Ohio Prosecutor's Nifong Moment (III): In Cincy, Tylisha's Forgetful Foster Mom Was Convicted

CINCINNATI (TDB) -- When police and shoppers spotted three-week-old Tylisha Melendez strapped in her car seat in a locked Plymouth minivan outside a suburban Wal-Mart on an 85-degree afternoon, they hurriedly tracked down the infant's foster mom. Her first words upon reaching the vehicle, "Oh, my God, we forgot the baby."

Despite being left sleeping in her car seat, the baby survived the stifling heat. But forgetfulness was no excuse. Police in Colerain Township filed a child endangering against Kathleen Morton, a 45-year-old African American woman who had taken in eight foster children. She was convicted of a first degree misdemeanor and received probation, a six-month suspended jail sentence, a $100 fine plus court costs, and was ordered to perform 100 hours of community service.

And when Morton appealed, Hamilton County prosecutors fought her and won. The 1st District Ohio Court of Appeals case number is C-990760. It is not available on the Ohio Supreme Court's online database of legal decisions, but The Daily Bellwether has obtained a paper copy of the seven-page opinion.

It seems to undercut Clermont County Prosecutor Doug White's contention that a mother who forgets and leaves her child unattended in a blazing hot vehicle is not considered "reckless" under Ohio law. White has declined to press charges against the mother of two-year-old Cecilia Slaby, who perished Aug. 23 after being left for about eight hours in her mother's Mercedes outside a school. Cecilia's mother is white and a fairly well off suburban school administrator, and there are suggestions that the decision not to file criminal charges is a serious miscarriage of justice. It has raised questions of class and race, and there is debate over whether someone who was poor and black would be granted similar leniency. On the other hand, White contends no crime was committed because the mom forgot her daughter was in the Mercedes.

But consider what Hamilton County prosecutors told the appeals court in Cincinnati about Kathleen Morton's actions in the Wal-Mart parking lot on a hot June day in 1999 (and remember the baby did not die):

"First, the child in this case, not yet one month old, is completely dependent upon (Morton) for care and is unable to look after herself in any way. The facts demonstrate that (Morton) knew that it was likely the infant was alone in the car . . .

"Leaving a less than one-month old infant alone in a closed-up, locked vehicle on a hot, humid day creates a substantial risk of harm to the health and safety of that child. After only thirty to forty minutes, the baby's breathing was heavy and labored. She was drenched in sweat, her clothes saturated, perspiration dripping from her ears and pooled in her eye sockets. Regardless of whether Tylisha required emergency care or hospitalization, conditions such as these certainly created risk of harm to her health and safety."

The appeals court agreed, and ruled 2-1 Morton was reckless because she didn't pay close enough attention, and didn't check the minivan for Tylisha before heading into the Wal-Mart.

"The largely undisputed evidence adduced at trial was that Morton had failed to take the necessary measures to ensure that Tylisha was receiving the care that a three-week only infant requires. Morton testified she assumed (blank) or one of the older children had taken Tylisha into the store . . .

"But Morton acknowledged that the children were already out of her line of sight before she left her van and that she had not seen (blank) take Tylisha out of the van. Morton did not check the van herself to ensure that all the children were properly supervised."

And, the 1st District added:

"Construing the evidence in a light most favorable to the prosecution, and bearing in mind the absolute dependence of a three-week-old child on her parent or guardian, we hold that the trial court could have properly concluded that Morton's failure to ascertain the whereabouts of Tylisha constituted a heedless indifference to the consequences of leaving the child unattended in the vehicle."

Ohio Judge Harpoons The Moby Sentence: A 326-Word Legislative Whale

CINCINNATI (TDB) -- Ohio 1st District Court of Appeals Judge Mark Painter is building a national reputation as an advocate of clear, concise and easily decipherable legal language. The Cincinnati Republican has discovered a 326-word legislative leviathan lurking in the Ohio Revised Code. It is a brain-numbing sentence about adoption records:

"If the agency determined that the petitioner is an adopted person, if the department of health is informed the agency either that the file of releases does not contain a release or releases filed by one or both of the petitioner's biological parents that authorize the release of identifying information to him and does not contain a release or releases filed by any biological sibling that authorizes the release of specified information to him or that the file of releases contains at least one such release but a withdrawal of release has been filed that negates each such release, if the agency did not inform the court that it had determined that one or both of the petitioner's biological parents as indicated on the petitioner's original birth were deceased, and if the court did not determine that one of or both of the petitioner's biological parents as indicated on that record were deceased, the judge shall order that the petition remain pending until withdrawn by the petitioner and order the department of health to note its pendency in the file of releases according to the surname of the petitioner as set for in his original birth record; shall inform the petitioner that he is an adopted person and, if known, of the county in which the adoption proceedings occurred; shall inform the petitioner that information regarding his name by birth and the identify of his biological parents and biological siblings may not be released at that time because the file of releases at that time does not contain an effective release that authorizes the release of any such information to him; and shall inform the petitioner that, upon the subsequent filing of a release by or the death of either of his biological parents, or the subsequent filing of a release by any of his biological siblings, the petition will be acted upon within thirty days of the filing in accordance with division (E) of this section."

Painter calls the sentence unfathomable. In the August issue of the Cincinnati Bar Association Report, he said he spent an hour rewriting it twice and managed to get the Ohio General Assembly's handiwork trimmed to 155 words. He said it still could be improved. Painter scolded lawmakers for producing such turgid prose, and said they ought to invest more time in clarity.

"As we know, even sophisticated readers have trouble with any sentence of more than 35 words. This one is unfathomable. It has a readability score of 0. And it's about adoption -- something 'normal' people should be able to understand."

The judge is a legal scholar, with 350 nationally published decisions, 115 legal articles and 6 books, including The Legal Writer: 40 Rules for the Art of Legal Writing. Maybe folks in the Ohio General Assembly should buy a few copies.