Ashcraft charges dropped, refiled

The prosecution in the case against a suspended USC student accused of killing her newborn child refiled charges and introduced new evidence Friday that the baby was alive outside the womb after a judge threw out the murder count.

Holly Ashcraft, 22, was arrested in October 2005 after police found an abandoned newborn in a trash bin behind the 29th Street Cafe. DNA evidence proved it was her baby.

Judge David S. Wesley said he couldn't overrule Commissioner Ronald Rose's judgment of the evidence in the preliminary hearing but that the case could not proceed without knowing the cause of death clearly, what Ashcraft could have done differently to save the infant or if she was capable of doing so.

There's no evidence that the baby would have survived had she sought care, Wesley said.

Wesley cited prior cases where a caregiver failed to provide aid to a newborn, and said a failure to act could be consistent with a charge of involuntary manslaughter.

He then threw out the murder charge and replaced it with that charge.

Unsatisfied with the lesser charge, Deputy District Attorney Franco Baratta moved to dismiss the case "without prejudice" and refiled the two original charges of murder and child abuse a short time later.

During that hearing, Baratta brought in new evidence.

He told Commissioner Catherine J. Pratt he received a phone call Thursday evening from the coroner, who said the baby's umbilical cord had blood in it.

Deputy medical examiner David B. Whiteman concluded the heart was beating when the umbilical cord was severed, Baratta said.

This supports the theory that the child was alive outside of the womb, Baratta added.

Defense attorney Mark Geragos said the case was judged by three different magistrates.

All three have either reduced Ashcraft's bail, loosened the conditions of bail or thrown out the case, he said.

He added Ashcraft has obeyed the conditions of her bail throughout the past year and a half.

"I don't think that they can refile (the charges)," Geragos said, calling the prosecution's move a "last-ditch effort to resurrect the case."

Baratta said that because the case was dismissed without prejudice, the charges could be re-filed.

Jean Rosenbluth, a USC law professor and former federal prosecutor, said refiling a case when a charge is dismissed is not unusual,.

But Rosenbluth said it is unusual "to do it right away before you've gathered more evidence."

"What they're banking on is that most judges would not rule on the case the way this judge did," Rosenbluth said.

Regarding the debate over whether the baby was born alive, Rosenbluth said generally those issues will be left for a jury to decide.

"It seems a little unusual that the judge dismissed the murder charge," she said.

Geragos said he was pleased with Wesley's ruling, adding Ashcraft is "within striking range of putting this nightmare behind her."

A hearing will take place March 14 to consider Geragos' argument that the case cannot be refiled.

"Every judge that has taken a look at this case has … said that this is not a murder case," Geragos said.

If his motion is denied, Ashcraft's arraignment will immediately follow, and a preliminary hearing will then take place within 10 days, Pratt ruled.

If that happens, Geragos said, "I look forward to redoing the preliminary hearing."