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Thursday, September 06, 2007

Ohio Prosecutor's Nifong Moment? Parents DO Get Jail For Baked Or Frozen Kids

COLUMBUS (TDB) -- In Ohio, parents can and do go to jail for exposing their children to extreme temperatures by leaving them in cars when the sun is blazing, or locking them outdoors when the snow is falling. It even happened not so long ago on a hot afternoon in Clermont County. And there is proof from the Ohio Supreme Court.

The high court has an online portal where important legal decisions from around the state are stored for lawyers to scrutinize and study. Scholars are now poring over the the full 24-page text of State of Ohio vs. Jerry Bittner from Clermont County (PDF). Even for laymen, the case is well worth reading.
[UPDATE: 7:23 PM edt -- Nate Livingston at the Cincinnati Black Blog has been all over the Slaby story and has dug up the same court of appeals case on Lexis. Nate suspects there are issues of class and race in the way child endangering cases are handled in Ohio. And he clearly is on to something.]
[UPDATE II: 7:40 PM edt -- Nixguy has been following the trail blazed by Cincinnati Black Blog. This is turning into one of those events that crosses the political divide between left and right.]
Until today, Bitner has been an obscure Dec. 31, 2001 appeals court ruling that sent a dad to prison for a year after his 6-month-old daughter, Serena, was left in a van on a hot day and died. It's a case every bit as tragic as the death of 2-year-old Cecilia Slaby in her mom's Mercedes Aug. 23 on a broiling summer day in the same county. But there is one significant difference: Clermont County Prosecutor Don White went after Jerry Bittner, who lived in a housetrailer and worked two jobs to support his family. White gave Cecilia's mom -- a high school administrator -- a pass. He won't press charges.

Here is some of what the 12th District Court of Appeals had to say when it upheld Bittner's conviction in Clermont County:

"At 6:30 p.m., appellant came home from work before leaving for his second job. Not seeing Serena he inquired as to her whereabouts. It was then discovered that Serena had been left in the van in the driveway. The temperature that day was eighty-four degrees Fahrenheit. Except for the front passenger window which was opened one to two inches, all the other windows were closed."

The Bittner's had problems with county children's protective services officials in the past, and didn't take their daughter to a hospital immediately. They put her in a bath, cooled her off, then concocted a story that she had been on a bed and managed to wrap herself in a blanket to cause the overheating. The story unravelled when the child died. White's office managed to prove that Bittner was reckless. The appeals court said:

"Parents have a legal duty to protect their children from harm. State v. Sammons (1979), 58 Ohio St. 2d 460,463. The crime of child endangering under R.C. 2919.22 (A) may be committed by acts of omission: 'an inexcusable failure to act in discharge of one's duty to protect a child where such failure to act results in a substantial risk to the child's health or safety is an offense under R.C. 2929.22 (A).' State v Kamel (1984), 12 Ohio St. 3d 306,309.

"After thoroughly reviewing the record, we find that once Serena was found in the van appellant acted recklessly, and that he created a substantial risk to the health of Serena. . . By the time she was discovered in the van, she was suffering from heat exhaustion and was 'already pretty sick' . . . However, rather than call 911 or take her to the hospital appellant decided to give her a bath to cool her off. The record shows that at least 20 minutes elapsed between discovering Serena in the van and putting her in the bath."

So Prosecutor White threw the book at Bittner because he didn't seek quick medical attention for a child broiled in a van. A 911 call may have saved him from prison. But White didn't go after Cecilia's mom, who forgot that her daughter was strapped into a Mercedes and couldn't be revived by emergency workers. A 911 call, it seems, made no difference for Cecilia. It made all the difference for her mom.

Again, the appeals court:

(Bittner's) actions undoubtedly created a substantial risk to his daughter's health, which, in this unfortunate case, led to the child's death. Reviewing the evidence in a light mos favorable to the prosecution, we find that a rational trier of fact could have found that the elements of child endangering, including recklessness, were proven beyond a reasonable doubt. Moreover, our review of the evidence fails to persuade us that the jury lost its way and created a manifest miscarriage of justice. We therefore find (Bittner's) convictions are supported by sufficient evidence and are not against the manifest weight of the evidence."


  1. Bill, nice work. As a former reporter, you must smell the blatant conflict of interest in having the County Commissioner defend someone being tried by the County Prosecutor when the former sets the latter's budget.

    Same deal having the Department of JFS investigate then find no wrongdoing when they also report to the Commissioner/defense atty.

  2. Has anyone followed the money? Are the Nesselroad or Slaby family campaign contributors? I find it interesting that Mercedes driving white suburban mother escapes prosecution when the Bittner case is out there. Usually money or political clout is behind something like this.

  3. Simply connect the dots - Croswell - Breyer (White) - Deters. Does anyone really believe Croswell when he states he has never talked to Deters about a case in Hamilton County or received any preferential treatment for his client? How does a client of Croswell's receive diversion when if convicted he was staring 20 years in prison. Does an assistant prosecutor have the authority to offer such a friendly plea bargain? I don't believe they do.