USC student accused of killing her baby sees case dismissed, refiled

A judge Friday threw out a murder charge against a USC student accused of leaving her newborn son’s body in a trash bin outside her apartment, but prosecutors immediately refiled the case.

The district attorney will try to persuade another judge that Holly Ashcraft killed the child intentionally and with malice.

Loyola Law School professor Laurie L. Levenson said the prosecution can refile a criminal case one time. Doing so is unusual, but so was Los Angeles County Superior Court Judge David Wesley’s decision to dismiss the charges, she said.

Prosecutors can, but don’t have to, develop new evidence in the interim to shore up their charges, although it could be beneficial, she said.

“They’re hoping to get another judge who will take a more generous view of the evidence,” Levenson said.

Ashcraft, 22, was charged with murder and child abuse after a homeless man found the body outside her residence near the USC campus in 2005.

Wesley said he wasn’t convinced that prosecutors could prove the architecture student had the necessary criminal intent to sustain a murder charge. Nor could they show unequivocally that the baby was born alive, he said.

Instead, Wesley said, prosecutors could bring lesser charges of involuntary manslaughter and child endangerment.

In a February 2006 autopsy report, Deputy Medical Examiner David B. Whiteman concluded that the baby had been born alive, because there was air in the lungs. The cause of death was listed as homicide, and Whiteman said it stemmed from “caretaker neglect.”

In his written opinion, Whiteman also said the death, which came after 32 weeks of pregnancy, resulted from “prematurity and other undetermined factors.”

Ashcraft’s lawyer, Mark Geragos, had cited medical evidence that stillborn babies can have air in their lungs.

Geragos called the refiling a “last-ditch effort” and “gamesmanship” by prosecutors.

The lawyer added that Ashcraft had been “within striking distance of putting this nightmare behind her.”

Ashcraft attended the hearings with her mother and sister. The three appeared happy, often smiling during the afternoon proceedings.

District attorney spokeswoman Jane Robison said the day’s legal wrangling resulted in “basically at the end of the day the status quo. We respectfully disagreed with Judge Wesley.”

Ashcraft was arraigned in the new case by Commissioner Catherine Pratt but did not enter a plea. Pratt set a March 14 date to hear another defense motion that the refiled charges lack legal sufficiency.

Pratt maintained Ashcraft’s bail at $200,000 and required her to remain under house arrest with electronic monitoring.

peter.hong@latimes.com