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November 5, 1976

Jesse KETCHUM, M.D., Petitioner,
Benjamin WARD, Commissioner of the Department of Correctional Services of the State of New York, et al., Respondents

The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 This is an application for a writ of habeas corpus by the petitioner, Dr. Jesse Ketchum, who was convicted of criminally negligent homicide on October 26, 1973, in Erie County Supreme Court, as a result of the death of a patient upon whom he had performed an abortion. *fn1" The conviction was affirmed without opinion by the Supreme Court, Appellate Division, Fourth Department. People v. Ketchum, 45 App.Div.2d 820, 358 N.Y.S.2d 353 (4th Dept. 1974). That order was affirmed by the New York Court of Appeals. People v. Ketchum, 35 N.Y.2d 740, 361 N.Y.S.2d 911, 320 N.E.2d 645 (1975). Application for a writ of certiorari was denied by the United States Supreme Court on February 18, 1975, 420 U.S. 928, 95 S. Ct. 1127, 43 L. Ed. 2d 399 (1975).

 The petitioner argues that his conviction should be reversed for nine different reasons. [Amended Petition, paras. 46(A)-(I)]. *fn2" In a footnote, the petitioner indicates that he does not wish to argue five grounds in this action, *fn3" and the respondent properly points out that these arguments or their "substantial [equivalents]" have never been raised in state courts. Picard v. Connor, 404 U.S. 270, 275, 277, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); 28 U.S.C. § 2254(b).

 The circumstances that gave rise to this prosecution can be outlined in the following manner. Margaret Louise Smith, a twenty-five year old Michigan woman who had been advised of the possibility of having been exposed to rubella in the earlier stages of her pregnancy, traveled to Buffalo, New York for the purpose of obtaining an abortion. Billy Ray Ellenburg, her companion for over a year and a half, accompanied her to Buffalo. On June 16, 1971, Ellenburg and Mrs. Smith arrived at the petitioner's office at 9:30 a.m. Ellenburg left almost immediately and the surgical procedure was performed at approximately 10:30 a.m. Mr. Ellenburg returned for thirty to forty minutes at noon and again at two o'clock. Mrs. Smith was pale and had a difficult time breathing on both of his visits. Upon his second visit, he urged the office personnel to check Mrs. Smith and Dr. Ketchum summoned a rescue squad, which attempted to resuscitate Mrs. Smith when they found there were no life signs. She was taken across the street to the hospital, where she was pronounced dead on arrival. A pathologist who performed the autopsy concluded that the cause of death was hemorrhaging from the tear in the uterus and cervix.

 The petitioner admitted to the Erie County Medical Examiner that he had performed a vaginal hysterotomy, which consists of an incision in the cervix and manual extraction of the fetus. There was testimony at the trial from doctors that vaginal hysterotomy was not a commonly used method of abortion, especially at the stage of pregnancy that the victim had reached, was somewhat dangerous and more properly considered major medical procedure of the type normally performed only in a hospital. The petitioner offered a witness who, after reviewing photographs of the victim's uterus, concluded that a vaginal hysterotomy had not been performed, and another defense witness testified that an amniotic fluid embolism coupled with pulmonary disease and hemorrhaging were the possible causes of the death of the victim. An amniotic fluid embolism occurs when the waterlike fluid surrounding the fetus and particles in it enter the circulatory system and cause obstruction of the blood flow (embolism), which can be fatal by restricting blood loss able to coagulate. The pathologist who performed the autopsy testified that he examined all the sections of the victim's lungs and did not find any evidence of amniotic fluid.

 Testimony from Mr. Ellenburg and a receptionist employed by the petitioner indicated that the post-operative care provided to Mrs. Smith was minimal and that no one of the petitioner's staff even entered the room for the forty-five minutes to one hour that Mr. Ellenburg was with Mrs. Smith. Even the defense witnesses indicated that periodic checks (i.e., at fifteen to thirty minutes intervals) of the patient's appearance, vital signs, breathing, blood pressure and pulse are normal aftercare.

 This is a partial explication of the evidence that was before the jury. Other significant portions of the testimony will be described when relevant.

 The petitioner argues that the criminally negligent homicide statute [NYPL § 125.10], as invoked in a surgical death case involving a legal abortion in 1971, was unconstitutionally applied to his case because the statutory language, legislative history and case law provided no notice of preexisting standards, elements of the offense charged, or acts or omissions said to be illegal, but allowed the prosecutor, judge and jury to adopt whatever theories they should choose according to the developments of the testimony. The respondent contends that these arguments based upon the due process requirement of fair advance warning of proscribed conduct, although presented to the state trial and appellate courts, were not decided by the state courts. The respondent concludes that the failure to decide the constitutional issues on the merits precludes this court from considering them. However, the respondent argues too much. It is agreed that the petitioner has challenged the constitutionality of the statute as applied. The failure of the state courts to use more than a few short sentences in denying the petitioner relief does not preclude this court from proceeding to the merits of these arguments, which were properly presented in state courts. Picard v. Connor, supra; see Peyton v. Rowe, 391 U.S. 54, 56 & n. 2, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968); 28 U.S.C. § 2554(b). The petitioner also argues that prosecutorial misconduct at trial was so great that it violated his right to a fair trial.

 The indictment accused Dr. Ketchum in this manner:

Criminally Negligent Homicide, in that he, the said JESSE KETCHUM, on or about the 16th day of June, 1971, in the County, with criminal negligence, caused the death of Margaret Louise Smith by his choice of a surgical procedure, to wit: a vaginal hysterotomy, under all the circumstances of this case and by failing to care for and provide for her proper medical care, after that procedure was utilized. People v. Ketchum, supra, Record on Appeal [hereinafter R.], Vol. I at 5.

 The statute, NYPL § 125.10, enacted in 1967, which makes an act criminal when one "fails to perceive a substantial and unjustifiable risk," must, as the commentary indicates, be considered "at least partially new." NYPL § 125.10 Practice Commentary (McKinney 1975). The 1909 Penal Law defined criminal negligence, used interchangeably with the term "culpably negligent," as ". . . any unlawful, negligent or reckless act . . . ." NYPL § 1052(3) (1909) (emphasis added). However, the New York Court of Appeals construed that to mean a "disregard of the consequences which may ensue from the act, and indifference to the rights of others." People v. Angelo, 246 N.Y. 451, 457, 159 N.E. 394, 396 (1927) (emphasis added). While the words of the statute indicate that "negligent" acts could be indictable, the court imparted the requirement that the actor be aware that his action might produce harm, i.e., "disregard of the consequences." The harshness of punishing negligent conduct was ameliorated by requiring the conduct to approach "recklessness" before criminal sanctions be imposed. People v. Waxman, 232 App.Div. 90, 249 N.Y.S. 180 (1st Dept. 1931); Note, 16 Buff.L.Rev. 749, 753 (1967). In 1936, the negligent homicide statute was amended to add the vehicular homicide law. Former NYPL § 1053-a (1909). The terminology of § 1052 seemingly placing liability on an alternative basis ("reckless or culpably negligent") was repeated in § 1053-a. Again, however, the courts made "reckless" conduct the minimal basis for liability. See People v. Decina, 2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E.2d 799 (1956); People v. Gardner, 255 App.Div. 683, 8 N.Y.S.2d 917 (4th Dept. 1939). However, in 1967, the new Penal Code made such judicial construction impossible by placing reckless homicide and negligent homicide in different statutory sections. Cf. NYPL §§ 15.05(3), (4), 125.05, 125.10. Such a bold modification in the law has not gone without academic and judicial comment. See People v. Buffington, 61 Misc.2d 429, 304 N.Y.S.2d 746 (Monroe County Court, 1969); Hall, Negligent Behavior Should Be Excluded From Penal Liability, 63 Col.L.Rev. 632 (1963); Note, 16 Buff.L.Rev. 749, 753 (1967). While there are academic and theoretical difficulties not of constitutional proportions with making less than reckless conduct punishable, the petitioner's challenge rests upon constitutional grounds.

 The problem is that negligence, by definition less than intentional conduct, is usually a question for the jury. *fn4" The petitioner argues that the terms of the statute are vague and that leaving this determination to the jury results in criminal sanctions being applied with inadequate notice. In addition, he argues that the possibility of such a post hoc deliberation leaves the court, and the defense attorney, without adequate guidelines for trial purposes. Thirdly, the petitioner argues that since there were no statutory guidelines or standards codified in the area of abortions performed in offices, the jury could not find that his conduct was a gross deviation from a non-existent standard.

 To buttress this last point, the petitioner contends that the Supreme Court decisions in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973) [applied retroactively in light of United States ex rel. Williams v. Preiser, 497 F.2d 337 (2d Cir. 1974), cert. den., 419 U.S. 1058, 95 S. Ct. 642, 42 L. Ed. 2d 655 (1974)], established abortion as a "presumptively privileged" act and, as a result, the state could not, and did not, establish such standards. He argues that prosecution of him in this privileged area is therefore precluded. As extensive as the Roe and Doe decisions were, the Supreme Court did not establish the patient's right to privacy and the physician's right to practice to such an expansive degree that all state regulation of the abortion decision and its performance is precluded. In Roe, the Court ruled that up to the end of the first trimester of pregnancy, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." Roe v. Wade, supra at 164, 93 S. Ct. 705. However, the Court continued and noted:

Up to those points [the end of the first and second trimesters of pregnancy], the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. Id. at 166, 93 S. Ct. at 733.

 Further, the petitioner cites Doe for the contention that criminal prosecution of a doctor is precluded since, if a physician is licensed by a state, "he is recognized by the State as capable of exercising acceptable clinical judgment." Doe v. Bolton, supra at 199, 93 S. Ct. at 751. However, that language was in response to the Georgia statute's requirement that the decision of the pregnant woman's physician that an abortion was necessary had to be confirmed by two other Georgia-licensed physicians. Id. The language must be read to mean that the state's licensing of a doctor leads only to the presumption that he is capable of exercising "acceptable clinical judgment" in deciding whether an abortion is necessary.

 The petitioner contends that "Federal constitutional law today is that at least first trimester abortions are so safe as to be constitutionally protected in the physician's office or clinic." (Brief at 37). While it is arguable that this is a correct statement of the law, this court need not decide whether it is. All the testimony at trial as to the length of the victim's pregnancy (with the exception of Dr. Vuitch, who estimated the period from photos of the uterus) was to the effect that the period of gestation was fifteen weeks or more -- well into the second trimester. *fn5" The petitioner himself told a police officer who questioned him on the scene that the victim was eighteen weeks pregnant. (R., Vol. II at 221). The court rules that the abortion took place in the second trimester of pregnancy. Even making Roe and Doe fully retroactive does not support the petitioner's argument that he was engaged in a constitutionally protected area immune from prosecution for his acts. The Supreme Court summarized the matter in this fashion:

For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Roe v. Wade, supra at 164, 93 S. Ct. at 732.

 The Court recognized the state's legitimate interest in protecting the mother in second trimester abortions and the prosecution of Dr. Ketchum was proper under Roe v. Wade, supra.

 In 1974 the Second Circuit Court of Appeals invalidated a 1966 conviction of a New York physician for abortion manslaughter under former Penal Law § 1050. There the court recognized in dicta that physicians were not necessarily completely free from criminal liability for even first trimester abortions (the victim was in her second month of pregnancy). United States ex rel. Williams v. Preiser, supra at 337. The court ruled:

If licensed physicians have a constitutional right to perform non-negligent, consensual abortions without fear of prosecution, Dr. Williams cannot remain deprived of liberty for having done so. United States ex rel. Williams v. Preiser, supra at 339. (Emphasis added).

 In the Williams case, a medical examiner testified that the operation was perfectly performed and, although the doctor did not call an ambulance until hours after the death, the state had "not shown that negligence in this respect prevented the patient from being resuscitated." *fn6" Id. at 338.

 The petitioner's argument that this court should apply a stricter standard of review in this allegedly privileged area cannot be accepted, for that standard is restricted for statutes which involve first amendment freedoms and is inappropriate here. United States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975); Smith v. Goguen, 415 U.S. 566, 573, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); see United States v. Dennis, 183 F.2d 201, 215 (2d Cir. 1950).

 The petitioner argues that the statute under which he was prosecuted and convicted is so vague and so lacking in definition that it fails to specify what conduct it prohibits and is violative of the due process clause. The repeatedly quoted phrase that characterizes this argument is:

[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essentials of due process of law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926).

 But this ruling is somewhat tempered in application, as the Court said there:

. . . the decisions of the court upholding statutes as sufficiently certain [in other cases], rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them . . . or a well-settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ.
Id. at 391, 46 S. Ct. at 127 (citations omitted).

 No doubt the terms of the statute (e.g., "negligence," "fails to perceive a substantial and unjustifiable risk," "a gross deviation from the standard of care that a reasonable person would observe") have a wealth of common law meaning.

 While the newness of making such negligent conduct the object of criminal sanctions may not result in a plethora of recent criminal law sources from which to draw meaning, understanding of the terms can be gained from the civil side of the law. The language of the Supreme Court in Cline v. Frink Dairy Co., 274 U.S. 445, 47 S. Ct. 681, 71 L. Ed. 1146 (1927), is directly on point:

It is true that, on an issue like negligence, i.e., a rule of conduct for the average man in the avoidance of injury to his neighbors, every one may be held to observe it either on the civil or criminal side of the court. It is a standard of human conduct which all are reasonably charged with knowing and which must be enforced against every one in order that society can safely exist. We said in the Nash case [ Nash v. United States, 229 U.S. 373, 377, 33 S. Ct. 780, 57 L. Ed. 1232 (1913)], "But apart from the common law as to restraint of trade thus taken up by the statute the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury ...

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