Appeals Process Gets Under Way In Twitchell Manslaughter Case As Defense Seeks Stay of Sentence

THE case of David and Ginger Twitchell moves into the appeal stage following their sentencing Friday. Suffolk County Superior Court Judge Sandra Hamlin sentenced the couple to 10 years' probation after a jury last week found them guilty of involuntary manslaughter in the death of their 2-1/2-year-old son, Robyn, in 1986. The Twitchells had relied on Christian Science prayer instead of conventional medicine to treat Robyn, who subsequently died of what was later diagnosed as a bowel obstruction caused by a birth defect.

Judge Hamlin also ordered the Twitchells to take their three children to a doctor whenever any of them is ``seriously ill'' and to have regular medical checkups for them.

The judge refused to stay the sentence pending appeal. Defense counsels Rikki Klieman and Stephen Lyons are expected to ask the state Appeals Court early this week to do so. They filed a notice of appeal of the conviction on Thursday.

Mr. Twitchell said he and his wife would try to obey the order. ``We'll try to balance the law and the judge's instructions with our trust in God,'' he said.

Special prosecutor John Kiernan did not ask for a jail term. He requested ``a very lengthy probation with stringent conditions attached to protect and preserve the lives of the other Twitchell children.'' He also asked the judge to require the Twitchells to perform community service, but she did not do so.

Mr. Lyons criticized the sentence. ``It's inappropriate to place a medical policeman in the home of the Twitchells,'' he said.

Nathan Talbot, spokesman for the First Church of Christ, Scientist, in Boston, called the ruling an attempt to ``reeducate'' Christian Scientists away from their religion. ``There was no indication that the judge or the prosecutor was interested in whether Christian Science was 10 times as effective, or 100 times as effective [as medical care]. It was almost as if it didn't matter. ... The state wants the parents and the children to think in terms of its view of healing.''

The sentence was similar to one handed down last year by a Florida court, which convicted a Christian Science couple under similar circumstances. But a California court, in another case involving Christian Scientists, rejected the imposition of medical care, saying it violated the children's rights. Both cases are under appeal.

Asked if this case was an attempt by the majority to impose its morality on the minority, Kiernan replied, ``This is not a contest between medicine and religion. Rather it is a marriage of the two. Mainstream America recognizes that prayer and medicine can work well together.''

The Christian Science church, however, holds that medical treatment and Christian Science treatment are incompatible.

The defense lists several grounds for appeal:

Due process. The defense says the trial proceeded despite a state law on child endangerment and abuse that allows parents to rely solely on spiritual healing as long as they employ an accredited practitioner in accord with the tenets of a recognized church.

Instructions to the jury. Defense lawyers say that Hamlin wrongly stated that state law requires parents to provide medical care if a child is in danger of serious bodily injury or death. She told the jury that not calling a doctor would be ``wanton and reckless conduct,'' a key element of manslaughter, but did not tell them about the recognition of spiritual healing in the child-abuse statute. After the trial, jurors indicated that Hamlin's instructions were pivotal. One who spoke with the Boston Globe said, ``Basically it was in the judge's charge that you couldn't excuse them for their faith. ... Once you say that their conduct was wanton and reckless in not calling a doctor, it's obvious.''

The Supreme Judicial Court has overturned four murder convictions in the last three years because Hamlin gave juries faulty instructions.

Evidentiary rulings. The judge excluded any printed evidence of Christian Science healing, would not admit testimony regarding the recognition of Christian Science treatment by health-insurance plans, and refused to allow testimony that payments to Christian Science practitioners are tax deductible as medical expenses.

Theological questioning. The defense says Kiernan's theological interrogation of witnesses who were Christian Scientists was unconstitutional. ``The Commonwealth of Massachusetts ... subjected Christian Science to a derisive and mocking cross-examination in this case,'' Lyons said Friday.

Lyons said the appeals process will take about one year.