Interpreting the law or ignoring it? Prosecutorial overreach in the face of tragedy

As lawyers and as advocates, we are continually mindful of the line between interpreting the law in a way that is most favorable to our client or cause and outright ignoring or misapplying a law. This is the difference between zealous advocacy and crossing the bounds of the law. The prosecution of Chelsea Becker is a tragic illustration of crossing this line. Superior Court of Kings County v. Becker, F081341.

Since last November, Chelsea Becker has been incarcerated in a Kings County jail for conduct that did not and could not form the basis of a crime in California. Becker gave birth to a stillborn baby and was arrested, charged with murder, and held with bail set at $2 million. The Kings County district attorney's office, not only alleged, without scientific basis, that Becker's substance use during pregnancy caused the stillbirth, they also proposed a vastly expanded definition of the state's murder statute despite the unambiguous language of the Penal Code, years of case law, and even clear legislative intent.

The murder statute, Penal Code Section 187, was amended decades ago to include the "unlawful killing of a fetus." The plain language, purpose and legislative history of the amendment show that the provision only applies to a third party who unlawfully kills a fetus. The statute explicitly excludes prosecutions against the "mother of the fetus." The law does not authorize, nor has a California court ever interpreted it to authorize, the prosecution of a woman in relationship to her own pregnancy.

There is good reason why the statute has not been amended to include -- and was written to specifically exclude -- situations like Chelsea Becker's. Pregnancy is complex, and medical science has difficulty identifying any one factor responsible for an adverse pregnancy outcome. Multiple determinants -- including health, environmental and personal factors that range from maternal age, body weight, income and exercise habits -- contribute to pregnancy outcomes. Research also shows that prenatal exposure to controlled substances is indistinguishable from other pregnancy outcome factors. In short, our best scientific understanding of pregnancy and fetal health is consistent with the plain language of the Penal Code -- women in Chelsea Becker's situation should not be and cannot be found culpable of murder as a result of having a stillbirth. This is a determination that the Legislature made decades ago, and in the years since, has not been changed either by lawmakers or the courts.

Kings County District Attorney Keith Fagundes' inversion of Penal Code Section 187 would expose a wide range of behaviors of pregnant people to criminal prosecution, in stark contrast to California statutory law and longstanding precedent. Their misinterpretation of the murder statute is so extreme that it prompted California Attorney General Xavier Becerra to file a brief in support of Becker's petition for a writ of habeas corpus, urging the court to end the prosecution of Becker and all criminal proceedings against her.

Moreover, Becker's months-long incarceration for a crime that does not exist in California law takes place against the backdrop of the COVID-19 pandemic. As infection rates rise in the state -- particularly within jails and prisons, as health experts urge drastic decreases in the number of people held in custody, as Gov. Gavin Newsom and the California Chief Justice Tani Cantil-Sakauye take emergency measures in an attempt to "flatten the curve" -- Fagundes continues to insist that California law says something that it does not.

Chelsea Becker's case is a frightening example of the hazards of prosecutorial power and what happens when advocacy jumps the line into flat misapplication. Seemingly nothing is able to convince the district attorney's office that their interpretation is incorrect -- not scientific evidence, not declarations of legislative intent, not years of case law, not even the filing from the attorney general, a fellow prosecutor. It is beyond belief that someone could be held in custody for months for a nonexistent crime while defense attorneys, scientists, medical professionals and advocates try in vain to dislodge persistent denial.

Even the most zealous of advocates must acknowledge that the law is not "whatever I say it is." Despite the exceptional efforts of those working on Becker's behalf, she remains in custody. She is deprived of her freedom, put at heightened risk of infection, and anxiously waiting for the prosecutor to acknowledge legal reality.

The law is what constrains the enormous power of the state to disrupt and destroy people's lives. For nearly 10 months, Chelsea Becker has been in the grip of that power. In some ways, she is fortunate -- in her case, the statute is clear, she has decades of precedent on her side, and her position is supported by California's top prosecutor. Yet even with all of those things in her favor, she still fights to restore her freedom.

Hers is a case that should give everyone in the legal system, and all advocates, pause. It reminds us all of the importance of the boundary between interpreting the law and ignoring it. 