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New York's highest court tosses manslaughter conviction against Jennifer Jorgensen of Sound Beach in 2008 crash

Jennifer Jorgensen hugs her fiance Rich Kaiser at

Jennifer Jorgensen hugs her fiance Rich Kaiser at her Sound Beach home on Thursday, Oct. 22, 2015, after New York's top court overturned her conviction in the aftermath of a fatal 2008 car crash. Jorgensen, pregnant at the time of the crash, was convicted of manslaughter in the death of her baby, which died after a premature birth. Credit: Randee Daddona

The state's highest court has thrown out the manslaughter conviction of a Sound Beach woman for the death of a baby she delivered after a car crash in which she did not wear her seat belt, ruling that the law does not hold women criminally responsible in such cases.

If it did, a pregnant woman who ignored doctor's orders to stay in bed, took prescription or illegal drugs, shoveled snow or carried groceries could be charged with manslaughter if those acts resulted in premature birth and death of the child, Judge Eugene Pigott Jr. wrote for the court's 5-1 majority.

"The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies . . . should be clearly defined by the Legislature, not the courts," Pigott wrote. "It should also not be left to the whim of the prosecutor."

The ruling came in the case of Jennifer Jorgensen, 35, who was eight months pregnant when she crashed head-on into another car in May 2008 on Whiskey Road in Ridge. The crash killed the occupants of the other car, Robert Kelly, 74, and his wife Mary, 70, of Ridge. Jorgensen's daughter, born as a result of an emergency cesarean section, died six days later.

Suffolk prosecutors charged her with second-degree manslaughter in all three deaths, arguing that she was impaired by prescription drugs and alcohol and recklessly caused the three deaths. Her first trial ended with a hung jury. A second jury in March 2012 acquitted her of the Kellys' deaths, finding there wasn't proof that she was impaired after hearing of unconventional handling of blood evidence in the case. But that jury convicted Jorgensen in her baby's death because she wasn't wearing a seat belt.

Jorgensen, who has a federal civil rights suit pending against Suffolk police, prosecutors and forensic scientists, said her fight is not over.

"I have suffered an unimaginable loss," she said. "I lost my precious daughter, and I lost my liberty. I have fought a fight that should never have had to have been fought. I was charged with a crime that never existed and I was given no alternative but to never give up -- not just for me, but for my children, my family and most importantly for every pregnant woman in the state of New York."

Farah Diaz-Tello, senior staff attorney for National Advocates for Pregnant Women, a Manhattan-based group that helped with Jorgensen's appeal, praised the court's ruling.

"This is a triumph," she said. "The legislature never intended to criminalize things that happen in a woman's pregnancy. This certainly means that women don't lose their fundamental rights when they get pregnant."

Jorgensen's appellate attorney, Richard Mischel of Manhattan, said simply, "We are relieved."

Suffolk prosecutors did not address the case itself. Robert Clifford, spokesman for the district attorney's office, said in a statement, "We agree with the court that the state legislature must clarify the extent of the criminal liability of a pregnant woman, as the court put it, 'for acts committed against a fetus' that is later born, and subsequently dies, as a result of injuries suffered before birth."

Pigott wrote that the law as written permits homicide charges only for a victim "who has been born and is alive." Because any reckless act by Jorgensen took place before her child was born, the law doesn't allow her to be charged, he wrote. He added that if she had not given consent for an emergency C-section and the fetus was stillborn, prosecutors never would have charged her.

Allowing Suffolk prosecutors' interpretation of the law "would create a perverse incentive for a pregnant woman to refuse a Caesarean section out of fear that if the baby is born alive she would face criminal charges," Pigott wrote.

Judge Eugene Fahey dissented from the majority decision. "There is no pregnant mother exception from criminal liability for reckless acts that result in the death of a mother's baby postpartum," he wrote.


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