TRACY LYNN LATIMER BETTER OFF DEAD? A BREACH OF COMPASSION

 
Written & compiled by: Cheryl  Eckstein, founder & president CHN.
PUBLISHED: March 1995


A child  is killed by her own father.  He pleads not guilty, yet he does not deny his daughter died by his direct action. He claims what he did is not a crime of murder, but an act of mercy. Many in society are not outraged in fact, they support Latimer.  After all, Tracy Lynn was severely disabled, and according to her parents, suffered severe pain.  So, is pain a reason to kill? And whose pain are we really talking about?  Was Tracy Lynn Latimer "better off dead"?  

Societal attitudes toward killing children with disabilities are markedly different than societal response to the killing of healthy, so-called normal children. The Susan Smith case illustrates the tragedy of privatizing death decision making. Subjectively, Susan believed her children would be better off dead. It was horrifying to learn that a mother had drowned her two healthy, beautiful children. Will Canadians condone the father's covert ruse of `mercy killing', because Tracy was suffering pain from a dislocated hip, and was so severely disabled, that she was dependent on her parents for her every need?

The Court heard from various witnesses, including police, doctors, a social worker, and Tracy's mother. The jury brought a second degree murder charge against Robert Latimer, based on the facts presented to them. The Appellant met with the Saskatchewan Court of Appeal, February 23, 1995. The following is from the appellant's factum, outlining their grounds for appeal, which are stated here in brief: "THAT the (1.) ...trail Judge erred in law failing to exclude the confession on the basis that ...Latimer was arbitrarily detained and not properly advised...concerning access to legal aid duty counsel;"...(2.) "trial Judged erred ... failing to leave necessity as an issue for the jury; ... (3.) ... trial Judge erred ... in failing to allow the jury to decide the case on what they felt was just ...;" ...(4.) ... trial Judge erred ... in not charging the jury that they could find that Robert William Latimer had the legal right to decide to commit suicide for his daughter, by virtue of her complete absence of physical and intellectual abilities ....;" ... (5.)" ... Judge erred in law in not holding that the minimum sentence for murder on the facts of this case is a cruel and unusual punishment, contrary to s.12 of the Charter ...." ... (6.) "...sentence imposed by the ... Judge is greater than is warranted or necessary, considering the facts of the case and the accuseds' background ...."

Since the media has given much attention to this case, but have missed reporting many critical statements and facts told at trial; this brief summary of trial notes are offered. All quotes contained in this summary were taken from the court transcript marked: "Her Majesty The Queen and Robert W. Latimer: QB CR. #37 of AD 1994: Criminal Trial (Jury) Commencing November 7, 1994. Justice Wimmer Re: SEC 235, FILE # QBCR 37/94. (425 pages) {Please note: All highlighting has been added for emphasis, and is not part of the original transcript. All numbers in brackets, following the quote, refer to the page number of the court transcript}


bulletTRACY LATIMER - What the Jury and Court learned about Tracy Latimer, her mother Laura, and, her father who murdered her.

Autopsy reports concluded, Tracy had no life threatening disease at time of death. (173, 350, & 354) Tracy's parents made reference "to the desire to be able to call somebody like Jack Kevorkian." (30) Tracy attended school at age 4. (Develop Mental Centre at Wilke 351 and 328) Tracy could "think". ( 351) Also, her mother testified that "Sometimes when she didn't want to eat anymore, she would screw her face up...(or) do that when she had enough." (342.)

Tracy's mother testified that Tracy "recognized Bob and I and she recognized the kids. She would smile like if she saw us." "She could smile and she could laugh. She could cry....She cried very seldom when she was little." (330) When Tracy's mother was asked to "describe her temperament...as a youngster or as a preschooler," Laura answered, "Very happy, very happy little girl." (331 and 351) "I could make her smile . . ." (344) Tracy liked to sit outside and watch a campfire. (351) Tracy laughed when the windshield wipers were moving. (351). Tracy was a "fighter," a "survivor." (353 and 355) Tracy's medication for pain was "Tylenol." (77)

"Her care was really no different than what you would give to one of your babies and indeed, it's no worse, it's just different." (352) Tracy ate from a spoon. (80) If needed, a feeding tube for Tracy was not an option for the Latimers. ( 298 and 340) Institutionalizing Tracy was not an option for the Latimers. (297)

"There are thousands of other cerebral palsy victims out there. We know . . . that ten percent of all those people are affected, afflicted to the same degree as Tracy was." (354)

In Randy Kirkham's closing remarks to the jury, he said to murder Tracy, "should be no different here in this case than it would be if he had murdered baby Lee, who was two to three months old at the time Tracy's life was taken. Why should it be any different?" (353)  

We would not tolerate this conduct or have, I suggest, a moment's hesitation were it baby Lee, Lindsay or Brian Latimer as the victim. Your decision in this case should be no different just because Tracy had cerebral palsy. It is not open season on the disabled. (362)
 
bulletTRACY'S CONDITION - AS WITNESSED BY HER ORTHOPAEDIC SURGEON, DR. DZUS

 Dr. Dzus, Tracy's surgeon, was asked if she benefited from previous surgery and follow-up care. Dzus answered, " She appeared to. She . . . appeared to be much more symmetrical after that . . . I was happy with how she was looking  . . . " (163) Tracy had two successful surgeries and did not live such a "dreadful existence" after back surgery. Dzus said, "Her results were good. She was home about six days after . . . which is very good . . . Tracy came through it very, very well . . . I was happy with how she did." (166)

Dzus testified that at the age of "11 years and four months, the angle of her pelvis, was much improved but despite of that her hip ... was continuing to go on its merry route of trying to dislocate and this is quite common in children with cerebral palsy.  Despite you doing everything that you know how, sometimes the hip is just destined to go out of joint." (164)

A discussion of Tracy's surgery (August 17, 1992), post operative and follow up visits with Dr. Dzus ensued. Briefly, Dr. Dzus testified that when seeing her September 16,  

she was doing quite well. ... She was sitting easily in her chair ... " (167) "November fourth, 1992, ... Again, she was still improving. She was able to sit for unlimited periods of time and that's an important thing to note because the children that have severe scoliosis with the total body involvement will find sitting very, very difficult. ... she was sleeping better at night ... " (168) "February of `93 ... She had not really changed much from her November visit ... We were -- everybody -- all the indications are that she was recovering quite nicely ... and doing well. (169-170).
Dr. Dzus last saw Tracy October 12, 1993, twelve days before her father murdered her.  

Dr. Dzus testified that:  

She -- as far as her general health had been the comments from mother was that she's actually done very well with respect to her back and didn't have any colds or sicknesses over the winter and that again is another important statement because when children get severely deformed in their back and are now having difficulty sitting they also have more difficulty swallowing and clearing secretions, eating becomes a problem and these things can all end up in the lungs and cause problems there so it looked like we had been helpful in one way in keeping her upright and that she was healthier in her chest area. (172-173).

Dr. Dzus' main concern for Tracy's proposed surgical date, was her loss of weight - she wanted to be sure she was nutritionally fit for surgery. (175) Her scheduled date for surgery was Nov. 4, 1993. (174) Her other concern rested with the pain Tracy experienced from her dislocated hip. (170) When moving "that leg Tracy expressed pain and her way of expressing pain was to cry out." (171) A surprising comment was made by Dr. Dzus, she called Tracy's condition a "disease". (176) Dr. Dzus testified that she could not provide the answer to the question, if at some future date, Tracy would have "gained the ability to communicate" with the aid of a voice computer. (185).

NOTE: There seems to be some confusion surrounding the discussion about Tracy's weight loss, but the exact amount of weight lost was never established. For example in defense lawyer, Brayford's questioning of Dr. Snyder, Brayford's question only alludes to some child's weight saying, "When you see a child that was perhaps 45 pounds and over a short period of time by say a couple months was to drop from say 45 pounds to 38 pounds...be a very serious health concern?" (259) When Brayford examined Laura, he asked her "What was the sort of maximum body weight that she ever attained in her life?" Laura answers, "I think the most I ever saw -- was 44.5 pounds. That was done just a few weeks before she died...." During the "last summer" she weighed "38 pounds" or "close to "40 pounds." (341)

The Latimers understood that "there were two options with the hip surgery. One was they were going to try and reconstruct the hip that was the problem and if that didn't work ... they were going to replace it." (91) Tracy had only returned home in October, after being cared for in a group home "for July, August, and September (to) the first week of October." (104). (Note: Tracy's brother was born in September, during her stay away from home.) Defense lawyer for Latimer, questioned Dr. Dzus about the predicted outcome of Tracy's pain after hip surgery: "And does this then cure Tracy's pain for the future?" Dzus replied, "Cure is a difficult word to use when you're dealing with cerebral palsy. There's no cure for cerebral palsy." (189)

 
bulletDR. SNYDER'S TESTIMONY: EXPERT WITNESS FOR CHILDREN WITH CEREBRAL PALSY 

Dr. Snyder testified that "Cerebral palsy is a term that encompasses several conditions ... it is not a disease in itself. . . .. many conditions all the way from very mild disability, even people that may have a very mild form of cerebral palsy, they don't even know they've got it."  Dr. Snyder said, "the definition by convention, must include children who've had brain damage during...pregnancy ... during the course of delivery or in the first three years of life. . . ." (241) "After the age of three years, even adults" continued Snyder, "can go out and cross the street and be hit by a car and sustain brain damage and the same symptoms but we wouldn't call that cerebral palsy. That would be termed whatever we turned out to be. If we were paralyzed in all four extremities they would call that a spastic quad...it's a term that is defined by common convention." (242)

Snyder testified that "Ten out of 100 people with cerebral palsy would be in the most multiply severely handicapped range." (242) "The incidents are given as one to two cases of cerebral palsy born for every 1,000 births pretty well in North America." (243) He said, for the "most severe forms of cerebral palsy it's common to have surgery." (246)"They ... operate on the hips to keep the hip joints in place. They operate on the spine if the spine is growing crooked to try to stabilize that, to make the spine straight ... it is not uncommon for some of these children to require more than one surgical procedure. ..." (247) If at some future date Tracy would have needed to be tube fed, Snyder outlined that the procedure is a simple one, that "Children nowadays with tubes live at home ... live anywhere." He said tubes are "quite compact" and "flat against the stomach." (260)

Dr. Snyder was questioned about what resources are available to family's of severely disabled children with cerebral palsy, like Tracy Latimer. Snyder referred to there being "medical resources" and "medical people" who "discuss the management with the parents and caregivers." The various therapists he referred to included: Physiotherapists, Occupational therapists, and Speech therapists. (248-249) Families are "eligible for what we call high cost funding. They can go to preschool or in some areas they go into kindergarten...." (249) 

And nowadays the emphasis is on having these children mingle as much as possible with typical children, go to a typical school, participate in a regular school experience while at the same time they may need some therapy, some stretching or whatever during the course of the school year so that there's educational provision all the way through the school system. Department of Social Services provide first of all what's known as an early childhood intervention program which is a home based program where interventionists go right into the home and help parents when the children are just infants up to the age of five and they do sort of global assistance, helping them with speech and language, with fine motor skills, play and that sort of thing. Later...Social Services provides respite care and when the individual turns 18 ... they will take them under Social Assistance and province group home accommodation or...whatever is appropriate for that person (electric wheelchairs, etc.) (Dr. Snyder, 250)
Regarding respite care, Snyder said, "respite means to give a break ... so that if these children live at home it's well recognized that the parents or caregivers need a respite, need a break from them, from the child and the child may need a respite from the parents...alternate care can be provided right from babyhood. This may be in the form of group homes ... foster homes ... (also) small rural hospitals have played a role in doing that for quite a number of years. They will provide respite care ... overnight to two or three weeks...even several months." (251)

Regarding the placement of severely disabled children in group homes, Snyder said, "when their children get to be 18 or 20, we would encourage them to have them go to group homes because that's what normal people should do. Normal people should leave home...and very often this occurs so the older the child gets the more likely they are to have moved on to some other living arrangement." (254) "I know most families want to remain very extensively involved in their offspring's life even though they may have moved off to a group home or someplace." (p. 255, emphasis added) Dr. Snyder pointed out that the ability to assess what degree children like Tracy are able to understand and communicate back, is determined on a very individual basis. (257) 


bullet

ROBERT LATIMER BEFORE ADMITTING TO MURDERING TRACY

When being questioned about Mr. Latimer's emotional reaction to being questioned about Tracy's death, Cst. Hartle stated Latimer was "Very calm. At times he seemed a bit distant like his thoughts were somewhere else. I didn't notice any red eyes...he was very controlled." (92) Mr. Latimer "stated that she passed away in her sleep...." (83) Mrs. Latimer stated that after she returned from church she started to make lunch, "she went into the bedroom and she found Tracy. She said that she yelled for Bob to call the police, that something had happened to Tracy...." (87)

When asked about Tracy's pain, Cst. Hartle testified that Latimer said "Tracy had been in pain...most everyday from a sore hip." Hartle testified that Latimer "advised me that Tracy had had back surgery a year ago that seemed to have progressed well...that Dr. Dzus did the back surgery...(and) was going to do the hip surgery." (91) Mr. Latimer said, "at about eleven o'clock Laura and the kids had left and went to church and he stayed home with Tracy. He said about 12:30 Tracy was in a little bit of pain, discomfort and that he then put her to bed. He said that he never checked her again." (90) When Cst. Nick D. Hartle explained to Mr. Latimer that an autopsy had to be done "to establish what the cause of death was", Latimer "interjected and said, "I want her cremated"." (91)

 Later, Cst. Hartle told the court his private questioning of Mrs. Latimer. Cst. Hartle "advised Laura that Bob wanted Tracy cremated." Hartle said "She seemed quite shocked at it and I noticed that she was visibly taken aback. I don't think that she had ever thought about that before." Cst. Hartle then told the court that Laura left the room to have a private conversation with Bob. About five minutes later "they both came out into the kitchen and Laura said, "we want her cremated...." (93)

Cst. Hartle testified to the court that he "had serious concerns about this incident"; and "that there may have been a mercy killing." Hartle pressured the coroner, Dr. Kislen Bhairo, "to express those concerns to the pathologist and hesitated that he would." (96) Bhairo had testified earlier that Tracy had been a patient of his "From about...six months of age until 1990." (74) Hartle told the court that on the morning of the day the cremation was scheduled, he had not heard from the pathologist, so he contacted him directly. Hartle said "I advised him of my concerns and he seemed taken aback somewhat that -- that there were concerns." (97) When Hartle was finally given the reports from the toxicology lab, Hartle explained the result "reclassified our investigation from what's called a sudden death investigation to a homicide murder investigation."(98)

 
bulletROBERT LATIMER: AFTER ADMITTING HE MURDERED TRACY

"Cpl. Lyons...asked...Mr. Latimer if anyone else was involved with him in this regard, in this matter and Mr. Latimer replied, "We had talked about it"." (204) "Once he (Cpl. Lyons) had given Mr. Latimer his rights to counsel and the official police warning he then opened up into a conversation with Mr. Latimer." (202) Cpl. Lyons advised Latimer that "Legal Aid duty counsel is available to provide legal advice to you without any charge and can explain the Legal Aid plan to you." I asked, "Do you understand?" He replied, "Yes." I asked, "Do you wish to call a lawyer now?" He replied, "Not really, no...." (279)

Mr. Latimer confessed "I took her in the truck, took her to the shed, closed both doors, hooked up a hose to the exhaust pipe and put it in the cab." Then "Cpl. Lyons asked him, "Did she just fall asleep?" to which Mr. Latimer replied, "Yes, she just fell asleep...." (204) Mr. Latimer agreed that this conversation could be recorded, but when asked, "Would it be okay for me to videotape our conversation" Latimer responded, "No, I don't want that...." (205) Sgt. Robert Conlon also testified that "for the third time he advised Mr. Latimer that he was not compelled to say anything...that his rights to counsel still applied and did he understand all of these rights to which Mr. Latimer replied yes, he did...." (207 and 283) Sgt. Conlon testified several times that Mr. Latimer understood that the charge brought against him was murder. (see 208 - 209) Sgt. Conlon "asked Mr. Latimer if he needed any counselor or any doctor or a therapist. I use [sic] those three professions. I felt as though perhaps he was in need of some assistance. He said no, he wasn't. He didn't need anybody." (211) When Conlon asked Latimer to attest to the first time he thought about killing Tracy, Latimer answered, "I don't know what day it was. I was combining. I thought I'd give her some Valium. . . . I was going to shoot her in the head and burn her in a fire . . . ." (214)

Cpl. Lyons asked Latimer "How did you feel about her being institutionalized?"  He replied, "It would be okay for a short term but not for a long time ..."(297) When asked to describe Latimer's emotional reaction after concluding with the interview, Sgt. Conlon stated, "He seemed to be freer in his way .... He was, I think, a little bit lighter spirits if I can use that example." (215) During a "walkthrough" of Latimer's farm, Latimer showed the police "a box of rags which he had indicated in the statement that he had used to prop Tracy Lynn up in his truck." (223) Latimer gave his permission to have the "walkthrough" videotaped. (222) Conlon was questioned about Latimer's "demeanor" during the "walkthrough". Conlon testified, "I'd say he was basically the same, quiet. He's very hard to understand, very quiet, composed, deliberate in his actions." (225) When the officers had again stressed that "charges of first degree murder would be pending against him", Cpl. Lyons was asked how Latimer responded. Lyons answered, "I didn't see any response. There was ... no emotional outbreak. That's for sure. There was no facial expression to give me an indication one way or the other." (226)

In a interview with CBC, (video tape marked Exhibit P-20), Robert Latimer said "I honestly don't believe there was ever any crime committed here." (383) Shortly after the jury found Latimer "guilty of second degree murder", (415) the court asked Latimer, if he had anything to say. Latimer answered, "I still feel I did what was right." (422)

 
bullet TRACY'S MOTHER: LAURA LATIMER'S TESTIMONY

Defense lawyer, Brayford asked Laura, "as Tracy developed in her first year, was there any suggestion that Tracy would not live at home", Laura answered "No." "-- when she was born?" "No", answered Laura. "...what were your hopes for her at that stage?" Laura answered, "When we very first took Tracy home we knew that she had brain damage but they said it might be very mild or it might be worse. We ... had every hopes that ... she would be able to go to school but would just be maybe slow in school." (327) "We tried to treat her like a normal child ... we tried to make her life as normal as we could." (327) When asked, "how did you feel after Tracy died?" Laura answered:  

When I found Tracy I was happy for her ... I was happy because she didn't have to deal with her pain anymore. After she died ...I don't even know if I cried. Tracy's her birth was way, way sadder than her death....we lost Tracy when she was born and ... that's when I grieved for her ... I did all my grieving when she was little. We lost her then. (346)

Tracy Lynn Latimer did not die at birth. Tracy was 12-years-old when her father killed her. Her death chamber was her father's pick-up truck. Her father propped her up with rags, taken from a storage shed before he turned the truck on to poison her with carbon monoxide. He sat in the back of his truck and watched her die for at least 30 minutes.

 For additional information on Tracy Latimer's death, see CHN FACTS BRIEF, WINTER/SPRING 1995; or contact the Compassionate Healthcare Network.

"Tracy Lynn Latimer, Better Off Dead? - A Breach of Compassion" was produce by the Compassionate Healthcare Network and is copyrighted 1995 Permission is granted to copy and/or quote from this article as long as this message is displayed.
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bulletCHN  provides a number of articles regarding Tracy Latimer, but it is impossible to post all.  See How To Commit a Loving Murder  'Euthanize the Damaged People' by Nat Hentoff http://www.villagevoice.com/issues/9807/hentoff.php

 

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