A Case to Be Made

An examination of the Amber Bass case by New Times indicates it's possible prosecutors could file charges under Arizona's child-abuse laws.

The crime? Hastening Amber's death by failing to monitor and administer the child's heart medications.

To prove that occurred, prosecutors would have to follow the lead of county medical examiner Philip Keen's autopsy report of March 1994: ". . . there is historical and confirmatory toxicologic evidence of cessation of cardiogenic drug therapy resulting in death due to acute congestive heart failure."

Keen is saying that Amber wasn't getting her medicine.
The child-abuse laws make it a felony for someone "under circumstances likely to produce death or serious physical injury, [to] cause a child to suffer physical injury, or . . . causes or permits the person or health of such child to be injured."

"Abuse" is defined as "the infliction or allowing of physical injury, impairment of bodily function . . . and which is caused by the acts or omissions of an individual having care, custody or control of a child."

It may be done intentionally, recklessly, or negligently--the least serious.
To fall under the negligent section of the child-abuse laws, a person must fail "to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

Detectives after Amber Bass died focused more on the sexual assault than on whether Amber had taken her medicine in her final days. Still, the investigators heard a variety of conflicting tales from the child's caretakers about her medicinal intake.

From Nancy Hughes: Amber told her the night before she died that she'd taken her medicine. But she wouldn't take her pills in her last hours.

From Frances Rogers: She had personally administered one of Amber's medicines with a "syringe-type thing" the night before the child died. And after Amber's final bath the next morning, Rogers had seen Amber take a heart pill.

From Lee Hughes: Amber would not take her medicine a few hours before she died, but "told me" she'd taken it the day before.

Amber's brother, Adam, told investigators, "They probably doubled her medication. . . . Lee gave her her medication, and Amber forgot if she [took it] or not and they gave it to her again."

Asked by New Times where he got that idea, Adam says he was repeating what "they"--the Hugheses and Frances Rogers--told him after his sister died.

In a sense, Amber's sexual assault complicates matters legally. Arizona law has a test for criminal liability, according to a book on the subject by Arizona Court of Appeals Judge Rudy Gerber.

It says that before a criminal charge can stand, the result in question would not have occurred but for the prohibited conduct--in this case, withdrawal of Amber's medications.

Would it be enough to suggest in court, as Dr. Keen did, that the withdrawal of the medicine "is more likely responsible for the acute congestive heart failure" than the sexual assault, and that it meets the criteria of child abuse?

If prosecutors charged under Keen's child-abuse theory, any savvy defense attorney would try to shift blame to the uncharged sex assault. But that could prove to be a two-edged sword:

Without affixing blame as to the assault, prosecutors surely could make the point to jurors that the only adults with sole access to Amber in her last day--when doctors have said the attack occurred--were the same people charged with child abuse.

It probably wouldn't take long for the panel to put two and two together.
Judge Gerber writes that the matter of causation "is one of the most difficult problems in criminal law."

But an appellate court in a key 1971 Arizona murder case concluded "homicidal responsibility is not removed merely because other causes contribute to the death, so long as the other causes are not the proximate cause of the death."

The question of "proximate cause" is exceptionally difficult in the Amber Bass case, because the little girl was sexually assaulted and deprived of her medicine--and both actions contributed to her death.

But, if and when the Phoenix Police Department submits the case to the Maricopa County attorney for consideration, prosecutor Dyanne Greer says her office will take a hard look at it.

"Same as any potential case," she says. "We analyze what we have, ask questions, bounce it around and determine if it meets our filing standards--and whether there would be a reasonable likelihood of conviction. That's how it works."

--Paul Rubin