Part Seven: Critical Comment; Defending Parents (2);

I FACED THE SAME -- THIS WAS A LEGALLY-AIDED CASE -- I FACED THE SAME PROBLEM THAT EVERYONE ELSE DOES WITH A MAN OF HIS CALIBER AND WHAT HE CHARGES.

HE ACTUALLY OWNS HIS OWN HOSPITAL. WE -- WE WENT -- I SENT A JUNIOR DOWN TO CHICAGO -- AND THEN MY WIFE AND I WENT DOWN TO VISIT HIM AND THAT GENTLEMAN BELIEVED IN THE CASE SO STRONGLY HE AGREED TO COME AND DO IT FOR FREE.

-----------------------------------------------------------------------------------

LAWYER BRUCE HILLYER TO THE GOUDGE INQUIRY - ON HIS EFFORTS TO RETAIN AN AMERICAN AUTHORITY TO COUNTER THE HIGHLY PERSUASIVE EVIDENCE OF DR. CHARLES RANDAL SMITH;

-----------------------------------------------------------------------------------

A recent posting quoted journalist David Crowe as follows in his article entitled "Defending Parents" which appeared in the Atlantic Free Press;

"Most of all, do not trust the legal system to find truth.

The legal system commonly fails people who cannot afford to hire good lawyers and experts.

If you are facing medical accusations in court you need to throw all your financial resources at the case to minimize your risk of joining the long list of parents in prison under false pretences."

The grossly unfair balance of power between the usually impoverished accused and the Crown - which can bring batteries of witnesses into the courtroom in a typical "shaken baby death" case - was well illustrated by the evidence given by lawyer Bruce Hillyer to the Goudge Inquiry;

The following portion of lawyer Hillyer's testimony to the Commission On Feb. 8, 2008, reads as follows:

"MR. MARK SANDLER: All right. What prior experience did you have, if any, in pediatric or other death cases where cause of death was an issue?

MR. BRUCE HILLYER: Well, I've been blessed with a -- I shouldn't say blessed.

I had had a very high profile case in my little community, at least, two (2) years before.

It involved an allegation of -- of Shaken Baby Syndrome, and we were able to prove, and I highlight the word "prove", that the child died of natural causes.

MR. MARK SANDLER: All right. And very briefly, could you just describe for the Commissioner what that case involved and -- and who were the experts that were lined up on the case?

MR. BRUCE HILLYER: Sure. The -- the allegation was that a mature woman who had her own children was volunteering as a babysitter and, oh, in a six (6) hour window of time this child that she was babysitting went into a convulsive state and the child was taken to the local hospital, Joseph Brant Memorial Hospital, where she was stabilized.

And then the child was taken to McMaster University Hospital where all the trouble began, and there a succession of specialists opined that this child had died as a result of Shaken Baby Syndrome.

And the experts that were marshalled against us started with Dr. Rao, who I understand has testified here.

She was the pathologist.

There was a Dr. Hollenburg (phonetic), Dr. Parise, the name of the pediatrician escapes me; and -- but there was probably about a half a dozen specialists surrounding the pathology opinion of Dr. Rao that was the core of the Crown's case that I had to meet.

MR. MARK SANDLER: All right. And did you have defence experts?

MR. BRUCE HILLYER: I did.

I -- when I first got the case, I bought into the Crown's theory that this child had died of Shaken Baby Syndrome and my initial defence was going to be that it couldn't possibly have happened in this narrow window of time, particularly given the information that the police had -- had gathered and that we were able to muster that the -- it was, perhaps, more likely that the parents would have been responsible for any -- any assaultive behaviour with the child.

But as I started to -- just because of what I do in the rest of my practice, I -- I don't -- I'm afraid I have a rather jaundiced view of the medical profession and so I have to be satisfied myself that what everybody is saying is correct -- so I started right from scratch.

I went back and studied Shaken Baby Syndrome.

I discovered, in my view, this child did not die -- didn't fit the pattern and then sought out a series of experts, and the most important expert for me was Dr. Leetsma in Chicago who I can't say enough good things about.

I faced the same -- this was a legally-aided case -- I faced the same problem that everyone else does with a man of his caliber and what he charges.

He actually owns his own hospital. We -- we went -- I sent a junior down to Chicago -- and then my wife and I went down to visit him and that gentleman believed in the case so strongly he agreed to come and do it for free.

That -- that's how -- I can't -- I have to say that, and -- and I was joined by two (2) other fine doctors here in the city, a Dr. Arnold Noyek at Mount Sinai and Dr. Michael Hauck, (phonetic) both ENT specialists, who had the same approach.

So while the funding was obviously an issue and we were embarrassed by having to ask these fine people to -- to come and help on the basis of a Legal Aid tariff, they were willing to -- to do it even if we didn't get any money from Legal Aid.

That -- that's how -- that's how great they were.

MR. MARK SANDLER: All right. And just as a matter of curiosity, the position of the defence having consulted those experts was what, as to cause of
death?

MR. BRUCE HILLYER: This child, we were able to establish clearly, died of an ear infection.

It was just right there.

Dr. Rao, fortunately for the client, had decided that she was going to write a paper on this case as a shaken baby case and so took a lot more lides than we would normally find in -- in our forensic pathology and once Dr. Leetsma pointed me in the right direction as to where I had to go, what slides I needed, and it was -- it was quite an effort because we -- we were getting the slides in bits and pieces and they were going to Chicago and back and forth by air so that finally we got right slides and we were able to show that -- show what had happened.

Now I mentioned the experts that I -- that I initially faced. What disturbed me about that case was the role of the Coroner's Office because Dr. Cairns started showing up at the trial in the mid -- in mid-week, first week, and by the second week he had arranged for three (3) more experts, and I was presented with the opinions of three (3) additional experts at the beginning of the third week of the trial, at which point Justice Spyer phonetic) was very unhappy with that set of circumstances and gave me the option of a mistrial or adjournment or whatever I needed.

But fortunately, I was satisfied that what each of those experts had to say was medical nonsense and I didn't ask for an adjournment and we just dealt with the witnesses right away, one after the other.

MR. MARK SANDLER: All right. Now if we can move back to...excuse me for a moment, Commissioner.

MS. LINDA ROTHSTEIN: Sorry, Commissioner.

(BRIEF PAUSE)

MR. MARK SANDLER: Ms. Rothstein just points out something to me that in fairness to Dr. Cairns I should put to you. Did you see who you thought was Dr. Cairns today here?

MR. BRUCE HILLYER: No. Dr. Young was here today;"

Blogster's Note: For purposes of completeness, here is the cross-examination of Bruce Hillyer by lawyer Brian Gover representing the Chief Coroner's office;

MR. BRIAN GOVER: Fair enough. And thank you for that. Now, Mr. Hillyer, you testified that -- you testified about a case that you were involved in before the case that we know as Joshua's case, that was also a pediatric homicide, is that right, sir?

MR. BRUCE HILLYER: That's right.

MR. BRIAN GOVER: And you testified that what disturbed you about that case was the role of the Coroner's Office, is that right, sir?

MR. BRUCE HILLYER: Yes.

MR. BRIAN GOVER: And that was a case that was tried before Justice Spier (phonetic), is that right?

MR. BRUCE HILLYER: Yes. And a jury.

MR. BRIAN GOVER: In Milton?

MR. BRUCE HILLYER: Yes.

MR. BRIAN GOVER: And the Crown attorney was Mr. Brian O'Mara (phonetic)?

MR. BRUCE HILLYER: That's correct.

MR. BRIAN GOVER: The Crown's theory was that death ensued as a result of Shaken Baby Syndrome, is that right?

MR. BRUCE HILLYER: That's correct.

MR. BRIAN GOVER: And experts at McMaster University had concluded that death ensued from Shaken Baby Syndrome, is that right?

MR. BRUCE HILLYER: That's correct, yes.

MR. BRIAN GOVER: And I may not have your facility with the medical terminology but I understand that in that case the death, pardon me, the evidence disclosed that a cavernous sinus was thrombosed. Do you recall that, sir?


MR. BRUCE HILLYER: Yes.

MR. BRIAN GOVER: And you had obtained expert opinion evidence that suggested that the baby may have died from an ear infection, as you've told us, is that right?

MR. BRUCE HILLYER: Yes. Yes.

MR. BRIAN GOVER: And that expert opinion evidence was in the form of Dr. Leetsma's report, is that right?

MR. BRUCE HILLYER: Well, it was a combination of Leetsma, Noyek, and Hauck (phonetic).

MR. BRIAN GOVER: Fair enough. And you did not disclose that evidence to Mr. O'Mara, is that fair?

MR. BRUCE HILLYER: Correct. That's correct.

MR. BRIAN GOVER: And just as you told us you didn't disclose the evidence to Ms. Walsh in Joshua's case, is that right?

MR. BRUCE HILLYER: What evidence? I didn't have any evidence to not disclose to her.

MR. BRIAN GOVER: Fair enough. All right. So you've -- coming back to the case that was before Justice Spier, that was a deliberate decision on
your part not to disclose that evidence to Mr. O'Mara, --

MR. BRUCE HILLYER: Right.

MR. BRIAN GOVER: -- is that fair? And during the trial you led evidence in accordance with the defence position that death ensued due to the ear
infection, is that fair?

MR. BRUCE HILLYER: Yes.

MR. BRIAN GOVER: And you agree with me that the evidence in the case was complicated?

MR. BRUCE HILLYER: Very.

MR. BRIAN GOVER: And Mr. O'Mara, the Crown attorney, sought an adjournment with a view to responding to the evidence that you led, isn't that
right?

MR. BRUCE HILLYER: Well, no, he -- he didn't. He just showed up with these three new experts in tow and just disclosed that he wanted leave to call their evidence, and it was presented to me in that manner, and then it was presented to Justice Spier in Chambers, and I -- then Justice Spier left it up to me to decide whether -- how I would deal with it.

MR. BRIAN GOVER: But he tried to refresh your memory.

You recall there was an adjournment from a Thursday to a Monday that was granted by Justice Spier and that was granted by Justice Spier, and that was granted at the Crown's request. Does that refresh your memory, sir?

MR. BRUCE HILLYER: It doesn't, sorry.

MR. BRIAN GOVER: No? And I suggest to you that Mr. O'Mara (phonetic) contacted Dr. Cairns, do you agree with that, sir?

MR. BRUCE HILLYER: I have no way of -- I -- I would assume so. I don't think Cairns would have stumbled into the Milton courthouse.

MR. BRIAN GOVER: And you know, sir, that Dr. Cairns was the Deputy Chief Coroner of Ontario, is that right?

MR. BRUCE HILLYER: Yes.

MR. BRIAN GOVER: You knew that he was the Deputy Chief Coroner in charge of investigations, is that fair?

MR. BRUCE HILLYER: I didn't know exactly -- I didn't know much about his role actually or the Office of the Coroner.

MR. BRIAN GOVER: Right. And we'll come to that.

MR. BRUCE HILLYER: Okay.

MR. BRIAN GOVER: Did you know that he was the Chair of the Paediatric Death Review Committee?

MR. BRUCE HILLYER: I didn't.

MR. BRIAN GOVER: No. And --

MR. BRUCE HILLYER: Did you know he's a family doctor?

MR. BRIAN GOVER: Do you know, sir, that the -- pardon me, sir.

MR. BRUCE HILLYER: Okay.

MR. BRIAN GOVER: Did you know, Mr. Hillyer, that the Office of the Chief Coroner has a role in assisting Crown counsel in identifying expert
witnesses when that assistance is sought by Crown counsel?

MR. BRUCE HILLYER: I -- I'm not surprised by that. I assumed that's why he was there.

MR. BRIAN GOVER: Exactly. And you accept that that's an appropriate role, --

MR. BRUCE HILLYER: Absolutely.

MR. BRIAN GOVER: -- is that fair, sir?

MR. BRUCE HILLYER: Yep.

MR. BRIAN GOVER: And what you became aware of, Mr. Hillyer, is that Mr. O'Mara consulted with three (3) experts identified by Dr. Cairns, is that
right?

MR. BRUCE HILLYER: Three (3) that I'm aware of.

MR. BRIAN GOVER: Right. And they are Dr. John Deck, a neuropathologist, is that right?

MR. BRUCE HILLYER: Yes.

MR. BRIAN GOVER: And then two (2) experts from the Hospital for Sick Children, is that right, sir?

MR. BRUCE HILLYER: Yes.

MR. BRIAN GOVER: A neurosurgeon and a pediatric radiologist, is that fair?

MR. BRUCE HILLYER: That's correct, yep.

MR. BRIAN GOVER: And oral opinions were obtained from them, is that right?

MR. BRUCE HILLYER: At least, oral. I was given written opinions.

MR. BRIAN GOVER: And ultimately, none of them testified, is that right, sir?

MR. BRUCE HILLYER: That's incorrect. They all testified. I cross-examined all three (3) of them.

MR. BRIAN GOVER: And when Mr. O'Mara put the evidence of death resulting from Shaken Baby Syndrome, Dr. Leetsma testified, and I quote: "You may be right, but I cannot exclude the possibility of disease process." End quote. Do you recall that, sir?

MR. BRUCE HILLYER: If you're quoting from a transcript, I'm in no position to say those words weren't there.

MR. BRIAN GOVER: And that's what you mean by the differential diagnosis, isn't that right, the alternative?

MR. BRUCE HILLYER: No, that's not what a differential diagnosis is. You start off -- a differential diagnosis is you're faced with a clinical
situation, you're trained to assume the worst possible disease -- process, and add the ones that are less serious down the road. And you start with number 1 and you start ruling it out.

MR. BRIAN GOVER: Fair enough. And your client was acquitted, sir?
MR. BRUCE HILLYER: Yes.

MR. BRIAN GOVER: And to be clear about this, there was no finding that death was caused by an ear infection, was there, in this jury trial, Mr. Hillyer?

MR. BRUCE HILLYER: No finding?

MR. BRIAN GOVER: Yes.

MR. BRUCE HILLYER: Well, it wasn't a civil case, it was a criminal case. The charge was manslaughter.

MR. BRIAN GOVER: Then what's the answer then to my question? There is no finding that death was caused by an ear infection, was there, Mr. Hillyer?

MR. BRUCE HILLYER: No, nor could there have been.

MR. BRIAN GOVER: Thank you, those are my
questions."

Harold Levy...hlevy15@gmail.com