March 27, 2015

Boulder DA - Life Begins at Inhalation

District Attorney Stan Garnett (D-People's Republic of Boulder) will not pursue murder charges against a woman who forcibly removed a 7 month fetus from her mother, killing the child.

"Colorado law defines homicide as the killing of a person by another," Garnett said.

Fine so far, except that this terse definition doesn't make any allowance for self-defense.

"A person does not include a fetus, even if the child is born following the injury that ultimately leads to its death. It's on this point of law that Colorado is absolutely unambiguous." [emphasis mine]

Garnett continued:

"A prosecutor cannot file murder charges when a baby that is killed has not lived outside the womb," he said. "District attorneys do not decide the law. They enforce it as it is written."

As much as I disagree with the law as written, I can't disagree here. But a decision was made in this case:

"At this time, neither the autopsy or the investigation have provided any evidence that the baby exhibited any signs of life outside of the womb, therefore the circumstance is not being considered a live birth," [County Coroner Emma] Hall [D-People's Republic of Boulder] wrote. [emphasis mine]

I'm left wondering what Ms. Hall might consider "evidence that the baby exhibited any signs of life outside the womb." Her first report card, perhaps?

Garnett said it had been widely reported that witness David Ridley told Longmont police immediately after the incident that he had seen the baby, named Aurora, take a gasping breath.

"Upon a more thorough examination of this witness by the Longmont Police Department, the witness clarified that Aurora was still and her mouth was open, but she was not breathing," Garnett said.

The ol' "didn't inhale" defense. Well, with every measure of respect Mr. District Attorney, bullshit. This juror believes the witness' initial statement, not the one obtained by police officers in your county "upon a more thorough examination" and after he realized or was informed that a breathing baby is a murder victim. And the witness did not even see the baby until the suspect had transported her across town. If she was still taking a "gasping breath" at that time, she was clearly breathing in some manner or other before then.

So the child/baby/fetus that was ripped from her mother will receive only as much justice as a charge of "first-degree attempted murder" and some assault charges. And the suspect will walk on that charge because she didn't injure any of the mother's vital organs, so couldn't have been attempting her murder and, as the DA so has so speciously explained, "a person does not include a fetus."

If a child takes a breath in a bathtub and there is no medical examiner there to hear it, does it really make a sound?

How can these people sleep at night?


UPDATE: [8:38 am MDT 3/28] I gave more thought to the legal fig leaf Garnett is standing behind in this case. Namely, "District attorneys do not decide the law. They enforce it as it is written."

I thought he may have weighed in on last year's gay marriage controversy, where several counties including Boulder began issuing same-sex marriage licenses in contravention of federal law within days of a 10th Circuit Court ruling the federal law unconstitutional, despite the ruling having been stayed. Apparently he did not. However, he did have something to say on the matter in 2010 during his campaign against incumbent Colorado Attorney General John Suthers, when a Massachusetts judge made a similar ruling:

"This decision is an appropriate endorsement of states' rights and local control, respecting the right of individual states to resolve important and controversial issues for themselves. As Attorney General, I will work to uphold the will of Colorado voters." [emphasis mine]

Despite this pledge to essentially "decide the law" for Coloradoans, Garnett lost the campaign for Attorney General - but should Colorado voters not expect him to live up to his own pledge as the Boulder District Attorney?

This isn't directly comparable, as the "will of Colorado voters" in the present case is expressed by the large number of individuals who made their opinion known to the DA rather than by ballot initiative. But the principle remains - in some cases the law "as written" is unjust.

Colorado From the other side Politics Rant Posted by JohnGalt at March 27, 2015 7:24 PM

I have some very unpopular and contrarian views on this. I thought if anyone I knew might be in my camp, it might be my blog brother jg. As the great philosopher Peter Green of Fleetwood Mac said: "Oh, well."

This is a horrific crime and excruciating tragedy. I rarely quote Justice Oliver Wendell Holmes, Jr. (who -- as far as I know never played for Fleetwood Mac), but his famous dictum applies here:

Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.

DA Garnett is applying the law as written -- a value for which I stand fulsomely. Our Republican legislators will again make a quest to pass "personhood." This has failed badly at the polls, twice, and in the State Legislature. It shall be revived now as "So-and-so's Law" to provide justice.

The alleged perpetrator is deeply disturbed and subject to many serious charges. That one of them is not named "murder" may not seem right, but appreciation for rule of law is right.

Posted by: jk at March 29, 2015 10:17 AM

We discussed this briefly at family potluck last night and I concluded it is a conflict between two important principles: "Innocent until proven guilty" and "alive until proven dead." Which may prevail in a court of law is anyone's guess. But it should not matter. The Unborn Victims of Violence Act, codified in 2004 at the federal level and adopted in some form by 38 states not including Colorado, impresses me as good law. My less than thorough understanding is that Colorado's "Personhood" initiatives overreached and thus sealed their fate. An initiative seeking to "adopt in Colorado law the federal law criminalizing the murder of unborn children with a clear and specific exception for abortion" would, it seems to me, pass with a large majority. The laboratories of democracy seem to agree with your and my conclusion that failing to try this assailant for murder (and instead try her for attempted murder of, whom, the mother?) does "not seem right."

More than jailing this monster for as long as is deserved, I seek to change Colorado law so that it reflects "the will of the people" in protecting individual liberty. And I seek to shame Boulder's Coroner and DA who, it is my firm belief, could have found the needed evidence if they had looked for it. And further shaming the DA for his convenient conversion to "law as written" absolving him from any duty of professional judgment.

Posted by: johngalt at March 29, 2015 11:43 AM

I will yield on the charge of "murder" as the suspect did not appear to intend the child's death. To the contrary, she claimed her as her own newborn child. So the proper charges seem to be kidnapping and manslaughter.

But the point of the discussion is whether or not the newborn is a human life in the eyes of the law. That this even requires debate is a ludicrous byproduct of a misguided debate over abortion rights.

Posted by: johngalt at March 29, 2015 12:43 PM | What do you think? [3]