News Law and Policy

Mississippi Supreme Court Dismisses Manslaughter Indictment in Stillbirth Case

Jessica Mason Pieklo

The Mississippi Supreme Court affirmed the dismissal of manslaughter charges against a woman but failed to answer whether the state's criminal statute should be applied against pregnant people.

On Thursday, the Mississippi Supreme Court affirmed a lower court’s dismissal of an indictment against Nina Buckhalter, a Mississippi woman who suffered a stillbirth and was arrested in 2010 because of alleged drug use during her pregnancy. The decision is the latest in a string of prosecutions targeting women for failed pregnancies as conservative lawmakers look for more avenues to police pregnancy.

Prosecutors had charged Buckhalter with negligent culpable manslaughter, after she delivered a stillborn girl, Hayle Jade Buckhalter, in her 31st week of pregnancy. But a local judge threw out the case in 2012, finding some of the language in the manslaughter statute under which Buckhalter had been charged “vague and ambiguous” when applied to “a woman who has caused the miscarriage or stillbirth of her unborn child.” Prosecutors appealed, but the state supreme court said the indictment, which alleged Buckhalter willfully caused the death of the fetus, was flawed.

According to the justices, the underlying indictment failed to provide any information to back the state’s allegation that Buckhalter had “willfully, unlawfully, feloniously” killed the fetus “by culpable negligence.” Among the things prosecutors failed to disclose when they charged Buckhalter was “how Nina allegedly caused Hayle Jade’s death, but from the statements in other pleadings, we assume the State planned to prove at trial that she ingesting illegal drugs during the course of her pregnancy. And neither the indictment nor anything else in the record identifies the type of illegal drugs allegedly involved.”

While the ruling affirms the dismissal, it didn’t go as far as Buckhalter’s attorneys, Rob McDuff and the National Advocates For Pregnant Women, had hoped. The 15th Circuit Court Lamar County had backed the argument advanced by Buckhalter’s lawyer that the indictment should be dismissed, because the state’s manslaughter statute does not apply to a pregnant woman for the death of her unborn child. The lower court partially agreed and ruled the statute was “vague as to whether the legislature intended the term ‘other’ to be specifically inclusive of the pregnant woman herself as against her own unborn child.” But because the state supreme court found the underlying indictment “fatally flawed,” it dismissed the charges against Buckhalter without answering the question of whether or not the state’s manslaughter statutes can be used against pregnant women. That lack of resolution did not sit well with Mississippi Supreme Court Justice Leslie King, who authored a separate opinion stating that while he agreed with the outcome, the court should have addressed the merits of the case. The “decision places Buckhalter at risk of substantial injury—re-indictment and a possible trial and conviction,” King wrote. “Also with re-indictment, Buckhalter will have the same issue to present to the circuit court for resolution—whether she can be charged for murder of any kind under Mississippi statutes.” Justices James Kitchens and David Chandler joined that opinion.

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As noted by the National Women’s Law Center (NWLC), which filed an amicus brief on behalf of Buckhalter, while the prosecution Buckhalter’s case focused on a pregnant person’s alleged use of illegal drugs, nothing in the way the State of Mississippi read the statute would limit prosecutions to illegal activities. Under Mississippi’s theory of the case, a pregnant person could be prosecuted if they experienced a stillbirth after engaging in wholly lawful, “risky” activities during pregnancy. As detailed by the NWLC:

[T]his is by no means a theoretical threat. A pregnant woman in Wyoming was charged with felony child abuse for drinking alcohol, for example, and in Wisconsin, a sixteen-year-old was held in detention throughout her pregnancy based on her tendency ‘to be on the run’ and ‘lack of motivation or ability to seek medical care. Melissa Ann Rowland was charged with murder for refusing to submit to a cesarean section.

Buckhalter’s case in some ways represents the worst of the criminal justice system. Buckhalter didn’t face any drug charges herself, despite the fact that prosecutors believed it was her drug use that caused her stillbirth. Like Bei Bei Shuai, Buckhalter’s case demonstrates a need for social services intervention, not punitive criminal remedies. This has been known to the legal community for a long time now. Historically, courts across the country have soundly rejected prosecutions of women who continued their pregnancies in spite of drug or alcohol problems. But despite that long line of precedent, prosecutors across the country continue to try and prosecute women for failed pregnancies. Not surprisingly, many of these prosecutions are happening in states where abortion access is most under attack and most frequently target poor women and women of color. On that point, the only thing that’s exceptional about Buckhalter’s case is the outcome.

Since the Mississippi Supreme Court failed to address the ultimate question of whether or not the statute allows for prosecution of pregnant people, there is the chance that Buckhalter could be re-charged, but in order for prosecutors to successful charge her the second time around they must be able to disclose exactly how they believe Buckhalter is guilty of manslaughter, which they’ve been unable to do since 2010.

News Human Rights

Remaining Charges Dropped Against Officers in Freddie Gray Case

Michelle D. Anderson

Gray, who was Black, died of a neck injury a week after being taken into police custody in April 2015. The 25-year-old’s death led to widespread protest and civil disobedience against racial injustice and a number of reforms in Baltimore and across Maryland.

Three Baltimore Police Department officers charged in the 2015 death of Freddie Gray will not go to trial as originally planned.

Chief Deputy State Attorney Michael Schatzow of the Baltimore City State Attorney’s Office said during a court hearing Wednesday that his office would not prosecute Officer Garrett Miller and Sgt. Alicia White or attempt to retry Officer William Porter, whose case ended in a mistrial in December.

Baltimore City State’s Attorney Marilyn Mosby had charged Miller, White, and Porter, along with Officer Edward Nero, Officer Caesar Goodson Jr., and Lt. Brian Rice, in Gray’s May 2015 death in police custody.

The officers faced an array of charges, ranging from second-degree depraved-heart murder and reckless endangerment to second-degree assault and involuntary manslaughter.

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All of the officers pleaded not guilty.

Judge Circuit Judge Barry G. Williams acquitted Nero, Goodson, and Rice during bench trials that ended in May, June, and July, respectively. Miller’s trial was set to begin Wednesday; White, October 13, and Porter, September 6.

Gray, who was Black, died of a neck injury a week after being taken into police custody in April 2015. The 25-year-old’s death led to widespread protest and civil disobedience against racial injustice and a number of reforms in Baltimore and across Maryland.

Mosby, in filing charges against the officers, attempted to hold law enforcement accountable for failing to secure Gray in a seat belt after transporting him in a police van following his arrest, among other alleged negligent acts. Prosecutors charged that Gray was illegally detained before police officers found a knife in his pocket.

Mosby stood by her decision to bring charges against the six officers during a brief press conference held near the Gilmor Homes public housing project, where Gray was taken into police custody.

“We stand by the medical examiners determination that Freddie Gray’s death was a homicide,” Mosby said.

She touted her team’s success during the trials, including an appellate court victory that led some officers to testify against one another and asserted that a summary judgment was among many reasons she had “legitimate reasons” to pursue criminal charges.

Mosby praised the reforms that had come over the past year, including a new “use of force” policy Baltimore police instituted this year. The new policy emphasizes de-escalation and accountability. It marks the first rewrite of the policy since 2003.

“For those that believe I am anti-police, that’s simply not the case. I am anti-police brutality,” Mosby said.

The conference was the first time Mosby had spoken in months, since a gag order imposed by Williams had kept prosecution and defense alike from commenting on the police trials.

The decision to drop charges stemmed from “an apparent acknowledgement” that convictions were unlikely for the remaining officers, the Baltimore Sun reported.

This was because the prosecution would face major challenges during Miller’s trial since they wouldn’t be able to use anything he said on the witness stand during Nero’s trial in an attempt to convict him. Miller had spoken during Nero’s trial in an immunized testimony and with protections against self incrimination, the Sun reported.

Williams said in previous trials that prosecutors failed to show sufficient evidence to support their stance that the officers acted recklessly and caused Gray’s death. He said prosecutors wanted him to rely on “presumptions or assumptions” and rejected the notion that police intentionally gave Gray a “rough ride” in the police vehicle, according to numerous news reports.

The decision to drop charges drew criticism from many activists and citizens alike, but drew praise from the Baltimore City Fraternal Order of Police Lodge 3 union, which had repeatedly urged the prosecution to drop charges.

Baltimore Bloc, a local grassroots group, said in a statement this spring that Mosby should be removed from office for failing to secure convictions against officers and continued to criticize her on Twitter after the announcement that charges would be dropped.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.