of first degree murder this court obviously has much exposure to the law to the criminal world more than i do but in twenty three years of experience i'm not certain that i've seen a case as tragic as this it was an utter tragedy this infant was born prematurely lived for seventy eight days in in some senses is is it's amazing that the tribe lived as long as he did he spent the first thirty days getting his weight up to nearly four pounds while staying in a hospital and receiving round the clock care and then as judge jury described it he went home to his mother which he described as a chaotic dysfunctional poverty stricken world he described the mother as being a teenager unprepared for and oblivious to the moral and legal duty of caring for vital were children estrie appalling the time was eighteen years old she already had two other children neither of which she provided care for she had three different fathers of the children she had no income no education unstable shelter and she's were the one mentally retarded she was simply not capable of caring for a child under ordinary terms and certainly not in this situation with a premature her child who was sent home with a heart rate in apnea monitor kind of intimidating equipment  instruction manual to help her through this and the court ultimately concluded when it entered sentence that the reality is that this power couldn't care for a child much resin child in the condition of heavier a baby the real thing is i don't think she could care for herself so when i say that the court failed to prove beyond a reasonable doubt that she was capable of murder or that she knew what she was doing it's not simply advocacy but it goes along with what the court said and the first part keep in mind with that is that as to count one which charged her with first degree murder for starving her child or failing to properly hydrate the child difficult to rationalize and to deal with particularly given that the second count on which the court found the defendant guilty of first degree murder contains the first set of charges as well in that he found that she was guilty of failing to properly feed and hydrate the child and ignore the mater none the first part of that encounter one the court found could not be proven beyond a reasonable doubt but instead he was guilty of involuntary manslaughter that she was reckless as to the second part is the difficulty that i have with this case and the cold day in the  inconsistency provided by the court beyond that however the court clearly found that she was not culpable for the first step and i'm not certain how we can then decide i and made his decision within proper parameters but in this instance where the put teen age or her from the court outlining its rationale for reaching the decision it and there are questions of that that that there is a clear danger and a very obvious threat it is inherently dangerous activity as were some of the other examples given by the court firing a gun into a building where there are known to be occup or that well or for particularly for this defendant it wasn't something that she could simply comprehend at all if she couldn't understand the danger that was being created for failing t and provide proper nourishment particularly a child under way to needed to gain at least a pound a month then she was incapable of understanding the effects of ignoring the sleep monitor particularly given that the the apnea monitor the heart monitor head then alarming two days before had sounded i believe ten to thirteen times over rather a nine minute period and eventually was turned  off and there were no at least to the defendant obvious ill consequences of that behavior to now find that that behavior is is what caused the death and that she's they were well handled and in some of the cases where homicide is found it has involved starving over a significant period of time and it is also usually coupled with abusive behavior there have been some where there are multiple beatings where children are left in the elements without proper clothing it goes beyond just the failing to feed and it goes beyond the failing to feed for a period here of between twelve and twenty four hours at most and part of the reason that i say that is because the mother is who is in the home the boyfriend's mother fed the child the day before and so he wasn't a matter of the child being starved monitor going off and then not being that in the monitor going off the child was fed in the interim so there was care that was being provided in the care that she knew about and know another example is that she she didn't understand that the reason that she was having trouble feeding the child was because the child hadn't been provided the proper caffeine and because the child was weakening from the hunger and then when when the other lady was able to feed the child that somewhat the suasion things but the mom didn't comprehend at the time that that was part and parcel of what was happening that the child was getting weaker she saw it as a separate event just as untrue she saw the alarm is a separate event it went off tonight or nothing happened when it's going on now but they will turn itself off and on as it goes it will function sometimes it doesn't that there huguely had been more like ten seconds of an episode and then the alarm shuts off so it wasn't necessarily that that she was this regarding the alarm the alarm goes and it comes off and goes it goes off inappropriate standards here when the trial court said well that's fine if you want to argue that it's ok to ignore it but we would allow there from kindergarten teacher if a fire alarm went off in the school and then five days later two days later it went off again we would not excuse a teacher from from that sort of ignoring of the alarm but the first thing i would say is that i'm unaware of any instance where a teacher has been held accountable for murder in that type of situation more importantly with the teacher we are dealing with a professional who has training in these sorts of risks uses to do these sorts of arrests somebody who is presumably older than the teenage defendant in this case who is not operating under the sleep deprivation of a new mother to a child with severe problems brought about by the premature birth of the child in this situation  circumstances were such that it simply can't be imputed to her that she had the knowledge that her acts particularly acts that aren't especially conscious at five in the morning whereas presumably the teacher we're dealing with somebody who has been up it's nine o'clock in the morning at a minimum and is able to to address these situations to say this that a teenager turning off an alarm that is has not necessarily caused any it is it is but i am saying the third is no rational prior fact that could have found in these circumstances that other news that the act of turning off the alarm was going to result in the death of the child and that's partly true both because you can't impute knowledge to somebody in these circumstances the way the court did to a teacher and other circumstances but also because the court found that she did not act knowingly as to the first half of this charge it's a very it's an odd charge and it's not a finding the say well as to half a your activity equipment that's especially made for a child in a much more serious situation much more complicated basically that ignoring a symptom then she truly did not comprehend she just thought the trial wasn't eating because the child was sleepy and that it was better for the child to sleep and in that instance the inconsistency here is not something that can be bridged by rational trier interestingly here another cause presumably could be the fact that the caffeine wrong about a week before and that's never mentioned in the charges you know you would almost expect that if it were that it was her failure to properly care for the child the providing of prescribed medicine would be part and parcel of that it but it wasn't that it was this alarm which the court took to be the equivalent of a life saving equipment but it was all it's in the long arm it's something that to get the parent aware but again you know having not presented life three she wasn't capable of raising her prior to children who were not special needs children she had a child here that that obviously had special needs she had unstable housing was not capable of believe the court term to her as having me entered through line and meandering through parenting and she simply wasn't capable of caring for the child particularly this child in the way that she needed to and you know very often we talk about being able to infer sense from somebody and i note that the state here did not charge intent they charge no one and again this parents particular situation is for root actions two things indicate that she did not know and understand the consequences of her actions particularly when you're dealing with actions that aren't as conscious as an ordinary action would be an action of somebody who has to be up every three hours at five in the morning responding to alarm is not going to meet the same standard of care or in his or professional response as would a reaction in the middle of the day with a child who does not have needs in these times and circumstance discharged from the neat you went over these procedures and what she had to do with her in great detail how it would not be released until she showed that she could not only feed here from a bottle but that she knew how to draw the caffeine into the bottle that she could perform all of these activities with regard to the apnea and heart monitor it was stressed to her how important that was how to be hooked up needed to be hooked up at all times and what to do when the alarms went off and she was told and she was even handed a refrigerator magnet with the same thing that if she could not resolve be alarm call nine one one that was the step she did not take that she could have taken at five fifty two am that both the pathologist and the emergency room  pediatrician said would have saved obvious life that the dehydration and malnutrition could have been reversed if they husband if she had called nine one one and when nine one one was called later in the day and have it was in the hospital at the hospital than ten minutes of that call that would have saved his life she was made aware of what she had to do she knew what she had to do she'd dissembled when she was spoken to by the doctors and the police at the time she lied she told him he  in front of him and he did cross it and possibly because now nutrition dehydration is a process found that the proof was not there that she had the knowledge that this was this will cause great bodily harm or death to javier but that when that was combined with what he considered the red alert the monitoring system that was the last line of defense for the poor defenseless baby that something was terribly wrong and that it was going on for fourteen minutes and that she ignored it did not call nine one one yet executed the somewhat complicated procedure of turning the monitor off not just in the reset button but what was explained as he had a hit to button simultaneously to turn it off and went back to sleep and did not check on him for several hours that that that that time the judge found that evidence was there to show that she had knowledge that those actions or failure to get medical help for how to be at that time i led to the knowledge that that would cause great bodily harm or death to him and that's why the briefly i would note that while she was trained by the nurses there had been some question about the attention that she paid she skipped the first training session i was late in the second to the extent though that the training that she received can be credited and all with the child's well being for the next month it also has to be kept in mind that during that entire period of time much of the care was undertak child and it was at about the time that she stepped away and relinquish much of her involvement for the purposes of why when the mother to take her child that the child truly began to deteriorate and to the extent that it was a complicated procedure in turning the equipment off i would note that it would merely require pressing two buttons at one time was a child safety device to make sure that the child in accidentally turn it off but it