Defense wants judge to toss manslaughter charge against woman who lost baby after being shot

JEFFERSON COUNTY, Ala. -- Lawyers for Marshae Jones -- charged with manslaughter after being shot while pregnant and losing the baby -- are asking a Jefferson County to dismiss the indictment against her.

The motion to dismiss argues prosecutors are ignoring Alabama law which bars prosecution of a mother for murder or manslaughter “with respect to her unborn child,” and “charged a new theory of criminal liability that does not exist.”

The Jones case has drawn national attention. A Jefferson County-Bessemer grand jury indicted her for manslaughter for initiating a fight with another woman in the heat of passion, which resulted in the woman shooting Jones, 27, and the death of the 5-month-old fetus Jones was carrying.

The woman who shot her was originally charged with manslaughter, AL.com reported, but was not indicted by the grand jury last week.

A Jefferson County judge set a hearing on the motion to dismiss for July 9. In seeking the dismissal, the defense’s motion filed Monday takes direct aim at the state’s case.

“The State of Alabama is not legally allowed to prosecute Ms. Jones with respect to her unborn child,” the filing argues.  “As such, the prosecution of Ms. Jones for the charge of manslaughter is expressly not permitted under Alabama law.”

The filing spells out the claim, "The charge of manslaughter is a type of criminal homicide codified in the Alabama Code at Title 13A, Chapter 6, Article 1. Under the facts alleged and statute cited in the Indictment, the Indictment against Ms. Jones is due to be dismissed because Alabama law does not permit the prosecution of a woman under Article 1 as it relates to her unborn child."

The filing also addresses the undeniably strange nature of the charge and the question of transferred intent.

Transferred intent, Huntsville attorney Mark McDaniel explained, addresses things like someone attempting to shot someone, but missing and hitting someone else. Even if the shooter didn’t mean to shoot the actual victim, he did mean to shoot someone, so his “intent” is transferred to the shooting of the bystander.

“The Indictment expands the criminal statutes by illegally creating a new crime of ‘felony manslaughter’ or ‘transferred intent manslaughter,’” the defense filing argues.  “The Indictment charges that Ms. Jones intended to kill her unborn child because she initiated a fight with another person.

“There is no allegation that Ms. Jones intended to kill the person with whom she allegedly ‘initiat[ed] a fight.’ The Indictment expressly charges that the criminal intent is against the unborn child, not the alleged but unnamed combatant involved in the fight. The State thus appears to be asserting a newly created criminal offense of ‘transferred intent manslaughter’ which does not exist under Alabama law.”

McDaniel, who’s spent more than 40 years practicing and teaching law, said the charge is unusual.

“It’s notable because I don’t know of any case that’s ever been done, where the pregnant lady, the mother, has been charged like this with manslaughter,” he said.

Under Alabama law, manslaughter can  stem from the heat of passion – like a fight – or from recklessness, like driving too fast on a busy street or firing an arrow into the sky in a crowded park.

If a manslaughter charge is now possible for a pregnant woman, McDaniel wonders how far such charges could go.

“A mother gets in an argument with another person, she gets real stressed out, she has a miscarriage, did she commit manslaughter?”

He also cited the potential case of a pregnant woman who ignores a yield sign and hits another motorist. Neither driver is immediately hurt, but she later miscarries.

McDaniel doesn’t expect a jury to convict Jones, but if it does, he says the consequence could be far-reaching.

“If it is allowed to go forward, it goes through the appellate courts,” he said. “It looks like the onus is more on the mother to make sure that nothing happens to the child, because (she) might get charged with murder or manslaughter.”

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