Prosecutor Peter N. Letang and Grossberg attorney John S. Malik both declined comment, citing the gag order placed on the case by Superior Court President Judge Henry duPont Ridgely. That possibility had triggered a national debate since Attorney General M. Jane Brady raised the issue on Geraldo Rivera's cable television show shortly after Grossberg's arrest. Legal experts have long said prosecutors would have a tough time convicting Grossberg of first-degree murder because it could be difficult to prove she intentionally killed the child. Peterson, who has agreed to testify against Grossberg, faces up to 10 years in prison. First-degree murder charges often are brought when a person intentionally causes the death of another.
Prosecutors say the baby was beaten, shaken, wrapped in a plastic bag and placed in a Dumpster.
Grossberg, who has pleaded innocent, has maintained the baby was stillborn. Edmund D. Lyons Jr., a criminal defense attorney not involved in the case, said because the prosecutors are going to build their case around Peterson's testimony, it would be difficult for them to argue Grossberg acted intentionally after agreeing Peterson's actions were only reckless. Attorney Anthony A. Figliola Jr. agreed. Lyons said prosecutors still will have a tough task convicting Grossberg of second-degree murder instead of manslaughter. Prosecutors contended her lawyers violated the gag order by writing last month in court documents that a polygraph test shows Grossberg is telling the truth when she says she did not intentionally harm the child.