US ex rel. Ford v. Ahitow

• Decision Date: 02 June 1995
• Docket Number: No. 94-2126.,94-2126.
• Citation: 888 F. Supp. 909
• Parties: UNITED STATES ex rel., Robert FORD, Petitioner, v. Rodney J. AHITOW, et al., Respondents.
• Court: U.S. District Court — Central District of Illinois

888 F. Supp. 909

UNITED STATES ex rel., Robert FORD, Petitioner, v. Rodney J. AHITOW, et al., Respondents.

No. 94-2126.

United States District Court, C.D. Illinois, Danville/Urbana Division.

June 2, 1995.

Robert Ford, Jr., Illinois River Correctional Center, Canton, IL, pro se.

Karen Alice Kloppe, Atty. Gen., Springfield, IL, for respondents.

ORDER

BAKER, Senior District Judge.

I.

Robert Ford, the petitioner, is a prisoner in the Illinois Department of Corrections and has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. At this time, the court grants the petition and orders the writ. This court finds that Ford is in "custody in violation of the Constitution ... of the United States." 28 U.S.C. § 2254(a). Specifically, the state failed to prove the petitioner guilty beyond a reasonable doubt, and therefore the petitioner's incarceration violates due process.

The Supreme Court has very recently restated that "issuance of the writ will, at least often, avoid a grievous wrong—holding a person in custody in violation of the Constitution of the United States." O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 993, 130 L.Ed.2d 947 (1995). The federal courts' habeas power "protects individuals from unconstitutional convictions and helps to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair." Id.

In July, 1990, Ford was convicted of intentional homicide of an unborn child¹ in the Circuit Court of Champaign County, Illinois, Sixth Judicial Circuit. He was sentenced to twenty years in prison. Ford was convicted after a bench trial. The bench trial included both occurrence and medical testimony.

Ford appealed his conviction. Ford's appeal was two pronged—he claimed that the Illinois feticide statute violated the equal protection and due process provisions of the United States Constitution, and he claimed his conviction under that statute violated due process. The Illinois Appellate Court, Fourth District, affirmed his conviction. People v. Ford, 221 Ill.App.3d 354, 163 Ill. Dec. 766, 581 N.E.2d 1189 (1991).

The appellate court held that the Illinois feticide statute does not violate equal protection even though it fails to distinguish between a viable and nonviable fetus. People v. Ford, 163 Ill.Dec. at 776-777, 581 N.E.2d at 1199-1200. The appellate court also held that Ford lacked standing to challenge the statutory definition of "unborn child" as unconstitutionally vague.² 163 Ill.Dec. at 778, 581 N.E.2d at 1201. The appellate court also held that the evidence was sufficient to support a finding of guilt beyond a reasonable doubt, and therefore the conviction did not violate due process. Id.

Ford renewed each of his constitutional claims in his petition for leave to appeal before the Illinois Supreme Court. Leave to appeal was denied. People v. Ford, 221 Ill. App.3d 354, 163 Ill.Dec. 766, 581 N.E.2d 1189 (1992).

Next, Ford filed a petition for a writ of habeas corpus in this court on May 18, 1994. Under 28 U.S.C. 2254, before a federal court can consider a petition for habeas corpus, it must determine that the petitioner is in custody pursuant to the judgment of a state court, and that the petitioner has exhausted all available state remedies. On May 26, 1994 this court recognized that the petitioner, Ford, was in custody pursuant to a state court judgment, and that he had raised constitutional claims. Under Habeas Rule 5, this court ordered the respondents to answer the petition, specifying that the respondents were to address whether the petitioner had exhausted state remedies, and additionally to address the substance of the petitioner's constitutional claims. The respondents filed an answer stating that the petitioner had exhausted all state remedies, and arguing against all of the petitioner's constitutional claims.

The court now addresses the petitioner's substantive claim that his constitutional rights have been violated by his state court conviction and subsequent incarceration.

II.

During the relevant time period, Ford lived with his wife Mary Marion and her two daughters, Gwendalyn and Karonda. Karonda was confirmed pregnant in August, 1989. During a prenatal visit to the Francis Nelson Community Health Center on August 11, 1989, Dr. Camilla Parham determined that Karonda's fetus was approximately 20 weeks old. Dr. Parham found Karonda to be moderately anemic, typical in teen pregnancies, but otherwise the pregnancy was normal. Dr. Parham put Karonda on prenatal vitamins and an iron supplement. Karonda stopped taking the vitamins because she thought they made her sick.

The Robert Ford/Mary Marion household was often troubled by drunkenness and violence. The animosity between Ford and Karonda Marion seems to have been particularly acute. Two incidents stand out: August 17, 1989 and September 17, 1989.³

August 17, 1989 was Karonda's seventeenth birthday. Karonda's uncle, Arthur Lyn Fuller, was visiting. Ford had been drinking. He came into the house, saw Fuller eating at the kitchen table, and started yelling "get the fuck out of my house." Fuller and Ford were yelling back and forth. Karonda was defending Fuller and yelling at Ford. Ford left the room and returned holding a pool cue, he thumped the pool cue on the palm of his hand. Ford threatened Karonda and her fetus. (Ford yelled that he would knock the bastard out of her stomach.) Karonda got a knife out of the kitchen drawer. Ford left the house. Karonda followed him outside with a knife in her hand. Ford "body slammed" Karonda, or lifted her up in the air and threw her down onto the ground. He got the knife out of her hand and threw it. Ford was pulled off of Karonda by Fuller and/or Gwendalyn. Outsiders intervened and stopped the fight.

Karonda testified that she didn't suffer any abdominal pain or vaginal discharge or bleeding subsequent to the August 17 fight with Ford. She did not receive any prenatal medical care at that time or at any time following. Karonda testified that she felt the fetus kick between August 17 and September 17.

At approximately 6:00 p.m., on September 17, 1989, Karonda and Ford fought again. There were a number of friends and family members present at the time. Ford came into the house drunk and yelled at his wife Mary. He threw Mary's medication into the garbage, and Mary retrieved it. He burned Mary with a cigarette. Mary yelled "ouch." At this point, Karonda entered the room.

Karonda intervened between her mother and Ford. Both Karonda and Ford were yelling. Ford threatened to kick the bastard out of Karonda's stomach. Ford and Karonda fought. Accounts differ as to the precise chronology of the fight, but there is a consensus that Ford kicked Karonda hard in the stomach, a number of times, and Karonda stabbed Ford. Ford was wearing black combat boots when he kicked Karonda. Karonda used a steak knife to stab Ford.

Bleeding, Ford left the house, but he returned minutes later carrying a bumper jack. Mary Marion tried to keep Ford out of the house, but he entered through a side door. He hit the stove with the bumper jack. Karonda got a different knife, and said she intended to kill Ford. When the police arrived Karonda and Ford were outside in different places. The police ordered ambulances for both. Ford was bleeding from his stab wound. Karonda felt pain in her stomach.

The ambulance paramedics found a cut on Karonda's wrist and bandaged it. Inside the ambulance on the way to the hospital, a paramedic tried to find the fetal heartbeat with a stethoscope, but could not find it. The paramedic tried approximately five different stethoscope readings, but couldn't find the fetal heartbeat. He did locate Karonda's maternal heartbeat. During this time, Karonda felt some pain, but it was not severe. There were no bruises or contusions on Karonda's abdomen.

In the hospital emergency room, Karonda's abdominal pain was minimal. The emergency room physician, Dr. Dubrick, examined Karonda for signs of trauma, but found none. Karonda was not experiencing vaginal bleeding, nausea or vomiting. After this brief initial screening exam, Dr. Dubrick left to attend to other patients.

After Dr. Dubrick left, a nurse used a Doppler device and located a fetal heartbeat; a second nurse confirmed the Doppler reading. Dr. Dubrick returned and did a more thorough examination. During the trial Dr. Dubrick testified that it is unusual for a nurse to call a second nurse to confirm a Doppler reading. The more typical practice is for a nurse to call a doctor to confirm the reading. Dr. Dubrick also testified that Doppler readings can erroneously report a fetal heartbeat when there is actually no such heartbeat.

Dr. Dubrick thought Karonda and her fetus were probably fine. He conferred with the obstetrician on call, Dr. Trupin. Dr. Trupin recommended a sonogram, just to be absolutely sure that the fetus was okay. Dr. Fernandez, a diagnostic radiologist, performed an ultrasound/sonogram on Karonda at about 8:00 p.m. on September 17, 1989. The sonogram showed Karonda's fetus was dead. Two days later, on September 19, 1989, nurse Irene Ayre delivered the dead fetus and the placenta. The dead fetus was macerated with peeling skin.

When the sonogram showed the fetus to be dead, Dr. Dubrick was notified. He was surprised, and immediately went to view the sonogram himself. He looked at the ultrasound pictures as they were being taken. Dr. Dubrick testified that in his opinion, the Doppler finding of a fetal heartbeat was erroneous. Dr. Dubrick testified that the sonogram showed a fetus that had been dead for some time. Specifically the sonogram showed overlapping skull bones and edema of the abdominal wall and torso. Dr. Dubrick asserts that these things "could not have developed instantly." Additionally, a very broken down, macerated fetus was delivered two days later. Dr. Dubrick testified that these known facts led him to the conclusion that the Doppler...