… Lawyer also wants indictment unsealed …
By Peter Hermann, The Baltimore Sun
9:21 PM EST, January 5, 2012
Attorneys representing one of the two abortion doctors facing murder charges under Maryland’s fetal homicide law want Cecil County’s top prosecutor and Elkton’s police chief held in contempt, saying they broke the law by discussing sealed indictments in public.
Defense attorneys said in court filings Thursday that prosecutors have been quoted in more than 700 newspaper articles since Dec. 27, even as the defendants and their legal representatives have been denied access to the indictments detailing the charges.
Elkton Police Chief William E. Ryan Sr., through an aide, directed questions to Cecil County State’s Attorney Edward D.E. Rollins, who did not return calls seeking comment. Prosecutors have not responded to the motions and no hearing date has been set.
The defense attorneys calling for the contempt ruling represent Dr. Nicola Riley, who is being held without bail in Salt Lake County, Utah, while awaiting extradition to Maryland on a charge of first-degree murder. Dr. Steven Chase Brigham, who faces five counts of first-degree murder, has waived extradition from New Jersey and could be returned to Maryland within 10 days.
The charges against both doctors are related to an abortion at an Elkton clinic 16 months ago. Police investigated after the mother, who was 21 weeks’ pregnant, was taken to an emergency room. Police said they found nearly three dozen late-term fetuses in a freezer at the clinic.
Maryland generally prohibits abortions when fetuses are deemed viable, which is defined as being able to show a reasonable likelihood of sustained life outside the womb. Such abortions are allowed in cases where the mother’s life is in danger.
Riley’s attorneys hinted in legal briefs that their defense could hinge on how “viability” is defined and interpreted. The documents say the defense will raise “the medical issue of ‘viability’ of a fetus, proximate cause of death and most importantly the express statutory immunity provided by physicians in the homicide statute.”
Maryland law states that doctors cannot be held liable “for fetal death that occurs in the course of administering lawful medical care.” The attorneys’ motion accuses prosecutors of trying to “legislate and undertake what the Maryland General Assembly has emphatically established as a prohibition.”
Rollins, in an earlier interview, acknowledged being in “uncharted territory” with the charges, the first to be brought against an abortion doctor performing surgery. The Maryland Board of Physicians, in pulling Riley’s medical license, said the abortion procedure performed in Elkton did not conform to acceptable medical standards.
In the court filings, Riley’s attorneys say they cannot properly prepare a defense without information such as charges being made public.
Attorneys for both suspects have complained that the indictment detailing the charges remains sealed until arraignments are held in Cecil County. Prosecutors and police in Elkton have openly discussed the case, named the defendants and outlined the charges.
The charges have not appeared on any court docket or publicly available document. They were described in a police news release last week.
The court filing also notes that it appears a local newspaper, the Cecil Whig, published parts of the sealed indictment listing details about each murder count. The filing said the newspaper cited as its sources “court documents” and “court records,” even though “no one but the Elkton Police Department or the Cecil County State’s Attorney would have access.”
“Ironically, Mr. Rollins has also admitted to the press repeatedly that the indictment in this matter is sealed,” the court filing says. “Under Maryland law, therefore, it is improper for him to discuss it.”
The motion also asks a judge to unseal the indictment, saying, “The discussion of a sealed indictment to the local and national press when a defendant has not received notice of the charge against her is prejudicial to the administration of justice.”
Copyright © 2012, The Baltimore Sun