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Toobin: Breast milk murder trial has broader implications

Jeffrey Toobin
Jeffrey Toobin

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(CNN) -- In California a mother is accused of killing her 3-month-old son, and the alleged weapon in this case was her own breast milk. Prosecutors told the Los Angeles Times that Amy Prien took methamphetamines while nursing her son Jacob. The baby later died from an overdose of the drug, and Prien was charged with second-degree murder. CNN legal analyst Jeffrey Toobin discussed the case with CNN anchor Bill Hemmer.

BILL HEMMER: Good morning to you.

JEFFREY TOOBIN: Howdy.

HEMMER: You say significant because it's second-degree murder, not just manslaughter. Why?

TOOBIN: This is not -- she is not accused of committing a terrible acting with malice; she is accused of acting with malice. It's not intentional murder, but it's murder with malice, so they were really throwing the book at the ...

HEMMER: Listen to what the deputy district attorney says -- We'll put it up on the screen for our viewers:

DEPUTY DISTRICT ATTORNEY: Amy Prien was using drugs during the time when she was breast-feeding her baby, Jacob. She knew the drugs were dangerous. But it was more important to her to have self- gratification. Responsibility for Jacob's death falls at her feet.

HEMMER: If the prosecutor is going to win this case, what does he and she have to do?

TOOBIN: Well, the first thing they have to do is a scientific matter of proof, which is actually proving that this is how the baby died and there is some dispute about that. And also that breast milk was the cause.

One of the interesting twists in the case is there apparently is a missing bottle, that the mother claimed that baby was fed by bottle, not by breast milk, but they can't find the bottle. So there is specific matter of proof of there.

But the other thing they're going to have to prove is mother's state of mind. Did she really know that she was subjecting her baby to this sort of danger? I think the answer is probably going to be yes.

HEMMER: Broaden it out just a little bit here -- are there implications you see on a wider scale?

TOOBIN: There really are. The criminal law is just expanding and expanding. We are making more and more criminal cases. The research staff discovered that this is the fourth case of breast milk murder prosecution.

But you know, think about the implications here. If putting your children at risk can be a criminal case, where does that pursuit leave fetal alcohol syndrome? That could be a criminal case. What about secondhand smoke? This clearly puts people at risk. These didn't use to be dealt with as criminal matters. Now, increasingly, they are.

HEMMER: Wearing a seatbelt and getting in a traffic accident; you don't have the belt strapped on.

TOOBIN: You could spin it out.

HEMMER: Interesting, the judge says here -- put this up again -- "We're entering a new area or field of legal liability. This is a difficult area."

How difficult?

TOOBIN: It really is difficult, because you have situations where irresponsible behavior, bad behavior, didn't use to be considered criminal, but you can see why prosecutors brought this case. This child is dead. If it's because of the mother's irresponsibility, you can see why they want to make her pay.

HEMMER: The charges came out this past summer, trial date not yet coming.

TOOBIN: Not yet coming. It's no coincident that these cases ended in plea bargains, the other ones like it. It lets everybody cut their losses. That's what I'd watch for in this case.


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