Mother walks free after shaking her baby to death

The Globe and Mail, by CHRISTIE BLATCHFORD, February 25, 2004 - Page A1

TORONTO -- By about 11 o'clock yesterday morning, 25-year-old Elizabeth Cao was essentially free as a bird.

She was given a conditional sentence of two years less a day, plus three years of probation, meaning no jail time.

Judge David Fairgrieve waved off the "usual house arrest and community service provisions," deciding Ms. Cao had been punished enough by the 22 days she cruelly had been forced to serve between her arrest and release on bail.

How did Judge Fairgrieve put it, as he read aloud selected passages from his reasons for sentence?

"Given the nature of her loss, it hardly seems necessary to provide explicit or further acknowledgment of the harm she caused."

Oh yes, the nature of her loss.

The nature of Ms. Cao's loss is that in the fall of 2001, fed up with her five-week-old daughter Sara's crying, Ms. Cao shook her to death.

She caused the death of Sara; Sara is dead, dead, dead; ergo, Ms. Cao has no baby daughter: That's the nature of her loss.

The proceeding took eight minutes, start to finish, by my count.

Wham, bam, thank you ma'am. Don't let the door hit you on the ass on the way out. "I hope things go well," the judge said, stopping just short of uttering the great Canadian platitude "Take care."

If you had walked into courtroom M-1 at the Old City Hall courts, knowing nothing of the matter, you might have taken the heavy young woman dressed in a black T-shirt and pants for a victim of crime. Before and after the proceedings began, one or another of her two fine lawyers was usually hovering protectively at her side, as though the young woman were terribly frail. And didn't Judge Fairgrieve himself tell her the point was "not to add to your misery"?

Last fall, with her preliminary hearing on a charge of second-degree murder about to begin, Ms. Cao's lawyers, Cindy Wasser and Catherine Rhinelander, struck a deal with prosecutors Anna Tenhouse and Rebecca Edwards: Ms. Cao would plead guilty to the lesser offence of manslaughter.

Plea bargains are a fact of life in the criminal courts, and properly so. They are not only efficient, but also mark a theoretical acknowledgment of responsibility by the offender.

By her plea, Ms. Cao was admitting she had caused Sara's death and acknowledging that, as Judge Fairgrieve cast it, "she did not lack the capacity to understand the consequences of her actions."

By accepting it, the prosecutors were agreeing that Ms. Cao didn't intend to harm her baby.

But somewhere along the line, the defence proposed a non-custodial, or conditional, sentence, not unusual for defence lawyers, as the judge noted, but noteworthy for the fact that the prosecutors embraced the idea.

Noting that "a segment of the community would no doubt take the view that any offence involving the death of a helpless infant at the hands of her inadequate and violent mother should result in substantial imprisonment," Judge Fairgrieve praised the prosecutors "for having made a more reasonable and enlightened assessment of the public interest."

The defence pitch -- despite the acknowledgment of capacity inherent in Ms. Cao's guilty plea -- is basically that their client is a developmentally delayed young woman who was ill-equipped to care for her baby daughter.

As evidenced by Ms. Wasser's call last week, reflected in local newspaper stories, for an investigation of how the case was handled by the Toronto Children's Aid Society, the lawyers would place the blame for Sara's death upon the CAS.

And certainly, while the Children's Aid wasn't perfect -- its workers were divided about what to do, with some staff wanting to seize the baby and being overruled -- an agency social worker and high-risk nurse, as well as a public-health nurse, were nonetheless actively involved throughout, the CAS making a total of six visits to the rooming house where Ms. Cao, her then-husband and Sara were living.

The public-health nurse spent more than an hour with the young mother; the CAS nurse explained the dangers of shaking infants to Ms. Cao, and though the nurse wasn't sure how well Ms. Cao understood it, the basics seemed to sink in, such that she replied, "Yeah, that's not good for them."

On the evening of Oct. 20, when Ms. Cao's husband phoned home, she told him everything was fine. In fact, Sara had been crying, would not settle, and Ms. Cao picked her up and "shook her severely," then put her down in her playpen.

A little later, a visiting friend heard strange gurgling noises and suggested Ms. Cao feed her. The baby wouldn't eat. Ultimately, this young man noticed Sara was bleeding from her nose and mouth and tried, three separate times, to call 911. Each time Ms. Cao stopped him.

She did call her husband twice, telling him something was wrong and that she wanted to take Sara to hospital, but he said they would go when he came home.

Finally, the young man called 911 over Ms. Cao's objections.

Ambulance and firefighters responded, found Sara not breathing, but revived her en route to the Hospital for Sick Children.

She never regained consciousness, and three days later, life support was discontinued, and Sara was pronounced dead.

At autopsy, the little girl was discovered to have at least 10 rib fractures, some of them in the early stages of healing, suggesting that she had not been hurt only on the night in question, but also at some prior time.

She died of blunt force head injury, consistent with shaken-baby syndrome.

A psychologist who assessed Ms. Cao for her lawyers found that she had learning difficulties, placed at the low end of the borderline range on intelligence tests, and had intellectual limitations.

Nonetheless, as Judge Fairgrieve noted, without irony, the psychologist reported that she "had managed to scrape through Grade 12."

In court yesterday were Toronto Police Detective-Constables Andy Gibson and Shawna Coxon, the investigating officers.

It is always the police, in these cases, who unfailingly remember dead babies, their birthdays, their injuries.

The end game should come as a relief, but Det.-Constable Gibson was both near-apoplectic and near tears when he said, "I feel like there's no justice for this five-week-old baby. This is the last day of 2 1/2 years. No one will remember her now."

The officers are clearly part of the . . . what did the judge call it? . . . less-enlightened segment of the population who believe that the death of a helpless infant should call for some significant jail time.

But then, to be fair, Det.-Constables Gibson and Coxon attended the autopsy. They saw Sara on that cool table, a little girl, 36 days old, weighing eight and a quarter pounds and about 22 inches long, with brown eyes and dark brown hair.

They can tell victim from perpetrator, if no one else can.