Groups urge court
to overturn baby’s
‘ice’ death ruling

More than 60 medical, child welfare and drug treatment organizations urged the state Supreme Court yesterday to overturn the conviction of a Kaneohe woman who pleaded no contest to causing her newborn baby's death by smoking crystal methamphetamine just before and after the birth.

The local and national groups joined together in a friend of the court brief arguing that women should not be held criminally liable for the outcomes of their pregnancies based on their conduct during their pregnancy. The brief supports the appeal of Tayshea Aiwohi, who was convicted of manslaughter last year in the 2001 death of her two-day-old son, Treyson.

The groups issued a statement condemning "the prosecution of pregnant women because drug dependency is a disease, not a crime; because such prosecutions are likely to deter women from seeking prenatal care and treatment for drug and alcohol addiction that is beneficial to them and their children."

The groups -- which include the American College of Obstetricians and Gynecologists and the National Council on Alcoholism and Drug Dependence -- said they are joining the case because it could be precedent-setting. The groups said that 23 states have refused to prosecute women criminally "for pregnancy-related harms."

Oral arguments before the Supreme Court are scheduled for Oct. 19.

Aiwohi was indicted Oct. 9, 2003, by an Oahu grand jury on charges of reckless manslaughter for allegedly causing the death of Treyson, by smoking "ice" in the five days before and the two days after his birth at Kaiser Medical Center on July 15, 2001.

Aiwohi initially pleaded not guilty, but on May 18, 2004, changed her plea to no contest to avoid jail time. Aiwohi faced a maximum sentence of 20 years in prison.

In a no-contest plea, a defendant does not admit guilt but agrees not to fight the charges. On Aug. 25, a circuit judge ruled she was guilty and sentenced her to 10 years of probation.

Under Aiwohi's conditional plea, she retained the right to appeal her conviction to the Supreme Court

On March 14, Aiwohi's attorney, Todd Eddins, filed an appeal with the Supreme Court, taking issue with the Circuit Court's interpretation of the state manslaughter law as it applies to pregnant women.

Eddins criticized the June 3, 2004, ruling of Circuit Judge Michael Town, who found that Aiwohi could be prosecuted for manslaughter under Hawaii law for behavior before the birth and after the birth of her child.

Manslaughter is defined as "recklessly causing the death of another person." To be considered a "person" under the law, a child must be "born alive."

Eddins argued before Town, and now to the Supreme Court, that any conduct such as drug use inflicted on an unborn child is not a crime because, at that point, the child is not legally defined as a person under Hawaii law.

The medical examiner found that Treyson's system had four times the minimum toxic level of ice for an adult. The medical examiner concluded that he could not have ingested enough ice through breast milk in his two days of life to achieve those levels and that ice he ingested as an unborn child contributed to his death.

In his brief to the Supreme Court, Eddins also criticized Town's finding that a woman who uses drugs during pregnancy that causes the death of her child is no different than a "third party" who causes harm to a pregnant woman which in turn causes injury or death to a child subsequently born alive.

In his ruling, Town cited a Maryland case in which a man shot a pregnant woman with a bow and arrow and the baby was born alive but then died of blood loss from the arrow injury.

Eddins said yesterday, "Town saw no difference between a third party and a pregnant mother. We see a clear difference between someone who engages in assaultive conduct toward an expectant mother and an expectant mother's purported self-abuse."

The groups' friend of the court brief supports Eddins: "There are fundamental differences between punishing third parties for fetal injuries caused by attacking pregnant women and using the criminal law to punish women for adverse pregnancy outcomes."

"Fear of prosecution operates as a barrier to pursuing drug treatment, prenatal care, and labor and delivery care; and it discourages disclosure of critical medical information to health professionals -- all with potentially devastating results," the brief states.

Deputy Prosecuting Attorney Glenn Kim, who handled the case from the beginning to Aiwohi's manslaughter conviction, will also argue for the state before the high court.

"We think we were right," he said. "We were right at the trial court level and we will prevail at the Supreme Court."

Aiwohi lives in Kaneohe with her five other children. She is in school and will graduate from the University of Phoenix in May, Eddins said. She also works as an office and personal assistant for celebrity bounty hunter Duane "Dog" Chapman in Honolulu.