The Imperfect Murder

Posted: Feb 09, 2009 12:00 AM

Author’s Note: The author wishes to thank Christine Armario. In fact, he wishes to nominate her for the Pulitzer Prize.

I hope you all had a good weekend and welcome back to our criminal law class. Please take out your notes and turn to the homicide section we were discussing last week. We will take up where we left off just after I finish today’s hypothetical case.

Imagine that an 18-year old, whom we will call Ms. Williams, walked into a Miami abortion clinic and paid $1200 for a doctor, whom we will call Renelique, to abort her 23-week old fetus. Imagine further that she was then medicated to dilate her cervix and to prepare her for the procedure.

Let us consider the possibility that Dr. Renelique didn't arrive in time to perform the abortion. Instead, Williams goes into labor and delivers a live baby girl.

Next, let us imagine that one of the clinic owners, who, of course doesn’t have a medical license, cuts the infant's umbilical cord and then places the baby in a plastic biohazard bag and throws it out. The police recover the remains in an alley after getting several anonymous tips about the incident.

The state Board of Medicine decides to hear Renelique's case to determine whether to strip him of his medical license. Meanwhile, something more serious is happening: The Florida attorney's homicide division is investigating the possibility of bringing murder charges.

According to Florida records, Dr. Renelique received his medical training in Haiti. He did his residency in New York and, according to the records of that state, has made five medical malpractice payments in the past decade.

Dr. Renelique was alleged to have given Williams laminaria, a drug that dilates the cervix, before she was told to go to another clinic where the procedure would be performed the next day. When Williams arrived she was given more medication. Just before noon she began to feel ill so the clinic contacted Dr. Renelique. Hours later, he still hadn't shown up. Williams then went into labor and delivered the baby.

When a clinic owner named Gonzalez came in she cut the umbilical cord with scissors. She then placed the baby in a plastic bag before putting the bag in a trash can. Williams says Gonzalez even knocked the baby off the recliner chair where she had given birth and onto the cold, hard floor. Since the baby's umbilical cord was not clamped she simply bled to death.

It would be malpractice for Dr. Renelique to fail to ensure that licensed personnel would be present when Williams was there at the clinic per his instructions. But, of course, in this class we are not concerned with mere malpractice. We are currently talking about homicide.

Your answers to the following questions are to be submitted to me via email by tomorrow:

1. Should prosecutors file murder charges against Gonzales? If so, what degree of murder? First? Or second?

2. Or should the state file homicide charges against Dr. Renelique? Do his actions constitute misdemeanor manslaughter? Or do they conform to a common law theory of depraved heart murder, a form of murder in the second degree.

3. How will the prosecution prove that the baby was born alive? Can the autopsy alone establish beyond a reasonable doubt that the baby’s lungs were filled with air?

4. Will the defense be allowed to argue that the child would have died anyway? What are the implications of allowing for such an argument? And, finally;

5. Aren’t you glad that this is a hypothetical, and not a real, case?

To be continued …