CRACK DEATH WILL BE HARD CASE TO PROVE

Maricopa County prosecutors are charting new legal ground with the
prosecution of a mother and grandmother in the death of an infant whose
intestines were destroyed by secondhand cocaine smoke.

Officials say they know of no other Arizona prosecutions aimed at parents
whose children died of exposure to homegrown meth labs or other drugs, but
they are confident in the case.

Demitres Robertson, 23, was charged Wednesday with first-degree murder and
child abuse in the November death of daughter Anndreah.

The baby's grandmother, Lillian Ann Butler, 44, also is charged with child
abuse because of her role as one of the baby's caretakers.

Barnett Lotstein, top aide to Maricopa County Attorney Rick Romley, said
the office would not pursue a prosecution unless "we had a reasonable
expectation of proving it beyond a reasonable doubt."

But some legal experts say proving that 10-day-old Anndreah Robertson's
mother or grandmother knew they were killing the baby with their toxic
smoke may be difficult.

One law professor in California said that such prosecutions are rare and
tricky but are welcome safeguards for children living in drug- infested homes.

"I believe we are moving into a new area of protection for children," said
Robert Pugsley, a criminal-law professor at the Southwestern University
School of Law in Los Angeles.

He points to a case in Riverside, Calif., where a 30-year-old mother was
recently charged with second-degree murder in the death of her 3- month-old
son who was exposed to methamphetamines through her breast milk.

However. prosecutors in Riverside and Phoenix may have a tough time
convincing jurors that the mothers meant to kill their children, he said.

"For murder, you have to prove malice, and I don't think you can prove that
they intended to kill their children," Pugsley said.

He said a jury would be more likely to convict the mothers of a lesser
charge, like involuntary manslaughter, which doesn't require prosecutors to
show that the women acted with "wanton and reckless disregard" for their
children.

Eleanor Miller, president of the defense attorney group Arizona Attorneys
for Criminal Justice, agrees, saying it could be difficult to convince a
jury of intent or that a parent understood the dangers of secondhand smoke,
for example.

Miller said she also would attack the theory that secondhand smoke could
rise to such lethal levels and would look into whether the child was harmed
by drugs before it was born.

Prosecutors, armed with police and doctors reports, did not file charges
until after nine months of investigation.

Those reports show that Anndreah was born Oct. 30 with cocaine in her
system and then sent home because Arizona law does not consider prenatal
substance abuse a crime.

"What is different in this case is what happened to the baby after it was
born," Lotstein said.

That was the argument in a 1989 Mississippi case where Clark County
prosecutors won manslaughter convictions against Sue Ann and Frazier Jones,
parents of 11-month-old Monae. The parents took Monae to the hospital where
doctors said she died of a ruptured colon, malnourishment and high levels
of cocaine in her system "similar to passive smoke inhalation," according
to court records.

The couple's conviction was overturned in 1996 by the Mississippi Supreme
Court because of improper testimony by a witness, but by that time the
couple had been released from prison.

Lotstein points out, however, that the Mississippi high court did not
dispute that the child died of cocaine exposure and other causes.