POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On September 8, 2015, the N.Y. Court of Appeals heard oral arguments in People v. Jorgensen, in which Jennifer Jorgensen is appealing her second-degree manslaughter conviction for recklessly causing the death of her daughter, who died as a result of a head-on car collision in May 2008, allegedly caused by Jorgensen’s reckless driving.

At the time of the accident, the victim at issue was in the seventh or eighth month of gestation in Jorgensen’s womb. As stated in the case summary, “Jorgensen’s baby was delivered alive by emergency Caesarean section less than two hours after the accident, but died six days later.”

In June 2009, the Suffolk County Prosecutor indicted Jorgensen on several charges, including the manslaughter charge relating to the death of her child. The first trial ended with a hung jury. In the second trial, the defendant was only convicted on the charge of manslaughter for the death of her daughter and the sentence of three to nine years in prison was imposed. The Appellate Division Second Department affirmed the manslaughter conviction.

As set out by N.Y. Penal Law § 125.00, “Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first [or second] degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.” Penal Law § 125.05(1) adds that “‘[p]erson,’ when referring to the victim of a homicide, means a human being who has been born and is alive.”

This is indeed a very sad and tragic case. Jorgensen argues that her manslaughter conviction was contrary to law because her daughter had not been born (and so was not a “person”) at the time she (Jorgensen) allegedly engaged in reckless conduct. She adds that she consented to the Caesarean section in an effort to save her baby’s life. The Prosecutor is arguing that because Jorgensen’s daughter was born alive, the child was a person under the law and Jorgensen must bear criminal responsibility for recklessly causing her death.

Related Readings:

• People v. Jorgensen, 978 N.Y.S.2d 361 (App. Div. 2d Dep’t 2014).
• NY Court of Appeals, Background Summaries and Attorney Contacts – Week of Sept. 8-11, 2015.
• NY Court of Appeals, Oral Argument Archive – September 2015 (access webcast and transcript of oral arguments).