Feb 2, 2007 3:51 pm US/Pacific
Defense: Student's Baby May Have Been Born Dead
LOS ANGELES (CBS) ―
Murder and child abuse charges against a USC student, whose newborn son's body was found by a homeless man sifting through a trash bin, should be dismissed because there is insufficient evidence the baby was born alive, her attorney argued Friday.
Holly Ashcraft, now 22, has been free on $200,000 bail since Nov. 9, 2005, shortly after her arrest.
Defense attorney Mark Geragos appeared before Los Angeles Superior Court Judge David S. Wesley to argue that the murder charge against Ashcraft should be dismissed before the case goes to trial.
"The facts are that in this case, there is absolutely no evidence that baby was born alive," Geragos said. "There is no case either published, unpublished, in state, out of state with this scant evidence of a live birth. They don't have anything that shows she did anything."
Geragos further argued the murder charge should be dismissed because Ashcraft's actions following the birth did not show malice.
"Every single person who was interviewed said, `No, she didn't look pregnant,"' Geragos said. "There is no indication that she had any expectation."
Deputy District Attorney Franco Baratta said the baby was born alive, citing the coroner's report. There is no evidence as to whether the infant was alive when he was put in a box that was placed in the trash bin, he said. But based on circumstantial evidence, such as Ashcraft's denial to police that she had given birth and her failure to seek medical care, prosecutors believe the baby was likely alive, the prosecutor said.
"If it was a stillborn, she would tell the police it's a stillborn," Baratta said. "The younger the child is, the more care it is going to need, especially upon being born."
Ashcraft, then a third-year architecture student on a full-tuition scholarship, also showed malice in her care of the child by failing to call 911, failing to wipe off the child following birth, and failing to swaddle him, Baratta argued.
If I know that my child is going to die lacking any kind of care, that can be expressed malice," he told the judge.
At a preliminary hearing last September, a deputy medical examiner testified that the boy had been born alive at 32 weeks gestation. His autopsy report determined that the baby's death was due to "caretaker neglect."
After hearing arguments from both sides for about 35 minutes, Wesley said he still did not know how long the baby had been alive, if at all, and how he died. The judge also questioned whether paramedics would have been able to
keep the premature infant alive had Ashcraft called 911.
The judge asked both sides to return to court March 2 to further discuss the defense's dismissal motion.
(© 2007 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)
