METH MOTHER'S CONVICTION OVERTURNED

In a precedent-setting decision, the Hawai'i Supreme Court ruled
yesterday that women cannot be prosecuted for the death of their
children caused by detrimental conduct while pregnant.

The ruling reversed a manslaughter conviction for a 32-year-old
Kane'ohe woman whose newborn infant died because she smoked crystal
methamphetamine during her pregnancy.

The high court ruled that the homicide prosecution of Tayshea Aiwohi
did not fall under state law because her unborn child was not a
"person" when she smoked the drug.

No court in America has upheld a homicide conviction based on a
mother's conduct while pregnant.

An offshoot of the Hawai'i Supreme Court decision is that it suggests
a person who injures a pregnant woman cannot be prosecuted for the
death to her newborn child.

"I'm extremely happy and grateful," said Aiwohi, 32, who burst into
tears when her lawyer notified her that the conviction was reversed.
"I believe (the case) changed me into a better person and I just hope
to share that with others," she said at a news conference at her
lawyer's office.

Kimo Aiwohi, 32, the baby's father, his voice shaking, said it was an
emotional day for him.

"My son can finally lay to rest," he told reporters. "And I'm very
happy for my wife."

City Deputy Prosecutor Glenn Kim, who handled the trial proceedings
and the appeal, said his office still believes it did the "right
thing" in bringing the prosecution.

"We continue to believe that babies such as Treyson Aiwohi deserve the
protection of the law," he said. "And we also continue to believe that
people like Tayshea Aiwohi doing what she did to her baby continue to
deserve to suffer the consequences of the law for those actions."

But he said the high court has ruled and the law in Hawai'i now is
that a woman cannot be prosecuted for injuries or death to her
children based on her prenatal conduct.

First for Hawai'i

Tayshea Aiwohi's manslaughter prosecution was the first for Hawai'i
based on her conduct during the late stages of the pregnancy. She gave
birth to her son Treyson on July 15, 2001, but he died two days later
of what city medical examiner's office found was high levels of
methamphetamine and amphetamine in his system.

A medical examiner investigator also testified before the grand jurors
that a tearful Tayshea Aiwohi said she used ice the three days before
the birth and took a "hit" on the morning of Treyson's birth.

She was found guilty of manslaughter after she pleaded no contest and
decided not to fight the charge, but only on condition that she could
appeal Circuit Judge Michael Town's refusal to dismiss the charge.

National Attention

The case drew nationwide attention from drug treatment groups and
health professionals who filed a legal brief urging the high court to
reverse the conviction or risk discouraging pregnant women from
seeking help and adequate prenatal care.

If the high court upheld the conviction, addicted pregnant women
likely would go "underground" and not seek treatment, Aiwohi's lawyer
Todd Eddins said yesterday.

"Tayshea experienced a profound personal tragedy and she will bear the
scars throughout her life," he said. "But from the onset of this
prosecution, we firmly believed that established legal principles and
the medical and social public reasons supported our position."

Comparing Cases

The 38-page opinion was written by Associate Justice Paula Nakayama
and signed by three of the other four justices. Associate Justice
Simeon Acoba filed a separate opinion, saying he agreed with the
reversal, but based on a different reason.

Nakayama noted that an "overwhelming majority" of other courts have
refused to hold a woman criminally responsible for her prenatal
conduct. The only exception is a 1997 decision by the South Carolina
Supreme Court that upheld the criminal child neglect conviction of a
mother who smoked cocaine while pregnant.

At the same time, however, an "overwhelming majority" of other courts
upheld convictions of a person who inflicts injury to a pregnant woman
causing the death of the newborn child, she said. Many of those cases
involve drunken drivers who crash and injure pregnant women.

Nakayama said the reasoning behind those types of cases are "mutually
exclusive" -- one does not permit the prosecution of prenatal conduct
by the mother, the other allows for the prosecution of a third person
who injures a pregnant mother.

She said the court believes the reasoning behind barring prosecution
for a mother's prenatal conduct is "the more cogent rule."

In a footnote, Nakayama said the "logical implication" of yesterday's
decision is that a person cannot be prosecuted for causing the death
of a child by injuring the pregnant mother.

Kim said the "most important consequence" of yesterday's decision was
prohibition of the prosecution against a person who injures a pregnant
woman. But he acknowledged that the person still could be prosecuted
for injuring the mother.

Kim said he does not know of any pending case involving a pregnant
mother's conduct affecting her child or a person injuring a pregnant
mother causing death or injury to her child.

Road to Recovery

Tayshea Aiwohi, who has five other children, including one born after
Treyson, said she had been using ice for 18 years, but has been sober
since her son's death.

"I was no longer the woman I used to be," she said. "I worked really
hard to become who I am today."

She's working toward a master's degree at the University of Phoenix
and has a job with bounty hunter Duane "Dog" Chapman. She also set up
a foundation to establish clean and sober houses to help others and
share with them her own experiences so they can avoid what she went
through.

"I felt because I had recovery (from the addiction) as my foundation,
I was able to handle whatever was given to me," she said.

Aiwohi said she was "devastated" when she learned she had been
indicted on the manslaughter charge, but Eddins said what also helped
pulled her through was knowing the case wasn't simply about her, but
other pregnant women.

If the conviction had been upheld, women could have been prosecuted
for smoking cigarettes, drinking caffeine in their coffee or engaging
in other types of risky behavior, Eddins said.

Aiwohi declined to discuss what she was going through when she smoked
ice when pregnant, but Eddins said although she did not contest the
charge, they dispute some of the testimony before the O'ahu grand jury
that indicted her, such as her smoking ice for several days before
giving birth.

Eddins said his client smoked ice just for one day, and Treyson was
born more than a month prematurely, suggesting that Tayshea Aiwohi
wasn't repeatedly smoking the drug knowing she would soon give birth.