‘A lot of ifs’ in newborn’s death

Los Angeles County Superior Court Judge David Wesley raised questions in court Friday about charging USC student Holly Ashcraft with murder in the death of her newborn son, whose body was found by a homeless man in a trash bin in late 2005.

Last month, defense attorney Mark Geragos filed a motion to have the case dismissed, based on insufficient evidence that the baby was born alive or that there was criminal intent on Ashcraft’s part in his death.

“There isn’t any case that I could find where there is as scant evidence of live birth as this case,” Geragos said Friday.

According to an autopsy report issued in February 2006, Deputy Medical Examiner David B. Whiteman concluded that the baby had been born alive, after a 32-week pregnancy. He wrote that his homicide finding was based on “caretaker neglect.” In his written opinion, Whiteman said the death resulted from “prematurity and other undetermined factors.”

At Friday’s hearing, there was discussion as to whether the small amount of oxygen found in the newborn’s lungs indicated that he had not lived long outside the womb.

“The whole prosecution’s case rests on whether the child lived for any appreciable time after it came out of the birth canal, if it lived at all,” Wesley said. “That is the issue in this case.... There are a lot of ifs.”

Wesley said he did not have enough information to determine whether the child was alive at birth -- and for how long -- or why he died, questions that must be answered to make a determination of malice, which is necessary for a murder charge.

“I’m troubled by the extrapolation, to see malice. I don’t see malice,” Wesley said, reasoning that many women give birth at home and not at a hospital, which is not a crime. “A mere omission of reasonable care for a newborn is manslaughter.”

Deputy Dist. Atty. Franco Baratta argued there was enough in the “totality” of circumstantial evidence to prove that Ashcraft, 22, was acting with malice. “An omission of care is an act of malice,” Baratta said. “A 10-year-old would know the younger a child is, the more care it needs.

“The court is not here to make a determination of guilt or not,” he added. “We’re just dealing with this as probable cause.”

Baratta said circumstances surrounding an earlier pregnancy, in April 2004, cast Ashcraft in a suspicious light. She was investigated by police after arriving at a Los Angeles hospital having just given birth but without a baby. She told authorities the child had been stillborn and she had disposed of its body, which was never found. Ashcraft was not arrested or charged.

“She was spoken to by other law enforcement personnel and told that it is a crime to dispose of human remains,” Baratta said. “She knew we couldn’t prosecute on that because we did not have a ... child. So that goes to her state of mind.”

Geragos said the coroner’s conclusion that Ashcraft’s child had died of caretaker’s neglect was a classic example of circular logic.

“You can’t say I don’t know what caused the death, but I’m going to [say] it’s caretaker’s neglect because I don’t know what caused it. You can’t make that leap,” Geragos argued.

Wesley declined to rule on whether to dismiss the charges against Ashcraft until further discussion March 2.

Ashcraft, a native of Billings, Mont., was a third-year architecture student when she was arrested in October 2005 and charged with abandoning the infant in a bin near her apartment north of the USC campus. Ashcraft was suspended pending the outcome of her case.

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tami.abdollah@latimes.com