Washington Physician Charged with Murder:
A Vindictive Prosecution?

By S. Van McCrary, Health Law & Policy Institute

A physician in the small Washington town of Port Angeles has been charged with murder in the questionable death of a three day-old infant, yet the most controversial aspect of the case may be the circumstances surrounding the prosecutor of the case.

Although many facts are disputed, the story can be pieced together from newspaper accounts. The case involves a three day old infant, Conor McInnerney, who stopped breathing due to unknown causes while nursing and was brought by ambulance at night to the emergency room of a small local hospital on January 12, 1998. On arrival at the ER, Conor had no heartbeat and no spontaneous breathing, despite resuscitation efforts by paramedics. Resuscitation continued at the hospital, during which time the physician in question, Dr. Eugene Turner, arrived and took over the resuscitation process. After considerable time had passed, the baby had a pulse but was still not breathing on his own. The estimated time that Conor was without spontaneous breathing, and thus was deprived of oxygen, was apparently at least 39 minutes and possibly longer. Dr. Turner advised the parents that the prognosis was dismal for such a patient and that Conor had suffered severe brain damage, including both the cerebral cortex and brain stem. The parents agreed that life support be discontinued, and when this was done, Conor was without both pulse and respiration. He was declared dead.

Approximately 30-45 minutes later, a nurse discovered that Conor was making agonal breathing efforts--not normal respiration but occasional gasps. Resuscitation began again. After about an hour, Dr. Turner was left alone with Conor, who still had a weak heartbeat and agonal respiration. At this point, a nurse observed Dr. Turner pinch Conor's nose and place his hand over his mouth, reportedly saying "I can't stand to watch this go on much longer" or words to that effect. Soon after, Conor was pronounced dead again. The approximate elapsed time between Conor's first cessation of respiration and the second declaration of death was four hours. Dr. Turner has not denied his actions and claims that Conor was dead according to brain criteria at the time he acted. Washington law is consistent with that of other jurisdictions in the United States in defining brain death as irreversible cessation of function of the entire brain, including the brain stem (which controls spontaneous respiration). Although the criteria for determining brain death in infants are controversial and less apparent than for adults, it appears clear that absence of any respiratory efforts (apnea) is an essential element of determining brain stem death. However, it also appears virtually certain that Conor had suffered massive and irreversible brain damage, even if he did not meet the full criteria for brain death.

The Washington State Medical Quality Assurance Commission has charged Dr. Turner with unprofessional conduct for placing his hand over the baby's nose and mouth. In light of the medically and ethically ambiguous circumstances of Conor's death and Dr. Turner's admitted actions, it is clearly appropriate that this case be investigated by a professional governing body for possible disciplinary action. Whether criminal prosecution should result is a much different question.

Clallam County prosecutor David Bruneau charged Dr. Turner with second-degree murder in Conor's death and Dr. Turner pleaded "not guilty." Reports indicate that Dr. Turner is a beloved figure in the community--a person who puts his patient's best interests first. Because four years ago Dr. Turner's wife led an unsuccessful drive to oust Bruneau from office and elect a new prosecutor in a bitterly disputed contest, some members of the community have described Bruneau's decision to prosecute as a "vendetta." After initially agreeing to an interview for National Public Radio, Bruneau abruptly terminated the interview after the first question and did not respond to requests for additional comment. The case has polarized community opinion, despite the complex moral, medical, and legal issues.

These circumstances pose the questions: is it appropriate for this case to be criminally prosecuted, and if so, should this particular prosecutor remain involved in the case? The American prosecutor traditionally has broad discretion in determining whether to initiate formal charges, but this discretion must also be exercised consistent with a number of constitutional protections, including a due process prohibition against prosecutorial "vindictiveness." This prohibition was first recognized in Blackledge v. Perry, 417 U.S. 21 (1974), holding that the due process clause was violated when the state obtained an indictment on a felony charge, subsequent to and based on the same conduct that gave rise to a misdemeanor charge on which the defendant previously had been convicted. The test applied by the Court in Blackledge was whether the circumstances of the case " . . . pose a realistic likelihood of vindictiveness." The Blackledge line of precedent has been limited somewhat by subsequent decisions but remains good law. However, most appellate cases involving issues of vindictive prosecution seem to have involved differential selection of charges in retaliation for procedural motions by defendants, e.g., U.S. v. Goodwin, 457 U.S. 368 (1982). Thus, a case involving a prosecutor bringing charges against a previous political opponent (or spouse of a previous political opponent) may be one of first impression.

The essential need to provide structure for exercise of a prosecutor's discretion has been recognized by legal scholars as having three components: (1) a need for complete information about details of the alleged offender's background (which exceeds the detail of the police report); (2) a need for established office procedures, such as a "precharge conference" between prosecutors and defense counsel; and (3) a need for established standards for prosecution. Regarding the establishment of standards, LaFave and Israel in Criminal Procedure (2d ed., 1992, at 627) note that such standards should address " . . . the circumstances that properly can be considered mitigating or aggravating, or kinds of offenses that should be most vigorously prosecuted in view of the community's law enforcement needs." LaFave and Israel note that numerous prosecutors' offices have undertaken the drafting of such rules and have found them feasible.

It has long been my view that prosecutors should tread especially cautiously when considering homicide charges against a physician in the context of delivery of end-of-life medical care. Criminal charges for end-of-life care decisions are appropriate in only the most egregious and obvious cases of malicious conduct. Research has demonstrated that physicians report perceptions of significantly higher numbers of criminal prosecutions against physicians, in the context of end-of-life treatment, than have actually occurred--thus, the level of physician anxiety about these issues is already quite high [McCrary, Swanson, et al. "Treatment Decisions for Terminally Ill Patients: Physicians' Legal Defensiveness and Knowledge of Medical Law." Law, Medicine and Health Care 1992; 20 (4): 364-376]. The same research also suggests that physicians change their decision making and treatment-prescribing strategies in response to these perceived legal threats in ways that may impose more suffering on dying patients. To adopt a more aggressive prosecutorial stance may raise physicians' anxieties to even higher levels and may have a greater chilling effect than currently exists on physicians' willingness to relieve the suffering of dying patients.

The case of Conor McInnerney is an ideal illustrative case for the need to establish uniform standards for prosecutors to approach possible criminal conduct in end-of-life medical treatment contexts. Prosecutors should work with bioethicists and lawyers trained in bioethics to establish reasonable rules for analyzing maloccurrences in medical settings for potential criminal implications, but should remain cognizant of the strong likelihood of unintended consequences entailing exacerbated suffering of patients.

The McInnerney case may make prosecutor Bruneau vulnerable to a claim of vindictive prosecution under the current legal standard. It appears that the prudent course of action would be for Bruneau to recuse himself and his entire staff from this case and secure further evaluation and possible prosecution by a district attorney from another jurisdiction.

10/19/98