A Washington State Tragedy

The case of this young woman was recently filed in the U.S. Supreme Court. The facts of the case as set forth in that petition for certiorari to the U.S. Supreme Court are as follows (citations omitted):

This matter arises from a tragedy. When petitioner Carissa Marie Daniels was seventeen years old, she gave birth to a son. At the time, she was a high school student in Washington with no criminal record. She lived with her twenty-two-year-old boyfriend, Clarence Weatherspoon, who was not the father of the child. Weatherspoon did not have a job, so he often stayed at home to watch the baby while petitioner went to school or work.

Hardly a week after birth, the baby began to have health problems. Petitioner promptly took him to the emergency room. The doctor, however, found nothing wrong with the baby. Over the following eight weeks, as her baby continued to ail, petitioner took him to his regular pediatrician or the emergency room on seven additional occasions seeking treatment. But he did not get better. Nine weeks after the baby’s birth, he died. On the morning of his death, petitioner had left him in the care of her boyfriend. After receiving a call from her boyfriend that afternoon saying that her baby looked ill, petitioner came home, found her child limp, and called 911. When paramedics arrived, they determined that the child was dead.

As is common when a baby dies unexpectedly, an autopsy was performed. The autopsy suggested that shaken baby syndrome or blunt head trauma could have caused the child’s death. Those inspecting the baby could not be sure of the cause of death, though, because it typically is “really hard to tell” whether a baby’s ill health is caused by traumas or something congenital, or even “the flu.”

The State charged petitioner and her boyfriend with two crimes, (1) homicide by abuse and (2) second degree felony murder (predicated on either assault or criminal mistreatment), and put them both in jail. Homicide by abuse (absent any aggravating facts, and the State charged none) carries a sentencing range for first-time offenders of 240-320 months; second degree murder is punishable by 123-220 months. Before trial, the State dropped both charges against the boyfriend and released him from custody in exchange for his agreeing to testify against petitioner.

At the conclusion of petitioner’s trial, the court delivered the Washington State pattern jury instruction for cases involving multiple charges related to the same incident. The instruction read in relevant part:

"When completing the verdict forms, you will first consider the crime of homicide by abuse as charged. If you unanimously agree on a verdict, you must fill in the blank provided in verdict form A the words “not guilty” or the word “guilty,” according to the decision you reach. If you cannot agree on a verdict, do not fill in the blank provided in Verdict Form A.

If you find the defendant guilty on verdict form A, do not use verdict form B. If you find the defendant not guilty of the crime of homicide by abuse, or if after full and careful consideration of the evidence you cannot agree on that crime, you will consider the alternatively charged crime of murder in the second degree . . . ."

The jury left Verdict Form A blank and returned a guilty verdict on Verdict Form B, with the jury’s writing in italics, stated: “We, the jury, having found the defendant, Carissa M. Daniels, not guilty of the crime of homicide by abuse as charged in Count I, or being unable to unanimously agree as to that charge, find the defendant Guilty of the alternately charged crime of murder in the second degree.” The trial court did not make any inquiry or finding as to whether the jury was deadlocked on the homicide by abuse charge. Nor did the jury offer any descriptions of its deliberations or conclusions in that respect.

After polling the jurors to confirm that they all had voted guilty on the second degree murder charge, the trial judge entered judgment on that charge and dismissed the jury. The trial judge did not declare a mistrial respecting the homicide by abuse charge, and the prosecution did not request any further proceedings with respect to that charge. The trial court sentenced petitioner to 195 months in prison.

On appeal, her conviction for second degree felony murder was reversed on the ground the conviction on the state-law ground that assault, one of the two predicate felonies the State charged for the offense, is not a proper predicate for felony murder. Thus, she does not stand convicted of any offense at this point.

The State asked for a remand “for a new trial on homicide by abuse or the alternative charge of felony murder in the second degree predicated on criminal mistreatment.” . . . The court of appeals held that while the State could reprosecute petitioner for second degree murder, the Double Jeopardy Clause barred the State from retrying petitioner for the more serious crime of homicide by abuse. . . .The Washington Supreme Court thus concluded that by successfully appealing her conviction, petitioner had revived the State’s ability to prosecute her for the more serious offense for which it was it was unable to obtain a conviction at her first trial.

The legal issue for the U.S. Supreme Court is whether the Double Jeopardy Clause of the United States Constitution permits this woman to be tried on homicide by abuse and the alternative charge of felony murder in the second degree predicated on criminal mistreatment, or only felony murder in the second degree predicated on criminal mistreatment.

There is a deep split of authority in U.S. Courts over whether this is permissible, including a split between the Washington State Supreme Court and the 9th Circuit Court of Appeals in a decision reached while the Washington Supreme Court was deliberating, which the Washington State Supreme Court considered an rejected. There are also procedural issues over whether the U.S. Supreme Court should take a case like this one now, on direct appeal, or reserve judgment in case the case comes up for collateral review in a habeas corpus petition.

For Carissa Marie Daniels, this is the difference between facing again the possibility of a 195 month sentence, and facing the possibility of an even longer sentence. It is also the difference between facing a trial on two different theories, either of which a jury could believe and convict her, or facing a trial on just one theory, which would present a more specific set of facts that prosecutors would be required to prove. Further, the fact that this case has some obvious factual weaknesses, means that there is no certainty that a reconviction would be produced by a new trial. Ms. Daniels and the prosecution could reach a plea agreement or the prosecution might even drop all charges in the case, rather than have a new trial. The outcome of this decision making would be influenced by the charges that may be brought in a new trial.

The statement of facts strongly imply, of course, that the real problem in this case is that Ms. Daniels is not guilty of anything but giving birth to a child in ill health who didn't live, and that the decision of the prosecutor to bring such serious criminal charges at all was an (unactionable) abuse of discretion. What was at worst inartful parenting by a young and inexperienced parent in a difficult situation was treated like murder. The medical evidence to support the shaken baby syndrome theory upon which the prosecution relied also appears to have been established by far less than the beyond a reasonable doubt standard that applies to criminal cases. The possibility that the fact that the boyfriend's testimony was in exchange for relief from the possibility of a decade and a half or longer in prison for criminal charges also casts serious doubt upon the reliability of his testimony. The prosecution, the facts imply, has compounded a tragedy Ms. Daniels has already suffered, by bringing this weak case.

Indeed, Ms. Daniels is really less culpable in many ways than a parent in the common neo-natal homicide situation, where a lack of care for a newborn from a woman in the throes of labor giving birth alone gives rise to murder charges. Ms. Daniels sought and received help from her boyfriend and sought medical care for her young son repeatedly.

The U.S. Supreme Court won't decide those issues. It will simply decide if Washington State has the right to retry Ms. Daniels on one charge instead of two. The odds are reasonably good that Ms. Daniels will win before the U.S. Supreme Court. The odds are also reasonably good that if the U.S. Supreme Court takes the case and decides it in her favor, that a new jury will acquit her or that she will reach a plea bargain that produces a sentence much shorter than the 195 month sentence that she received at trial the first time. Her lawyers in this case, acting pro bono, are among the best in the business at U.S. Supreme Court litigation. It also isn't unlikely that the attorney in the prosecutor's office who pushed this case in the first place will have moved on, and that no one else in that office will want to try it again.

It is also likely that this case, upon achieving the notoriety that Ms. Daniels' case has if the U.S. Supreme Court accepts it, will spur legislative reforms in some state, perhaps even Washington State, that will protect other parents in her shoes from criminal prosecutions, or could even produce a pardon from Washington State's governor in her own case. Time will tell.

Long Sentence In Another Neonatal Death

A twenty-three year old Wasilla, Alaska woman whose failure to act properly in the throes of child birth in Grand Junction that caused the death of her baby pleaded guilty to charges carrying a 16-24 year sentence today in Colorado. It is yet another case of a life wasted by a poorly crafted Colorado criminal statute.

Mesa County's District Attorney, Pete Hautzinger's poor judgment is also a driving force behind a great many of these prosecutions.

Colorado's child abuse resulting in death statute treats this as first degree murder, for which a life in prison without parole sentence is required, in many cases. The neonatal death scenario is the dominant one in which this statute has been applied, even though it is probably the least culpable of all the scenarios that can lead to charges under the statute.

Deaths in the immediate aftermath of child birth, in the wake of solitary births, are a distinct phenomena that has vexed lawmakers nationwide since the Colonial era, with a very different common set of facts that differ greatly from the typical child abuse death. The defendants in these cases tend to be vulnerable and grief stricken. The punishments secured in these cases range of dismissals (often due to a lack of proof regarding whether there was a still birth or a live birth), to the life in prison without parole sentence authorized by Colorado law, with very little factually to distinguish them.

I personally take the opinion that, as middle ground, the mothers in these cases (but not anyone else) should be exempt from criminal liability beyond negligent homicide, given the diminished capacity issues often present in these cases and the fact that the mother-defendant often is suffering deeply from guilty and sorrow related to the death itself. Few women charged as defendants in these cases are a threat to the public when they are not in the throes of labor and delivery. Wasting the lives of these women with long prison sentences cause a harm grossly disproportionate to the public purpose presumably served by the alleged deterrent effect of such long sentences. The sentences also distract attention and responsibility from other people in the lives of these women who frequently could have intervened more effectively and failed to do so.

Charges Avoided, Law Still Wrong

I have said before, and continue to believe, that neo-natal death caused by the action or inaction of a mother in the throes of child birth should not constitute first degree murder. This charge is authorized by Section 18-3-102(1)(f) of the Colorado Revised Statutes, added by the legislature in 1995.

An eighteen year old Western State College woman had those charges against her dropped for lack of evidence today, because it could not be determined if certainty if a child was born alive, or was stillborn, leaving the woman facing only the first degree misdemeanor charge of concealing a death. But, these cases simply do not carry the same degree of culpability of other first degree murder offenses.

Neither the death penalty, nor life in prison without parole, the two permissible sentences in a first degree murder case, are appropriate for these mothers. In contrast, other offenses which qualify as first degree murder are: premeditated murder; murder as part of arson, robbery, burglary, kidnapping and aggravated rape; causing an execution through perjury; murder involved depraved indifference to human life; and deaths caused an overdose on illegal drugs sold to a minor.

Neo-natal homicide by a mother who has just been through child birth (almost always alone and outside a hospital) doesn't compare in culpability. Distressed isolated mothers are not in the same league as people who either set out with a plan to kill, or set out with a plan to engage in another course of action which is already a serious felony.

Manslaughter, a class 4 felony that applies to homicides caused recklessly, or criminally negligent homicide, a class 5 felony that applies to homicides caused with criminal negligence (usually considered a higher standard of negligence than that applied in civil cases), would be more appropriate, given the highly aggitated state that a woman is in at this point. This should also not be classified as a crime of violence, a classification ordinarily used for offenses that represent a great risk of violent harm to members of the general public.

The normal punishment for a class four felony that is not a crime of violence is two to six years in prison, with three years mandatory parole. The normal punishment for a class five felony that is not a crime of violence is one to three years in prison with two years of mandatory parole. Neither is a slap on the risk and each leaves the individual convicted with a felony conviction.

Anyone who has not just gone through child birth ought to face a homicide offense of second degree murder, manslaughter or criminally negligent homicide, that reflects their personal degree of culpability (knowing, reckless or negligent), but should also not face first degree murder charges, which should be reserves for hardened criminals and extremely culpable crimes, not for parents or guardians who lose control when dealing with their children or wards. Parents who go too far are not so unredeemably horrible that society needs them to never walk free again.

I am also not suggesting that infanticide should be legal. Indeed, I am suggesting that it be a serious homicide felony. But, I do not believe that a mother who has just been through child birth is capable of forming the degree of criminal intent that we normally ascribe to second degree murder defendants.