Lawyers seek dismissal of murder charge involving unborn baby |

Lawyers seek dismissal of murder charge involving unborn baby


YERINGTON, Nev. (AP) – A woman accused of carving her niece’s unborn baby out of her womb – killing mother and child – cannot be charged with murder in the infant’s death because there’s no proof the baby was born alive, her lawyers claim.

Erin Rae Kuhn, 31, a former Sacramento, Calif., emergency room technician, is charged with two counts of murder for killing Kathaleena Draper, 17, and Draper’s baby boy last June at the Lazy Inn motel in Fernley.

She faces a possible death sentence if convicted.

Her lawyers, Michael Roeser of Zephyr Cove and Tod Young of Minden, argue in a motion that there’s no proof the baby boy was born alive – an element needed to establish a murder charge under Nevada law.

”Unlike California, Nevada’s definition of murder does not include a fetus,” said the motion, filed last week in Third Judicial District Court in Yerington.

Under common law recognized in Nevada, ”a human being does not exist unless that person is born alive,” the lawyers wrote.

The motion seeks to have the murder charge involving the baby dismissed. It argues prosecutors can only speculate on how the baby died and they failed to establish sufficient evidence during a preliminary hearing last year.

The lawyers are not challenging the probable cause for the murder charge in Draper’s death.

Lyon County District Attorney Leon Aberasturi has about three weeks to respond to the defense motion. District Judge Archie Blake will hear oral arguments July 16.

Authorities say Draper had gone from Las Vegas to live with Kuhn in Sacramento and intended for Kuhn to adopt the baby when it was born. But Draper reportedly decided to keep the child and Kuhn was returning her niece to Las Vegas when they stopped in Fernley.

Draper’s body was found wrapped in a blue shower curtain near Sacramento on June 17, 2000. After her arrest, Kuhn led authorities to the spot along U.S. 95 Alternate south of Fernley, where the baby’s body was found in a garbage bag.

Medical experts said Draper died of asphyxiation after a rubber glove was stuffed down her throat.

The baby’s cause of death was not determined, but experts said it was healthy and would have survived a normal delivery.

Roeser and Young, however, argue that does not constitute grounds for murder.

”The Nevada murder statute is restricted to human beings as defined under the common law,” the motion said. ”The question is not whether the baby was viable.”

The motion also noted the testimony of Dr. James Brode, Draper’s obstetrician in Sacramento. Because Draper didn’t receive regular prenatal care, Brode said his estimation on her length of pregnancy when he last saw her June 12, 2000 could vary by 10 days.

Defense lawyers argue if conception occurred 10 days later than estimated, ”the baby would have been considered premature” if it had been born when the killings allegedly occurred.

The motion further referenced testimony by Dr. Ellen Clark, who performed the autopsy on the infant and concluded there was ”insufficient evidence” to conclude the baby was born alive.

Clark said any evidence of life after birth were ”indistinguishable” because of the effects of decomposition.

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