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July 31, 2007

Language shifting in Ocean City stillbirth case

It's interesting to watch the focus of the Christy Freeman story shift without any significant changes in the known facts.

This morning's coverage emphasized the fact that a woman was being charged with murder after a late-term stillbirth after attempting a self-abortion. Of course, the papers didn't neglect to inform the public that three other fetuses were found on her property. For example the Washington Post's headline: Mother Charged in Stillborn Death Fetal and Placental Remains of 4 Are Discovered in Ocean City--disturbing, but accurate and dispassionate.

Everything changed as the day wore on, however:

"Search of Maryland Property Continues, Infant Remains Tested for Link to Accused Killer Mom", says the latest FOX headline.

CNN outdoes FOX: "Police: Remains of 4 babies found at scene of newborn's killing."

"Four Pre-Term Infants Found," says the Guardian atop a story that scarcely mentions abortion. The casual reader might easily conclude that four murdered premature babies were found in  Freeman's house, rather than four presumably aborted fetuses:

Prosecutors also would not say how old the other pre-term infants were when they died, although none was thought to be a full-term baby. [Guardian]

The word "abortion" has all but dropped out of this afternoon's coverage. It's all about the dramatic murder investigation with the FBI and earth-moving vehicles and cadaver sniffing dogs. 

A dispassionate discussion of facts and law has been replaced by standard-issue dispatches from the ongoing "grim search" for the "bodies" of "infants."

The press has stopped questioning why this is a murder investigation at all. It's only because of a gross misapplication a unworkable anti-choice law that there's a murder investigation underway in the first place. See Bean's post at LGM for more legal details. There is simply no legal basis to charge Freeman with first degree murder for delivering a dead fetus after trying to abort herself. Maryland law exempts women from criminal penalties for self-abortions.

Obviously, there should be an investigation if four fetuses are discovered in a private home after a bloody stillbirth.  I would suggest starting with social services and then maybe thinking about a criminal investigation after the medical examiner's report. Whereas, according to the Guardian, these prosecutors laid charges before the ME had drawn final conclusions about the recent stillbirth, let alone assessed the gestational age or cause of death of the other remains found.

Moving fast to press first degree murder charges was a smart PR move by prosecutors because it guaranteed that the press would shift to spectacular-murder mode.

Hey, it's Shark Week on Discovery and we haven't had a fresh Missing White Woman lately.

All this sensationalism is making reporters into dupes for the anti-choice movement. The coverage is acclimatizing the public to view abortion as indistinguishable from serial child murder. If you come out and say "I believe that abortion is murder" on television, most viewers peg you as a radical. Whereas, when the news takes that premise for granted, it's just the facts.

The afternoon stories don't seem especially concerned about the fact that a woman has been charged with first degree murder for delivering a fetus that everyone agrees was born dead.

Hoarding self-aborted fetuses is creepy as all hell, but it's not a crime in Maryland. I'm not dismissing the possibility that other crimes will be discovered in the course of the investigation, but the authorities haven't got nearly the evidence they need to support a charge of first degree murder.

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"The afternoon stories don't seem especially concerned about the fact that a woman has been charged with first degree murder for delivering a fetus that everyone agrees was born dead."

Doesn't the legality of killing a fetus via a self-induced abortion depend on how far into pregnancy woman was?

Sorry, i obviously meant "THE woman" above.

Is a pre-term fetus an infant? I don't think so.

"Is a pre-term fetus an infant? I don't think so."

Even under roe, a viable (ie, third trimester) fetus cannot be legally aborted in most states unless continuing with the pregnancy threatens the women's life or health. (This fact may not apply to this case since the fetus was stillborn, but I'm more curious about the law in general).

I don't know what the overall law is in Maryland. Roe says that states may regulate late-term abortions, but I don't know if Maryland does.

If it does, then the authorities should charge her with violating Maryland's abortion statutes, not with first degree murder. Bruce/Crablaw, you're our high-powered Maryland lawyer. What is the law on late-term abortion in your state?

Either way, I guarantee that the penalties for a late-term abortion are nothing compared to the penalty for first-degree murder. Even the so-called "partial birth abortion" act only sentences doctors to two years and has no penalties for women who undergo the forbidden procedures.

Legally, late-term abortions aren't murder in Maryland. The only reason this woman can be charged with that very serious crime is (ostensibly) under the viable fetus law. Yet the law itself explicitly states that it doesn't apply to women who self-abort.

To me, this more a rule of law issue than a reproductive rights issue. The state doesn't have the goods to charge her with the crime they've charged her with--but she's being held without bail. That's unequivocally wrong, morally and legally.

Your right Derrick...Roe has always been 3rd trimester friendly.

The only reason Maryland would need a "viable fetus" law would be to allow the state to charge certain kinds of wrongful fetus killers with murder. The law is supposed to be for people who harm pregnant women and kill their fetuses in the process--domestic abusers, drunk drivers, etc.

Obviously, the anti-choicers who championed this legislation had their own agenda, but on it's face the viable fetus law is supposed to apply to only to violent offenders, grossly negligent actors, and medical professionals who kill fetuses outside the law (whatever the law happens to be at the time of the offense).

If Maryland murder statutes automatically included late-term fetuses, they wouldn't need a "viable fetus" laws.

The point of the law is ostensibly not to prevent consensual abortion. The text of the law says it does not bear on a woman's right to an abortion, legal medical abortions, self-abortions, or the legal personhood of a fetus.

The law as it is written is not supposed to be an anti-abortion law, i.e., it's not supposed to bear on the voluntary and lawful termination of pregnancy. It's an anti-wrongful fetus killing law which just conveniently happens to treat infractions as murders.

This is a deliberate strategy by anti-abortionists to equate fetal killing with murder. They intend to use that association as a stepping stone to full abortion prohibition. It's the Overton Window of the womb. It's no accident that some seemingly disturbed woman is being brought up on murder charges. This is exactly what the anti-choicers hope will happen. The real goal is to scare women and doctors into allowing unwanted pregnancies to proceed to term, regardless of the cost. They want to put the fear of (their vengeful) God into women and doctors and use state power to imply something about the personhood of the fetus that the law never said.

First degree murder is just about the most serious crime we have in our society, except for high treason and genocide. The idea that wrongful fetus-killing is in any way equivalent to first degree murder is abhorrent--even if you think that there's something morally questionable about killing a late trimester fetus. I don't think people should be allowed to shoot killer whales for sport. That's unequivocally wrong, AFAIK. Yet, I would think it was an even greater injustice if the state decided that the punishment for killing a whale was life in prison.

I know a lot of people feel uncomfortable with elective late-term abortions, but the vast majority of those people just want the procedure to be unavailable through legitimate medical means.

Only wingnuts advocate first degree murder charges for abortion doctors. Even they usually stop short of advocating punishment for the women who procure these procedures.

Lindsay, I have taken a self-imposed blogging "mental health" vacation for a week or so, but when I come back, I will probably be all over this case.

Some background on Ocean City. Worcester County, Maryland, has about 80,000 permanent residents, i.e. about 1.2% of the state's residents. The county swells to about 500,000 temporary residents and visitors for the summer, but the vast majority of those folks don't register to vote in Worcester County even if they own property there. Among the few who do so are senior citizens or other retirees who take advantage of local income tax rates; Maryland's 24 "counties" (23 + the City) each impose a local income tax and Worcester County's is the state's lowest. So some residents go out of their way to make the strongest case for local residency, and register to vote too to back that case up. This matters because jury pools in state prosecutions are drawn county-wide from the voter and motor vehicle rolls.

Ocean City itself has maybe 5,000 local residents, and the "suburban" areas of West Ocean City and Ocean Pines have maybe another 10-20 thousand. The rest of the county looks like the rural, tinytown scenes portrayed in Runaway Bride, filmed in Berlin, MD and based on that town. Western Shore Maryland (i.e. the western 93% of the state's population) is mostly quite blue on net but this county is pretty red. Not as red as some of the neighboring counties on the Lower Shore, but red. Ocean City draws a large numbers of tourists from the Philadelphia, Baltimore and Washington areas.

Due to my blog-cation, I have not followed the case enough to know more about it. Part of the sensation, though, comes from the fact that Ocean City is now Maryland's second largest city and will remain such until around Labor Day.

For those who would like to track the procedural posture of the case, the District Court in Ocean City and the Circuit Court for Worcester County in Snow Hill will each have jurisdiction over different procedural steps in this case in succession. There appear a number of incidents involving a Christy L Freeman as a witness, victim or defendant in the state's records over the years but you can follow the preliminary District Court procedural posture for case 6I00064742 and the Circuit Court proceedings soon when they are entered into this state court database (will have a new number and different number format in Circuit Court.) It appears from court records that Ms. Freeman is probably a long-time local, which might perhaps help her significantly in this infamously "home-town" jurisdiction.

The Baltimore Sun article on this case that hit the web about four hours ago contains this remarkable piece of ambiguous language:

"police allege that Christy L. Freeman, 37, killed and hid her stillborn 26-week-old baby"

So, what did you visualize when you read that sentence - a fetus, a stillborn, or a 6 month old baby?

"26 week old baby" and "stillborn" are completely contradictory, but with so much of today's discourse being dominated by the fanatically pro-natalist wingnuts who see no contradiction there, this is what passes for "journalism" today.

I'm not down with fetal rights.

Neither is the bible, btw.

How do you kill something that's stillborn? Wouldn't it be dead already? You can't kill something that's dead, that's illogical.

Derrick- the fetal homicide statute of Maryland clearly states that it does not apply to mothers who cause the death of their own fetus through any act or failure to act.

So I don't think the term of the pregnancy matters.

The only way it could matter is if there's a definition of "fetus" somewhere that I missed that covers things like term. I didn't find one in MD law, but I didn't look too long. The internet tells me that fetus is the proper term from 8 weeks to birth.

Anyways, its probably a silly way to draft things, but its a fetal homicide statute, and almost by definition its a compromise between people who are pro choice but feel that there is something wrong with punching a pregnant woman until she miscarries above and beyond the physical assault, and people who are pro life but know they can't ban all abortion outright, and simply want to make it so that all abortion other than that which is strictly required to be legal by the constitution counts as murder. So its supposed to be silly.

Lindsay,

So glad you're writing about this. I think you frame the issue very well and acknowledge -- better than I do -- that definitely we are right to be a little icked out over the fetuses in her house, but that we (a) can't charge her with murder for stillbirths and (b) shouldn't jump to conclusions. You're exactly right that the first step should have been social services and perhaps a mental health evaluation.

Hope you'll stay on top of this.

Thanks Lindsay for the excellent reporting. Much support for your further work on this from me.

The story on CNN's website had this gem:

The law, designed to penalize those who kill a pregnant woman or her viable fetus, includes a provision shielding pregnant women from prosecution for actions that result in their own fetus' death.

The exemption, meant to preserve the right to an abortion, hasn't been challenged in the courts, said Denise Burke, vice president and legal director of Americans United for Life, a Chicago-based group that seeks common ground on abortion issues.

What does that mean? How can you challenge a law for not making something illegal? And a two-second Google search show's that this is a 100% pro-life group; what's this "common ground" they're talking about?

And this:

State Delegate Susan K. McComas, a Republican who co-sponsored the 2005 bill, said the exemption was added by majority Democrats who feared the bill would restrict a woman's right to abortion. "We weren't contemplating a woman doing something to her own fetus," McComas said.

This makes no sense at all. How do you have an abortion without doing something to your fetus? I know that CNN is "just" quoting others, but they do have some responsibility to check that the quotes actually make some sort of sense. I don't know when the mainstream media got so fucking terrible.

From what I glean so far, this prosecution looks like a purely political and ideological exercise. The prosecutors don't expect to obtain a conviction; as Lindsay points out, the anti-choicers-- through the prosecutors-- are trying to move the goalposts in their direction. The law, and the fate of the defendant, are secondary concerns.

NEWS ALERT! FBI SEARCH REVEALS BAGS OF ABORTED ETHICAL CONSTRAINTS BURIED AMID PILE OF $$ BILLIONS IN CORPORATE IOUs IN BASEMENT CLOSETS OF NEWLY REMODELED ALASKAN PLEASURE PALACE BELONGING TO SENATOR TED STEVENS! NATION AWAITS GIGANTIC "HO-HUM" FROM U.S. DEPT OF JUSTICE... ^..^

The Maryland Atty. General's office is obligated to handle this case and doubtless views it as lurid political grandstanding.

They are not worried that the murder charges are spurious, or that the suit will fail.

They're concerned that they'll need to waste even more time on the appeal.

How clearly bogus does a prosecution need to be before the prosecutor gets in trouble? The case for murder here looks to me to be even weaker than that for rape in the Duke rape case, and look what's happening to Nifong. Can any of you lawyers out there comment?

Being "tried in the press" is a recognized evil. Even in a country like the US, which is adrift toward some unholy combination of fascism and Murdochracy, the use of the word "alleged" or equivalent language is necessary. Without it, defense lawyers can and have asked for a mistrial or a change of venue.
But if a national broadcast uses definite language to describe most inaccurately a crime of murder, there is no place to go for a fair trial.

Why do FOX stations still hold licenses from the FCC after such abuses? All those dirty dangerous librul people whom FOX owner and news editors would like to see behind bars...which would include many readers of this blog...should consider petitioning FCC or perhaps some sort of class action.

We shake our heads at this particular case. But the MSM handling is a far less isolated and more contaminating influence on whether justice will ever be reached than are the lurid facts, some of which I expect we have not yet seen.

Autumn Harvest- I can comment. Check the timeline. As far as I can tell (the articles are crappy in terms of information but I've looked at some of their dates, and assuming they were written immediately as information became available, this is true), charges were filed immediately, prior to forensic testing. This is not unusual. Criminal courts work very fast in comparison to other areas of the law. In many crimes, charges are filed based on the statements of only one witness (the alleged victim), and only after the charges are filed are further witnesses interviewed (if they exist), or further investigation performed. I'm not saying this always happens, just that it does and that it isn't necessarily wrong to do so.

Whether this is a good idea is really in the prosecutor's discretion. If a woman with a black eye says that her boyfriend punched her, and that her sister saw it happen, filing before you have a chance to talk to the sister is typical. You want to move fast, get the protective orders, maybe pick the guy up. Later, if the sister contradicts the story, you may have to recant your accusation, but on these facts that doesn't seem likely to occur. So you file.

So lets say this has happened, and new information becomes available from witnesses or forensics which contradicts the case you hoped for. What do you do? Ideally, you summon forth your philosophical expertise and decide precisely the most just and righteous outcome. That's the "prosecutors as philosopher kings" model of the criminal justice system.

The reality of what you will actually do depends on the situation. First, you make a call on whether you believe the new information, and how much it undermines your case. Then you look at how many charges you have filed against this person, which relates to how important it is to move quickly (lets say you charge someone with 5 murders, and new evidence undermines 1 of them. Whether you drop the charge immediately won't get the guy out of jail, so you've got less moral impetus to do it fast). Finally you look at how much you want this conviction (this is generally an evaluation of the severity of the crime).

If your only charge has been undermined by strong, credible evidence, you probably let the whole matter go, regardless of the severity of the charged crime. You don't want to convict innocent people.

If your only charge is being undermined by weak, incredible evidence (vague statement of a witness who is sleeping with the accused, etc), you let it go if the severity of the crime is weak and you need to spend your time on other criminals, or you keep it if the severity of the crime is strong and you feel that beating this in court is worth your time.

If you have multiple charges, however, the most likely outcome is that you'll just put this particular charge off until the pretrial and sort it out there. In the meantime, when people ask, you won't admit weakness. And then you'll quietly fold in plea bargaining, or in negotiation with defense counsel.

Now I obviously have no idea what's specifically happening in this case. But if:

1) the prosecutors filed the murder charge before the forensic evidence showing stillbirth was available, and
2) they have multiple charges filed, sufficient to justify continuing to hold her,

then I don't think it is misconduct, or even wrong, to not drop these charges immediately, as opposed to waiting until a formal deadline for decision making, ie, a pretrial.

If nothing else, remember that they can probably get a second opinion from a second medical expert, if they don't believe the first. They'll have to turn the first over to defense counsel, and their case will probably be screwed no matter what expert 2 says (Defense counsel: "And the state's FIRST expert said my client was innocent! So they went and got another! This is a lynch mob prosecution!"), but their state probably allows them to try.

Wow! Thanks for the in-depth explanation, Patrick.

You're right, Lindsay -- this is very disturbing. Thanks for writing on this.

To defend the Guardian somewhat, that headline is on top of an AP wire piece and they've just taken the wording from the story. It's possible the subeditors were bamboozled by the phrase. Still, a really bad headline.

(BTW, the link to Bean is broken...)

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