Friday, June 18, 2004

Tayshea Aiwohi, center with hand over face, left Circuit Judge Michael Town's courtroom earlier this month after the judge ruled that the manslaughter charge against her would not be dropped. She was with supporters and her attorney, Todd Eddins, who is in the foreground.

Mom accused in
son’s death to plead
no contest in deal

The changed plea will likely
mean probation but no jail time
for a woman who allegedly
smoked "ice" while pregnant

A Kaneohe woman accused of causing the death of her newborn child by smoking crystal methamphetamine before and after his birth is expected to drop her not-guilty plea today in a deal that would keep her out of jail, sources said.

As part of the agreement with the city prosecutor's office, Tayshea Aiwohi, 31, is expected to plead no contest during a hearing this morning before Circuit Judge Michael Town. In a no-contest plea, a defendant does not admit guilt, but agrees not to fight the charges.

According to the sources close to the case, the plea deal is expected to include probation but no jail time. She had faced a maximum sentence of 20 years in prison.

Aiwohi's public defender, Todd Eddins, said late yesterday that "there will be a significant development in the case tomorrow morning." He declined to elaborate.

The prosecutor's office declined comment.

Aiwohi was indicted by an Oahu grand jury Oct. 9 on charges of reckless manslaughter for allegedly causing the death of her 2-day-old son, Treyson. She allegedly smoked "ice" in the five days before and two days after his birth at Kaiser Medical Center on July 15, 2001.

She pleaded not guilty, and trial was scheduled for July 12.

Treyson was born almost a month premature, weighing 5 pounds, 5 ounces. An autopsy found his system contained four times the minimum toxic level of ice for an adult and two times the toxic level of amphetamines for an adult. Amphetamine is a byproduct produced when the body breaks down methamphetamine.

Aiwohi, whose other four children range in age from 4 to 12 years, has admitted that she used ice and has been through drug treatment. After Treyson's death she worked as a drug addiction counselor.

The case has been closely watched because it could set a precedent in the state for prosecuting women for behavior during pregnancy, ranging from smoking ice or tobacco to drinking alcohol, that kills or injuries a baby they deliver alive.

Critics say that prosecuting women for using drugs, alcohol or tobacco during pregnancy will deter them from seeking drug treatment and prenatal care, which is considered crucial for the health of any baby.

In a precedent-setting decision, Town ruled on June 3 that Aiwohi could be tried for manslaughter. Eddins, who called Town's decision "flawed," is expected to appeal it.

A key legal element in Town's decision was that under Hawaii law a child must be "born alive" to be considered a person for a crime to exist. Manslaughter is defined as "recklessly causing the death of another person."

Town said much of his decision was based on cases in other states where "third parties have been charged criminally and found culpable for conduct resulting in the injury or death of a born-alive infant, even though the conduct was prenatal."

In a Maryland case Town cited as an example, a man was charged with manslaughter for shooting a pregnant woman with a bow and arrow. The baby was born alive but later died of blood loss from the arrow injury.

Town expanded the concept of "third party" to include the mother. He said "the law should treat a mother's acts the same as a third party, given the lack of a mother's immunity" under Hawaii law.

Town also said that Hawaii, unlike other states, has "no common-law immunity for a mother's actions allegedly harming her fetus which is later born alive and died."


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