DRUG-ADDICTED MOTHER FACES MURDER COUNT IN NEWBORN'S DEATH

CARNESVILLE-In what may be the state's first prosecution of its kind,
a Franklin County woman is charged with murder for allegedly causing
her baby's death by taking drugs while pregnant.

Shannon Moss, 21, gave birth to twins April 21, but one child, Angel
Hope Schneider, died shortly afterward. Prosecutors allege the child's
death was directly attributable to Moss' use of drugs, specifically
cocaine and amphetamines, while carrying the twins.

It's apparently the first such prosecution in Georgia, and one that
will undoubtedly be difficult.

Kermit N. McManus, district attorney for the Conasauga Judicial
Circuit and head of the District Attorneys' Association, and Gerald
Weber, legal director of Georgia's American Civil Liberties Union
chapter, say they believe this is the first such prosecution in Georgia.

And, McManus adds, the case could "be a sticky wicket."

Georgia appellate courts so far have rejected efforts to criminalize
womens' conduct during pregnancy-even extreme conduct.

In 1992, the Georgia Court of Appeals rejected Cobb County
prosecutors' attempt to charge a woman with distribution of drugs
after her newborn tested positive for cocaine. State v. Luster,, 204
Ga. App. 156 (1992).

Last year, the Court of Appeals held that an 18-year-old woman who
shot herself in the abdomen, allegedly in an attempt to abort her
near-term fetus, could not be charged under the state's criminal
abortion law. Hillman v. State,, 232 Ga. App. 741 (1998).

Nor has the Legislature looked favorably on prosecuting pregnant women
for drug use. As medical groups lobbied to treat addiction as a health
issue rather than a criminal matter, legislators declined to pass a
bill in 1990 that would have criminalized the transmission of drugs in
utero.

Nonetheless, when drug metabolites allegedly showed up in the system
of Angel Schneider, Franklin County sheriff's investigators charged
her mother with involuntary manslaughter. A grand jury this fall upped
the charge to malice murder and felony murder.

The indictment accuses Moss of intentionally ingesting drugs, "knowing
she was pregnant and such action was harmful to her child, unlawfully
causing the death of Angel Hope Schneider, a minor child, with malice
aforethought." State v. Moss, No. 99-FCR-276J (Franklin Super. Sept.
15, 1999). Moss also is charged with possession of drugs.

At a Nov. 8 bond hearing, caseworker Marie Loftus testified that the
Department of Family and Children's Services took Moss' first child in
1998 because of the mother's drug use. Loftus said Moss had failed to
comply with a DFACS plan to get her child back, including maintaining
a stable living arrangement, securing drug and alcohol treatment, and
getting a job.

Loftus testified she believed most of Moss' problems as a parent
stemmed from her drug use.

The surviving twin also has been placed in foster care, according to
court testimony.

Assistant District Attorney Richard K. Bridgeman told Franklin County
Superior Court Judge Lindsay A. Tise Jr. that Moss should stay in jail
because she had refused to address her drug problem and, if she became
pregnant again, could put another child at risk.

When the prosecutor used the term "murder" in his argument, Moss began
to cry.

"The time for her to address her drug problem," Bridgeman said, "was
before her child died."

But Moss' attorney, F. Mayes Davison of Royston, argued that Georgia's
appellate courts and Legislature don't want this type of prosecution.
"This is not a murder case," Davison told Tise.

The judge set a $50,000 bond for Moss, provided she enrolls in a
live-in drug treatment facility. He also issued a stiff warning that
he would not hand out any more chances: "If you mess up this time, you
can forget it."

Davison says "I've defended a lot of murder cases, but this is [one
with] a twist."

His client does have a serious drug addiction, he says, and taking
drugs during pregnancy should not be condoned. Still, he says he
intends to dispute the state's contention of what caused Angel's death.

And he intends to move to dismiss the murder charge by arguing Georgia
law does not permit it.

The Luster and Hillman cases will form the basis for his attack on the
indictment, he says.

Franklin County District Attorney Robert W. Lavender, says he's aware
of the difficulties in pursuing such a case. "I realize that I've got
a hard row to hoe. But I'm not willing to let it go."

It's an area of the law that needs addressing, he says, adding that
"It's beyond me that the courts have held mothers can intentionally
kill their children and suffer no consequences for it."

In Luster, the appellate court held that a fetus in utero could not be
considered a person to whom drugs could be distributed. The decision,
written by former Judge John W. Sognier, noted that the Legislature
had indicated "its view that addiction in pregnancy is a disease and
signaled its preference for treatment over prosecution, which
preference is overwhelmingly in accord with the opinions of local and
national medical experts."

In Hillman, the court found that Georgia's criminal abortion statute
did not encompass a pregnant woman's actions to obtain an abortion,
however egregious her conduct.

Writing for the court, Judge Frank M. Eldridge wrote that the state's
overly broad interpretation of the statue would mean that any woman
who has a post-viability miscarriage could come under scrutiny to
determine whether she intentionally acted to cause that
miscarriage.

"A woman would be at risk of a criminal indictment for virtually any
perceived self-destructive behavior during her pregnancy which could
cause a late-term miscarriage, to wit: smoking or drinking heavily;
using illegal drugs or abusing legal medications; driving while under
the influence of drugs or alcohol; or any other dangerous or reckless
conduct," Eldridge wrote.

Lavender says he doesn't think smoking while pregnant would be a
prosecutable offense but says engaging in illegal conduct,
particularly with the knowledge that it would adversely affect an
unborn child, is different.

"What makes it really touchy," he says, "and what everybody is dancing
around is the abortion issue." But, he adds, a medical procedure that
terminates a fetus differs from illegal conduct that harms one.

One prosecutor says he's rooting for Lavender to find a way to stop
the terrible scourge of drug-addicted babies.

"I personally cannot understand why a mother would put her child at
risk," says Joseph Chambers, executive director of the Prosecuting
Attorneys' Council. "It's just a bad, bad thing." He says if he were
writing the law, "I'd prosecute them."

Prosecutors need to "test the waters once in a while," says Chambers.
"You just mark me on the side that I'm for keeping children safe.
Sometimes it means going overboard."

Chambers says certain drugs are known to be harmful and "I guess
that's where you draw the line, at conduct known to be at risk."

The ACLU's Weber says the murder case takes Luster one step further,
charging a woman with "a more severe crime for the same conduct,
essentially."

Like Luster, Moss' prosecution will likely have difficulty
establishing that due process requirements were met, Weber says.
Criminal statutes are to be strictly construed and must put persons on
notice that particular conduct is illegal, he adds.

Davison says Georgia legislators "have opted for women to receive
treatment. They do not wish to criminalize this type of behavior for
obvious reasons."

The government, he adds, "ought not get into the business of bringing
murder charges against women who are drug-addicted."