Accidental smothering of infants rarely results in charges

On average, about 20 infants die each year in Minnesota from suffocation when sleeping with their caretakers, yet such cases are rarely presented to prosecutors to review for child neglect or manslaughter charges.

The issue was raised afresh in May when, police say, a Lakeville grandmother mixed alcohol and pills, then accidentally slept on her 6-week-old grandson and killed him.

Several county attorneys said it is difficult to prove that a person intended to hurt a baby or acted recklessly. Medical examiners almost always rule such deaths accidental or undetermined. And the caretaker's grief is sometimes considered punishment enough.

But that doesn't mean prosecutors will turn a blind eye when the circumstances seem egregious. In 2004, the Hennepin County attorney's office charged a father with second-degree manslaughter after he got drunk and slept on his 6-week-old daughter, killing her.

Whether the Lakeville case prompts charges, nearly every such infant death -- the clinical term is "co-sleeping" -- could have been prevented, said Linda Thompson, a pediatrician at Hennepin County Medical Center in Minneapolis. Statewide, it's the third most common cause of death in babies less than a year old, behind premature births and birth defects.

"Anytime you have a child's death, it raises the level of concern in society," said Anoka County Attorney Bob Johnson. "The prosecution has to believe they have a reasonable probability of a conviction, and its not always an easy call. You have to convince 12 jurors this person is guilty beyond a reasonable doubt. It's a very stiff burden, as it should be."

The Lakeville case

Lakeville police said Wednesday that they asked Dakota County Attorney Jim Backstrom to charge 45-year-old Tina Miller-Steiner with manslaughter, alleging that on May 9 she fell asleep on her grandson, Evan Berney, after feeding him in her bed around 7 p.m.

She told police she had drank two martinis and took medications for anxiety and depression, which her physician had cautioned her not to mix with alcohol. In a court document, she said Evan was "face up and she was laying on top of him, with his face under her breast" when she woke nearly three hours later.

When police tested her blood alcohol level May 10, it registered at 0.12 percent, according to a court document. (In Minnesota the legal definition of drunkenness in drunken-driving cases is a blood alcohol content of 0.08 percent or more.) She hasn't been arrested. Backstrom didn't return a reporter's call for comment, but Lakeville investigators said they expect a charging decision this week.

When a mistake kills

Johnson and the county attorneys from Washington and Ramsey counties said they've never been presented with a co-sleeping case. While making it clear he doesn't know all the facts in Evan's death and doesn't want to prejudge, Johnson said a potential charge in such cases would be felony child endangerment or neglect. The statute states the parent or caretaker intentionally or recklessly placed the child in a situation likely to cause substantial harm or death.

If that charge seemed justified, Johnson said he would be obligated to also consider a second-degree manslaughter charge, which requires a higher level of negligence and a showing that the caretaker caused unreasonable risk to the child.

"This is what Jim Backstrom and his office will be wrestling with, and I know he will give this a case a very good look," Johnson said.

Johnson struggled with the same issues in 2001 when a grand jury indicted a Blaine man on second-degree manslaughter after he accidentally left his 4-month-old son in a minivan and the baby died from heat exposure. Johnson's office dismissed the charge because officials didn't believe a jury would convict.

Miller-Steiner, the Lakeville grandmother, told the Star Tribune she "made a mistake, and the Lakeville Police Department thinks I need to pay for it, but I'm already suffering."

Charges in such cases are rare because what constitutes irresponsible behavior or neglect are very subjective, said Prof. James McKenna, who runs a mother-baby behavioral sleep lab at the University of Notre Dame. Throw in a grandmother who loved her grandson "and that's a pretty complex and multiple set of factors operating with any jury," he said.

McKenna is a nationally known researcher of the benefits of co-sleeping, such as promoting breast feeding and healthier infant sleep patterns. But he said he isn't defending Miller-Steiner if she put Evan in a harmful situation. He said people should make an informed choice whether to sleep with their children, and he hoped this case wouldn't put co-sleeping on trial.

But Thompson, who sits on a statewide committee that reviews child deaths, said she recommends that parents never sleep with infants. At least 50 percent of infant deaths in the county are caused by co-sleeping, she said.

Between 2005 and 2007, 58 children in Minnesota died that way, according to the state Department of Health. Thompson recommends not putting babies to sleep on their stomachs or on an adult bed.

In 2004, the Hennepin County attorney's office charged Edward Kurr with second-degree manslaughter after the county's medical examiner ruled that his 6-week-old daughter died from "parental overlay." Prosecutors alleged Kurr and the baby's mother were drunk in a motel and Kurr suffocated the baby as it slept between them. He received a four-year prison sentence, which was stayed, and served a year in the county workhouse.

David Chanen • 612-673-4465