Murder charges over stillbirth are dismissed

Kings County prosecutors no longer have a murder case against a woman they accused of killing her baby by consuming methamphetamine in the days leading up to his stillbirth after a judge granted her motion to dismiss the murder charge Thursday.

The decision from Superior Court Judge Shane S. Burns ended Chelsea Becker's 19-month legal battle that went to the California Supreme Court and caught the attention of the former attorney general. People v. Becker, 19-CM5304 (Sup. Ct. Kings County).

"We are incredibly relieved that this nightmare is over for Chelsea," Daniel N. Arshack of Arshack, Hajek & Lehrman in New York, one of Becker's attorneys, said in a phone interview after Burns granted her motion to dismiss. "Although the court did not dismiss it based on the inapplicability of the murder statute to women who suffer a stillbirth, the fact that it was dismissed because the prosecution was not able to establish the implied malice element of the murder statute demonstrates how unlikely it is that any woman in California would be prosecutable for having a stillbirth."

The ruling stands in stark contrast to one Burns issued in the case last summer in denying Becker's demurrer. In that ruling, Burns concluded that Becker could be prosecuted for murder because the death of her baby was not a result of her exercising her right to terminate her pregnancy through medical means.

Arshack said Burns focused exclusively on the applicability of California's murder statute in the demurrer decision. But he decided Thursday that prosecutors did not establish that Becker used methamphetamine while knowingly disregarding the fact that it could kill her fetus.

"She couldn't have had that knowledge for two reasons," Arshack said. "No. 1, she had two prior births during which the babies did test positive for methamphetamine, were born alive and were perfectly healthy. So her subjective experience, which is what the law looks at, demonstrated to her that taking methamphetamine does not cause fetal demise."

Second, Arshak said she had never received any instruction from a medical facility or social worker that taking methamphetamine could lead to a stillbirth.

"That's for good reason, and the good reason is there is zero scientific evidence that taking methamphetamine causes stillbirth," he said.

In an emailed statement, Kings County Assistant District Attorney Philip Esbenshade said prosecutors stand by the finding at Becker's preliminary hearing that there was sufficient evidence to hold her to stand trial.

"Judge Burns apparently disagrees with that finding," Esbenshade said. "We will review the record and transcript of today's proceedings and determine how we will move forward."

Becker was nearly nine months pregnant when she delivered a stillborn baby she named Zachariah Campos in 2019. She told authorities that she had consumed methamphetamine during her pregnancy and the days before the birth, records show. A coroner's report said the cause of death was acute methamphetamine toxicity.

She was charged with one count of murder in October 2019 and spent the next 16 months behind bars, unable to pay bail initially set at $5 million and later reduced to $2 million. After obtaining a new bail hearing ordered by the California Supreme Court, she was released from custody by Burns in March to a residential treatment program. The judge had overruled an objection of a probation officer and comments from the prosecutor that Becker had a poor record of rehabilitation.

The case has illuminated a debate around a 1970 amendment that expanded the scope of Penal Code section 187, California's murder statute, to include the death of a fetus. Prosecutors argued the amendment allowed women to be prosecuted for murder if their deliberate and reckless actions result in a stillbirth.

Former Attorney General Xavier Beccera disagreed in an amicus brief filed in the California Supreme Court in Becker's case. He said the statute was intended to protect women from third-party harm, not to prosecute them for murder as a result of pregnancy loss, under any circumstance.

Allowing women to be subject to such charges, Becker's attorneys contended in their motion to dismiss, would assume a near limitless level of liability that would subject women who suffer the loss of pregnancy to unconstitutional criminal prosecutions.

"If this court permits the continuation of the present prosecution of petitioner, police and prosecutors throughout California will become, as they have in Kings County, the sole determiners of which conduct during pregnancy is sufficiently dangerous or unsavory so as to warrant prosecution for murder in the event of a stillbirth," the motion stated.

But prosecutors argued the statute doesn't exempt women from being charged with murder when their reckless, deliberate acts cause the death of their fetus.

"These cases are not about abortion nor women's reproductive rights," Esbenshade told the Daily Journal after charges were filed in the case. "These cases are about a person who did specific acts that resulted in the death of a viable fetus."

Becker's case marks the second time in three years in which a woman who admitted to using methamphetamine during pregnancy that resulted in her baby's death was charged with murder by Kings County prosecutors. In 2018, Adora Perez was charged with murder after she told investigators she had used methamphetamine and marijuana days before she gave birth, according to court records. Medical examiners surmised the cause of death was habitual methamphetamine use based on the child's condition at delivery, records show.

Perez pleaded guilty to voluntary manslaughter and was resentenced to 11 years in prison. She filed a petition for review in the California Supreme Court in April, and her attorneys say they will file a writ of habeas corpus in the superior court challenging the legality of the charge itself. People v. Perez, S268092 (Cal. Filed April 29, 2021).

Arshak said that's an aspect of Becker's argument that he wishes Burns considered in his order dismissing her case.

"That's the disappointing aspect of this decision," he said. "It does not address the applicability of Penal Code 187 to women who have a stillbirth."

Becker's trial attorney, Jacqueline Goodman, said in a statement that because the door remains open on that question, defense attorneys are "left to play a sort of whack-a-mole" to "prevent any similar efforts to charge a woman with murder for the outcome of their pregnancy."