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LI woman's conviction in death of baby overturned

Jennifer Jorgensen arrives at Riverhead courthouse for her

Jennifer Jorgensen arrives at Riverhead courthouse for her sentencing on June 22, 2012. Photo Credit: John Roca

ALBANY - New York’s top court on Thursday overturned the conviction of Jennifer Jorgensen, a Sound Beach woman who in the aftermath of a fatal 2008 car crash had been found guilty of manslaughter in the death of her baby born prematurely as a result of the accident.

In a 5-1 decision, the state Court of Appeals overturned a mid-level court’s decision and dismissed the charge against Jorgensen.

Judge Eugene Pigott Jr., writing for the majority, noted that if Jorgensen’s child had died immediately in the crash, she couldn’t have been charged with manslaughter under state law because the “fetus would not have fallen under the definition of a ‘person’ under state law.”

Jorgensen's child was delivered by emergency Caesarean section after the accident, but died days later. Jorgensen was acquitted in the deaths of two people in the other car. If Jorgensen had never consented to the operation, she would have never been charged, Pigott noted.

He noted that if the court upheld the conviction “it would create a perverse incentive for a pregnant woman to refuse a Cesarean section out of fear that if her baby is born alive she would face criminal charges for her alleged reckless conduct.”

Further, the judge said that if the state “Legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter … for reckless acts committed while pregnant,” it would have included such a provision in the state’s penal law.

Jorgensen's lawyer had argued that upholding the conviction would set a dangerous precedent.

The fatal accident occurred in May 2008 when a car driven by Jorgensen, who was eight months pregnant, collided head-on with another car on Whiskey Road in Ridge. The passengers in the other vehicle, Mary and Robert Kelly, died.

Jorgensen, now 36, was indicted on charges of manslaughter, aggravated vehicular homicide, driving under the influence of prescription drugs and alcohol, and endangering the welfare of a child. Her attorneys argued that she blacked out due to a pregnancy complication called a placental abruption.

Her first trial ended in a hung jury.

A second jury in 2012 acquitted Jorgensen of every charge except for manslaughter in connection with her baby's death -- a verdict that left both sides disappointed at the time. Jurors told Newsday that evidence alleging Jorgensen had been drinking was weak. But they said evidence that she was driving without a seat belt, taking the prescription drug clonazepam, speeding and talking on a cellphone constituted reckless conduct for a pregnant woman, leading to the manslaughter conviction.

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