The Ordeal off a Divided Jury

No verdict in the death of "Baby Girl Weaver"

On the sixth day of deliberations, a Saturday, the members of the jury began getting irritable. The air conditioning was broken in the stifling jury room, and the only smoker in the group started chainsmoking. "We thought about banning him," said Juror Marty Garisek, 33, a bakery deliveryman. That evening, Judge James Turner permitted them their one recreational outing from the Santa Ana Holiday Inn, where they were sequestered under close watch: they went to see the movie Close Encounters of the Third Kind.

On the eighth day of deliberations, Jury Foreman John Thomas, 35, a naval technician, told the judge that the sequestering was causing problems. They were a fairly homogeneous group--all white and mostly white-collar--but they ranged in age from Frank Darling, 70, a retired stockbroker, to Kathy Davis, 22, a secretary, whose jury duty was interfering with her plans to get married. The pressure and constant monitoring by bailiffs began to bother them. Turner decided to let them go home at night, after ordering them to avoid newspapers and TV news.

On the ninth day of deliberations, they seemed to be leaning toward a guilty verdict. They voted 9 to 3 that the defendant, California Obstetrician William Waddill, whose practice was one of the largest in Orange County, was guilty of murder.

Waddill, 42, had been asked in March 1977 to perform an abortion on Mary Weaver, a high school student who claimed to be about 22 weeks pregnant. He injected a salt solution into her uterus, expecting a dead fetus to be expelled some 36 hours later, and left the hospital. That night, Waddill was summoned back by a nurse who said a fetus approximately 31 weeks old had emerged and was showing signs of life. He told the nurse not to care for it and to await his arrival. The hospital's chief pediatrician, Dr. Ronald Cornelsen, said he saw Waddill strangle the infant: "I saw him press down on the baby's neck. He said, 'This baby won't quit breathing.' "

When Waddill was put on trial for murder, to the accompaniment of demonstrators waving antiabortion placards, he denied Cornelsen's story. Instead of strangling the baby, he said, he was simply using a common method of feeling its pulse. But his key defense was that the baby was never really alive outside the uterus and that no doctor could have saved it. After hearing 13 weeks of conflicting testimony, the jury had to decide whether "Baby Girl Weaver," as the fetus was known, was ever legally alive outside her mother's womb, and whether the actions (or inactions) of Dr. Waddill led to her death.

Foreman Thomas says the jurors agreed early that the fetus was alive when it was born. They were using a definition of death jointly formulated by the judge, prosecutors and defenders, along the lines of one used by the World Health Organization: "The permanent disappearance of all vital signs." By this definition, the fetus had been alive, since the nurses testified that it had gasped for breath and had a heartbeat. But the jury split widely on the question of Waddill's culpability, with two strongly for acquittal, two strongly for conviction, and the rest unsure. Then, on the ninth day, they were sent home early.

That afternoon, prosecutors and defense attorneys had been meeting in the judge's chambers to discuss a minor procedural point. Prosecutor Robert Chatterton, in idle conversation with his courtroom adversaries, mentioned that a short while earlier he had been telephoned by an Anaheim police officer who asked for a definition of death in connection with another case. Chatterton casually added that he had just found out that doctors generally use a definition found in the state health and safety code.

"What?" cried Waddill's attorney, Dr. Malbour Watson.

"Section 7180 of the health and safety code," Chatterton nonchalantly repeated. Until then, neither judge nor defense attorneys were aware that California law contained a legal definition of death.

"We move," said the obstetrician's other attorney, Charles Weedman, "that we immediately stop the jury from deliberating."

The prosecutor protested vehemently, but the judge ruled that the jury would have to be brought back to court and informed of the discovery. Next day, visibly upset at having to change his instructions to the jurors, he told them the new definition of death as spelled out in the code: "The total and irreversible cessation of brain function." Since brain function had never been tested, the jury became confused.

Thomas, on behalf of the jury, asked for a clarification of the new definition, but was told that it was up to the jurors to decide what it meant on the basis of testimony already given. Said he: "Judge Turner's redefinition came at a very critical time. We were most disturbed by it. After all that work, we had to go back to Square 1."

Thomas was prompted to switch his own vote to not guilty, arguing that the defendant must be given the benefit of the doubt. Back in the jury room, the majority for a conviction now shifted to a majority for acquittal, first 7 to 5, then 9 to 3. The following day, the eleventh day, Thomas announced that the jurors were hopelessly deadlocked, and Judge Turner declared a mistrial. This week Dr. Waddill, who is also being sued for $17 million by Mary Weaver, returns to court to learn whether he will be tried all over again. The jurors, however, are finished. The day after the mistrial was declared, Kathy Davis got married, with four of the other jurors in attendance at the ceremony in the backyard of her father's home.

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