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Twitchell Conviction Is Appealed Before Massachusetts High Court

By James H. AndrewsStaff writer of The Christian Science Monitor / May 6, 1993



BOSTON

A LAWYER for a Christian Science couple argued before Massachusetts' highest court Tuesday that the 1990 trial of David and Ginger Twitchell should never have occurred, because a "spiritual-treatment provision" in Massachusetts law shielded them from prosecution in connection with the death of their son.

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After a five-day illness in 1986, Robyn Twitchell died from what was later diagnosed as a bowel obstruction caused by a birth defect. Mr. and Mrs. Twitchell were convicted by a jury of involuntary manslaughter because they relied on prayer rather than conventional medicine to heal the 2-1/2-year-old boy. They were sentenced to 10 years' probation and must get periodic medical checkups for their remaining three children.

In his appeal of the conviction, lawyer Steven Umin also contended to the seven justices on the state's Supreme Judicial Court that, even if the prosecution of the Twitchells were authorized, rulings by the trial judge violated the couple's constitutional rights to due process and to freedom from state interference in religion.

Arguing for the government, assistant district attorney Marcy Cass claimed that the spiritual treatment provision in a child-neglect statute does not bar prosecution of parents under a separate manslaughter statute when, in the government's view, parents have failed to protect their children adequately against serious health risks.

A central issue in the arguments, which lasted less than an hour, was the relationship between the child-neglect and manslaughter statutes. The former provides that a "child shall not be deemed to be neglected or lack proper physical care for the sole reason that he is being provided remedial treatment by spiritual means alone...."

Massachusetts' manslaughter statute, for its part, punishes "wanton and reckless" conduct that results in death. The prosecution contends that, in failing to get medical attention for Robyn in light of what the state claims was the "obvious" seriousness of the boy's condition, his parents were criminally reckless. Ms. Cass said the Twitchells should have realized that the spiritual-treatment exemption in the neglect statute could not be "read into" the manslaughter law.

According to the Twitchells' lawyers, however, the neglect statute gives Massachusetts parents the option to obtain spiritual, rather than medical, care for their children. Since the Twitchells were relying on spiritual treatment and therefore had no obligation to take Robyn to a doctor, these lawyers say, they did not breach any "duty" in a way that was "wanton and reckless."

Moreover, the Twitchells' lawyers assert, trial Judge Sandra Hamlin in effect "rewrote" and "trivialized" the neglect statute when she ruled that the spiritual treatment provision does not apply to serious health risks. In applying this "novel" interpretation of the statute retroactively to the Twitchells, defense lawyers say, the judge denied the couple "fair warning" that their conduct could subject them to prosecution.

(Last year the Florida Supreme Court reversed the manslaughter conviction of a Christian Science couple in comparable circumstances, holding that two ambiguous and conflicting statutes "created a trap" for the parents that violated due process. In 1990 a Minnesota court dismissed an indictment of Christian Science parents on similar grounds.)

THE two sides also disagree on whether the Twitchell's conduct during their son's illness should be judged by the standard of the "reasonable Christian Scientist" or simply the "reasonable person," without regard to their Christian Science beliefs. In contending for the latter standard, the government claims that "reasonable" parents, seeing Robyn's condition, would have called a doctor. But Mr. Umin said the Twitchells, who "called on the full healing resources of the Christian Science community," acted

reasonably.

In its brief and arguments, as at the trial, the prosecution insists that the child's condition deteriorated rather steadily and that he was in great pain. This assertion was contradicted at trial, however, by substantial eyewitness testimony that the boy's condition fluctuated greatly, at times seeming almost normal; that he only intermittently exhibited disturbing symptoms; and that there were few signs of an imminent crisis.

On the issue of religious freedom, the Twitchells' lawyers argue that the state put Christian Science on trial, in violation of the United States and Massachusetts constitutions. They point to the trial prosecutor's lengthy questioning of Christian Science witnesses as to their religious beliefs - often, Umin said, in "sarcastic" tones calculated to ridicule their views. Prosecutors deny this characterization of their tactics.

A decision is not expected for several months.