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The Honolulu Advertiser
Posted on: Wednesday, November 30, 2005

Meth mother's conviction overturned

 •  See the Hawai'i Supreme Court ruling that reversed a manslaughter conviction for Tayshea Aiwohi (PDF file, 7.9 MB)

By Ken Kobayashi
Advertiser Courts Writer

Tayshea Aiwohi burst into tears when she got the news in her attorney's office yesterday that the Hawai'i Supreme Court had reversed her manslaughter conviction. Aiwohi's newborn son died because she smoked ice while pregnant. Her husband, Kimo, said he was happy for his wife.

DEBORAH BOOKER | The Honolulu Advertiser

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No appeals court in the country has upheld a prosecution for the death of a baby based on the mother’s conduct while pregnant. All five justices of the Hawaiçi Supreme Court agreed that Tayshea Aiwohi’s manslaughter conviction should be reversed but they issued three opinions.


  • In a 38-page opinion, Associate Justice Paula Nakayama wrote that state law does not permit the manslaughter prosecution of a pregnant woman for conduct that leads to the death of the baby. Manslaughter prohibits the killing of another “person.” She reasoned that at the time of the conduct, the fetus was not a “person,” which is defined under state law as “a human being who has been born and is alive.” She was joined by Chief Justice Ronald Moon and Associate Justices Steven Levinson and James Duffy.

  • Associate Justice Simeon Acoba filed a separate opinion, agreeing with the reversal, but on different grounds. In an 11-page opinion, Acoba said the manslaughter statute would be “vague and ambiguous” when applied to a pregnant woman because she would only be subject to prosecution if she gave birth and the baby died. As a result, she would not know at the time if her conduct was illegal.

  • Levinson wrote a six-page opinion agreeing with Nakayama’s opinion and responding to Acoba’s opinion. Levinson was joined by Moon.

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    In a precedent-setting decision, the Hawai'i Supreme Court ruled yesterday that women cannot be prosecuted for the death of their children caused by detrimental conduct while pregnant.

    The ruling reversed a manslaughter conviction for a 32-year-old Kane'ohe woman whose newborn infant died because she smoked crystal methamphetamine during her pregnancy.

    The high court ruled that the homicide prosecution of Tayshea Aiwohi did not fall under state law because her unborn child was not a "person" when she smoked the drug.

    No court in America has upheld a homicide conviction based on a mother's conduct while pregnant.

    An offshoot of the Hawai'i Supreme Court decision is that it suggests a person who injures a pregnant woman cannot be prosecuted for the death to her newborn child.

    "I'm extremely happy and grateful," said Aiwohi, 32, who burst into tears when her lawyer notified her that the conviction was reversed. "I believe (the case) changed me into a better person and I just hope to share that with others," she said at a news conference at her lawyer's office.

    Kimo Aiwohi, 32, the baby's father, his voice shaking, said it was an emotional day for him.

    "My son can finally lay to rest," he told reporters. "And I'm very happy for my wife."

    City Deputy Prosecutor Glenn Kim, who handled the trial proceedings and the appeal, said his office still believes it did the "right thing" in bringing the prosecution.

    "We continue to believe that babies such as Treyson Aiwohi deserve the protection of the law," he said. "And we also continue to believe that people like Tayshea Aiwohi doing what she did to her baby continue to deserve to suffer the consequences of the law for those actions."

    But he said the high court has ruled and the law in Hawai'i now is that a woman cannot be prosecuted for injuries or death to her children based on her prenatal conduct.


    Tayshea Aiwohi's manslaughter prosecution was the first for Hawai'i based on her conduct during the late stages of the pregnancy. She gave birth to her son Treyson on July 15, 2001, but he died two days later of what city medical examiner's office found was high levels of methamphetamine and amphetamine in his system.

    A medical examiner investigator also testified before the grand jurors that a tearful Tayshea Aiwohi said she used ice the three days before the birth and took a "hit" on the morning of Treyson's birth.

    She was found guilty of manslaughter after she pleaded no contest and decided not to fight the charge, but only on condition that she could appeal Circuit Judge Michael Town's refusal to dismiss the charge.


    The case drew nationwide attention from drug treatment groups and health professionals who filed a legal brief urging the high court to reverse the conviction or risk discouraging pregnant women from seeking help and adequate prenatal care.

    If the high court upheld the conviction, addicted pregnant women likely would go "underground" and not seek treatment, Aiwohi's lawyer Todd Eddins said yesterday.

    "Tayshea experienced a profound personal tragedy and she will bear the scars throughout her life," he said. "But from the onset of this prosecution, we firmly believed that established legal principles and the medical and social public reasons supported our position."


    The 38-page opinion was written by Associate Justice Paula Nakayama and signed by three of the other four justices. Associate Justice Simeon Acoba filed a separate opinion, saying he agreed with the reversal, but based on a different reason.

    Nakayama noted that an "overwhelming majority" of other courts have refused to hold a woman criminally responsible for her prenatal conduct. The only exception is a 1997 decision by the South Carolina Supreme Court that upheld the criminal child neglect conviction of a mother who smoked cocaine while pregnant.

    At the same time, however, an "overwhelming majority" of other courts upheld convictions of a person who inflicts injury to a pregnant woman causing the death of the newborn child, she said. Many of those cases involve drunken drivers who crash and injure pregnant women.

    Nakayama said the reasoning behind those types of cases are "mutually exclusive" — one does not permit the prosecution of prenatal conduct by the mother, the other allows for the prosecution of a third person who injures a pregnant mother.

    She said the court believes the reasoning behind barring prosecution for a mother's prenatal conduct is "the more cogent rule."

    In a footnote, Nakayama said the "logical implication" of yesterday's decision is that a person cannot be prosecuted for causing the death of a child by injuring the pregnant mother.

    Kim said the "most important consequence" of yesterday's decision was prohibition of the prosecution against a person who injures a pregnant woman. But he acknowledged that the person still could be prosecuted for injuring the mother.

    Kim said he does not know of any pending case involving a pregnant mother's conduct affecting her child or a person injuring a pregnant mother causing death or injury to her child.


    Tayshea Aiwohi, who has five other children, including one born after Treyson, said she had been using ice for 18 years, but has been sober since her son's death.

    "I was no longer the woman I used to be," she said. "I worked really hard to become who I am today."

    She's working toward a master's degree at the University of Phoenix and has a job with bounty hunter Duane "Dog" Chapman. She also set up a foundation to establish clean and sober houses to help others and share with them her own experiences so they can avoid what she went through.

    "I felt because I had recovery (from the addiction) as my foundation, I was able to handle whatever was given to me," she said.

    Aiwohi said she was "devastated" when she learned she had been indicted on the manslaughter charge, but Eddins said what also helped pulled her through was knowing the case wasn't simply about her, but other pregnant women.

    If the conviction had been upheld, women could have been prosecuted for smoking cigarettes, drinking caffeine in their coffee or engaging in other types of risky behavior, Eddins said.

    Aiwohi declined to discuss what she was going through when she smoked ice when pregnant, but Eddins said although she did not contest the charge, they dispute some of the testimony before the O'ahu grand jury that indicted her, such as her smoking ice for several days before giving birth.

    Eddins said his client smoked ice just for one day, and Treyson was born more than a month prematurely, suggesting that Tayshea Aiwohi wasn't repeatedly smoking the drug knowing she would soon give birth.


    To view the Hawai‘i Supreme Court ruling, go to www.courts.state.hi.us/page_server/LegalReferences/73DFB8859867A628EAE7AB3DC5.html

    Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.