Ohio Law Professor: GOP Prosecutor Wrongly Gave Break To Baked Kid's Mom

CINCINNATI (TDB) -- University of Cincinnati law professor Christo Lassiter has joined the chorus of those who say Clermont County's Republican prosecutor seriously screwed up the case of a mom whose two-year-old baked to death in a Mercedes on Aug. 23, the hottest afternoon so far this year. Lassiter is calling on federal authorities to investigate the case and says forgetfulness is no excuse for a parent who leaves a child inside a vehicle with the windows rolled up on a blazing hot summer day.

Lassiter, a former Marine Corps lawyer who handled criminal prosecutions in the military, unleashed his criticism in a guest column for today's Cincinnati Enquirer. The law school professor stopped short of calling Clermont Prosecutor Don White an idiot. Instead, Lassiter described White's explanation for not taking action against the mother of Cecilia Slaby as something akin to legal bunkum.

"White argues that because Nesselroad-Slaby says she forgot she put the baby in the car, she therefore did not disregard a known risk. White's assertion finds no support in recorded cases. A Westlaw search of convictions under R.C. 2919.22 where the child endangering consisted of leaving a child unattended yielded 31 cases sustained on appeal. There is not a single case that I have been able to find in Ohio where the defense of forgetfulness rebutted a finding of recklessness. Nesselroad-Slaby formed a habit of leaving Cecilia unattended, making it a habit to forget about her altogether, and therein lies her recklessness."

Lassiter's faculty biography and list of interests at the University of Cincinnati are available here.

Ohio Prosecutor's Nifong Moment (II): 'Extreme Temperatures' Are Grounds For Convictions

CINCINNATI (TDB) -- Former Cleveland Law Director Subodh Chandra and city prosecutors acted aggressively to protect Ohio's children with their legal tactics in 2003 and 2004. They went after a boozer who put a two-year-old outdoors in sub-freezing cold after a post-Thanksgiving drinking bout. The child suffered no injuries from chill and snow, but the case still concluded with a guilty verdict of child endangerment. A state appeals court said a critical issue was: Does knowingly exposing a child to extreme weather conditions create a substantial risk to health and safety?

It sided with Chandra: Extreme weather is a risk.

The efforts to seek a conviction in Cleveland are in contrast with Clermont County Prosecutor Don White's decision not to take action in the death of Cecilia Slaby. The two-year-old perished Aug. 23 while strapped into her mother's Mercedes on a blazing summer day. White's office says the mother, a school administrator, accidentally forgot about the child and didn't heedlessly disregard a known risk. The risk: Extreme temperature in a vehicle parked outdoors in the August heat.

The complete text of the 12-page decision from Cleveland is available(PDF) from the Ohio Supreme Court. Chandra's team argued that the presence of severe weather automatically creates a strong possibility of harm to a child. It also contended the man locked the door when he kicked the two-year-old out into the cold with her mother, which created a "culpable mental state" required for conviction. The 8th District Ohio Court of Appeals agreed:

"Exposure to extreme temperatures for a relatively extended period of time creates a substantial risk to the health or safety of a child. A rational trier of fact could have found that sub-freezing temperatures created a substantial risk to the health or safety of the child despite the fact that she was with her mother, and despite the fact that she was wearing a coat . . .

"The snow and low temperatures that night gave (the defendant) good reason for expectation or belief that the two-year-old child could suffer from exposure. Moreover, based on evidence that the mother and child were forced out, a rational trier of fact could reasonably conclude that (the defendant) perversely disregarded, with heedless indifference to the consequences, the known risk that the two-year-old could suffer from exposure."

Mom and daughter walked about eight blocks that night in Cleveland to a pay phone, where they dialed 911 and were rescued by police. There was no frostbite or medical damage, although the little girl urinated in the pajamas she wore under her winter coat. The conviction for child endangering led to a $150 fine, a suspended 90-day jail sentence and a year of probation with substance abuse assessment and counseling.