Tag Archives: State v. Lamy

Dispute Over Fetal Homicide Bill

Five months after its introduction and first hearing, four months after its passage in the New Hampshire Senate, three months after its House hearing, and days after its House passage, language has been discovered in a fetal homicide bill that allegedly would permit assisted suicide and allow pregnant women to get away with murder.

House and Senate are scheduled to vote on a “fix” for that drafting error on Thursday, June 22. [Update, 6/22: both chambers voted to correct the error.]

New Hampshire Right to Life has made its objections to the bill public, based on other grounds: the fact that this fetal homicide bill would apply only in cases of pregnancies at or after the 20th week.

I have not heard any comment on either point from the bereaved families who have promoted fetal homicide legislation. [Update: see comment below from the grandfather of Griffin Donald Kenison.]

Anyone who wants SB 66 to be a personhood bill and is dissatisfied with the 20-week language now has another crack at House and Senate before June 22. In the event that SB 66 is killed, the retained HB 156 would remain open for further work and a 2018 vote on fetal homicide policy.

Whatever happens, I hope one question finds its way into the conversation: would SB 66 have allowed the New Hampshire Supreme Court in its 2009 Lamy decision to have upheld the defendant’s homicide conviction in the death of Dominick Emmons? The Court has the right to issue an advisory opinion on that.*

If SB 66 fails to address Lamy, then somehow the sponsors and the grieving families  have been wrong all this time about the bill’s purpose.

I don’t believe they’ve been wrong. Assuming no new news breaks abut the bill between now and June 22, I’m going to ask my reps to vote “yes” on correction to the drafting error in SB 66,** and to send the bill to the Governor’s desk.


*From the New Hampshire Constitution, under “Judiciary Power”:

[Art.] 74. [Judges to Give Opinions, When.] Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.

** Statement by Speaker of the House Shawn Jasper, from the House Calendar (vol. 39, #29) for the June 22 session, boldface added:

“Also in this House Calendar is an enrolled bills amendment that the full House will vote on during session. An enrolled bills amendment is a legislative device that we use in New Hampshire to clean up errors in the legislative drafting process. We typically adopt these amendments when the House is in recess by having the Clerk meet with two members and having a session where a member fills in ‘the chair’ and another member moves and adopts the amendment. (We also introduce bills, form committees of conference, and read enrolled bills reports in these sessions.) SB 66 had a drafting error that did not express the intent of the General Court when both bodies passed the bill, and as such (and as is proper) an enrolled bills amendment to clarify the intent has been drafted. Because of the rather political nature of this bill (SB 66, including a fetus in the definition of ‘another’ for purposes of certain criminal offenses), I have decided that the full House will take up the amendment in session this coming week.”

Fetal Homicide and Women’s Rights: Remember These Women

if fetal homicide legislation is going to be cast as a women’s rights issue, the women who lost children and grandchildren belong front and center. Make sure your state reps know about these women, before the June 1 vote on SB 66. No excuses.


I’m not going to link to the mendacious social media posts that have gone up in recent days against the fetal homicide bill whose vote in the New Hampshire House is only a few days away. It’s enough to know that the vote tally must be terribly close, or the opposition wouldn’t be so intense.

The general tone of the opponents is that this is a women’s rights issue; they’re-coming-for-your-uterus. I wish that were a parody, but this is what fetal homicide is up against.

The truth of the matter is that SB 66 would not apply to any fetal death occurring with the mother’s consent (e.g. abortion) or due to any act performed by a health care provider in the course of the provider’s professional duties. But that’s the truth, and as the saying goes, a lie gets halfway around the world before the truth gets its pants on.

It’s time to remember the women whose losses have illuminated the need for fetal homicide legislation in New Hampshire. Think of their rights, their thwarted choices, their children and grandchildren.

What follows is taken from my coverage of fetal homicide bills in New Hampshire since 2012.

Brianna Emmons

The death of Brianna Emmons’s son Dominick in 2006 was at issue in the Lamy case decided by the New Hampshire Supreme Court in 2009.

Joshua Lamy is in prison today and is likely to be there for at least the next four decades. He’s serving time for, among other things, one of the two lives he took when he smashed into a Manchester taxi at over 100 mph in 2006. He successfully appealed his conviction for the second death, arguing that in the eyes of the law, there was no crime because there was no victim.

The taxi driver, Brianna Emmons, was seven months pregnant. Her injuries and the resulting diminished blood flow to her child were severe enough to call for an emergency cesarean. Ms. Emmons named her son Dominick. Two weeks later, he succumbed to “perinatal asphyxia resulting from maternal abdominal trauma” (State of New Hampshire v. Joshua Lamy, 158 N.H. 511). Those two weeks, bracketed by birth and death certificates, weren’t enough to make Dominick Emmons a victim under New Hampshire law.

The New Hampshire Supreme Court, in a unanimous decision written by Justice James Duggan, went by existing New Hampshire law in overturning Lamy’s convictions for manslaughter and negligent homicide in Dominick’s death.   The justices unanimously recognized that existing law was inadequate.

“Should the legislature find the result in this case as unfortunate as we do, it should follow the lead of many other states and revisit the homicide statutes as they pertain to a fetus.”

In vetoing 2012’s fetal homicide bill, the first attempt to rectify the law that forced the Lamy decision, then-Governor John Lynch falsely claimed that “this legislation … would allow the State of New Hampshire to prosecute a pregnant woman”. The governor missed the plain language of the bill in front of him. In fact, neither 2012’s bill nor the 2017 version (SB 66) would apply to any pregnancy termination caused by any person acting with the consent of the mother.

Ashlyn Rideout

As described by her father, Ashlyn Rideout was 7½ months pregnant in 2013 when she was injured in a motor vehicle collision. In the hours following the collision, Ms. Rideout’s baby son Griffin was delivered via emergency cesarean. Her son did not survive.

Any fault on the part of one of the drivers was irrelevant under law as far as Griffin was concerned. Prosecutors did not even have the option of considering Griffin’s death in determining what, if any, charges to file in connection with the collision.

Since then, I’ve seen Ms. Rideout at hearings on fetal homicide legislation. She’s been quiet, leaving the testimony to others in her family. She’s been waiting, year after year, for passage of a fetal homicide law.

Shirley Ward-Kenison

Griffin’s grandmother, “Grammy Shirley,” pleaded with legislators in 2014. Griffin’s death was her loss, too.  She wanted to make sure the legislators knew that fetal homicide legislation was no transitory cause. “We’re on a crusade,” she said tearfully, with a relative standing next to her displaying photos to the committee. “Our family is on a mission to make sure if a person causes bodily harm or death to an unborn child due to violence or criminal behavior, there will be consequences.”

A few days later, as a House committee voted on the 2014 bill, Nashua Rep. Latha Mangipudi told her colleagues about her concerns with fetal homicide legislation. “It’s very unsettling for me to say, I mean, I see the intent [of the original bill], but we are addressing one aspect of fetus as person. That’s an undue burden. I’m very uncomfortable [with this], as a woman.”

Shirley Kenison-Ward could have swapped notes with the legislator about how uncomfortable a woman can be.

Deana Crucitti

Deana Crucitti was at full term with a little girl in early 2004 – only a few days away from a planned cesarean delivery. The car she was driving was hit head-on. Mrs. Crucitti sustained serious injuries, and the impact of the collision ruptured the amniotic sac around her baby. Despite valiant medical efforts, the baby did not survive.

Charge against the driver whose car struck Mrs. Crucitti’s: vehicular assault, for injuries inflicted on Mrs. Crucitti and her preschool-age son. No charge was possible for the baby’s death. New Hampshire uses the centuries-old “born-alive” rule in determining whether a child has been killed by another’s action.

Without a fetal homicide law, the Crucittis got the same shock as baby Griffin’s family: the child simply never existed, under state law.

Deana Crucitti testified on a 2015 New Hampshire fetal homicide bill with her husband Nathan at her side. It’s clear that eleven years have not dulled the pain of their daughter’s death. They brought with them a photo of their daughter as she looked after her emergency delivery at a hospital shortly after the collision. Their little girl would have survived except for the trauma inflicted by the collision.


In 2017, the House vote on SB 66 is scheduled for June 1. Whether or not SB 66 passes, a similar bill, HB 156, is in “retained” status and must get a House vote before crossover day in March 2018.


 

Bipartisan error: House committee rejects fetal homicide bill, then sets it aside

Rep. John Burt of the New Hampshire House Criminal Justice committee reported from the State House today that the committee “retained” SB 66, joining HB 156 in the pile of bills kicked aside for a vote in 2018.

Before the vote to retain, Burt moved “ought to pass with amendment” on SB 66. His motion failed, 10-11. Two Republicans, Carolyn Gargasz of Hollis and Scott Wallace of Danville, joined the committee’s Democrats in opposing the “ought to pass” motion.

Rep. John Burt photo of House Criminal Justice and Public Safety Committee vote on SB 66. Motion was Ought to Pass as Amended.

 

Rep. Wallace is a first-term representative. Rep. Gargasz is serving her 9th term.

The bill, whose chief sponsor was Sen. Regina Birdsell, had passed the Senate 14-10 before moving to the House.

What does “retain” mean?


The immediate effect is to prevent the bill from coming to a House vote this year, giving the committee (or a subcommittee named by the chairman) time to look at the bill and study it some more. A House vote will come in 2018.

In practice, a vote to retain means whatever the committee wants to mean. The “study” could be serious or it could be a joke.  A subcommittee might meet once, or not. The intention might be to strengthen the bill or it might be to shove the bill under the rug.

Post-study, the committee will then take vote later this year – possibly as late as late fall – to recommend Ought to Pass or Inexpedient to Legislate for House action in January 2018.

Note that both of this year’s fetal homicide bills were retained. It is likely that a study, if seriously undertaken, would look at both bills at the same time.

Another missed opportunity

This is the fourth full legislative biennium since the New Hampshire Supreme Court’s 2009 Lamy decision. In 2012, a fetal homicide bill actually made it to Governor Lynch’s desk, where he vetoed it. An override attempt failed.

So far, that’s the high-water mark for fetal homicide legislation in New Hampshire.

This is the fourth legislative biennium when House and Senate have refused to ask the state Supreme Court for an advisory opinion on a fetal homicide bill. Whether leadership has been Democrat or Republican, all have failed to seek that opinion.

Governor Sununu announced before last year’s election that he would support a fetal homicide bill.  It remains to be seen whether that support will extend to reaching out to legislators studying the retained bills.

The Crucitti family may have to keep telling the story of their daughter. The Kenisons may have to keep speaking out about Griffin.

All the while, the Lamy decision rests in dusty pages and a seldom-used URL, after it served to overturn a conviction of a drunk driver who injured a pregnant woman, prompted cesarean delivery of her child, and left that child with injuries that caused his death two weeks later.

The Justice who wrote the decision noted that the current state of New Hampshire law left the court with no other choice. “Should the legislature find the result in this case as unfortunate as we do, it should follow the lead of many other states and revisit the homicide statutes as they pertain to a fetus.”

Since 2009, one legislator after another has decided no, I don’t find the outcome as unfortunate as the Justices did. Eleven of those legislators prevailed today.

A reminder of what happens without a fetal homicide law

As House Bill 156 gets its initial hearing this week before the New Hampshire House Criminal Justice and Public Safety Committee, bear in mind why this and other attempts at fetal homicide legislation keep coming back.

Don’t bother to tell me I’m repeating myself. I’m going to keep right on repeating myself until New Hampshire adopts a fetal homicide law.

Read the Lamy decision handed down by the New Hampshire Supreme Court in 2009, particularly pages 9 and 10. It’s about real people, real death, real loss, real injustice.

Joshua Lamy is in prison now, serving time for a number of convictions arising from smashing his car into a Manchester taxi at over 100 miles per hour in 2006. He appealed one conviction, for causing the death of a child in utero, successfully arguing that in the eyes of New Hampshire law, there could be no crime because there was no victim.

The taxi driver, Brianna Emmons, was seven months pregnant. Her injuries were severe enough to call for an emergency cesarean. She named her baby Dominick. Two weeks later, he succumbed to “perinatal asphyxia resulting from maternal abdominal trauma” (State of New Hampshire v. Joshua Lamy,  158 N.H. 511).  Those two weeks weren’t enough to make Dominick Emmons a victim under New Hampshire law. The Supreme Court Justices reluctantly recognized that fact.

The Court’s decision, written by Justice James Duggan,  was unanimous. Duggan frankly acknowledged that existing law left the Court with no other choice than to overturn the homicide conviction regarding the baby: “Should the legislature find the result in this case as unfortunate as we do, it should follow the lead of many other states and revisit the homicide statutes as they pertain to a fetus.”

That was eight years ago. House and Senate agreed on a bill in 2012, only to see Governor Lynch veto it. Override failed narrowly. More recent attempts have foundered over differences between House and Senate bills.

Ponder the fact that ACLU-NH has called for its supporters to show up in force to oppose HB 156. Abortion advocates in New Hampshire have never been able to stomach fetal homicide bills, even though the bills would not apply to any fetal death caused with the consent of the mother.

The ACLU has nothing to worry about if the pro-life supporters of HB 156 snipe at the pro-life supporters of the Senate’s version. Senate Bill 66 would go into effect at a much later gestational age (8 weeks in the House version, viability in the Senate). Yes, the House version is preferable.

But calling into question the good will of the supporters of the Senate bill serves only to give aid and comfort to people who want to make sure the next hundred-mile-an-hour driver who hits a pregnant woman and causes the death of her child gets a pass for the child’s death.


Attend the February 7 hearing on HB 156 if you’re so inclined: 2:30 p.m., House Criminal Justice committee, room 204 in the Legislative Office Building. You can register your support by signing the sheet on the committee table and indicating “For the bill.” If you wish to testify, fill out a pink card, available on the committee table.


Why not consult the Court over fetal homicide language?

Rep. Leon Rideout
Rep. Leon Rideout

State representative Leon Rideout (R-Lancaster) posted a Facebook update today during the New Hampshire House session:

H[ouse]B[ill]560 ‪#‎FetalHomicide‬ Bill was amended to the language of last years SB40. The ‪#‎NHHouse‬ just voted to not concur with that language. We will go back to work on making ‪#‎NH‬ the 38Th state with a fetal homicide law from the Senate next year ‪#‎Griffinslaw‬

This is a sadly familiar situation. In New Hampshire, a person whose action performed without a pregnant woman’s permission causes the death of the pregnant woman’s preborn child, is not open to a homicide charge in the child’s death. This puts New Hampshire law at variance with the laws of more than three dozen other states that make “fetal homicide” part of the criminal code. Even the federal government has the Unborn Victims of Violence Act, also known as Laci and Conner’s Law, to apply to fetal homicide in certain jurisdictions.

[See Leaven for the Loaf‘s full coverage of fetal homicide legislation in New Hampshire.]

Those laws presume that a woman’s choice to carry a pregnancy to term should get at least as much respect as a woman’s choice to terminate a pregnancy.


The bill number is confusing: the bill voted on today was HB 560. It’s Rep. Rideout’s bill. There was a Senate version last year, SB 40, with a provision making fetal homicide a chargeable crime not until much later in pregnancy. That bill did not pass, but the language was resurrected by the Senate this year and added to HB 560.

The problem with the Senate version, which is where HB 560 is today, is that the law would not apply until the fetus is “viable,” which is defined in the Senate language as “capable of sustained extrauterine survival.”

Who’s to determine whether a preborn child who dies from trauma inflicted by a drunk driver is viable? And what is “sustained” extrauterine survival?

The acid test of any legislative language is the 2009 Lamy decision by the New Hampshire Supreme Court. Lamy overturned the conviction of a drunk driver for causing the death of a preborn child delivered with injuries two months early. The reason: New Hampshire has no fetal homicide law. The child’s mother was seriously injured as well, and the harm caused to her gave rise to a separate criminal conviction against the impaired driver. That conviction was sustained.

So look at little Dominick Emmons, the child whose death was at issue in the Lamy case. Was he “viable” when he was delivered? He had to go straight into neonatal intensive care due not only to his prematurity but also to the injuries he sustained in utero due to the impact of the vehicle collision. He died two weeks after he was delivered. Is that “sustained” survival? Did the injuries render him not “viable”?

Would the current Senate language, with which the House just refused to concur, have allowed the conviction against Joshua Lamy for the death of Dominick Emmons to stand? Not as long as a defense attorney could create reasonable doubt over “viability,” it seems to me, although I hasten to add that I am not an attorney. I say this knowing that some of the Senators favoring the viability language believe sincerely that it would be adequate. Condemning those Senators would be a mistake.

Save the criticism for the Senators who voted against “viability” both last year and this year while failing to propose or accept any other fetal homicide language: all the Democrats plus Republican Nancy Stiles. (See Senate roll call #31 from 2015 and Senate roll call #3 from 2016.)

In view of the importance of having an effective fetal homicide law in place, I fail to understand why neither the House nor the Senate has called upon the New Hampshire Supreme Court for an advisory opinion. “Would the amended language of HB 560 [i.e. the Senate language] have permitted the Court to uphold the conviction of Joshua Lamy for causing the death of Dominick Emmons?”

If the answer is no, that will give the senators something to chew on. Most have expressed great sympathy for the families who have lost children and who are seeking fetal homicide legislation. In view of that sympathy, I expect senators should be eager to find out if their language would actually get the job done.

As I said, I’m not an attorney – but surely there are enough lawyers in the legislature to craft an appropriate inquiry, or else explain why such an inquiry can’t be made.

New Hampshire Constitution, Article 74: “Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.”

That looks to my non-attorney eyes as though a simple majority of the House OR of the Senate could request an opinion. How about it, all you Honorables?