Reduced Charge in Child’s Death Reflects Top-Court Ruling

A case in which a Tujunga man was charged with involuntary manslaughter rather than murder in the death of his girlfriend’s 2-year-old daughter illustrates a recent court-imposed limit on prosecutions for fatal child abuse, according to prosecutors.

The case involves the death of Jessica Gardner, who died Aug. 12, 1983, of infected third-degree burns over 60% of her body. She died 13 days after someone placed her in a bathtub and filled it with scalding water. The scalding happened while she was under the care of Arthur Moore, 26, the man charged with her death.

Moore pleaded guilty in November to involuntary manslaughter and child endangering. His sentencing was delayed Wednesday by Judge Fred Rimerman of San Fernando Superior Court so psychiatrists can examine him.

Moore could be sentenced to as long as three years in prison. But Deputy Dist. Atty. Kenneth Freeman originally charged Moore with felony murder, which carries a maximum sentence of life. That charge was reduced to involuntary manslaughter as a result of an April 16 state Supreme Court decision.

At issue was the crime called felony murder. It consists of causing a death during the commission of certain felonies, such as robbery or burglary. Prosecutors need not prove intent to kill.

In the past, judges permitted prosecutors to seek felony murder convictions in cases of child beating and neglect. That practice was outlawed by the April 16 high-court decision, in a child abuse case called People vs. Linda Lee Smith.

In that case two adults repeatedly administered “disciplinary” beatings to a 2-year-old girl until she fainted; she died after being taken to a hospital. The mother was convicted of second-degree murder by a jury that had been instructed not to consider whether she meant to kill the child. The court overturned that verdict and ordered a new trial.

The high court noted that for years it has been narrowing the use of the “disfavored” doctrine of felony murder, which it said “erodes the relation between criminal liability and moral culpability.”

The court said that “the ostensible purpose of the felony-murder rule is not to deter the underlying felony, but instead to deter negligent or accidental killings that may occur in the course of committing that felony. . . . When a person willfully inflicts unjustifiable physical pain on a child under these circumstances, it is difficult to see how the assailant would be further deterred from killing negligently or accidentally in the course of that felony by application of the felony-murder rule.”

In effect, the court ruled that if prosecutors believe a child abuse case is serious enough to warrant a murder charge, they must prove intent.

In the Moore case, prosecutors could not prove intent because investigators were unable to determine who put the girl in the tub.

Moore testified that he took the victim and three of his own children to a friend’s house to bathe them. The girl was placed in the bathtub when he went to his car, he said.

Similar Cases Encountered

Under the felony murder charge, the district attorney could have won a murder conviction simply by proving that the death resulted from an act of felony child endangering, whether intentional or negligent.

Freeman, who is with the DA’s Child Abuse Section, said the Moore case was one of five since April in which he has had to drop murder charges because of People vs. Smith.

“In the past, on every single child homicide, every child-beating death, we always charged murder,” Freeman said. “Now we have to prove an intent to kill.

“I am disappointed in People vs. Smith. I believe we need to have the highest level of protection for young children.”

Need Cited for Decision

Moore’s attorney, Deputy Public Defender Michael Adelson, said that People vs. Smith has rightly brought child-abuse law into line with other law involving felony murder.

Adelson said Moore’s case points to the need for People vs. Smith because the death of the infant girl was unintentional. Although it might reflect negligence, it does not warrant a sentence of 26 years to life in prison, said Adelson, who specializes in child-abuse cases.

“When you look at the gruesome photographs of the child in the hospital, it makes you want to forget about the facts and do something to the person in whose care the child was at the time,” Adelson said. “But this was in no way an intentional act. This was not felony murder.”

Moore will be returned to court to be sentenced on April 2.