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Lawyer for Sound Beach woman argues her conviction for causing her baby's death in car crash could set dangerous precedent

Jennifer Jorgensen arrives at Riverhead courthouse for her

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

A Sound Beach woman's manslaughter conviction for the death of the baby she delivered after being injured in a car crash puts every pregnant woman potentially at risk of prosecution, her lawyer argued in the state's highest court Tuesday.

"This case, in the state of New York, is unprecedented," said Richard Mischel, as he asked the Court of Appeals to throw out the conviction of his client, Jennifer Jorgensen. "It is impossible to commit this crime. At the time of the reckless acts, the victim did not legally exist."

New York homicide law, as in almost all states, defines a victim as a person who has been born alive. Jorgenson's baby, Ashley, was born by emergency Caesarean section and later died.

Jorgensen was more than eight months pregnant at the time of the crash, which resulted in the deaths of two other people. Jurors ultimately convicted her of recklessly causing the death of her baby because she didn't wear a seat belt.

She and advocates said the case has far-reaching implications for pregnant women.

"Any time a pregnant woman slips on the ice, she is going to be subject to criminal prosecution," Jorgensen said. "I did nothing wrong. This [case] isn't about me. It's about every single pregnant woman in the state of New York. It means if my conviction stands, they need to get pregnancy police."

Jorgensen, 35, was convicted in March 2012 of second-degree manslaughter for the death of her daughter. She had been charged with two other counts of the same crime for the deaths of Robert Kelly, 74, and his wife Mary, 70. Suffolk prosecutors argued Jorgensen was impaired by prescription drugs and alcohol when her car hit the Kellys' car on Whiskey Road in Ridge in May 2008.

After one trial ended in a hung jury, a second jury acquitted Jorgensen of the Kellys' deaths, finding a lack of proof of intoxication. But the lack of a seat belt persuaded jurors to convict her in her daughter's death.

Mischel argued that pregnant women have never been held criminally responsible for how their actions might affect the health of a newborn baby in New York. While Assistant District Attorney Karla Lato conceded that was true, she said the law permits it.

"Does it matter if it's impossible to commit this crime?" Chief Judge Jonathan Lippman asked Lato.

But in her written brief, Lato noted that other people who injure a fetus and cause its death after birth can be convicted of manslaughter. The same rule applies to pregnant women themselves, she wrote.

Judge Leslie Stein told Lato that would create a conflict in the criminal law, which now defines as a misdemeanor when a woman intentionally causes herself to miscarry. Second-degree manslaughter is defined as causing death recklessly, not intentionally.

"Wouldn't we treat an intentional act more seriously than a reckless one?" Stein said.

Upholding the conviction would make all pregnant women second-class citizens, said Farah Diaz-Tello, senior staff attorney for National Advocates for Pregnant Women, a Manhattan-based group. She wrote a brief in support of Jorgensen that was joined by almost two dozen other groups, including the American College of Obstetricians and Gynecologists and numerous women's health groups.

"Making pregnancy outcomes into crimes conscripts health care providers into a law enforcement role, compelling them to collect evidence from, report and testify against their own patients," Diaz-Tello wrote, noting that would make women less likely to seek prenatal care.

Mischel noted that if Jorgensen had exercised her right to refuse an emergency C-section, there would have been no charge because the baby would have been stillborn.

Judge Eugene Fahey asked if it was necessary to decide this issue, when there were other problems with the case. Mischel also argued that prosecutors improperly used Jorgensen's drug prescription history against her and improperly argued to jurors that Jorgensen was a bad mother for taking those medications and driving without a seat belt.

Mischel said if the court decides the case on those issues, Jorgensen would face a third trial. If it decides the charge itself was improper, there would be no retrial. State Supreme Court Justice William Condon sentenced Jorgensen to 3 to 9 years in prison, but she has been free during her appeal.

The court usually decides cases in a few weeks.

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