AG flips position after prosecution of woman who hid fetus

AG flips position after prosecution of woman who hid fetus

by Peter Vieth

BridgeTower Media Newswires

RICHMOND, VA -- The office of Virginia Attorney General Mark R. Herring argued in February to uphold the conviction of a Franklin County woman who discarded a stillborn fetus in a dumpster.

Katherine Dellis was convicted under a law that prohibits the concealment of a dead body. She got a five-year prison term, with all but five months suspended.

Herring's team won the appeal, as the Court of Appeals last month upheld the conviction.

Bur Herring now says he takes a different view of the law used in that case, even though the matter is moot. Dellis did not appeal any further.

A law that criminalizes concealment of a dead body should not apply to a fetus that died before birth, Herring now says. Herring said he concluded his office's position in the criminal case was "incorrect and did not serve the ends of justice."

The conviction of Dellis upheld April 24 by the appeals court brought criticism from abortion rights groups and support from advocates for rights of the unborn. Those reactions were reversed after Herring's latest statement.

Gov. Ralph Northam requested an official advisory opinion from Herring on a key issue in the Dellis case: Whether the words "a dead body" as used in the concealment statute include remains of a human fetus that expired in utero.

Herring's opinion dated May 25 maintained the statute does not apply to a stillborn fetus.

"Virginia law does not criminalize women who have a miscarriage, and as attorney general I have an obligation to clarify any ambiguity and correct any impression or statement to the contrary," Herring said in a May 30 statement released by his office.

One anti-abortion leader said Northam was "subtly demanding" reversal of the state's position by requesting the Herring opinion.

Fetus died before birth

The facts of the Dellis case are summarized in the April 24 appeals court opinion. Dellis suffered a placental abruption that resulted in the death of her unborn child. She reportedly awoke after losing consciousness to find the deceased fetus on the floor. She cut the umbilical cord and disposed of the fetus in a public dumpster in Franklin County.

A doctor called police when Dellis later sought treatment at a hospital emergency room. Police located the fetus and a medical examiner performed an autopsy. The fetus was determined to be 30- to 32-weeks in gestational age. The fetus had died in the womb "less than several days" before the birth, the doctor said.

Dellis was charged with violation of Virginia Code § 18.2-323.02, which criminalizes the malicious concealment of a dead body. Her trial attorney, Will Davis of Rocky Mount, argued the statute did not apply.

"This is not a dead body. It's a fetus," he stated at a preliminary hearing in 2016, according to The Franklin News-Post.

The Franklin County prosecutor argued that a stillborn fetus was consistent with the definition of a dead body. Ultimately, Circuit Judge James J. Reynolds agreed, saying the fetus was a human body that fit the definition of "dead body." Reynolds denied Dellis' motion to dismiss the charge.

Dellis entered a conditional guilty plea to preserve the issue, and Reynolds sentenced her to five years in prison with all but five months suspended.

Appeals court arguments

On appeal, defense counsel Arthur J. Donaldson expanded on the argument that the concealment statute was not intended to apply to fetuses.

"So what happens if a woman has a miscarriage in her 10th week? Is she bound by the statute to call up the police or otherwise notify somebody of this event? And who does she call after six weeks or eight weeks?" Donaldson asked in oral argument before the appeals court panel.

Judges Rossie D. Alston Jr., Teresa M. Chafin and Mary B. Malveaux heard argument Feb. 13 in Salem.

Assistant Attorney General Victoria Johnson acknowledged in response that the code is silent as to when an obligation to account for the treatment of a stillborn fetus arises, even for an early miscarriage.

"I don't think the court needs to resolve that question to resolve this case, because this was a 32-week stillborn child," she said. She said decisions under the law need to be made on a case-by-case basis.

"We do trust our prosecutors to use prosecutorial discretion," Johnson told the judges.

"I think that this case largely turns on common sense," she continued. "We just don't throw human remains in the trash. It's just not something that we do."

Conviction upheld

The appellate panel affirmed Dellis' conviction.

In enacting the concealment statute, "the legislature sought to punish the transport, secreting, concealment, or alteration of human remains, and it did so expressly as a deterrent to discourage the concealment of possible criminal activity or impeding the investigation of such," Chafin wrote for the panel. "However, the statute was also likely enacted to prevent negative public health consequences that could result from improper disposal of a human body," she added.

"To find that the remains of a fetus do not raise the same public health concerns as other recently deceased human remains would be an irreconcilable proposition," Chafin said in Dellis v. Comm. (VLW 018-7-107).

Dellis did not challenge the unpublished Court of Appeals decision.

New position

In his May 25 official opinion, Herring changed course. His analysis highlighted distinctions between treatment of fetuses and dead bodies throughout the code. The "rule of lenity" also called for strict construction that resolves doubts in favor of the accused, Herring said.

Herring acknowledged it was a different stance from his office's pleadings in the Dellis case.

"I have concluded, however, that the position set forth in that brief was incorrect and did not serve the ends of justice. Although that particular case is now over because the defendant did not seek further review in the Supreme Court of Virginia, this opinion sets forth my official view about how § 18.2-323.02 should be applied going forward," Herring wrote in his opinion.

His office later said the brief advocating for Dellis' conviction should not have been filed.

"The Office handles about 1,000 appeals every year, and unfortunately the issue was not raised up the chain of command so that the AG and senior attorneys could weigh in on the issue, which is a sensitive legal issue without controlling case law," a spokesperson said.

Abortion issue implicated

The new official position was welcomed by advocates of reproductive rights, including Tarina Keene, executive director of NARAL Pro-Choice Virginia.

"It is shameful and cruel to attack women who go through a still birth or miscarriage. People who face these tragedies should receive support, not prosecution," Keene said.

Claire Guthrie Gasta§aga, executive director of the ACLU of Virginia, said Herring's second position is the correct interpretation.

"This is a simple question of statutory interpretation where the strict construction required of any criminal statute leads directly to the conclusion that the attorney general reached this prosecution should never have been brought much less ended in a conviction," Guthrie said.

"We hope that elected commonwealth's attorneys will take note of the attorney general's opinion, exercise their unparalleled power, and refuse to prosecute any such cases criminalizing pregnant women in the future," she added.

Victoria Cobb, president of The Family Foundation, accused Herring of politicizing his office.

"Virginians should be alarmed that Attorney General Herring has once again shown that his loyalty is to his political base, not the law. In this particular situation, we are equally disturbed that Governor Northam played a role in subtly demanding a reversal on behalf of the abortion industry and its sympathizers," Cobb said.

"The governor did not demand a change in the stance of the OAG," a Northam spokesperson said. "The governor requested the attorney general's opinion but did not presuppose or dictate what that opinion might be," the spokesperson said May 30, adding that the governor's staff was reviewing the opinion and might comment further.

Neither Davis nor Donaldson responded to requests for comment as of May 30.

Published: Tue, Jun 05, 2018

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