that she was subjected to before, is that right?

That’s right, and that was remarkable.

And that was because the surgery had allowed her breathing to be not restricted anymore, is that correct?

That’s correct.

But now, in trial, Laura wanted to emphasize the grimness of Tracy’s condition, in order to try to justify her husband’s action. Neufeld of course wanted to emphasize a more positive view of Tracy. He questioned Laura on the professional care Tracy received on half-yearly trips to the university hospital in Saskatoon. Noting reports of those visits, Neufeld suggested that Tracy could play with toys and other objects; Laura said she would bat at things, but not purposefully. Neufeld suggested then one day, with enough practice, Tracy might learn to associate her movement with certain results such as turning on the radio. Laura said that would be a goal.

There’s an entry in red for February 1. What does that say?