Author of Lamy decision has died; called for fetal homicide legislation

Former New Hampshire Supreme Court Justice James Duggan has died, and may he rest in peace.

According to a New Hampshire Sunday News report, Duggan was famed as a public defender before being named to the Court by then-Governor Shaheen. For me, his reputation rests on something else: his authorship of the State v. Lamy decision in 2009. Without that case, we might still be fighting for a fetal homicide law in New Hampshire.

The 4-0 decision overturned the manslaughter conviction of an impaired driver whose speeding vehicle collided with a vehicle driven by a pregnant woman. That victim’s baby was subsequently delivered by cesarean, but died a few days later of injuries sustained in utero caused by the impact of the collision.

Later convicted of multiple charges, the speeding driver appealed. While most of the convictions were upheld, the Court overturned the manslaughter conviction for the death of the baby. The Court ruled that existing New Hampshire law simply did not address the circumstances of the case. The baby had’t been “alive” for legal purposes when he sustained the injury.

And then Duggan added a compelling call to action: “Should the legislature find the result in this case as unfortunate as we do, it should follow the lead of many other states and revisit the homicide statutes as they pertain to a fetus.”

Getting there took eight years, two particularly brave and persistent families, and some heartbreaking setbacks. The inexplicable and outrageous resistance of abortion advocates to fetal homicide legislation carried too much weight for too long. Finally in 2017 New Hampshire’s legislators and governor followed the Court’s advice.

I think that the families who came forward again and again to testify about their lost children made the difference. The Lamy decision gave their testimony indispensable support.

Why not consult the Court over fetal homicide language?

Rep. Leon Rideout (facebook.com/rideout4rep)

State representative Leon Rideout (R-Lancaster) posted a Facebook update today during the New Hampshire House session:

H[ouse]B[ill]560 ‪#‎FetalHomicide‬ Bill was amended to the language of last years SB40. The ‪#‎NHHouse‬ just voted to not concur with that language. We will go back to work on making ‪#‎NH‬ the 38Th state with a fetal homicide law from the Senate next year ‪#‎Griffinslaw‬

This is a sadly familiar situation. In New Hampshire, a person whose action performed without a pregnant woman’s permission causes the death of the pregnant woman’s preborn child, is not open to a homicide charge in the child’s death. This puts New Hampshire law at variance with the laws of more than three dozen other states that make “fetal homicide” part of the criminal code. Even the federal government has the Unborn Victims of Violence Act, also known as Laci and Conner’s Law, to apply to fetal homicide in certain jurisdictions.

Those laws presume that a woman’s choice to carry a pregnancy to term should get at least as much respect as a woman’s choice to terminate a pregnancy.

The bill number is confusing: the bill voted on today was HB 560. It’s Rep. Rideout’s bill. There was a Senate version last year, SB 40, with a provision making fetal homicide a chargeable crime not until much later in pregnancy. That bill did not pass, but the language was resurrected by the Senate this year and added to HB 560.

The problem with the Senate version, which is where HB 560 is today, is that the law would not apply until the fetus is “viable,” which is defined in the Senate language as “capable of sustained extrauterine survival.”

Who’s to determine whether a preborn child who dies from trauma inflicted by a drunk driver is viable? And what is “sustained” extrauterine survival?

The acid test of any legislative language is the 2009 Lamy decision by the New Hampshire Supreme Court. Lamy overturned the conviction of a drunk driver for causing the death of a preborn child delivered with injuries two months early. The reason: New Hampshire has no fetal homicide law. The child’s mother was seriously injured as well, and the harm caused to her gave rise to a separate criminal conviction against the impaired driver. That conviction was sustained.

So look at little Dominick Emmons, the child whose death was at issue in the Lamy case. Was he “viable” when he was delivered? He had to go straight into neonatal intensive care due not only to his prematurity but also to the injuries he sustained in utero due to the impact of the vehicle collision. He died two weeks after he was delivered. Is that “sustained” survival? Did the injuries render him not “viable”?

Would the current Senate language, with which the House just refused to concur, have allowed the conviction against Joshua Lamy for the death of Dominick Emmons to stand? Not as long as a defense attorney could create reasonable doubt over “viability,” it seems to me, although I hasten to add that I am not an attorney. I say this knowing that some of the Senators favoring the viability language believe sincerely that it would be adequate. Condemning those Senators would be a mistake.

Save the criticism for the Senators who voted against “viability” both last year and this year while failing to propose or accept any other fetal homicide language: all the Democrats plus Republican Nancy Stiles. (See Senate roll call #31 from 2015 and Senate roll call #3 from 2016.)

In view of the importance of having an effective fetal homicide law in place, I fail to understand why neither the House nor the Senate has called upon the New Hampshire Supreme Court for an advisory opinion. “Would the amended language of HB 560 [i.e. the Senate language] have permitted the Court to uphold the conviction of Joshua Lamy for causing the death of Dominick Emmons?”

If the answer is no, that will give the senators something to chew on. Most have expressed great sympathy for the families who have lost children and who are seeking fetal homicide legislation. In view of that sympathy, I expect senators should be eager to find out if their language would actually get the job done.

As I said, I’m not an attorney – but surely there are enough lawyers in the legislature to craft an appropriate inquiry, or else explain why such an inquiry can’t be made.

New Hampshire Constitution, Article 74: “Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions.”

That looks to my non-attorney eyes as though a simple majority of the House OR of the Senate could request an opinion. How about it, all you Honorables?