Published: November 29, 2007 11:19 pm            

DA rules out nonjury trial for mom in baby death

EBENSBURG — District Attorney Patrick Kiniry is opting for a jury trial for a suburban Johnstown woman charged with third-degree murder in the April 2006 death of her newborn.

Defense attorneys had sought a nonjury trial by a judge for 34-year-old Jennifer McKendree of Upper Yoder Township.

But under state law, prosecutors have to agree to a nonjury trial, which Kiniry now has ruled out.

Kiniry said the McKendree case has “unique facts and defenses” that a jury of McKendree’s peers should decide.

He likened the case to that of the 1983 Barnhart trial here, in which the parents of a 2 1/2-year old boy who died of an untreated, cancerous Wilms tumor were convicted in his death. The parents, members of the Faith Tabernacle Church – which believes in healing by God through prayer – did not seek medical treatment for their son.

The Barnharts raised First Amendment issues but were convicted of involuntary manslaughter and child endangerment. Their convictions were upheld by both the Pennsylvania and U.S. supreme courts. Kiniry prosecuted that case.

McKendree told police she gave birth to a girl while sitting on a toilet April 11, 2006, at her parents’ home in the Moxham section of Johnstown.

The baby’s body was found by McKendree’s mother a day later, hidden in two plastic shopping bags beneath a basement laundry table. Authorities ruled out drowning, saying that the infant’s lungs were clear. The cause of death was listed as asphyxiation.

McKendree also is charged with concealing the death of a child, child endangerment, reckless endangerment and abuse of a corpse.

On Thursday, Kiniry did not discuss the facts of McKendree’s case or the defenses, such as mental issues, that might be raised.

But he said, “When there is a case with unique facts and defenses, such as I encountered in the Barnhart case, I view my duty as a prosecutor to bring those facts to a jury ... so that the people of the community decide if the alleged conduct warrants a conviction or not.”

Johnstown attorneys Robert Davis Gleason and Art McQuillan, who represent McKendree, have suggested her mental state will be an issue at trial.

They also have indicted that they expect to have their own pathologist present evidence about the cause of death.

Kiniry’s comments came after two of his assistant prosecutors and the defense attorneys met behind closed doors with Judge Gerard Long for nearly two hours.

Little information was released by either side about the closed-door meeting. Both sides said the evidentiary issues were continued until a Dec. 10 hearing before Long.

One of the issues being raised by prosecutors is whether they can use a doll as evidence at trial. Prosecutors maintain the doll would help a jury to understand the size and potential positioning of the infant at birth.

        

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