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The case against Bei Bei Shuai

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Marion County Prosecutor Terry Curry never expected the prosecution of Chinese immigrant Bei Bei Shuai to become a cause célèbre. It also has become a battleground over prosecutorial discretion and how far a defense attorney can go in representing her client.

“I would honestly say I did not anticipate that it would be a national and international controversy,” Curry said regarding the murder and attempted feticide charges brought against Shuai in January 2011 – one of the first major cases Curry’s office filed after he was sworn in.

Bei_Bei.jpg Defense attorney Linda Pence, left, said she never expected murder and attempted feticide charges to be filed against her client, Bei Bei Shuai, right. (IL Photo/ Perry Reichanadter)

Shuai, 34 at the time, was charged after her newborn daughter, Angel, died days after her delivery by emergency caesarian section at Indiana University Health Methodist Hospital in Indianapolis. Shuai had told friends that she consumed rat poison days earlier in an attempted suicide after the baby’s father jilted her when her pregnancy was almost at full term. Her friends persuaded her to seek medical attention.

After she was charged, Shuai spent 435 days in the Marion County Jail before a divided Court of Appeals ruled she should not be denied bail, and she ultimately was freed on $50,000 bond. One appellate court judge dissented, saying the grant of bond wasn’t enough and that she would dismiss the charges altogether.

Shuai’s trial is set for Dec. 3. Meanwhile, Shuai defense attorney Linda Pence, of Pence Hensel LLC in Indianapolis, is challenging every aspect of the case, including the investigation and the custody of Shuai’s medical records and those of Shuai’s daughter. She’s seeking to limit the admissibility of that and other evidence.

“This case has got every legal, medical, ethical issue you can imagine,” Pence said. She said that at the heart of the case, she believes statutes meant to protect pregnant women from violence against them by third parties are being bent in an alarming way to prosecute a despondent woman.

“I never believed the prosecution would actually charge her with murder and felonies,” Pence said, noting Shuai’s case is unprecedented in Indiana and that suicide isn’t a crime.

“Any woman or man who tried to kill themselves by doing what she did – obviously she’s a vulnerable woman – and for them to put her in this position is, I believe, cruel,” Pence said. “This is a young woman who should have been protected and taken care of instead of prosecuted. … It’s nonsense.”

But Curry said the language of the murder and attempted feticide statutes is plain, and he had no hesitation about filing charges once facts of the case were known because Shuai’s conduct fell within that language. That includes Shuai’s suicide note in which she wrote that she was taking the baby with her, he said.

Those looking for larger issues in Shuai’s prosecution have blown the case out of proportion, according to Curry.

“I’m not sure it represents anything,” he said of the prosecution, other than his department enforcing criminal laws. “Contrary to public debate, it has nothing to do with pro-life, abortion,” he said, or representations that his office is “prosecuting suicide” or “criminalizing pregnancy,” as advocates for Shuai contend.

“Those statements are clearly over the top,” he added. “It’s stunning how much misinformation there is about this case.”

On the defensive

Pence has been outspoken in her defense of Shuai, including a fundraising email campaign that urged people to donate to a legal defense fund that Pence established for Shuai. The contents of that solicitation prompted Curry to ask Marion Superior Judge Sheila Carlisle to admonish Pence for comments the prosecutor said were made outside the Rules of Professional Conduct and that could taint potential jurors.

In response, Pence accused Curry’s office in an Aug. 6 supplemental filing of “pursuing a concerted policy and practice of attacking and attempting to intimidate defense counsel who … were challenging the office’s prosecutions.”

Terry Curry Curry

Pence alleged that similar “tactics” had been used against defense counsel representing Thomas Hardy, who was convicted of killing Indianapolis Metropolitan Police Officer David Moore, and defense counsel representing David Bisard, the IMPD officer charged with reckless homicide and other counts related to a crash that killed motorcyclist Eric Wells and seriously injured two others. Messages seeking comment from those defense attorneys were not returned.

Pence’s filing alleges the prosecutor’s office employed “a litigation strategy directed at defense lawyers who are appropriately describing the inappropriate exercise of prosecutorial discretion and the serious deficiencies in criminal cases filed by this office.”

Curry scoffed at such suggestions.

“We have no concerns whatsoever if counsel want to raise funds for a defense fund for their client,” he said. But his office argued that the solicitation sought to materially prejudice potential jurors by stating, among other things, that Shuai had no prior criminal history, misstating the potential sentence and stating that Shuai cannot effectively fight the charges without financial assistance.

“I don’t begrudge anyone having a zealous, aggressive, competent defense. That’s not the issue,” he said. The request to admonish the defense, Curry said, was a reminder that “all of us need to be careful of what we say in the pending cases.”

Carlisle said she will rule on the motion to admonish by Aug. 31.

Those not involved with the case may say what they wish. Curry said he’s received thousands of emails from petition sites and other sources urging the charges be dropped. They suggest the specter of prosecutions of women who miscarry or those whose babies were harmed due to the mother’s addiction, for instance.

Asked how much the pressure weighs on his decision to proceed with the case, Curry said “none.” But he allowed that if new developments or circumstances arise, “we would clearly re-evaluate the appropriateness of the prosecution.”

But many in the mental health, women’s rights and other fields are concerned about the prosecution. At least 15 parties have filed amicus briefs urging the charges against Shuai be dropped, according to court records.

Pence said Curry is disingenuous in saying the prosecution won’t open the door to more women being charged with feticide in cases where the baby doesn’t survive and the mother’s actions come under scrutiny. “For him to say this case will not affect pregnant women … he’s wrong. It will.”

The case has played out in the international press as well as in court pleadings. The United Kingdom-based Guardian, which boasts that is has the third-largest global online newspaper audience, published a story about Shuai’s case as well as a video interview. Curry subpoenaed the video; Pence said the Marion County court could not enforce such an order in London.

“If a defendant makes statements about the case, that is fair game,” Curry said.

Costly case

Pence said that since she took Shuai’s case in March 2011, her firm has dedicated $600,000 in pro bono legal work. The legal defense fund has raised more than $7,000.

“It’s 50 percent of my time, easy,” she said. “It’s a big drain, but once you get involved in something like this, you can’t walk away from it. I just don’t have to file bankruptcy while doing it.”

Curry said the prosecutor’s office offered a plea deal to Shuai, proposing to drop the murder charge if Shuai agreed to plead guilty to attempted feticide. The deal was rejected, but Curry said it remains on the table for a way both sides can avoid further time and expense.

“I certainly assume at this point it will go to trial,” Curry said.•

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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