Rennie Gibbs is a 16 year old from rural Mississippi who used drugs during her pregnancy and delivered a stillborn baby.  The umbilical cord is wrapped around its neck.  Yes, it’s a tragedy, but is it a homicide? Gibbs’ case is now awaiting trial.  The question is:  Does cocaine kill, and if so, how much does it take?

Putting aside political and religiously held feelings (which is difficult for many), will allow us to analyze the legal issues presented.

Most states do not recognize the unborn child to be a person until it is born and “living independently” from the mother.  A very few states have amended their homicide statutes to include the killing of a person or a “viable fetus.”  I once tried to prosecute a woman for homicide who owned an abortion clinic.  Not for running it, but for strangling the baby that came out kicking its feet and making sounds.  The ob/gyn physician she used was running late, so she induced the labor herself.

The neonatologist we hired as an expert witness, who delivers several five and six month old babies every day, told us this fetus (it is easier to use this word from now on) was so immature, had it been born in his delivery room, it was unlikely to survive (could/would not live independently of its mother).  Our medical examiner (a board certified forensic pathologist) listed the cause of death as “immaturity.” I was left with Practicing Medicine Without A License.  The only license the woman held allowed her to operate a motor vehicle.

The biggest problem prosecutors encounter in these types of cases is the issue of cause of death.  Never forget that in this country it is very hard to prove a criminal case.  The more serious the charge, the more difficult the issues becomes.

This fetus, with the sixteen year old mother (fifteen at conception), was found to have some cocaine byproducts in its system at autopsy.  The medical examiner attributed that as the cause of death.  But how much cocaine kills?

In DUI cases the legislature mandates a percentage of alcohol, that if in your blood, presumes your judgment is impaired and prohibits you from driving a motor vehicle.  Whether that number is .08 or 1.0, or more or less, that is the basis for the prosecution.  There are no numbers for drugs.

Police officers see this every time they pull over a car driving all over the road, and the driver, stumbling and blubbering, blows .000.  Even if a blood test shows some legal or illegal drugs, how much is too much?  Failing the roadside tests is very probative, but what caused it?  The driver must be impaired, due to …  what?

Then their lawyers blame the failure on a bad meal at the restaurant or a bump on the head during the accident.

I once prosecuted an Ecstasy overdose case.  A relatively healthy young woman was given “one tablet” by her boyfriend. She had, what the medical examiner called, a “clean autopsy.”  There was nothing wrong with her, other than the fact she was dead and had a quantity of MDMA in her blood (No, I can’t spell it either!).  Anticipating the issues that the defense attorney would raise in court, I asked the ME to try and find how much of that substance it takes to kill (as if any amount is good for you).  He found an article in a pathology journal outlining ten cases of MDMA overdoses.

Called overdoses as the young people had no reason to die but for the drugs in their systems. The average amount was double what we had in our case.  Not overwhelming evidence, but the Doc was great at deposition  After he discussed the limited literature on this topic, he was asked if the amount he found “wasn’t relatively small.” His answer won the case.  “It was enough to kill her.”  The defendant plead to manslaughter and took 7 years.  My backup insurance was counts two and three:  Delivery and possession of MDMA.  This guy (he was actually her drug counselor!) wasn’t walking.

One helpful fact was the absence of an umbilical cord around the dead woman’s throat.

All a defense attorney has to do is raise a reasonable doubt. News articles about this case are scant on facts, but they hint at a myriad of problems facing the young mother.  Poverty, poor nutrition, lack of access to health care, pollution, smoking and stress.  The young mother tested positive, three times, for marijuana and/or cocaine during her pregnancy and missed several doctor visits.  A urine test on the day of delivery tested positive for cocaine and marijuana. What would proper prenatal care have afforded her? Did these factors contribute to the death of her baby?

A forensic pathologist from Atlanta hired by the defense said in court papers that “It is impossible to conclude from the very small amount of (by product) that the stillbirth was caused by cocaine toxicity.”  Several defense experts have opined that the cause of death was “umbilical cord compression.”

Have we proved the cause of death beyond and to the exclusion of every reasonable doubt?  Hopefully, it is starting to appear that these cases are not as simple to prove as one with several gunshots to the head and chest area.

Is being young, irresponsible and stupid against the law?   Is the state “Ready for Trial?”

To learn more:

http://www.propublica.org/article/stillborn-child-charge-of-murder-and-disputed-case-law-on-fetal-harm

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall.