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Court split on dismissing murder, attempted feticide charges

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In a case of first impression involving a mother who ingested rat poison in an attempt to kill herself and her unborn child, one Indiana Court of Appeals judge felt that if the feticide statute is applied to women’s prenatal conduct, it might lead to a “slippery slope” in which a full range of a woman’s conduct while pregnant could fall under the feticide statute.

Bei Bei Shuai got pregnant during an affair with a married man, and when he ended their relationship, she decided to ingest rat poison to kill herself and her 33-week-old fetus. Both she and the fetus originally survived, but the baby had to be delivered by emergency C-section and died days later. The coroner concluded that A.S. died of “intracerebral hemorrhage due to maternal Coumadin ingestion.” Coumadin is a variant of an ingredient found in rat poison.

The state charged Shuai with felony murder and Class B felony attempted feticide. Shuai’s request for bail was denied, as was her motion to dismiss. Whether or not the murder and feticide statutes can be applied to a woman in this situation is one of first impression.

The appellate court unanimously agreed in Bei Bei Shuai v. State of Indiana, No. 49A02-1106-CR-486, that the trial court erred in denying Shuai’s request for bail. While evidence was presented to show she ingested rat poison with the intent to kill herself and her child, Shuai also presented evidence to support alternate explanations for the hemorrhage that led to A.S.’s death. The COA remanded for a determination of bail.

The judges split with regards to dismissing the charges against Shuai. The charging information said Shuai, on Dec. 23, 2010, knowingly killed her fetus that had attained viability when she ingested the rat poison and caused A.S. to be born in distress and subsequently die. Shuai claimed A.S. didn’t die on Dec. 23 because she was born alive and died on Jan. 3. When she died, she was no longer a fetus and now a human being.

The state argued that even though A.S.’s birth changed her from a “viable fetus” to a “human being,” it was Shuai’s actions that caused her death and the date she took the rat poison doesn’t matter.

The majority held that the charging information isn’t defective and that the feticide is not ambiguous as applied here. The plain language of the statute encompasses Shuai’s alleged actions and she doesn’t have immunity from prosecution.

Judge Patricia Riley dissented because she believed the charges should be dismissed. The facts show that on Dec. 23, Shuai didn’t kill a viable fetus, and the state didn’t provide evidence that Shuai did anything to endanger A.S. after her birth. She disagreed with the state’s contention that the categories of “viable fetus” and “another human being” as defined in the murder statute, can be used interchangeably with the focus on Shuai’s actions, not A.S.’s legal status.

“By arguing that A.S.’s legal status as a viable fetus and as a human being are interchangeable, the State disregards legislative reality and impermissibly attempts to enlarge the murder statute,” she wrote. “In light of Indiana's long-standing statutory and case law history, I conclude that it was never the intention of the legislature that the feticide statute should be used to criminalize prenatal conduct of a pregnant woman. Rather, the statute should only be applied to third-party conduct which endangers or harms a non-viable fetus.”


 

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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