Appeal Argued in Postpartum Psychosis Case : Judicial: Justices indicate judge may have erred in throwing out Sheryl Massip's murder conviction in son's death but doubt that they have the authority to reverse it.

TIMES STAFF WRITER

An Orange County prosecutor, seeking to overturn a judge's stunning 1988 acquittal of an Anaheim housewife who ran over her infant son with the family car, told an appellate court Wednesday that judges cannot be allowed to run rampant over the law.

Members of a three-justice appellate panel that heard oral arguments in the case of Sheryl Lynn Massip agreed that the judge may have abused his powers when he threw out a jury's second-degree murder verdict on the grounds that she had been suffering from postpartum psychosis at the time of the 1987 killing.

But the justices on the 4th District Court of Appeal in Santa Ana indicated that in trying to correct any possible mistakes, their hands may be tied--both by statutes that limit their own authority and by the district attorney's failure to file appellate papers on time.

"Isn't the problem with this case that the trial court erred, but there's nothing we can do about it?" Justice Sheila P. Sonenshine asked at the very outset of the hearing.

"My reading of it," she added, "was that the trial court was wrong, but I'm not quite sure what we can do about it."

The appellate court may decide the case within 90 days.

Massip's attorney, Milton C. Grimes, countered that his client's acquittal was a fair and justifiable one that should be upheld by the court. He argued that to send Massip into confinement now, in the midst of her therapy, would essentially be a form of "harassment."

Watching the candid and often vigorous courtroom exchange was Massip herself. Now 26, she has remarried and is working in Orange County as a hair stylist. She also is attending regular psychiatric therapy sessions to overcome occasional bouts with depression.

"I don't even understand really what's going on. The legalities--it's all very complex to me," she said. "I would just like for it to all be over."

Acknowledging she could face incarceration if the appellate decision goes against her, Massip said: "I just don't know what to expect. It's sort of an in-limbo situation. . . . I just have a lot of faith in the Lord."

It was 17 months ago that Massip, clutching a Bible, walked out a free woman from the Santa Ana courtroom of Superior Court Judge Robert R. Fitzgerald. Minutes earlier, the judge had stunned a packed court by refusing to recognize a jury's murder verdict and ruling instead that Massip was temporarily insane at the time she killed her son, suffering from a rare psychotic disorder that is an extreme form of the far more common "baby blues."

Massip's emotional trial, featuring testimony from the embittered father who served the defendant with divorce papers while she sat in jail, showed she had first tried to throw her son into oncoming traffic, then hit him over the head with a blunt object and finally ran over him in the family Volvo in 1987, killing him.

After acquitting Massip on grounds of insanity, Fitzgerald later ruled that Massip would not have to serve the six-month confinement in a state psychiatric ward that is customary for defendants acquitted by reason of insanity. Instead, he ordered her to report as an outpatient to county mental health facilities for treatment.

In oral arguments before the appellate court Wednesday and in the legal briefs that preceded the hearing, Deputy Dist. Atty. Thomas J. Borris argued that Fitzgerald erred not once, but twice, in overstepping his authority: first by illegitimately setting aside the jury's verdict and then again by foregoing the standard six-month psychiatric incarceration.

Under questioning by the justices, Borris conceded that state statutes severely restrict a district attorney's ability to appeal an acquittal--as well as an appellate court's prerogative to change such a decision. And he also apologized for his office's failure to file a writ with the court within the standard 60 days following the acquittal--an oversight that the justices said is often enough to get an appeal thrown out of court.

Predicting the worst, Borris asserted that "in the long run, because of incompetence of counsel (by the district attorney's office), society is going to have to suffer."

Arguing that the justices do have the power to overturn the acquittal, he said, "we can't let this (acquittal) stand as a precedent."

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