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Infanticide and the hog-tied prosecutor

The story I am about to tell you is already several years old and received a shockingly small amount of attention at the time that it occurred. It is back in the news now because of a civil lawsuit.

In July, 2006, an 18-year-old young lady went to an abortion clinic in Hialeah, Florida. She and another witness allege that the baby was born alive and was moving and gasping for breath. A subsequent autopsy confirmed that the child was born alive. The estimate in the stories I have seen is that the child was 22-23 weeks' gestation. The witnesses state that a clinic staffer later identified as Belkis Gonzalez put the baby into a red biohazard bag and zipped it up. The police found the infant's body eight days later hidden in a cardboard box at the clinic.

The deputy police chief was very determined that homicide charges should be brought, but they never were. In fact, no criminal charges have been filed at all. Why not?

Apparently one reason was that the Medical Examiner's report listed "extreme prematurity" as the cause of death and said that the manner of death was "natural," stating that children born that young have "zero" chance of survival. (This seems factually incorrect, even concerning 22 weeks' gestation.)

So--all you legal eagles out there in readerland. Just how tied are State Attorney Katherine Fernandez Rundle's hands by the coroner's report? Let's consider a parallel: Joe walks up to Grandma's bedside in the nursing home in front of witnesses and holds a pillow down over her face while she flails around. The medical examiner lists the cause of death as "heart failure" and the manner of death as "natural." Does this mean the prosecutor can't bring charges on the strength of the witnesses' testimony? Is the case of the asphyxiated infant just a matter of the prosecutor's deciding that she probably can't get a homicide conviction anyway, so why bother trying? (And if so, what does that say about our society?) Or is this more probably, as some sources in the office have told Jill Stanek, a case of her shelving the case because it is related to abortion?

Comments (12)

Between 22 and 23 weeks each day can make a big difference in survival rates.

Also: Gender is a factor in mortality. A Swedish study published in 2003 found that boys are at 50% greater risk of death or serious long-term consequences of prematurity than girls.

Legally it seems the autopsy is considered the best evidence, but if the conclusion is based on a wrong assumption about survival rates, as it appears, she should still file charges.

I have two granddaughters born prematurely, one at 22 and one at 23 weeks. The one born at 22 weeks is severely brain-damaged, and a lovely blessing to all of us. The one born at 23 weeks is absolutely 100% normal in every way; only her small physique compared to all of her siblings' even hints at her premature birth. One cannot assume that premature birth at those times is inevitably fatal.

This situation is also evidence of the schizophrenia of our society. The baby was intended to be murdered and if that had been accomplished as planned, before her birth, no one would ever have heard about it, much less for a single moment considered prosecution of the child's killer(s). But because the child's residency unexpectedly changed while she was still alive, suddenly it's a big deal . . .

God have mercy on us all.

Legally, the person's long-term chances of survival are completely irrelevant. The law of homicide asks whether the defendant caused the decedent's death. I can murder you right now even if you would die in five minutes regardless. There's a common 1L hypothetical that demonstrates the law: A gives B a slow-acting lethal poison that will kill him in 48 hours. B then boards a plane, which crashes five minutes after takeoff, killing everyone on board. Did A murder B? Of course not---he was not the direct or proximate cause of B's death. Now suppose that the poison makes B sick to his stomach, so he misses that flight; A's act has actually lengthened B's life, because B dies in two days, rather than in just a few minutes. However, in this situation, A has murdered B because his act caused B's death; what would have happened absent A's act is entirely irrelevant to the inquiry.

So the determination that the child in this case had "zero" chance of survival is of no legal consequence whatsoever. The only legally relevant inquiry is whether the child died from asphyxiation caused by being in a plastic bag, or whether the child died prior to this point from unrelated organ failure that would have occurred in the same manner had the clinic worker not intervened.

I think the reason there is confusion on the point Paul so clearly explains is because it is assumed that if the child's survival chances were "zero" (which my philosopher's soul can hardly bear to repeat, because "zero" means "logically impossible" anyway, so no one should use it in this context), the child died _very quickly_, so that asphyxiation in the biohazard bag couldn't possibly be the cause. This does not follow, even if it is true (which is by no means clear) that the child's life could not have been saved with proper medical intervention. People have attested to seeing children younger than this breathe room air for several hours before dying. That would be the kind of expert testimony that should be brought to bear on the case, if the prosecutor were motivated to follow it up.

Beth, you are so right, but I look at it this way: If our society becomes consistent on this, it will become consistent in the wrong direction--by allowing neonatal infanticide. In fact, the prosecutor's foot-dragging on this case may indicate that we're moving in that direction already. So I'd rather see our society be inconsistent by prosecuting born-child infanticide than by not prosecuting either pre-birth or post-birth infanticide.

I should perhaps add that according to Jill Stanek, who follows these kinds of cases, induced-labor abortion is becoming a method of choice for late-term abortions. It is fairly simple and low-cost and carries minimal risk (among late-term abortion methods) to the mother. But in such abortions, even many in the second trimester, the child will breathe for some time after birth. Hence, the question of homicide charges in many cases is probably going to end up turning (if there are witnesses who will speak and a prosecutor interested in following up) on whether the child was simply neglected for that intervening time or actively "disposed of" in a way that probably caused death in itself.

"The witnesses state that a clinic staffer later identified as Belkis Gonzalez"

This wasn't just a staffer, this was the *clinic owner*. The poor baby's body was also hidden from investigators, another sign something was amiss.

Are the minimal abortion restrictions enforced all that often?

Abortion clinics are often in urban areas, where Democrats control local politics and thus the DA's office. And abortion interests control those Democrats.

A DA who wants to advance his career, or even just keep his job, will look the other way when these crimes are alleged.

Are the minimal abortion restrictions enforced all that often?

Which ones did you have in mind?

I agree with Paul's comment. Where the coroner's statement is relevant, however, is to whether there was any positive obligation to do anything to save the child's life. If medical intervention would have been futile at that point, then there is arguably no positive obligation to obtain medical attention, since even if someone had, it could not reasonably have averted a certain death by natural causes. What it does is to take off the table the argument that the action taken essentially prevented medical attention from saving the infant from death, even given the proximity to the hospital.

The other problem the prosecutor faces is that, in light of the coroner's report, it will be difficult to prove that the baby was actually alive when inserted in the bag or that the bag caused suffocation or otherwise contributed to or hastened death. Remember, she has to prove beyond a reasonable doubt both that the baby was alive AND that placing her in the bag caused or hastened the baby's death. You've got maybe a couple of witnesses, neither of whom are medical professionals, saying that the baby might have been alive, might have been zipped in the bag, and no clue whatsoever as to what happened in the back. If the clinic employee turns around and says that she brought the baby straight to the doctor and the bag was really the only thing she had to carry a bloody newborn, the prosecutor is pretty much done. Considering that they investigated to the point of finding the body and doing an autopsy, my guess is that they just didn't have the evidence for a conviction, and they knew that even a win would be a pyrrhic victory lasting only until it went up on appeal. Could be that they're still going to file, but plenty of cases never make it to court for lack of evidence.

If the clinic employee turns around and says that she brought the baby straight to the doctor and the bag was really the only thing she had to carry a bloody newborn,

Hold on--what doctor? The abortionist wasn't even in the facility at the time, so that can't be the one you mean. (That fact has been verified in the course of the civil suit.) And the child certainly wasn't taken out of the facility to any other doctor. No one even alleges that she was.

As far as the witnesses saying that the baby "might have been alive, might have been zipped in the bag," I gather the witnesses are prepared to testify definitely that the baby was both moving and gasping and was immediately, at that time, zipped into the bag. So those facts appear to be beyond question. That all fits with the fact (confirmed by the autopsy) that the child was born alive. Evidently events all moved very fast--child born alive, gasping, put right into the biohazard bag and zipped up. That doesn't really allow a window of time for the child to be dead already when zipped into the bag.

As far as the bag's causing suffocation, I would again point out that if you put a bag over the head of an exceedingly elderly woman and held it there, in front of witnesses, and she died, it would be pretty hard to argue that she died of some other cause. It seems to me that the important question is whether a child gasping for breath and placed into such a bag would be expected to die therefrom. At a _minimum_ it seems like they ought to be able to get manslaughter charges or something of that kind out of it.

If those facts are not in serious dispute, then it doesn't make any good sense to me why the prosecutor wouldn't file absent some major doubts about witness credibility (e.g., if they stand to benefit from the civil suit). I don't see any legal deficiency in the case on those facts, although I'm not in criminal practice and I don't know the Florida statutes.

Re: enforcement of abortion law, I had in mind parental involvement laws for minors, 24-hr waiting periods, and informed consent regulations.

We know from the enterprising student investigator Lila Rose that parental consent is easily dodged.

Are clinics ever audited for compliance with these minor laws? What about health inspections?

Abortion clinic staffers may also be affected by several states' mandatory sexual abuse reporting laws. Clinic protesters have told me that they regularly see minor girls led into the clinic by a significantly older man who is in their view likely the father of the child.

The DA does nothing about their concerns, they tell me.

A small point, given the horror of the events recounted, but words becoming eviscerated of their meanings entails great costs also. "An 18-year-old young lady"? All ladies are women, but not all women are ladies. When in doubt, let's not presume to judge another's character, even positively. I recall a news report in which a witness described "Seeing the gentleman raping a woman."

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