Tayshea Aiwohi looked at Deputy Public Defender Todd Eddins yesterday after Circuit Judge Michael Town ruled that she can be charged for manslaughter in the death of her 2-day-old son. She had smoked "ice" five days before and two days after her son's birth.

Mom who used ‘ice’
ruled eligible for
manslaughter trial

The woman is the first
to face trial for behaviors
during pregnancy

A state Circuit Court judge ruled yesterday that a woman who smoked crystal methamphetamine before and after the birth of her child can be tried for manslaughter in the boy's death.

Tayshea Aiwohi, 31, of Kaneohe, buried her head as she left the courtroom yesterday afternoon surrounded by family and friends who tried to shield her from television cameras and reporters.

The case could set a precedent in the state for prosecuting women for behavior during pregnancy -- such as smoking "ice" or tobacco, or drinking alcohol -- that kills or injures a baby who is delivered alive.

A key legal element in Judge Michael Town's decision is 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."

In his ruling, Town said 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."

Deputy Prosecutor Glenn Kim acknowledged after yesterday's hearing that if Aiwohi had miscarried her son as the result of her ice use, she would not be facing manslaughter charges.

"This is a flawed ruling," said Deputy Public Defender Todd Eddins, who is representing Aiwohi. "Conduct perpetrated on an unborn child is not a crime at the time it is committed."

Eddins argues that the majority of the ice was delivered to Aiwohi's son Treyson while he was in his mother's womb and not legally a person.

Tayshea Aiwohi, center, left Circuit Judge Michael Town's courtroom with supporters after Town ruled that the manslaughter charge against her in connection with her 2-day-old son's death would not be dropped.

"We are highly optimistic that we will prevail at trial and, if not there, our appellate courts will find this ruling was erroneous," he said.

Eddins can appeal Town's decision but ordinarily only after trial, which is scheduled for July 12.

Kim, pleased with the ruling, said "We think it's a fair reading of the law."

"Who speaks for this baby boy?" Kim asked. "This was a purely legal decision. Now it is for a jury to decide, and hopefully a jury will speak for him."

Indicted by an Oahu grand jury Oct. 9, Aiwohi is the first woman in Hawaii to face manslaughter for allegedly causing the death of her child because of behavior during pregnancy. She allegedly smoked ice in the five days before and two days after Treyson's birth at Kaiser Medical Center on July 15, 2001.

Treyson, who died two days after birth, 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. Amphetamines are a byproduct produced when the body breaks down methamphetamines.

Aiwohi, whose other four children range in age from 4 to 12 years, faces a maximum of 20 years in prison.

She has admitted that she used ice and has been through drug treatment. After Treyson's death she worked as a drug-addiction counselor.

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.

In his ruling, Town 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.

Eddins said that any appeal he makes will revolve around a distinction between "a third party's actions versus a mother's behavior that occurs prenatal."

Eddins said, "Significantly, there have been no mothers (elsewhere) charged with this type of behavior."

Jon Van Dyke, a Honolulu attorney and constitutional law expert, agreed with Town's decision.

"The unusual part is that the third party is the mother herself," said Van Dyke. "But I don't think people would have a problem with prosecuting any other third party who caused injury or death to an about-to-be-born fetus. We would think of it as criminal behavior."

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.

"A lot more than this one mother is about to go on trial," said Claire Woods, executive director of a residential drug treatment program for young mothers at The Salvation Army.

"This will be a trial about our attitudes on many things: addiction, substance abuse, children's rights and the definition of life."


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