The case now goes to the Appellate Court which
will take *at least* one more year...
Dec 1, 2001
Appeal begins in midwife case
Involuntary manslaughter: Judge rejects defense claim of double jeopardy
By Art Peterson
STAFF WRITER
In rapid succession Friday in Lake County Circuit Court, Judge James Booras denied a motion to dismiss a charge of involuntary manslaughter against midwife Yvonne Cryns, and defense attorney Andrea Lyon filed a motion to appeal that decision to the Illinois Appellate Court.
The net effect will move the midwife case to the appellate level, likely for several years.
Booras also directed that Cryns' bond cash, $5,000, be used to pay for a transcript copy from her original trial. Lyon said she may appeal that as well.
Lyon contends that Cryns is "legally indigent" and that the county should pay for the transcript, which she estimates will cost between $3,000 and $5,000. The bond cash was raised by "friends and church members" and should remain for them, Lyon said.
In June, a jury found the 50-year-old Richmond resident not guilty of an unborn child after five days of deliberation. The jury was deadlocked at 10-2 in favor of guilty on a charge of involuntary manslaughter of a born child.
The charges relate to an August 2000 home birth in Round Lake Beach at which Cryns assisted. The foot-first, breech birth was prolonged, and after the boy was born, Cryns attempted CPR for 12 minutes before having 9-1-1 called.
Lyon, who is representing Cryns without charge, argued that the new case should be dismissed. "The Constitution precludes a person twice being placed in jeopardy," she said. The two charges "require proof of exactly the same facts. If the elements are the same, double jeopardy bars a second trial.
"The elements are identical," she said. "The only difference is if the victim was born or unborn. The only proper remedy for this double jeopardy is dismissal of the remaining charge and free Mrs. Cryns."
Claudia Kasten, chief of the child's advocacy division in the Lake County state's attorney's office, said, "If the facts are different, it does not preclude a second trial. The facts are separate. The baby was born in utero or was born alive. The jury decided that the baby was born alive. That leaves open a second trial."
'Distinct and separate'
Booras ruled, "I find the two distinct and separate offenses and theories of prosecution. The verdict on one does not bar trial on the other. Different facts were required to prove different charges. I must deny the defense motion for dismissal."
"We will file an appeal today," Lyon responded, and handed copies of her motion for appeal to Booras and Kasten.
"Should we set the case for status or let it go?" Booras asked.
"Let it go," Lyon said.
Outside of court, she estimated it will take "at least two years" to get a decision from the Appellate Court.
In asking for county-paid transcripts, which are needed for the case before the Appellate and Circuit courts, Lyon said Cryns and her husband are in debt from costs of the first trial and not in a position to pay for this litigation. "Statutes provide for free transcripts in cases of legal indigency," she said.
Booras said, "I'll reduce bond, and convert it to a $50,000 recognizance bond. That $5,000 will be made available for transcripts only."
He held off an alternate ruling. "If I decide she was indigent, which fund do I tap into, the public defender's? I would like to postpone that ruling. It will become moot for a while."
Lyon said, "I object. It would be more appropriate for the court to order the county to pay."
Outside of court, Lyon said the bond cash "came from a lot of people who live and support her (Cryns). They should not be penalized. I may appeal that. I'm not sure. I have to look at the law. Hopefully, I can reverse that and get their money back. I appreciate that government has money problems, but they are the ones suing her and should provide the transcript."
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