Prosecutors may not pursue manslaughter charges after an Alabama woman was arrested for the death of her unborn child, who was shot and killed during a December 2018 fight.
Marshae Jones was arrested Wednesday after a local grand jury indicted her on manslaughter charges, igniting a firestorm across the country. But District Attorney Lynneice Washington's office urged caution in a late Thursday news release, saying the office has not yet decided whether to pursue the manslaughter charge, reduce it or drop the case altogether.
"Foremost, it should be stated that this is a truly tragic case, resulting in the death of an unborn child," the release stated. "We feel sympathy for the families involved, including Ms. Jones, who lost her unborn child. The fact that this tragedy was 100% avoidable makes this case even more disheartening."
Jones' case is odd and, some say, unprecedented. According to al.com, 23-year-old Ebony Jemison was initially charged in December 2018 after a shooting in Pleasant Grove led to the death of the unborn child.
But investigating authorities alleged the pregnant Jones, not Jemison, initiated and instigated the attack. Jemison told BuzzFeed News she fired a gun as a "warning shot" after Jones and a group of friends attacked her over a relationship issue.
The grand jury declined to bring charges against Jemison, the DA's office said, determining that she acted in self-defense.
The DA's office has not yet returned request for comment. Efforts to reach both Jones and Jemison on Friday were unsuccessful.
But Jones' charge appears to contradict a portion of Alabama's Criminal Code. Though the code does include "fetal homicide" language, which defines an "unborn child in utero" as a human being, regardless of viability, the code also states that the prosecution of "any woman with respect to her unborn child" should not be permitted under criminal homicide charges like manslaughter.
"It's the plain language of the statute," said Andrew Skier, a Montgomery-based criminal defense attorney.
Skier has no ties to Jones' case, but he said when he first saw the story he believed the manslaughter charge was "quite a stretch" under Alabama law. Manslaughter, recklessly engaging in conduct you know includes a risk, is a tough thing to prove from the outset.
But after reviewing the state code, Skier said he would file a motion to dismiss if he were involved in the case, "based on that statute" alone.
"That is 100% a bar to this prosecution," Skier said. "It seems to me that whoever indicted this case didn't read this statute."
Abortion and reproductive rights groups this week quickly raised Jones' case as a cause célèbre, marking it as an example of prosecutorial overreach on the heels of a near-total abortion ban in Alabama. The new law — which could go in effect in November but is expected to remain tied up in federal lawsuits — would criminalize anyone who performs an abortion in the state. Though the law does not criminalize women who receive abortion care, opponents of the legislation argued it would create a slippery slope for reproductive rights and pregnancy loss.
"The prosecution of Marshae Jones is absolutely reprehensible," said Staci Fox, President and CEO of Planned Parenthood Southeast, in a statement. "It is more proof that Alabama will do everything in its power to criminalize pregnancy — especially for Black women."
Jones' case, however, is not directly related to the abortion ban.
Alabama in the past has used new legislation to pursue prosecutions of pregnant women. In 2006, state lawmakers passed a chemical endangerment law intended to prosecute adults who expose children to volatile meth labs. It was later seized by some prosecutors to target women who take drugs while pregnant, according to an investigation by al.com and ProPublica.
Though the indictment of a woman for her own pregnancy loss is unusual in Alabama, it is not unusual for prosecutors to charge people with murder even if they never killed anyone. Felony murder doctrine allows for murder prosecutions if someone dies in the course of an felony c
In December, Montgomery police charged a high school student with felony murder in a convoluted hit-and-run that killed 15-year-old Keiauna Williams. Police allege Terrance Webster fired a gun while a large group of teenagers were gathering in a parking lot after a party. Williams, fleeing the gunfire, was struck and killed.
Last year, an Alabama teenager was sentenced to 65 years in prison under Alabama's accomplice liability law after a local police officer shot and killed one of his friends.
Prosecutors argued Lakeith Smith was one of five teenagers who burgled two homes in Millbrook in 2015. In an exchange of gunfire, 16-year-old A'Donte Washington was killed by an officer.
An Elmore County grand jury cleared the officer who fired the fatal shots. But because Smith was allegedly committing the criminal act of burglary at the time of his friend's death, he was held responsible.
Though some states such as California, Hawaii and Kentucky have moved to restrict or abolish felony murder doctrine laws in recent year, they are still active in the majority of the U.S. The New York Times in 2018 reported the U.S. is the last country to maintain felony murder doctrine.
This article originally appeared on Montgomery Advertiser: Alabama prosecutors may not pursue charges against mother whose unborn baby was shot