Groups back­ing teen’s ap­peal to top Ohio Court

Dayton Daily News - - DAILY LAW JOURNAL - By Lau­ren Pack Staff Writer

A clus­ter WAR­REN COUNTY — of groups that are ad­vo­cates for preg­nant women have weighed in on the Ohio Supreme Court’s con­sid­er­a­tion of an ap­peal in the case of a Carlisle teen ac­cused of killing her new­born baby and bury­ing it in the back­yard in May 2017.

In Oc­to­ber, the 12th District Court of Ap­peals sided with the War­ren County Pros­e­cu­tor’s Of­fice con­cern­ing doc­tor-pa­tient priv­i­lege in the case of Brooke Sky­lar Richard­son, prompt­ing the de­fense team to ap­peal to the state’s high­est court.

Richard­son, now 19, is charged with ag­gra­vated mur­der, in­vol­un­tary man­slaugh­ter, gross abuse of a corpse, tam­per­ing with ev­i­dence and child en­dan­ger­ing in the death of her in­fant daugh­ter.

The ap­peals court ruled that physi­cian-pa­tient priv­i­lege doesn’t ap­ply in the case and that the teen’s con­ver­sa­tions with two doc­tors should be ad­mit­ted as ev­i­dence in her up­com­ing trial.

Last week the de­fense team of Charles H. and Charles M. Rittgers filed a no­tice of ap­peal to the state’s high­est court. It is up to the high court to de­cide if it has ju­ris­dic­tion to take the case after the pros­e­cu­tion files a re­sponse.

On Wed­nes­day, a le­gal team rep­re­sent­ing the Na­tional Pre­na­tal As­so­ci­a­tion, Cen­ter for Re­pro­duc­tive Rights, Na­tional As­so­ci­a­tion of Pre­na­tal So­cial Work­ers and Dr. Jonathan Schaf­fir filed a brief in sup­port of the Richard­son ap­peal, not­ing the ap­peals court de­ci­sion could have a broader im­pact on the rights of preg­nant women.

“The Twelfth District has cre­ated a non-statu­tory ex­cep­tion es­sen­tially elim­i­nat­ing physi­cian-pa­tient priv­i­lege for women who are or might be­come preg­nant,” at­tor­ney David Thomas wrote in the mem­o­ran­dum of sup­port of the ap­peal.

“(The ad­vo­cates) are gravely con­cerned that al­low­ing the Twelfth District rul­ing to stand would un­der­mine pub­lic health and the con­sti­tu­tional rights of women in Ohio.”

The de­fense and pros­e­cu­tion ap­pealed a split de­ci­sion handed down by War­ren County trial Judge Don­ald Oda III, just days be­fore the trial was sched­uled to be­gin this spring.

Oda ruled that doc­tor-pa­tient priv­i­lege did not ap­ply to any­thing Richard­son said about bury­ing the in­fant’s re­mains. How­ever, Oda ruled that an­other con­ver­sa­tion Richard­son had with a dif­fer­ent doc­tor was priv­i­leged.

Richard­son’s de­fense team ar­gued all of the teen’s con­ver­sa­tions with her doc­tors about her preg­nancy, or what may have hap­pened af­ter­ward, were pro­tected by doc­tor-pa­tient priv­i­lege.

War­ren County prose­cu­tors, how­ever, said a con­ver­sa­tion Richard­son had with one of her doc­tors — that she buried the re­mains in the back­yard, which prompted the physi­cian to call po­lice — is not priv­i­leged be­cause of a doc­tor’s duty to re­port abuse, ne­glect or other harm to a child.

Dur­ing oral ar­gu­ments at the 12th District, prose­cu­tors stated the then 18-year-old Carlisle High School se­nior told doc­tors she never had any in­ten­tion of hav­ing the baby.

Rittgers stated, “That is a to­tal fab­ri­ca­tion.”

In the brief of sup­port, the ad­vo­cates say the ap­peals court de­ci­sion may cause women to avoid med­i­cal care dur­ing preg­nancy for fear of crim­i­nal pros­e­cu­tion, threat­ens the con­sti­tu­tional rights of preg­nant women in Ohio and threat­ens the con­sti­tu­tional rights of all low-in­come and mi­nor­ity preg­nant women in the state.

“Low-in­come women are much more likely to be sub­jected to state ac­tion than are mid­dle-or up­per-class women. And black Amer­i­can women are sig­nif­i­cantly more likely to be ar­rested by hos­pi­tal staff and sub­jected to felony charges,” the brief states.

The brief added mi­nor­ity women are also sig­nif­i­cantly more likely to suf­fer a still­birth than white women.

Also stated in the doc­u­ment of sup­port, is the ar­gu­ment that the Richard­son de­ci­sion by the 12th District threat­ens the health of women and fe­tuses by “hav­ing a chill­ing ef­fect on com­mu­ni­ca­tions with med­i­cal providers.”

Rittgers told the Jour­nal-News the de­fense team “reached out” to other par­ties that might have in­ter­est in el­e­ments of the de­fense’s ap­peal for sup­port.

“The court’s de­ci­sion would drive a wedge be­tween preg­nant women and their physi­cians,” Rittgers said.

War­ren County Pros­e­cu­tor David Forn­shell said he doesn’t know how much of an ef­fect the ad­vo­cates’ sup­port will have on the court hear­ing the case.

“That is up to the jus­tices to an­swer,” he said.

Forn­shell said he knew by the tim­ing of the fil­ing that there had been com­mu­ni­ca­tion be­tween the Rittgers and the ad­vo­cates.

“The de­fense is do­ing ev­ery­thing they can to make sure the jury does not hear her (Richard­son’s) con­ver­sa­tions with her physi­cians,” he said.

The pros­e­cu­tion has 30 days to file a re­sponse to the no­tice of ap­peal.

Typ­i­cally the supreme court takes two to four months to de­cide whether it will hear the case, ac­cord­ing to Anne Yea­ger, Supreme Court pub­lic in­for­ma­tion man­ager. Con­tact this re­porter at 513705-2841 or email Lau­ren. [email protected]­inc.com.

NICK GRA­HAM / STAFF

Groups say a rul­ing in Brooke Sky­lar Richard­son’s case elim­i­nates “physi­cian-pa­tient priv­i­lege for women who are or might be­come preg­nant.”

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