General Court Cases

General Court Cases

State v. Deborah Z.
228 Wis. 2d 468, 596 N.W. 2d 490 (1999)

Deborah Z. was charged with attempted murder and first-degree reckless injury because she allegedly had attempted at the end of her pregnancy to drink so much alcohol that the fetus would die. The baby was born with a high blood alcohol level. The baby also appeared to have FAS.

The court held that a fetus was not a human being under state law and dismissed the charges.

Sheriff, Washoe County, Nevada v. Encoe
110 New. 1317, 885 P. 2d 596 (1994)

After a newborn child tested positive for amphetamines and methamphetamines, the state filed a criminal complaint against the mother, charging her with child endangerment. The Nevada Supreme Court held that the state's law forbidding child endangerment did not apply to the ingestion by a pregnant mother of illegal substances that are transmitted to the fetus through the umbilical cord.

The court noted that in 1991 the Nevada legislature had rejected a proposed bill that would have encouraged prosecution of women whose children were born with FAS. The rejected bill read in part as follows:

"If the baby is suffering from congenital drug addiction or the fetal alcohol syndrome, the local health officer of the county or city within which the baby or the mother of the baby resides shall report the condition to the district attorney for that county for evaluation of the appropriateness of invoking protective services and custody pursuant to chapter 432B of the N[evada] R[evised] S[statutes] and of prosecuting the mother for child abuse or neglect.

The bill was opposed, inter alia, by the Chief of the state Bureau of Alcohol and Drug Abuse and by the president of the Nevada Eagle For[u?]m.

State v. Ross
1996 WL 208476 (Minn. Ct. App.)

Ross was convicted of murder in the death of her foster child, DeJohn Speed. The child died from head trauma and numerous internal and external injuries.

Ross argued that she was denied the effective assistance of counsel because her attorney did not call a witness to testify that the child had FAS. Although the argument is not entirely clear, it appears Ross was claiming that FAS would have caused the child to injure himself. The appellate court rejected this claim because there was not evidence that any medical expert would actually testify the child had FAS. 1996 WL 208476 at *7.

See also   State v. Ross, 1994 WL 750593 (Minn. Dist. Ct.), holding that Ross would be allowed to adduce evidence that the child had FAS.

State v. Sidwell
1997 WL 1340003 (Wash. App. Div. 1)

Sidwell was charged with a murder which occurred when he was 14. The state juvenile court declined jurisdiction, which permitted the state to prosecute Sidwell as an adult. Sidwell plead guilty, but challenged the decision to decline jurisdiction.

One reason the juvenile court gave for declining jurisdiction was that the state juvenile detention facility did not have any program for treating FAS and FAE. 1997 WL 1340003 at *3. Sidwell objected that this was an impermissible ground for waiving jurisdiction, asserting that it violated the Americans With Disabilities Act. The appellate court rejected this argument because Sidwell had provided no supporting legal authority. 1997 WL 1340003 at *3 n. 9.

Sidwell had been evaluated two years before the murder by Dr. Robin LaDue, a clinical psychologist. Both attorneys interviewed Dr. LaDue, and the transcript of the interview was put in evidence. LaDue had diagnosed Sidwell with FAS. LaDue concluded that Sidwell was "at a high risk to reoffend, particularly without a high[ly] structured situation." On the other hand, she believed that Sidwell "would not survive if he was put in the adult [prison] situation given his poor social skills and impulsive behavior and not understanding the consequences of his behavior." 1997 WL 1340003 at *1.

This appears to represent the failure of the criminal justice system to find an appropriate method of dealing with an individual with FAS. Sidwell had been diagnosed with FAS at the age of 12. By the time of the killing he had six prior misdemeanor convictions and two felony convictions, including four assaults and one robbery. The killing appears to have been an impulsive reaction to a fistfight before a dance.

In the Interest of Tawanya J.
193 Wis. 2d 639, 537 N.W. 2d 434, 1995 WL 146902 (Ct. App. 1995)

Tawanya had previously been placed under juvenile supervision, and remanded to a juvenile facility. While at the facility, and still under the age of 18, she assaulted a staff member. The local prosecutor sought to have the juvenile court waive jurisdiction over Tawanya, so that she could be prosecuted as an adult.

The lower court waived its jurisdiction, but the appellate court reversed and directed that Tawanya continue to be treated as a juvenile offender.

The court's summary of the case reveals considerable disagreement about the sort of juvenile facility in which Tawanya should have been placed. One of the evaluations concluded that she might have FAS, and that that would account for her difficulty with impulsivity and concentration. 1995 WL 146902 at *10.

Commonwealth v. Welch
864 S.W. 2d 280 (Ky. 1993)

Welch had used the illegal narcotic oxycodone during her pregnancy. She was charged with criminal abuse because she had used the drug during the pregnancy. The baby, although testing negative for oxycodone, had allegedly suffered from "neonatal abstinence syndrome."

The question in the case was whether drug use during a pregnancy could constitute a crime against the fetus. The Kentucky Supreme Court held, over a dissent, that such drug use did not constitute a crime against the fetus. This was an abortion-related dispute; underlying the appeal was whether an unborn fetus should be treated as a human being. The ACLU represented Welch.

The majority opinion argued that if what Welch did was a crime, it would also be a crime to drink alcohol while pregnant.

"The mother was a drug addict. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome . . . The Commonwealth replied that the General Assembly probably intended to draw the line at conduct that qualifies as criminal . . . The Commonwealth's approach would exclude alcohol abuse, however devastating to the baby in the womb, unless the Commonwealth could prove an act of drunk driving; but it is the mother's alcoholism, not the act of driving that causes the fetal alcohol syndrome."

864 S.W. 2d at 283. Note that the majority incorrectly assumes that only alcoholics have children with FAS.

The dissent objected that this was a "false issue." "[T]his Court has not business fretting, as has the majority, over whether a pregnant woman could be prosecuted if she ingested alcohol." 864 S.W. 2d at 286. It is unclear whether the dissenters thought that it was obvious that such a woman could be prosecuted, or that it was obvious she could not.

The majority opinion quoted the preamble to a 1992 Kentucky statute that contained the following passage:

"The General Assembly finds that a woman's ability to bear healthy children is threatened by the consequences of alcoholism and drug abuse; as many as ten percent (10%) of all births in the Commonwealth may be affected by alcohol or drug abuse; drug and alcohol use during pregnancy can result in low birthweight, physical deformities, mental retardation, learning disabilities, and other health problems in newborn infants; fetal alcohol syndrome is the leading identifiable cause of mental retardation in the nation and the only one that is totally preventable; drug and alcohol impaired individuals pose extraordinary societal costs in terms of medical, educational, and support services needed throughout the individual's lifetime. "

864 S.W. 2d at 285. (Emphasis omitted).

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