Manslaughter trial set in baby death, ice use

By David Waite
Advertiser Courts Writer

A Kane'ohe woman will have to stand trial on a manslaughter charge of recklessly killing her 2-day-old son in 2001 by smoking crystal methamphetamine during her pregnancy, a state judge ruled yesterday in the first case of its kind in Hawai'i.

Tayshea Aiwohi, who must stand trial on a manslaughter charge of recklessly killing her 2-day-old son by smoking crystal meth during her pregnancy, discusses yesterday's ruling with her attorney, Todd Eddins. Deborah Booker • The Honolulu Advertiser

Town recognized that the case raises emotional social and legal issues, but suggested that community concerns over those matters should be taken to state lawmakers.

Aiwohi, 32, who is free on bail, is scheduled to go to trial the week of July 12. If convicted, she could face a prison sentence of up to 20 years.

Aiwohi sat at the defense table, with tears streaming down her cheeks, as it became clear she will have to stand trial.

Her friends and family members filled Town's courtroom. Aiwohi left arm in arm with her husband, occasionally ducking behind his back to avoid television news cameras and wiping her tears on the back of his shirt.

"She's obviously distraught with the ruling," Aiwohi's lawyer, state Deputy Public Defender Todd Eddins said. "She didn't want to proceed to trial."

He described Aiwohi as "essentially clean and sober" and "by all accounts a terrific mother."

Eddins said he is considering filing an immediate appeal to the Hawai'i Supreme Court that would stop the criminal proceedings against Aiwohi until Town's ruling is affirmed or overturned.

City Deputy Prosecutor Glenn Kim hailed the ruling.

"I think a learned and experienced judge got all of the information and, in our opinion, came to the exactly right decision," Kim said. "We wouldn't have charged this case if we didn't think we could prove the charge beyond a reasonable doubt at trial."

But some of the medical professionals and public health service providers who attended a news conference two weeks ago to urge authorities not to prosecute Aiwohi said yesterday they remain convinced that taking her to trial will discourage pregnant substance abusers from seeking adequate medical care.

They also said it may ultimately lead to higher infant mortality rates and an increase in abandoned babies.

But Kim said the charges were brought against Aiwohi because it was "the right thing to do."

By not dismissing the charges, Town "applied the law fairly and has given the state a chance to get justice for this 2-day-old boy," Kim said.

He said the indictment was sought against Aiwohi because of the unique circumstances in her case and does not signal the wholesale prosecution of pregnant women who are addicted to drugs. "If a lot of moms keep binging on ice and killing their babies, yeah, then maybe," Kim said.

But the case against Aiwohi is the first of its kind brought against a woman here even though the state has faced a huge problem with illicit drugs — first cocaine and then ice — for the past 15 or 20 years, Kim said.

Eddins earlier argued that the state's manslaughter statute was misapplied to the facts stemming from the death of 2-day-old Treyson Aiwohi on July 17, 2001.

Honolulu First Deputy Medical Examiner William Goodhue testified on Oct. 9 before a grand jury that the baby had a lethal level of methamphetamine in his blood and that he had ruled out other causes of death such as internal or external injury or disease, as well as suffocation, Town said in his ruling.

Town's ruling also noted Honolulu police detective Kevin Wong's testimony before the grand jury in which he said he interviewed Aiwohi the day her son died. Wong said Aiwohi told him that she and her husband brought the baby home from the hospital at about 7 p.m. on the evening of July 16, 2001, and that she breast-fed the baby at about 1 or 1:30 a.m..

The judge's ruling also recapitulated Wong's testimony in which he said Aiwohi told him that she, her husband and the baby slept in the same bed and that her husband awoke the next morning to find the infant not breathing.

According to the ruling, Susan Siu, chief investigator for the city Department of the Medical Examiner, told the grand jury that she interviewed Aiwohi on Aug. 29, 2001, and Aiwohi told her she smoked ice on July 12, 13, 14 and 15 and gave birth to Treyson on July 15.

Eddins argued that any harm to the baby occurred while in his mother's womb and that the Hawai'i Penal Code provides no notice to the public that Aiwohi's alleged conduct was potentially criminal.

Kim maintained that the state's manslaughter law is clear on its face and that Aiwohi's actions in the days before her son's death coincided with the steps the prosecution must demonstrate took place in order to prove manslaughter.

In his ruling, Town found that no common law immunity exists in Hawai'i for a mother's alleged actions resulting in harm to her fetus and that a right to privacy under the state constitution does not require dismissal of the charges against her.

"What is particularly convincing to this court is that in other states, third parties have been charged criminally and found culpable for conduct resulting in the injury or death of a born-alive infant, even though conduct was prenatal," Town said in his ruling.

"The state persuasively contends that the law should treat a mother's acts the same as a third party, given the lack of a mother's immunity for such acts in Hawai'i. The court finds that in either situation — mother or third party — there are sufficient grounds to charge for reckless manslaughter for the actions set forth above," Town said.

Those who oppose taking Aiwohi to trial yesterday echoed concerns they had voiced earlier.

"I'm very disappointed," said Dr. Willie Parker, an obstetrician at The Queen's Medical Center. "I had hoped that wisdom would prevail."

He said studies in South Carolina, where similar prosecutions have taken place, show that infant mortality rates and abandoned baby cases have increased since the prosecutions began.

"Patients need to have a high confidence level when they come to see me and not be afraid that I am acting as a law enforcement agent," Parker said.

Leslie Gise, a Maui psychiatrist specializing in women's mental health issues, said the ruling will discourage pregnant substance abusers from seeking care for themselves and their babies. "Apparently, when you get pregnant, you lose all of your rights," Gise said. "Babies die for a lot of reasons — sometimes we know why and sometimes we don't know why."

She questions why prosecutors waited 2 1/2 years to bring manslaughter charges against Aiwohi.

Other states have attempted to use such prosecutions as an example in hopes of discouraging drug use by pregnant women while in most instances the deterrent may not be necessary, Gise said. "Even with the hard-, hard-core women addicts, a majority cut down or stop completely when they learn they are pregnant," she said.

Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.

• To dowload a file of Judge Town's decision, go to www.courts.state.hi.us