Judge tosses mother’s murder indictment

A New Orleans judge tossed out a murder charge against a mother Thursday who locked her 5-year-old daughter alone in their home with a loaded .38-caliber revolver, despite warnings from the child’s school counselor that the kindergartner had talked about her desire to commit suicide.

Laderika Smith returned home June 24 to find her daughter dying in a closet, a self-inflicted bullet hole through her forehead.

Smith was indicted on a charge of second-degree murder, with police and prosecutors arguing she was so grossly negligent in leaving the child alone with a loaded gun that she should face a charge punishable by an automatic life sentence.

They said the mother knew her child, Brandajah, had contemplated suicide.

A school counselor had told Smith that the child talked in detail about ending her own life. She asked questions that suggested to the school she was serious, like whether she would ever see her sister again if she died.

The school was so alarmed it assigned someone to follow the child around so she was never left alone, prosecutors said.

The mother, a convicted thief and prostitute, was aware of her child’s suicidal thoughts, but still left her alone that Sunday morning, knowing there was a loaded gun within her reach, prosecutors said in defense of the murder charge.

Orleans Parish Criminal District Court Judge Darryl Derbigny threw out the indictment, agreeing with Smith’s defense attorney that a murder charge was too much of a stretch.

“It is the opinion of this court that the defendant could not have conceivably intended to leave her child home alone for the reason that she actively desired her own child to commit suicide,” Derbigny wrote in his order.

“Such a leap of logic is beyond the realm of what is capable of being imagined or even grasped mentally.”

The state Supreme Court considered a similar case in Shreveport last fall, and decided that criminal negligence, even if it set in motion a chain of events that ended with a child’s death, still did not constitute a murder.

In January 2008, Shreveport resident Satonia Small left her 6-year-old daughter and 7-year-old son home alone when she left to get drunk at a party.

A fire erupted while she was away. The boy escaped; the girl did not.

Prosecutors there used logic similar to that which the Orleans Parish District Attorney’s Office adopted against Smith.

A second-degree murder charge typically requires that prosecutors prove a person had the specific intent to kill or harm another person. But both women were charged under a secondary definition of the crime: The killing occurred as the person was engaged in another violent felony.

Prosecutors cited cruelty to a juvenile, stemming from the negligence of leaving children at home, as the underlying offense to support murder charges against both women.

They were so grossly negligent their inaction caused the children to die, prosecutors argued.

Small was convicted by a jury, but the Supreme Court threw out the conviction.

“We find that a conviction for second-degree murder cannot be supported in this case, where defendant’s criminally negligent act of leaving her young children alone in the middle of the night was not a ‘direct act’ of killing but was instead a criminally negligent act of lack of supervision which resulted in the child’s death,” the court wrote.

It ordered that Small be tried on a charge of negligent homicide, a lesser offense that is punishable by no more than five years in prison and requires no minimum sentence.

Smith’s defense attorney, Daniel Engelberg, cited that Supreme Court ruling in asking Derbigny to scrap the murder indictment against Smith.

He described Brandajah’s death as a tragedy, which he said was compounded by the state’s dramatically overcharging the mother.

Engelberg noted neither the gun nor the home belonged to Smith.

Both are owned by a cousin, Leon Warren, who was indicted with her on a charge of being a felon in possession of a firearm. The gun was allegedly on a shelf in the closet, according to testimony at a hearing last week.

Smith left her daughter at the house, watching television, while she walked around the block, chatted with neighbors and stopped to watch a street fight, she told police.

She returned to find that the girl had shot herself.

Prosecutors told the court that it should consider what the mother knew of her daughter’s allegedly suicidal thoughts.

Dr. Michael Scheeringa, a child psychiatry professor at Tulane University, said it is unlikely a child of 5 could have fully understood the abstract concept of suicide.

Children usually can’t even truly grasp the concept of death, he said: “At that age, children understand literally. They don’t have knowledge that death means forever.”

Without being able to talk to the child, it’s impossible to know whether she actually intended to commit suicide, he said.

“That’s not a word that a 5-year-old comes up with. It makes you wonder: Where did she hear that? What was the context? Who talked to her about that?” asked Scheeringa, who has studied emotional and behavioral problems of very young children.

He suggested that the child must have heard adults discuss suicide, or picked it up from television.

Prosecutors argued the child truly intended to end her life.

They said her home life was miserable and she told her school counselor she had been sexually assaulted by a family member; the counselor passed that information on to her mother.

Christopher Bowman, a spokesman for District Attorney Leon Cannizzaro, declined Thursday to discuss the allegations of sexual abuse, or whether they were reported to police before the child’s death.

No one has been charged with abusing Brandajah.

Assistant District Attorney Laura Rodrigue told Derbigny on Thursday that prosecutors plan to appeal his order scrapping the indictment to the 4th Circuit Court of Appeal.

“We disagree with the court’s ruling,” she said. “We are going to be seeking a murder charge.”

If the 4th Circuit and the Supreme Court decline to intervene, prosecutors will have to charge Smith with a lesser offense, probably negligent homicide.

Smith has been held on the murder charge on a $1 million bond, but Engelberg asked the judge to order that she be released, since his decision basically means she is no longer charged with any crime.

He said she’s not a flight risk or a threat to the public.

“It flies in the face of common sense,” he said. “And it doesn’t equate with what happened in this tragedy.”

Rodrigue asked the judge prevent Smith’s release until the appeals court considers the state’s request to reinstate the murder charge.

“She’s not going home,” Rodrigue said. “A new charge will be filed against her.”

Derbigny decided on a compromise.

He lowered Smith’s bond to $100,000, an amount her attorney said would be impossible for her to meet.