Prosecutors have argued Shanghai native Bei Bei Shuai killed her child by eating rat poison in December 2010, when she was eight months pregnant. But a judge last month ruled that Dr. Jolene Clouse, who performed the autopsy on newborn Angel Shuai, didn't consider other possible causes for the brain bleeding that caused the baby's death, including a drug that Shuai received while she was in the hospital.
However, the Marion County prosecutor's office won't seek a pre-trial review of that ruling, spokeswoman Peg McLeish told The Associated Press on Wednesday. That effectively leaves Prosecutor Terry Curry with two options: drop the murder charge and prosecute Shuai only for attempted feticide or ask another pathologist to analyze the baby's death.
"We haven't made that decision at this time," McLeish said.
Shuai's lawyers say she was attempting suicide after her boyfriend left her and didn't mean for her baby to die, but prosecutors say she left a note to her former boyfriend saying she was "taking this baby," which they maintain proves her intent. Shuai was hospitalized and gave birth to Angel on Dec. 31. The baby died three days later.
Defense attorney Linda Pence said Wednesday that Curry should dismiss both charges against Shuai.
"She's not guilty of either crime," Pence said.
Carlisle wrote in her January ruling that Clouse never said how she knew it was the toxin in rat poison that caused the baby's death and not indomethacin, a drug given to pregnant women that can have a similar effect. Carlisle also said Clouse didn't consider that brain bleeds occur often in premature infants without any clear cause. That, the judge said, made Clouse's conclusion "unreliable."
The case in Indiana has drawn attention from medical groups and reproductive rights advocates who claim it could set a precedent by which pregnant women could be prosecuted for smoking or other behavior that authorities deem dangerous to their unborn child. Dozens of organizations have filed friend-of-the-court briefs on behalf of Shuai.
"It's heartening that the prosecutor has taken the first step of recognizing that cases like this must have something to do with science and pregnant women are not exempt from the rule of law," said Lynn Paltrow, executive director of the New York-based National Advocates for Pregnant Women. An attorney from Paltrow's group has helped defend Shuai.
"This is a case that is based both on junk evidence and junk law," Paltrow said.
Shuai was released on bond last May. Her trial is currently set for April 22.