With woman in prison for stillbirth, murder law is tested

Tina Perez holds a photo of her daughter, Adora Perez.

Dec. 16, 2020 6 AM PT

Adora Perez was two years into an 11-year prison sentence when she got a phone call.

From inside the women’s state prison in Chowchilla, Calif., Perez listened as attorney Mary McNamara introduced herself, saying she had been looking into Perez’s case — and found it deeply flawed.

Perez was charged with murder after she delivered a stillborn baby at a hospital in California’s Central Valley, with authorities alleging methamphetamine use while pregnant was responsible. Faced with the possibility of life in prison, Perez accepted a plea deal, lost an appeal and busied herself adjusting to the rhythms of time behind bars.

But to McNamara, the law in California was clear: A woman cannot be convicted of killing her unborn child, and no woman before Perez had been sent to prison in such a case.

The 32-year-old inmate is now at the center of a high-stakes legal fight between a team of lawyers headed by McNamara and a district attorney who believes Perez and others like her are criminals. If the prosecutor prevails, women’s rights advocates say, it will open the door to charges against any woman who suffers a miscarriage or stillbirth.

Before Perez’s arrest, it was settled law in California that women could not be prosecuted for killing their fetuses.

In 1970, after California’s Supreme Court overturned the murder conviction of a man who beat his pregnant wife and killed her unborn child, legislators changed the state’s homicide law to make it possible to charge someone for the death of a fetus.

But a section in the law states it does not apply to acts “solicited, aided, abetted, or consented to by the mother of the fetus,” and attempts to convict women of killing their unborn children have been knocked down. In one of the more extreme tests of the law, a municipal court judge in Santa Barbara ruled in 1973 that a woman who ended her pregnancy by shooting herself in the stomach could not be tried for murder. (The woman, Claudia Tucker, pleaded guilty to performing an illegal abortion and was sentenced to probation.)

And over the span of a few years in the 1990s, prosecutors in three counties brought murder charges against women who were accused of killing their unborn children with drug use. In each case, the charges were thrown out or withdrawn.

“There have been no cases,” McNamara said, “where any woman has been successfully prosecuted in California as a result of her pregnancy outcome.”

Until Perez. In her case, Kings County Dist. Atty. Keith Fagundes found a chance to challenge what he believed had been decades of improper rulings.

“It flies in the face of logic,” he said, “that if the father of a fetus can kill a fetus, why can’t the mother of a fetus be responsible for killing a fetus?”

Fagundes said he believed the exception for pregnant women written into the murder statute applies only to women who seek legal abortions. McNamara said the language clearly includes exceptions for abortions as well as for acts performed by pregnant women.

“That law did not go into effect to protect the mother of the fetus at all,” Fagundes continued. “It went into effect to protect the fetus and give the fetus rights.”

If allowed to stand, that interpretation would mark a profound shift in the law, McNamara and others say.

“Expanding the law to criminalize pregnancy outcomes opens the door for women to be charged with murder for any behavior that could potentially harm their pregnancy,” said attorney Jennifer Chou of the ACLU of Northern California, “including things like jaywalking and working a physically demanding job.”

Perez grew up in Hanford, Calif., an old railroad town south of Fresno. Her childhood was short. She said she was molested repeatedly by a family friend and became pregnant by another man at 14. By 16, she was smoking meth.

At 21, she met the man who would become the father of eight of her children. He beat her brutally throughout each of those pregnancies, said an aunt, Sabrina Perez, who helped raise her.

“In her head she felt she deserved it,” her aunt said, “that he was teaching her how to grow up, because he’s older than her.”

Perez tried to break the hold of her addiction many times, including during her most recent pregnancy, when she moved back in with her aunt and managed to stay clean for nearly three months, her aunt said.

But her success was undercut by the boyfriend, the aunt said. He talked her into renting a hotel room, where her tenuous grip on sobriety slipped.

Sabrina Perez closes her eyes and leans her forehead on her hand.

Perez delivered her stillborn son, Hades, at Adventist Health Hanford the night of Dec. 30, 2017. A test came back positive for methamphetamine and a doctor told investigators he believed the drug use had caused the death, court records show. Officers arrested her in the hospital’s birthing center two days later.

She struggles to find the words to describe the loss, but says she’s not a murderer.

“I didn’t mean to intentionally hurt my child,” Perez said. “You don’t know what it’s like to be on drugs unless you’ve been on drugs.”

Tina Perez holds a photo of daughter Adora Perez while sitting next to Adora's aunt Sabrina Perez in Sabrina's home.

Perez had been sitting in jail for about three months when prosecutors offered her a deal: The murder charge would be dropped if she pleaded no contest to voluntary manslaughter — a lesser crime that carries a sentence of three to 11 years.

They presented the agreement as a way for Perez to avoid spending the rest of her life in prison. And Perez says her attorneys didn’t tell her about the glaring problem with the deal: that the state’s laws don’t include a provision for a woman to be charged with killing her fetus.

“They made it sound like they were getting me a sweet deal,” she said.

Perez took the plea bargain, but almost immediately regretted it.

“I realized, ‘Oh my God, I just pleaded guilty without pleading guilty,’” she said, referring to the no-contest plea, which is tantamount to a conviction.

She and her family scraped together several thousand dollars to hire a private attorney in an attempt to withdraw the agreement, but Kings County Superior Court Judge Robert Burns refused to allow it. Instead, in June 2018, he sentenced Perez to the maximum time behind bars.

There was no money left to pay a lawyer to pursue an appeal. A court-appointed attorney took the case, but failed to raise any specific legal challenges, said McNamara, who now is representing Perez.

When an appeals court upheld Perez’s plea in March 2019, her case seemed shut for good.

Then another Kings County woman was arrested.

The similarities were striking: Chelsea Becker also grew up in Hanford, struggled with methamphetamine addiction, and delivered a stillborn at Adventist Health nearly two years after Perez. Hospital staff called authorities. In November 2019, Fagundes charged her with murder.

She was appointed the same public defender as Perez and appeared before the same judge. Unable to make the $2-million bail the judge imposed, Becker is in Kings County Jail.

A woman's hands hold a cellphone with the image of a young woman with baby footprints tattooed on her chest.

But unlike Perez’s case, Becker’s arrest received attention. Her tear-streaked mugshot ran in newspapers and on national news broadcasts alongside stories that largely did not question the charges against her.

The publicity made lawyers aware of Becker, and a team backed by National Advocates for Pregnant Women took on her case. Several women’s rights groups and medical associations signed on to a legal brief calling for her prosecution to be dropped.

Attorneys discovered Perez when a Los Angeles Times reporter, while writing about Becker, came across the case and asked lawyers at the ACLU about the validity of Perez’s conviction.

McNamara was asked to look into Perez’s case, and it didn’t take long for her to become convinced that the charges, the plea deal and the legal advice Perez received had all been faulty. In the phone call to Perez in prison, she offered to take on her case at no charge.

“I’m hoping that, in the end, I do get to go home,” Perez said. “And when I do go home, I am going to seek rehab.”

For the last three months, she’s been going through a treatment program, she said, and she feels like the haze that years of trauma and drug use cast over her mind is finally clearing.

“I used to check in and check out whenever I wanted to,” she said. “And now ... I can’t check in or check out because I’m behind walls. I want to be with my kids so bad.”

McNamara and attorneys assisting her have asked the appeals court to reopen the case.

They’ve found a powerful ally in California Atty. Gen. Xavier Becerra. Although the attorney general typically fights alongside county district attorneys to uphold convictions, Becerra is trying to undo Fagundes’ work. He has said he supports Perez’s release, and wrote in a court filing that he would not oppose the effort to reopen her appeal.

“We will continue to work to see our laws properly applied in order to end Ms. Becker and Ms. Perez’s imprisonments and protect women from similar prosecution in the future,” Becerra said in a statement.

In backing efforts to win Becker’s release, Becerra wrote in a court filing that the charges are based on a misinterpretation of the law, and urged the judge to dismiss the case. More recently, Becerra issued a call for the state Supreme Court to intervene. The court has until Christmas to decide whether to weigh in.

The involvement by the state’s top prosecutor has rankled Fagundes.

“He is encouraging women to abuse their fetuses, and the next step from there is they’ll abuse their children once they’re born,” Fagundes said. “Because it appears there’s no limit to what people like Xavier Becerra will allow.”

It’s part of what the district attorney describes as a larger problem of “liberal California politics” and advocacy groups that he says prioritize political agendas over human life.

“Through this process, I’ve seen scores of people coming to the aid of women who overdose their babies, but no one is coming to give a voice to this healthy fetus,” he said, referring to Perez’s stillborn son.

If lawyers for the women agree with Fagundes about anything, it is that the stakes are high.

“Unless we win these cases, this is going to continue,” McNamara said. “And that’s a thought that just keeps me up at night.”