Charged With Murder For Allegedly Attempting to Terminate Her Own Pregnancy

Criminal defense lawyers sometimes joke that a prosecutor can get a grand jury to indict a ham sandwich.  A grand jury in a south Texas county did more than that:  It indicted a woman for a crime that did not exist.

The case began in early January of this year, when 26-year-old Lizelle Herrera (above right) went to a hospital, where she had a miscarriage.  Hospital staff, apparently based on something Herrera said, believed that she had tried to induce an abortion.  They called the Starr County sheriff.

The sheriff's office in turn called the district attorney, who submitted the case to a grand jury.  On March 30, nearly 3 months after Herrera had gone to the hospital, the grand jury issued an indictment charging her with murder.

The indictment alleged that Herrera "intentionally and knowingly cause[d] the death of an individual" by a "self-induced abortion."  However, the grand jury, or rather the prosecutor guiding it, must not have read the homicide statute very carefully.  It specifically states that it "does not apply to the death of an unborn child if the conduct charged is. . .conduct committed by the mother of the unborn child."

Herrera spent 2 nights in jail before being released on a $500,000 bond.  District Attorney Gocha Allen Ramirez (above left) later issued a statement that he would be filing a motion to dismiss the indictment:  "In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted."  He did.

Reportedly, Ramirez did write in a message to an acquaintance that he was sorry:  "I assure you, I never meant to hurt this young lady."

Considering the anti-abortion legislation which Texas recently enacted, it would seem logical to assume that prosecuting Herrera was part of that crusade. Some lawyers have called the indictment "gross negligence." 

Ramirez is a Democrat in a heavily Democratic county.  A local Republic politician believes that indicting Herrera simply was a mistake:  "I just think his office failed in doing their work."  The politician, Ross Barrera, added, "I would put my hand on the Bible and say this was not a political statement."

However, there are reasons to doubt that conclusion.  Starr County has many Hispanic voters who do favor Democrats, but they are also Catholic and tend to be against abortion.  Additionally, the district attorney's news release announcing that Herrera would not be prosecuted included the following:

Although with this dismissal Ms. Herrera will not face prosecution for this incident, it is clear to me that the events leading up to this indictment have taken a toll on Ms. Herrera and her family.  To ignore this fact would be shortsighted.

Note that the district attorney did not say that the arrest and indictment had taken a toll but rather that the events leading up to the indictment had taken a toll.   The district attorney's statement continued:
 

The issues surrounding the matter are clearly contentious, however, based on Texas law and the facts presented, it is not a criminal matter.

It is almost as if the district attorney was hinting that he would like to apologize for not prosecuting Herrera.  But he should apologize - publicly - to Herrera, for adding more pain to an already painful situation.

A Family In Crisis

 Herrera and her husband married in 2015, when she was 19.  They have two children and were expecting a third when her husband left her in early January 2022.  A week later she allegedly tried to terminate her pregnancy.

On the day Herrera was arrested her husband filed for divorce.  One of the assistant DAs in Ramirez' office is representing him in the divorce proceeding.

Texas law allows these prosecutors to have a civil practice on the side.  But it's fair to ask whether the prosecutor representing the husband had anything to do with the grand jury's decision to indict.  The timing smells fishy.

Game wardens have gone high tech, attaching surveillance cameras to trees to catch conservation law violators.  But in Tennessee, the conservation officers were hiding them in trees on private property, and without telling the property owners.  Telling them would spoil their plan.

Tennessee prohibits hunters from using bait to attract game.  If the conservation officers suspect someone is doing that on his farm, they want to sneak a camera onto the property and catch him in the act.

State law gives designated officers of the Tennessee Wildlife Resources Agency the authority to "go upon any property, outside of buildings, posted or otherwise," in the performance of their duties.  As long as they stay outdoors, away from buildings, they don't need a search warrant.

Thus, they don't have to explain to an independent official why they want to go on someone's property, or what they expect to find there.  They don't have to convince the official that they have good reasons for what they want to do.  They just do it.

Hunter Hollingsworth has a 92.5 acre farm, most of which is in Benton County, Tennessee.  At the entrance, he has posted a "no trespassing" sign on a chained gate.  He doesn't live on the farm but goes there to hunt, fish and camp, sometimes inviting friends along.

On one visit to the property in 2018, Hollingsworth found a camera attached high on a tree.  Several weeks later, half a dozen armed men, wearing bulletproof vests, showed up at his home.  It was early in the day, before Hollingsworth and his girlfriend, who lives with him, were fully dressed.

The agents arrested Hollingsworth on six counts of illegally hunting waterfowl, including by baiting.  They also charged him, and his girlfriend, with stealing the surveillance camera.

Hollingsworth denies that he broke the law, but he entered into a plea bargain to keep his girlfriend from being prosecuted.  He entered a guilty plea to one count of wildlife baiting, and all the other charges were dropped.

Later, Hollingsworth and a neighbor, Terry Rainwaters, sued the TWRA.  They obtained videos which conservation officers had made while they were on the private property.  The officers had shot some of that footage while hiding behind bushes and watching Hollingsworth hunt.

The TWRA raised the defense that its officers were acting on behalf of a federal agency, the U. S. Fish & Wildlife Service, but the plaintiffs countered that the officers were also enforcing state law.  The court implicitly rejected the defense.

The Fourth Amendment to the U. S. Constitution - prohibiting unreasonable searches and seizures - does not help the property owners.  The amendment protects the "right of the people to be secure in their persons, houses, papers, and effects" but an open field does not fit any of those categories.  It's not a person, house, paper, or effect, and the Supreme Court has held that there's no expectation of privacy in an open field.

Fortunately, the Tennessee State Constitution offers greater protection.  Article I, Section 7 protects the "right of people to be secure in their persons, houses, papers and possessions."  At least some farmland would seem to meet the definition of "possession," particularly if the owner did something to occupy it or exercise "dominion" over it.

Lawyers, who have great fun splitting hairs, can argue tirelessly about exactly what it means to "occupy" or "exercise dominion over" a piece of land.  The Tennessee Supreme Court has held, in effect, that "wild or waste lands" are not someone's "possessions" protected from unreasonable search, but other land is protected.

Along with local counsel, lawyers from the Institute for Justice, a non-profit civil rights law firm, represented Hollingsworth and Rainwaters in their suit against the TWRA.  These attorneys won an impressive victory.  They persuaded the court to hold that the statute granting TWRA officers access to private property was unconstitutional on its face, and they did so on a motion for summary judgment.

The court likened this law to a "general warrant," allowing government officers to conduct searches even when there is no evidence that a crime has been committed.  The Tennessee constitution condemns general warrants as "dangerous to liberty."

Although the TWRA may decide to appeal, the court's 35-page decision carefully discusses and applies the existing legal precedents.  For now, its holding that the statute was unconstitutional applies throughout the state.

One of the Institute for Justice's attorneys, Joshua Windham, said that the court's decision was "going to have a really huge impact on landowners in Tennessee."  Because of the court's ruling, Windham said, "Tennesseans can now rest easy knowing that they're secure from these sorts of intrusions on their land."

 

Photos: Institute for Justice