Marshae Jones, manslaughter, and Alabama law
By guest blogger Bill Fortenberry — Marshae Jones has been indicted by a grand jury for felony manslaughter in the death of her prenatal child, who was shot and killed during a fight between Jones and another woman. The key to understanding the indictment in this case is to recognize that, under Alabama law, a prenatal child has the same legal protections as a born child.
Since last week, the media have been in an uproar over the indictment of 27-year-old Marshae Jones for felony manslaughter in the death of her prenatal child. According to the indictment, Jones attacked Ebony Jemison in December of 2018 while Jones was pregnant with a baby girl. During the attack, Jemison fired a gun in self-defense. The shot struck Jones in the stomach and killed her baby.
The grand jury indicted Jones for causing “the death of another person, to-wit: UNBORN BABY JONES, by INITIATING A FIGHT KNOWING SHE WAS FIVE MONTHS PREGNANT, and said death being caused in a sudden heat of passion caused by provocation recognized by law.” The grand jury decided not to charge Jemison, who fired the shot that killed the child, as police and prosecutors said she acted in self-defense.
As founder of Personhood Alabama, I have had several people ask me for my opinion on this case. As much as I despise passing judgment before all the facts are known, I do think that this case provides a good backdrop for an important discussion on the rights of prenatal children in Alabama.
It’s a matter of law
The key to understanding the indictment in this case is to recognize that, under Alabama law, a prenatal child has the same legal protections as a born child. This means that a jury in Alabama is supposed to consider every case of injury or death of a prenatal child exactly the same as it would treat a similar case of injury or death of a born child. This simple fact of law gives us a tool for understanding the grand jury’s decision regarding Marshae Jones. We can simply substitute a born child in the place of the prenatal child.
Let’s take the scenario as it has been reported, and imagine that Jones had taken a 10-month-old child with her into the altercation, instead of a prenatal child. Imagine, for a moment, that a mother carrying a 10-month-old child in a backpack carrier intentionally attacks another woman so viciously that the second woman fires a single shot in self-defense. Let’s suppose also that the shot passes through the body of the mother and kills the child in the carrier on her back.
In this scenario, Alabama law would dictate that the mother should be indicted on manslaughter charges. Let me explain why.
According to the code of Alabama:
A person commits the crime of manslaughter if…He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.
This, of course, requires us to consider Section 13A-6-2 which states in part that:
A person commits the crime of murder if…Under circumstances manifesting extreme indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to a person other than himself or herself, and thereby causes the death of another person.
If we combine these two sections together, we can see that there are three conditions which, if they are all present in a situation, mandate that a grand jury indict an individual for manslaughter. Those three conditions are:
- The death must have occurred while the individual was acting in a sudden heat of passion.
- The individual must have demonstrated an extreme indifference to the life of the person who was killed.
- The individual must have recklessly engaged in conduct that created a grave risk of death for the person who was killed.
If all of these conditions are present in a given scenario, then the grand jury must indict the individual on the charge of manslaughter. That is simply what the law demands. All three of these conditions are present in our fictional scenario, and the grand jury concluded that the state had good evidence to show that all three of these conditions were present when Baby Jones was killed. If that was their conclusion, then indicting Jones for manslaughter was the right thing to do.
A critical understanding
It is very important to remember that this is just an indictment. Marshae Jones has not been found guilty of manslaughter. The grand jury has simply given their recommendation for the case to proceed under a single felony manslaughter charge.
According to a statement released on Friday, June 28th, by the office of District Attorney Lynneice Washington: “While the grand jury has had its say, our office is in the process of evaluating this case and has not yet made a determination about whether to prosecute it as a manslaughter case, reduce it to a lesser charge, or not to prosecute it.’’ Washington also denied this case’s connection with Alabama’s recent abortion ban. “This case pre-dates the passage of the legislation, and we must point out the new law played no role in the consideration of the grand jury.” Despite this fact, pro-abortion groups are holding up this case as an example of “punishing women for the outcome of a pregnancy.”
If the District Attorney decides to prosecute Jones for manslaughter, Jones will have the opportunity to deny the charge and to defend herself before a jury of her peers. It’s not likely that she will successfully challenge the first of the three conditions listed above, but she will probably argue that her actions did not demonstrate an extreme indifference to the life of her child. She will also likely argue that her conduct did not create a grave risk of death for her child.
The grand jury’s indictment is exactly what’s required by Alabama law. Determining whether Jones is guilty of manslaughter would be up to the jury selected for her trial, should the District Attorney’s office proceed.
If this situation had resulted in the death of a born child, there wouldn’t be nearly as much controversy. But instead, the media see this as yet another opportunity to condemn Alabama—a state that has fought harder than any other to protect the lives of its children.
Bill Fortenberry is president of Personhood Alabama.