Internet Search Evidence Requires Reversal Of Murder And Child Abuse Conviction

The Maryland Supreme Court has reversed a criminal conviction for murder and child abuse

A woman’s right to terminate a pregnancy is one of the most divisive issues in this country. Although abortion is a protected right in Maryland and a common event in many women’s lives, it is highly stigmatized. In this case, we must consider whether evidence of a criminal defendant’s internet searches on abortion in the early months of her pregnancy was relevant to show her intent to kill or harm her newborn several months later at birth, or, if marginally relevant, unfairly prejudicial.

The State of Maryland charged Petitioner, Moira E. Akers, in the Circuit Court for Howard County with murder and child abuse resulting in the death of her newborn. The charges arose in connection with Ms. Akers’ at-home delivery of the baby without her husband’s knowledge that she was pregnant at the time. Ms. Akers was the sole witness to the delivery. Ms. Akers maintains that the baby was stillborn, and the State contends that the baby died of asphyxiation at Ms. Akers’ hands. A jury convicted Ms. Akers of second-degree murder and child abuse resulting in death. The trial court sentenced Ms. Akers to 30 years of imprisonment for murder and a concurrent 20 years of imprisonment for child abuse resulting in death. The Appellate Court of Maryland affirmed in an unreported decision.

This Court granted certiorari to determine whether evidence of Ms. Akers’ internet searches about terminating a pregnancy during a period in which she would be able to legally obtain an abortion in this State and her decision to forgo prenatal care are irrelevant to an intent to kill or harm a newborn at birth, or, if marginally relevant, unfairly prejudicial.

We hold that the internet searches are irrelevant and that the trial court erred as a matter of law in admitting them. We similarly hold that Ms. Akers’ bare decision to forgo prenatal care was not probative of motive or an intent to kill or harm a live child. To the extent that the State has asserted that evidence of disparate prenatal care was relevant, given that this argument is being raised for the first time before this Court, we decline to address it. In light of our holding on the inadmissibility of the abortion searches, we reverse the judgment of the Appellate Court and remand this case to the circuit court for a new trial. We provide some background facts as they were presented to the jury and the procedural history that preceded this Court’s consideration of the case.

Admissibility

We hold that Ms. Akers’ termination searches months before she gave birth fail to meet the basic threshold for admissibility. The termination searches were not probative of an intent to kill or harm a baby at delivery many months later. Ms. Akers’ contemplation of a protected right to terminate a pregnancy many months prior does not make the later existence of a specific intent to kill or harm a newborn more or less probable. Simply put, the predicate fact—lawfully contemplating the termination of a pregnancy—does not support the inferences advanced by the State—an intent, plan, or motive to kill or harm a person. The State’s argument begs the question of how Ms. Akers’ internet searches made it more likely that she had a homicidal intent toward a living newborn, unless one assumes that a person who researches abortion options is more likely to commit murder or harm a person.

According to the State, even if the jury did not ascribe an intent to kill or harm a baby from the termination searches to support a first-degree murder conviction, the searches helped establish that Ms. Akers had no plan if the baby was born alive, which the State asserts would support a finding that she committed second-degree murder and first-degree child abuse. On this point, the State’s relevancy theory is as follows: the fact that Ms. Akers did not want the baby, along with evidence of how she furtively managed the pregnancy by keeping it a secret until its inevitable exposure, and her admission that her approach was just to hope that the pregnancy would “go away,” tended to show that she denied the pregnancy until she was no longer able to do so. The State argues that once the baby was born alive, Ms. Akers decided to kill him. According to the State, the fact that Ms. Akers searched for “rue tea for abortion” and how to obtain misoprostol to end pregnancy shows that she was looking for ways to terminate the pregnancy undetected. We disagree with the State’s relevancy argument for several reasons.

Justice Booth authored the majority opinion from which Justices Biran and Gould dissented

Justice Gould in dissent

Motive is a relevant issue in a murder case, and no less so when the victim is a newborn baby. Evidence of a motive is, therefore, relevant under Maryland Rule 5-401. Here, the jury determined that Ms. Akers’ baby was born alive, and that Ms. Akers caused her baby’s death. With those two findings in hand, the jury had to determine Ms. Akers’ state of mind. Whether Ms. Akers would be convicted of first-degree murder, second-degree murder, or involuntary manslaughter hung in the balance.

A strong desire not to have another child—one that lasts from the beginning of the pregnancy until the moment of birth—is a motive to kill a newborn. Not wanting another child is also a reason to have an abortion. If a pregnant woman does not want another child, both an abortion and killing the newborn are means to the same end, albeit radically different means with different legal implications. When the abortion option is no longer available, and the pregnant woman perceives a continuing need to keep her pregnancy secret from everyone, including her husband, and she perceives no viable alternative due to real or perceived stigmas and disapproval by family members, then killing the baby immediately upon its birth becomes more probable. This is particularly so where the pregnant mother’s hope that the pregnancy will terminate on its own—abetted by the conscious decision to forgo prenatal care—is dashed.

To determine Ms. Akers’ state of mind on November 1, 2018, all the facts and circumstances that led to her actions that day are relevant, including her contemplation of an abortion, her and her husband’s joint desire for her to get an abortion, her failure to get an abortion, her lie to her husband that the pregnancy was ectopic and had terminated, her internet searches relating to self-help pregnancy termination, her need for secrecy, her decision to forgo prenatal care, and her refusal to get help when she went into labor and her water broke. Those facts and circumstances led to the decisions Ms. Akers made on that fateful day.

Not so says the Majority. According to the Majority, evidence that Ms. Akers contemplated an abortion is not relevant “unless one assumes that a person who researches abortion options is more likely to commit murder[.]” Maj. Op. at 35. As the Majority sees it, Rule 5-401 demands that, to be relevant, a piece of evidence must have a predictive quality to it; here, that conducting research on abortions portends or indicates a proclivity for murder.

The flaw in this logic is obvious when applied in a different context. Suppose the CEO of a major corporation is shot and killed. Based on a suspect’s resemblance to a surveillance photo as well as his possession of a firearm of the type that was used in the killing, that suspect is arrested and charged with the murder. Later, it is discovered that six months before the killing, the accused attended a demonstration protesting the corporation’s business practices. The prosecution seeks to admit evidence that the accused attended the demonstration. Attending a demonstration criticizing a corporation does not make a person more likely to murder its CEO. But it does go to motive and would be relevant under Rule 5-401, notwithstanding any First Amendment implications. Under the Majority’s logic, however, a Maryland trial court would be constrained to exclude such evidence.

To find that the abortion evidence was relevant to Ms. Akers’ state of mind, one need not equate abortion to murder, put it on the same moral plane as murder, or find that considering an abortion indicates a proclivity to commit murder. Nor does a finding that such evidence was relevant undermine, in any way, the protected status in Maryland of a woman’s right to choose.2 This appeal is about a simple application of Rule 5-401. Here, the trial court correctly applied this rule and the Appellate Court of Maryland, in a thoughtful and measured opinion, properly affirmed.

Accordingly, I respectfully dissent.

(Mike Frisch)