Prosecution could set precedent, analysts say

OKLAHOMA CITY (AP) _ The prosecution of an Oklahoma County woman for murder in the death of her stillborn son could be a precedent-setting case, according to legal analysts. <br/><br/>Theresa Lee Hernandez

Sunday, October 17th 2004, 11:42 am

By: News On 6

OKLAHOMA CITY (AP) _ The prosecution of an Oklahoma County woman for murder in the death of her stillborn son could be a precedent-setting case, according to legal analysts.

Theresa Lee Hernandez is jailed without bond, accused of poisoning her unborn son by using methamphetamine.

Oklahoma County District Attorney Wes Lane filed the charge against Hernandez, 28, saying the baby had enough meth in his system to kill two normal adults.

``I will not tolerate any parent murdering their child so they can get their next drug fix,'' he said.

The case is the first of its kind in Oklahoma and among only a few nationwide.

Lane said it already has been established that a person responsible for the death of a viable fetus _ one that has survived into its 24th week of gestation _ may be convicted of murder.

``Terry Nichols was convicted of one count of that,'' Lane said of the convicted Oklahoma City bombing conspirator.

But he admitted the case is hardly business as usual.

``If it is precedential,'' he said, ``it's only in that we are holding responsible this time the mother and not a third party.''

That difference is significant according to Doug Parr, president of the Oklahoma Criminal Defense Lawyers Association.

``There is a big distinction between a third person killing a mother and an unborn child and charging a mother with murder for the death of her child in utero.''

Traditionally, states have been reluctant to prosecute women for their behavior during pregnancy, even when that behavior affects the health or development of their unborn children.

In the 1992 case of Jaurigue v. California _ in which a woman faced homicide charges for prenatal drug use leading to the stillbirth of her child _ the state's superior court found no grounds to prosecute her for murder.

In a 1997 case, a Florida court found that a woman in her third trimester who intentionally shot herself in the stomach to terminate her pregnancy could not be prosecuted for murder or manslaughter.

Priscilla Smith, director of the domestic legal program for the Center for Reproductive Rights, said courts in 21 of 22 states in which cases have been appealed have rejected prosecutions of women for behavior that harmed fetuses.

``They held that those prosecutions were either unconstitutional or just not the intention under the statutes,'' she said. ``Legislatures did not intend to punish prenatal conduct in this way.''

Meanwhile, Oklahoma City police have announced an investigation into the Dec. 18 stillbirth of Cecilia Marie Preston. Meth was found in her system and her death was ruled a homicide.

Charges have not been filed in that case and Lane said it is still under consideration.