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September|October 2004
Killing Their Young By Dashka Slater
Empty Suits By Alicia Mundy
Moving Mountains By Geoffrey Gagnon

Killing Their Young

The murder of a newborn by her mother is one of the most difficult crimes to fathom; it's also one of the hardest to prosecute successfully.

By Dashka Slater

SEVERAL HOURS BEFORE DAWN ON AUGUST 21, 1990, Elizabeth Ehlert, a 31-year-old mother of two, awakened her fiancé, Steven King, and told him, "It's time." Ehlert had told King that she was carrying a dead six- to eight-week-old fetus, and that a couple of days earlier she had received an injection from her doctor that would induce an abortion. As she moaned in pain, King grew frightened and left the room. He paced around the three-bedroom house in the middle-class Chicago suburb of Palatine, moving through the hallway, the living room, the kitchen, and even the basement, as he debated whether to call an ambulance.

Ehlert stayed alone in the dark bedroom. When the pain began to subside, she put her hands between her legs and felt something warm on the insides of her thighs. "It was just like a clump or something," she said recently when she was asked to reconstruct the events of that night. "It was just, like, wet, and I didn't feel anymore. I don't know. I wasn't thinking—obviously."

Ehlert called out to King and asked him for a plastic bag. He fetched a garbage bag from underneath the sink and, without entering the bedroom, handed it to her. Later, he told the police that as he approached the bedroom he thought he heard a brief cry. King said that he asked Ehlert what it was, and that she said it must have been Harry, the couple's black Labrador retriever. (Ehlert insists this conversation never took place.) Afraid of seeing the dead fetus, King sat on the arm of the living room couch, and watched his girlfriend go into the bathroom to clean herself up. The bag remained in the bedroom. Five to ten minutes later, Ehlert returned to the bedroom and emerged carrying the bag. King told police that he heard the backdoor slam and then, a minute or two later, saw Ehlert come back into the house.

"Betsy, what did you do with the bag?" he asked.

Ehlert told him that she didn't want to flush the product of her miscarriage down the toilet so she had thrown it in the creek that ran beside the house. The fetus, she said, had gone back to nature.

Two days later, a couple of workers at the Twin Lakes Golf Course a few miles from Ehlert's home were fishing golf balls out of a reservoir when they saw a baby floating in the water. The men scooped it out of the lake and carried it back to the clubhouse, with the baby still resting in the net they used to snare golf balls. It had been eaten away by animals, and its skin was tinged faintly green with algae. An autopsy concluded that it was a 6-pound, 19-inch, full-term baby girl. After consulting with the police investigating the case, the medical examiner listed the cause of death as drowning.

A story on the local news asked viewers who might know something about a suspicious birth to contact the police. Six days after the baby was found, a neighbor of Ehlert's told the police that the creek behind Ehlert's house fed into the golf course, and that Ehlert had recently appeared to be in the advanced stages of a pregnancy but now looked considerably smaller. Four months later, Ehlert was charged with first-degree murder.

EHLERT WAS CONVICTED OF MURDER TWICE, once in 1993 by a jury, and again, in 1999, by a judge. Both convictions were overturned on appeal. The first reversal resulted in a new trial, to correct for what the appeals court termed "irrelevant and highly prejudicial" evidence introduced at the first one. The second reversal was itself appealed, this time to the Illinois Supreme Court, and Ehlert was kept in prison while the legal drama played out. When she was finally released from prison in June, she had served more than 13 years of her 30-year sentence. Her freedom was granted because the Illinois appellate courts concluded that the prosecution had failed to prove that the baby found at Twin Lakes Golf Course had been born alive or that Ehlert had done anything to kill it.

Illinois common law holds that a baby is not a person until it has established a life independent of its mother. The separation doctrine, as it is sometimes called, is not unique to Illinois; it exists in some form in most other states. The doctrine, according to the Illinois Supreme Court, holds that "a fetus must be totally expelled from the mother and show a clear sign of independent vitality" before it can be considered to have been born. A baby who dies during birth cannot be the victim of a homicide. And though Illinois is among the 30 states across the nation that have fetal homicide statutes to protect the unborn, only individuals other than the pregnant woman can be prosecuted under the state's law for killing a fetus.

In Ehlert's case, the sole evidence that the baby had survived the birth process came from King's testimony. "The single, short cry the witness thought he heard, if it occurred, may have occurred before complete separation from the mother, and therefore it is not sufficient to prove live birth," the appeals court ruled.

This conclusion did not sit well with Illinois prosecutors. Assistant State's Attorney Peter Fischer argued to the state supreme court that the law had imposed on his office an impossible burden of proof. "Complete separation doctrine basically means that the baby is fully delivered, the umbilical cord is cut, and there's some overt sign of life—breathing, crying, moving," said Fischer. He argued that under the doctrine, a mother could deliver her baby and strangle the infant before cutting the umbilical cord, and it wouldn't be murder. "It would be," as he put it, "nothing."

The requirement that prosecutors prove a baby was "born alive" can lead to disturbing results. In cases across the nation, a newborn's skull that had been crushed with a "hard substance" and another's slit throat were not enough to prove live birth, while newborns whose mouths had been stuffed with paper or rags were presumed to have been born alive, under the theory that no one would bother stifling a dead child. In one particularly unsavory decision, a man impregnated his daughter and confessed to strangling their offspring with its umbilical cord. But the man's wife and daughter both said that they hadn't heard the baby make any sound, and a New York appeals court ruled that the confession didn't establish that the baby had been born alive.

In upholding Ehlert's acquittal, the Illinois Supreme Court declined to rule on the separation doctrine, noting that it saw no compelling reason to reconsider 200 years of judicial consensus. It portrayed its decision as a simple function of Criminal Justice 101. The fact that Ehlert had placed her dead child in a garbage bag by a creek was, the majority said, evidence that "the defendant is capable of doing terrible and desperate things," but it was not enough to satisfy the prosecution's burden of proof.

The majority's insistence that Ehlert's prosecutors had failed to prove that a crime had occurred is in line with dozens of decisions in other states over the past century. "It has always been difficult to procure conviction in cases like these," a Tennessee appeals court observed in 1923 when overturning a neonaticide conviction. "The necessary evidence is hard to obtain." It is difficult, in part, because the relationship between a woman and her unborn child is so unlike any other. The fetus begins as a part of the woman's body, unable to survive without her, and at some point it becomes an independent being entitled to legal protections. When that shift occurs, of course, is the focal point of much legal wrangling, with abortion being only the most obvious example.

Birth has always been the bright line, the point at which it is possible to say without doubt that a child is an independent human being who deserves the full protection of the law. But implicit in the legal debates about neonaticide is the awareness that mother and child are inextricably bound together even after a baby is born. In most instances, it is women who must cope with pregnancies that are unplanned and undesired, and it is mothers who care for babies brought to term. Ehlert's fiancé slept beside her until labor began, and then left the room.

EACH YEAR IN THE UNITED STATES, an estimated 150 to 300 women kill their newborns under circumstances similar enough that some scholars have posited the existence of a "neonaticide syndrome." Typically, the women accused of neonaticide are young, first-time mothers with no independent means of support, and the father of the baby is out of the picture. They deny or conceal their pregnancies, fearing the reaction of their families. Some mothers inadvertently suffocate the baby in an attempt to keep its cry from giving them away. Some deliver over a toilet bowl, where the baby drowns. And some deliberately kill the baby, reacting in rage and terror to the irrefutable evidence of a pregnancy they have worked hard to deny. "The power of the mind to move into denial is so profound, you no longer think rationally about the inevitability of what's going to happen," explained Michelle Oberman, a law professor at DePaul University, who has written extensively about neonaticide. "And then at the moment of birth, the jig is up."

Ehlert did not seem to fit the profile. She had two sons, ages 7 and 2, a fiancé who lived with them, and a home that the family shared with her father. Her mother had been murdered two years before in an unsolved crime. (During the penalty phases of her trials, the prosecution tried and failed to make the case that Ehlert had committed that murder.) A passive, somewhat spoiled young woman, Ehlert had always counted on her family and her partners (she was twice divorced) to take care of things for her. "When I got married, I didn't know how to work a washing machine. I didn't know how to cook, how to iron—all my stuff went to the dry cleaners," she recalled. "And, like, when it came to balancing the checkbook—my dad always did that."

I interviewed Ehlert at the Lincoln Correctional Facility in Illinois two months before the Illinois Supreme Court decided her case. At 45, she is a slight woman with short, graying, blondish-brown hair and intent brown eyes framed that day by gray eye shadow and a generous brushing of mascara. We met in a prison conference room. Our meeting was monitored by a prisoner's advocate, a former evangelical missionary who pretended to be reading a book but commented afterward that he found Ehlert "quite credible." Ehlert sat with her feet on a plastic chair, hunched into her prison-issue windbreaker. Every so often she stopped to brush off strands of hair that littered her clothes, the result of chemotherapy treatments three times a week. She is terminally ill with lung cancer.

Ehlert has no coherent explanation for what happened in August 1990. She said that she was under a lot of strain, and perhaps even a little crazy. Her mother was dead, and her father was incapacitated by depression. "It was, like, all of a sudden I just had to grow up in one day," she said. "And I didn't know how."

She had met King in January while playing in a dart league, and she was drawn to the stability he seemed to offer. He was an executive with the Little Caesars pizza chain, had never been married, and seemed to enjoy being with her kids. "I thought this was something that would benefit them, would benefit me," she said of the relationship. "You don't find too many stable males who will take on the responsibility of two small children."

Whether Ehlert thought King would take on the responsibility of a third child is another question. She was 8 to 10 weeks pregnant when she met him, yet despite growing visibly more pregnant with each week, Ehlert managed to convince everyone around her that she wasn't carrying a baby. Even King, who slept next to Ehlert and had sex with her until two months before the birth, insisted at her trial that he never suspected she was pregnant. At various times Ehlert told friends and family members that she had a cyst or tumor that she hadn't gotten around to having removed, that she had ovarian cancer, and that she was carrying a stillborn fetus. She used the names of real gynecologists whom she was supposedly seeing, announced impending surgeries, and at one point even sported a hospital identification bracelet. But the surgical appointments always seemed to get canceled at the last minute, and Ehlert's abdomen continued to grow. "I swear everybody involved in this case is an idiot," reflected Allan Sincox, Ehlert's attorney. "Nobody seemed to think there was anything unusual going on."

Ehlert now admits that she lied about the tumors and the doctors' visits, but she maintains that she didn't know she was pregnant until late. But while her stories varied, one thing remained constant. The baby, she maintained, was not alive. It had never moved inside her. She never heard it make a sound.

INVESTIGATORS LOOKING INTO CASES OF ALLEGED NEONATICIDE often find themselves confronted with the unknowable. When a mother who has concealed her pregnancy claims that her infant was stillborn, how can they evaluate whether she's telling the truth?

Science provides few answers. During an autopsy, coroners will inspect an infant's lungs for evidence that it took a breath, but the gases produced by decomposition can inflate the lungs as if the baby had begun to breathe, thus making it hard to reach a conclusion about the cause of death. In the absence of a surefire test, forensic pathologists often rely on police theory and evidence, or on their own preconceptions. They are trained to presume that a dead infant is stillborn unless there is countervailing evidence. But Dr. Mary Case, chief medical examiner for four counties in Missouri, said that in certain circumstances, she presumes murder. "If a mother keeps the birth a secret, you have to wonder why she would do that, why she wouldn't turn the baby over to the authorities," she said. "When we examine these babies, the baby might not have anything that would indicate a cause of death. But if you put the autopsy results together with the circumstances, my conclusion is that these are live-born babies and the mother has killed them."

The difficulty of determining whether a child was stillborn or murdered has confounded English lawmakers and jurists for centuries. In the 17th century, neonaticide was quite common, as unmarried women who found themselves pregnant had few ways to support themselves and were likely to face both social ostracism and starvation. Legislators responded by singling out for prosecution unmarried women who concealed their pregnancies, reasoning, like Case, that a woman wouldn't conceal her pregnancy unless she was up to no good. In 1623, the British Parliament passed the Act to Prevent the Destroying and Murthering of Bastard Children, which reversed the presumption of innocence for unmarried or "lewd" women. If an illegitimate baby who was delivered in secret died, the child was presumed to have been murdered, unless the mother could prove by eyewitness testimony that it was stillborn.

This was a heavy burden of proof. If a woman miscarried, went into labor early, or had trouble hiring a midwife, she could be sent to the gallows. In the 28 years following passage of the act, indictment rates for infanticide rose astronomically. But over time, women accused under the act began employing one of two defenses. The first was "benefit-of-linen": The accused would argue that by making linens for the child, she had prepared for its birth, and thus clearly wanted it to survive. The second was "want-of-help": The accused would argue that she had tried to get help with the birth—by crying out for assistance, for example—but failed.

Moved perhaps by the lack of options most of these women had, juries became increasingly likely to acquit. By the 18th century, far fewer than half of the cases charged resulted in convictions. In 1803, in response to this pattern of jury nullification, Parliament revised the infanticide statute to reinstate the presumption of innocence. Now prosecutors had to prove that the baby was born alive. The high infant mortality rates of the 18th century, along with the general lack of medical knowledge, led judges in the United States to enshrine a similar presumption.

Given how unwilling juries were to convict women of neonaticide, it's arguable that the courts were intentionally creating some legal wiggle room. When there was no social safety net for single mothers, no means of birth control, and no requirement that fathers care for their children born out of wedlock, it was hard not to feel compassion for women who may have acted out of desperation.

In an attempt to strike a balance between justice and mercy, Great Britain passed an infanticide statute in 1922 that has since been adopted by countries as varied as Ireland, Israel, Singapore, and Australia. It states that women who murder their newborns are suffering from the mental aftereffects of childbirth and lactation, and cannot be charged with a crime higher than manslaughter. While some of the medical justification behind the law may be dubious (the La Leche League is unlikely to endorse the idea that lactation leads to murder), the law allows the courts to dispose of such cases easily. The vast majority of women who are charged under Britain's infanticide statute are convicted and then given probationary sentences, often with mandatory psychological counseling.

In contrast, the American approach to neonaticide is all over the map. Some women are charged with involuntary manslaughter or failure to seek medical attention, and others are tried for first-degree murder. Ehlert was originally charged with first-degree murder, which carried the death penalty. Those convicted have been given sentences ranging from probation to life in prison. Peter Fischer, the assistant state's attorney, says that his office has no hard-and-fast rule about how to handle neonaticides. "I've had cases of young teenage girls who I honestly believe didn't know what was going on," he said. "We've charged them with involuntary manslaughter and sent them to juvenile court." But there are plenty of cases that are ambiguous, he advised. "A lot of times, we charge murder and our real opinion is, let the jury figure it out," he said.

Fischer doesn't consider Ehlert's to be a tough call. Nonetheless, it has taken more than a decade for the law to reach a conclusion about her guilt. Now that she has been declared not guilty, Ehlert must try to reconstruct a life that has changed irrevocably during her long prison term. Her father died, her friends have faded away, and King wants nothing to do with her. Her sons live with relatives and she hasn't seen them since she was first incarcerated. While she wrote to them from prison, she has no idea whether they ever got her letters. "I just want to see my children," she said. "Even if they choose not to have anything to do with me, I just want to see them one last time."

Ehlert's eyes welled up in an outpouring of feeling that contrasted sharply with the detachment she showed when talking about her third child. She says she recognizes now that the child was hers, and that it was a full-term baby girl, but it is an intellectual, not an emotional, recognition. "It's still so unbelievable to me," she said when I asked if she ever thought about her dead daughter, and then she began talking about her investigation and trial, and the evidence that pointed to her innocence. A few minutes later she asked if we were done. The chemotherapy had made her tired, and she wanted to lie down.

Dashka Slater last wrote for Legal Affairs about a crooked lawyer in San Francisco.

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