Petition for Writ of Certiorari — Stephanie Irene Greene, Petitioner v. South Carolina

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2018

_______

No. 18A287

______

STEPHANIE IRENE GREENE,

Petitioner,

v.

STATE OF SOUTH CAROLINA,

Respondent.

________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE SOUTH CAROLINA SUPREME COURT

_________________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________________

C. Rauch Wise, Esq.

Counsel of Record

305 Main Street

Greenwood, SC 29646

rauchwise@gmail.com

Attorney for Petitioner

QUESTIONS PRESENTED

I.

Did the South Carolina Supreme Court apply the proper standard of review under Jackson

v. Virginia when they affirmed the conviction of Stephanie Irene Greene even though the State

failed to present any scientific testimony as to the means of delivery of the morphine and therefore

permitted the jury to convict Ms. Greene on the conclusion of the jury that the lethal dose of

morphine came through breast milk?

II

Did the South Carolina Supreme Court apply the proper standard of review under Jackson

v. Virginia as to the required mens rea when the Court permitted the jury to infer the mens rea of

reckless disregard for her child when the scientific evidence at trial established that morphine is safe

to take while breast feeding and no reported case of even a toxic dose of morphine in a breast feeding

child of a mother who is taking morphine?

i

LIST OF PARTIES AND CORPORATE DISCLOSURE

Stephanie Irene Greene is a natural person. The respondent is the State of South Carolina.

No corporations are involved in this petition.

ii

TABLE OF CONTENTS

Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

List of Parties and Corporate Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Opinion Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional and Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Why the Writ Should be Granted

Issue I: Did the South Carolina Supreme Court apply the proper standard of review under

Jackson v. Virginia when they affirmed the conviction of Stephanie Irene Greene even though

the State failed to present any scientific testimony as to the means of delivery of the morphine

and therefore permitted the jury to convict Ms. Greene on the conclusion of the jury that the

lethal dose of morphine came through breast milk? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Issue II: Did the South Carolina Supreme Court apply the proper standard of review

under Jackson v. Virginia as to the required mens rea when the Court permitted the jury to infer

the mens rea of reckless disregard for her child when the scientific evidence at trial established

that morphine is safe to take while breast feeding and no reported case of even a toxic dose of

morphine in a breast feeding child of a mother who is taking morphine? . . . . . . . . . . . . . . . . . 10

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii

TABLE OF APPENDENDICES

APPENDIX A - STATE V. GREENE, S.C. SUPREME COURT OP. NO. 27802

FILED MAY 23, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A

APPENDIX B - PETITION FOR REHEARING FILED JUNE 6, 2018 . . . . . . . . . . . . . . . . . 31A

APPENDIX C - RETURN TO PETITION FOR REHEARING FILED JUNE 18, 2018 . . . . 43A

APPENDIX D - REPLY TO RETURN TO PETITION FOR REHEARING

FILED JUNE 26, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55A

APPENDIX E - ORDER DENYING PETITION FOR REHEARING

FILED JUNE 26, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60A

iv

TABLE OF CITED AUTHORITIES

Page:

Cases:

In re Maria R., 81 Misc. 2d 286, 366 N.Y.S.2d 309 (Fam. Ct. 1975). . . . . . . . . . . . . . . . . . . . . 11

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 10

Martasin v. Hilton Head Health Sys., 364 S.C. 430, 613 S.E.2d 795 (Ct. App. 2005) . . . . . . . . 8

Matter of Anthony M., 63 N.Y.2d 270, 471 N.E.2d 447 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Jackson, 82 N.E.3d 194 (Ill. App. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996)( . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

State v. Greene, 423 S.C. 263, 814 S.E.2d 496 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 8, 10

State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Davis, 863 F.3d 894 (D.C. Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Williams v. State, 35 So. 3d 480 (Miss. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Wilson v. Ortho-McNeil-Janssen Pharm., Inc., 414 S.C. 33, 777 S.E.2d 176 (2015) . . . . . . . . . 10

Constitutional Provisions:

Fifth Amendment to the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

Fourteenth Amendment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

Other authorities:

21 CFR § 201.57 (b)(1) and (6) 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Postpartum maternal codeine therapy and the risk of adverse neonatal outcomes: A retrospective

cohort study, 50 Clinical Toxicology, 390 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Transfer of Drugs and Other Chemicals Into Human Milk, 108 PEDIATRICS, Official

Journal of the American Academy of Pediatrics, 776 (September 2001) . . . . . . . . . . . . . . . . . . . 7

The Transfer of Drugs and Therapeutics Into Human Breast Milk: An Update on Selected

v

Topics, 132, PEDIATRICS, Official Journal of the American Academy of Pediatrics, e796

(September 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

vi

Stephanie Irene Greene respectfully petitions this Court for a writ of certiorari to review the

judgment of the South Carolina Supreme Court.

OPINION BELOW

The South Carolina Supreme Court opinion affirming the conviction of Ms. Greene can be

found at State v. Greene, 423 S.C. 263, 814 S.E.2d 496 (2018) and is reproduced here in the

Appendix at 1a-30a. The South Carolina Supreme Court order denying the Petition for Rehearing

can be found at 60A.

JURISDICTION

The South Carolina Supreme Court affirmed the conviction and sentence of Stephanie Irene

Greene on May 23, 2018, App. 1A, and denied the timely petition for rehearing on June 26, 2018,

App. 60A.

On September 19, 2018 this Court granted a sixty day extension until November 23,

2018 to file the Petition for Writ of Certiorari. Jurisdiction for this Writ is pursuant to 18 U.S.C.

§ 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution, applicable to the State through the

Fourteenth Amendment, provides, “No person shall be . . . deprived of life, liberty, or property,

without due process of law.”

The Fourteenth Amendment to the United States Constitution provides, “[N]or shall any

State deprive any person of life, liberty, or property, without due process of law.”

STATEMENT OF THE CASE

In the early morning hours of November 13, 2010 Spartanburg County 911 received a call

from the residence of Randy and Stephanie Greene about their child, Alexis, who was not

1

responsive. Rec. on App. at 69, ll 2-19.1 The coroner’s office was called and they arrived at about

6:16 a.m. Rec. on App. at 72, ll 2-8. The child was dead at the scene. Rec. on App. at 87, ll 1-11.

Pursuant to their protocol, Ellen Holmes conducted an interview with Mrs. Greene at the scene.

Rec. on App. at 74, ll 6-20. The interview lasted about three hours. Rec. on App. at 75, ll 6-11.

In this interview Ms Holmes obtained a medical history of the child and the activities of the child

for the previous several days. She stated that in her opinion Mrs. Greene appeared to be under the

influence. Rec. on App. at 73, ll 18-24.

As no immediate cause of death could be determined, blood and tissue samples were taken

to be analyzed. When these results were returned, Dr. John David Wrenn, the pathologist, issued

his report on January 28, 2011 stating the cause of death was a result of respiratory insufficiency

secondary to synergistic drug intoxication. Rec. on App. at 419, ll 18-20.

Mrs. Greene was

arrested on June 24, 2011 for homicide by child abuse.

The child of Ms, Greene and her husband was born on September 28, 2010. At the time of

the birth of their daughter, Mrs. Greene was being prescribed numerous pain medications for injuries

she had sustained in an automobile accident years before and other physical complications. on App.

at 163, l 3 to 164, l 11. Testimony from Dr. Carol A. Koistra confirmed that Mrs. Greene was totally

disabled. Rec. on App. at 211, l 3 to 214, l 25. Dr. Koistra was primarily prescribing vicoprofen,

a schedule III drug and several other drugs from schedule III and higher. Rec. on App. at 209, ll 4-9.

Dr. Susan Kovacs, over a period of several years, prescribed various schedule II drugs to Mrs.

Greene. Rec. on App. at 150, l 23 to 151, l 10.

1

The references are to the Record on Appeal filed with the South Carolina Supreme

Court. The record can be accessed at

https://ctrack.sccourts.org/public/caseView.do?csIID=56430

2

Both doctors testified that they did not know Mrs. Greene was pregnant and they would not

have prescribed the opioids had they known she was pregnant. Rec. on App. at 176, ll 18-23; 165,

ll 8-13; 215, ll 6-11; 217, ll 3-10. Dr. Kooistra was unsure if she referred Mrs. Greene to Dr.

Kovacs, but she did send Dr. Kovacs a copy of her report of November 4, 2010 which included a

complete list of the prescriptions she was prescribing for Mrs. Greene. Rec. on App. at 207, l 21 to

222, l 16. Dr. Kovacs testified she did not know that Dr. Kooistra was prescribing vicoprofen. Rec.

on App. at 152, ll 5-7. On cross examination she admitted that she had signed two documents in

her office acknowledging that Mrs. Greene was in fact receiving vicoprofen through November of

2009. Rec. on App. at 169, l 16 to 171, l 17. The doctors also admitted that vicoprofen and

morphine are frequently prescribed together. Rec. on App. at 165, l 12 to 166, l 6; 2219, ll 1-10.

Dr. Kooistra further admitted that the American Academy of Pediatric found nothing wrong with

prescribing morphine while a woman is breast-feeding. Rec. on App. at 217, l 19 to 218, l 4.

Dr. Kovacs, who was prescribing schedule II narcotics, admitted that she did not personally

see Mrs. Greene but four times over a 23 month period ending in November of 2010. Rec. on App.

at 185, ll 13-23. On one occasion Dr. Kovacs mailed the prescription to Mrs. Greene. Rec. on App.

at 186, ll 3-9. Dr. Kovacs also referred Mrs. Greene to Carolina O.B.G.Y.N. Apparently the

O.B.Y.G.N never told Dr. Kovacs, the referring doctor, that Mrs. Greene was in fact pregnant. Rec.

on App. at 189, ll 4-25.

Kaushik Kotecha, employed by the South Carolina Department of Health and Environmental

Control, was the primary investigator of the medicines prescribed by the various doctors. He

testified that DHEC had a prescription monitoring system that all doctors in the state have had

access to since 2007. Rec. on App. at 325, ll 3-15. He further stated all the prescriptions for Ms.

3

Greene, except one, were filled at a single pharmacy in Inman, SC. Rec. on App. at 315, ll 8-21.

He testified that when dealing with different medications a prudent patient would use the same

pharmacy. Rec. on App. at 317, ll 11-16. He further stated that two prescriptions that had a warning

against taking while breast-feeding were not found in the toxicology report. Rec. on App. at 319,

l 13 to 320, l 4. The only drug found in the toxicology report that contained a warning against taking

while breast-feeding was Clonazepam. Rec. on App. at 321, l 9 to 322, l 20.

The State called as experts in this matter Dr. David Eagerton and Dr. John David Wrenn.

Neither testified that the morphine in the child was obtained through breast milk. When asked about

the source of the morphine Dr, Wrenn stated “It’s not my opinion that it was from milk or anything

else. I just know that it was there.” Rec. on App. at 421, ll 22-24. Dr. Eagerton testified he could

not say how the morphine got into the child other than “Had to get into the baby somehow.” Rec.

on App. at 369, ll 12-18. Dr. Eagleton further admitted that no peer reviewed article involving

morphine discusses a child being in a hospital from a toxic level of morphine obtained through breast

milk. Rec. on App. at 351, ll 19-22. He also knew of no study that shows a child can obtain a toxic

level of morphine through breast milk from a mother taking MS Contin, the morphine being taken

by Mrs. Greene. Rec. on App. at 357, ll 18-21. He further admitted that the American Academy of

Pediatrics listed morphine as safe to take while breast feeding. Rec. on App. at 361, ll 4-7. He also

admitted that the Clinical Toxicology Journal reported scant evidence existed that opioid toxicity

could occur in breast-fed infants. Rec. on App. at 367, ll 12-25 to 383, ll 1-11. Nether Dr. Eaglerton

nor Dr. Wrenn produced any medical or other scientific research that supported the proposition that

an infant can receive a lethal level of morphine through breast milk. The State also used the theory

of the synergistic effects of drugs could have led to the death of the child. This was the theory upon

4

which the South Carolina Supreme Court relied in affirming the conviction. As the Court said. “The

State’s causation theory was Appellant consumed excessive amounts of central nervous system

depressants, principally morphine, while breastfeeding Alexis and these drugs passed through

Appellant's breast milk, resulting in Alexis's death.” State v. Greene, 423 S.C. 263, 267, 814 S.E.2d

496, 498 (2018), reh'g denied (June 26, 2018).2 While the Court below was correct that this was the

theory of the State, at the trial no expert ever opined, to a reasonable degree of medical certainty, that

the morphine in the minor child came from breast milk or that morphine in combination with other

drugs caused the death of the minor child.

Ms. Greene was convicted of homicide by child abuse, involuntary manslaughter, and

unlawful conduct to a child. She was sentenced to a mandatory minimum of 20 years imprisonment

for the homicide by child abuse and two five year sentences on the involuntary manslaughter and

unlawful conduct to a child. All sentences were to run concurrent. The lower court reversed the

conviction of involuntary manslaughter on double jeopardy grounds.

WHY THE PETITION SHOULD BE GRANTED

I

Did the South Carolina Supreme Court apply the proper standard of review under

Jackson v. Virginia when they affirmed the conviction of Stephanie Irene Greene even though

the State failed to present any scientific testimony as to the means of delivery of the morphine

2

This case was argued twice before the South Carolina Supreme Court. The first was on

June 14, 2016 and the second on February 15, 2018. The two oral arguments may be viewed at

http://media.sccourts.org/videos/2014-000764.mp4 and

http://media.sccourts.org/videos/2014-000764-1.mp4.

5

and therefore permitted the jury to convict Ms. Greene on the conclusion of the jury that the

lethal dose of morphine came through breast milk?

In the case below, Stephanie Greene called the attention of the South Carolina Supreme Court

to the proper standard of review in criminal cases as set forth by this Court in Jackson v. Virginia,

443 U.S. 307 (1979)(Petition for Rehearing App. at 10A, 11A and Opening Brief at pages 9 and 10)

As this Court noted in Jackson, “[T]he relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id. at 319. The South Carolina Supreme Court

violated this principle established in Jackson . The Court affirmed the conviction on a scientific

issue of the morphine being delivered to the child through breast milk. The State presented no expert

testimony that opined that the theory of the state, to a reasonable degree of medical certainty, was

the most likely or most probable means of of the minor child receiving the morphine. The South

Carolina Supreme Court cited testimony at the trial that may consist of a modicum of evidence as

to whether a lethal dose of drugs may have passed through breast milk, “[b]ut it could not be

seriously argued that such a ‘modicum’ of evidence could by itself rationally support a conviction

beyond a reasonable doubt.” Id. at 320. In addition the judge instructed the jury “[T]he term harm

to the child’s physical health or welfare in the context of this case refers to the infliction of physical

injury or harm to a child resulting from the child’s ingestion of a schedule II controlled substance.

And that should go on to say ingestion of a Schedule II control substance through the comsumpton

of breast milk” Rec. on App. at 578, ll 15-20. The trial court also charged the jury “[T]he state’s

allegation and theory in the case, that the child died as a result of consumption of a controlled

substance through the mother’s breast milk.” Rec. on App. at 579, ll 5-7. These charges limited the

6

jury to a determination of could the only schedule II drug involved, morphine, from breast milk

have caused the death of the minor child.

The essential element the jury had to find in this case is the scientific conclusion that a lethal

dose of morphine could pass through the breast milk of Stephanie Greene so as to cause the death

of her child. No witness for the State ever testified to a reasonable degree of medical certainty that

such was possible. The testimony at trial established that morphine is safe to take while breast

feeding. Rec. on App. at 351, ll 6-24; 354, l 7 to 355, l 7; 357, ll 3 to 358, l 22. See, also,

Postpartum maternal codeine therapy and the risk of adverse neonatal outcomes: A retrospective

cohort study, 50 Clinical Toxicology, 390 (2012); The Transfer of Drugs and Other Chemicals Into

Human Milk, 108 PEDIATRICS, Official Journal of the American Academy of Pediatrics, 776

(September 2001); The Transfer of Drugs and Therapeutics Into Human Breast Milk: An Update

on Selected Topics, 132, PEDIATRICS, Official Journal of the American Academy of Pediatrics,

e796 (September 2013).

The South Carolina Supreme Court permitted the jury to speculate, based upon a theory that

the state had, as to the means of delivery of the morphine without any scientific proof of that theory.

The Court, in essence, permitted the jury to become laboratory scientists and declare what is the

correct scientific answer without any testimony from a scientist agreeing with their conclusion. What

the lower Court did is to accept the testimony of an expert who at best said a “synergistic effect”

could cause the death of Alexis and equate that with his saying in this case it did cause the death.

They permitted this finding by a jury without an expert saying the combination of drugs at the level

required to be lethal came through breast milk. This error is noted in the dissent when Judge John

Few said “The State argues it is not required to prove scientific facts with expert testimony as we

7

require civil plaintiffs to do.” State v. Greene, 423 S.C. 263, 287, 814 S.E.2d 496, 508 (2018)(J.

Few, dissenting); App. at 21A.; Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996)(“But

the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science,

it does not lead it.”). The proof in this case was to a reasonable degree of medical uncertainty.

The constitutional error, which this Court needs to address is whether the required evidentiary

standard of proof of beyond a reasonable doubt, required by Jackson, can be satisfied in a case

requiring a scientific conclusion without expert testimony as to that conclusion. As addressed by

the dissent “In fact, the circumstantial evidence that Alexis died from ingesting morphine through

breast milk appears overwhelming, until we pose the scientific question of whether it is even

possible for enough morphine to pass through breast milk to kill a child.” Id. at 286, 814 S.E.2d at

508. App. at 22A. The dissent noted that neither expert for the State concluded that the lethal level

of morphine came from the breast milk of Ms. Greene. In making a proper analysis under the

required standard of review, the dissent noted in conclusion “If medical and scientific professionals

have nothing more definitive to say as to whether the factual premise of the State’s theory is even

possible, then we should not permit a lay jury to base a verdict in a criminal trial on the premise.”

Id. at 294, 814 S.E.2d at 512-513. App. at 30A. In a civil cases the courts in South Carolina have

established a proper standard. The Court of Appeals has held “A plaintiff in a medical malpractice

case must establish by expert testimony both the standard of care and the defendant’s failure to

conform to the required standard, unless the subject matter is of common knowledge or experience

so that no special learning is needed to evaluate the defendant’s conduct.” Martasin v. Hilton Head

Health Sys., 364 S.C. 430, 438, 613 S.E.2d 795, 799 (Ct. App. 2005).

8

This Court should hold a conviction based upon a scientific principle is not constitutionally

sufficient when no expert testifies to a reasonable degree of medical certainty the result reached by

the jury is even scientifically possible. Simply put, the record in this case contains no evidence that

would permit a reasonable juror to conclude beyond a reasonable doubt that a lethal dose of

morphine can be given to a child through breast milk. In affirming the conviction in this case, the

South Carolina Supreme Court improperly applied Jackson.

Some States do required that a scientific conclusion be based upon scientific evidence. In

Williams v. State, 35 So. 3d 480, 486–87 (Miss. 2010) the Mississippi Supreme Court reversed a

criminal conviction saying, “Although an expert need not use the exact phrase, ‘reasonable degree

of medical certainty,’ this does not diminish the requirements for admissibility. . . . This physician

couched his opinion in terms of suspicion of probability, which, standing alone, absent additional

corroborating evidence, is insufficient in a criminal case.” (Internal citations omitted); Matter of

Anthony M., 63 N.Y.2d 270, 280, 471 N.E.2d 447, 452 (1984)(“An obscure or a merely probable

connection between an assault and death will, as in every case of alleged crime, require acquittal of

the charge of any degree of homicide”)

Citing Jackson, State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541, 546 (1997)

held “Although a court of appeals may determine that a judgment of a trial court is sustained by

sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of

the evidence.” The South Carolina Supreme Court did not apply such a standard of review. If

applied to this case, the Court would have reversed the conviction. The verdict in this case was

against the greater weight of the evidence

9

II

Did the South Carolina Supreme Court apply the proper standard of review under

Jackson v. Virginia as to the required mens rea when the Court permitted the jury to infer the

mens rea of reckless disregard for her child when the scientific evidence at trial established

that morphine is safe to take while breast feeding and no reported case of even a toxicdose of

morphine in a breast feeding child of a mother who is taking morphine?

While related to the previous issues, this question involves whether the State in the trial

below proved the required men rea of extreme indifference, an element of the crime the State is

required to prove. Stephenie Irene Greene contends the South Carolina Supreme Court failed to

conduct a proper standard of review under Jackson. As noted above, Jackson holds “[A]fter viewing

the evidence in the light most favorable to the prosecution, any rational tried of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id. at 319. The required mens

rea is certainly an essential element of the crime. People v. Jackson, 82 N.E.3d 194, 202 (Ill. App.

2017)(“But Jackson challenges the sufficiency of the evidence under the Jackson v. Virginia

standard, which requires us to examine the essential elements of the crime, and mens rea is

undoubtedly essential.”); United States v. Davis, 863 F.3d 894, 904 (D.C. Cir. 2017)(“[T]he court

concludes that the evidence of Andre's mens rea was, at most, equivocal and thus insufficient to

sustain his convictions . . . .”).

Based upon the testimony at this trial, a reasonable juror would not have sufficient

information to conclude that Ms. Greene knew or even should have known that her taking morphine

and breast feeding would in fact cause the death of her child. No expert testified to this fact and such

a fact is not of common knowledge. As the South Carolina Supreme Court noted, the mens rea

10

required for homicide by child abuse is “[A] mental state akin to intent characterized by a deliberate

act culminating in death.” Greene, at 277, 814 S.E.2d at 503. App. at 13A The Court below placed

emphasis upon the fact that Ms. Greene hid her pregnancy from her doctors as proof of the intent to

harm her child. The connection between the two, given the undisputed testimony that the morphine

is not harmful to an infant through breast milk, is simply non existent. If death is even a potential

result of a drug, the warning with the drug must mention that fact. 21 CFR § 201.57 (b)(1) and (6)

5. State ex rel. Wilson v. Ortho-McNeil-Janssen Pharm., Inc., 414 S.C. 33, 48, 777 S.E.2d 176, 183

(2015)(“Specifically, FDA regulations require drug labels to include, inter alia: (1) ‘black box’

warnings about serious risks that may lead to death or serious injury.”) The morphine Ms. Greene

was taking did not contain a “black box” warning. When no medical expert established that death

is even possible from breast feeding, without at least a “black box” warning, no reasonable juror

could conclude Ms. Greene had the required intent to do a deliberate act had that she knew could

cause her child to die.

If parents refused to have their child vaccinated and the child died from a preventable

disease, would a Court conclude that the parents acted with extreme indifference and sentence the

parents to a mandatory minimum of 20 years? See, In re Maria R., 81 Misc. 2d 286, 287, 366

N.Y.S.2d 309, 311 (Fam. Ct. 1975)(‘Since the R. family hold bona fide religious beliefs prohibiting

vaccination and immunization the children should not be required to be vaccinated or immunized

and this neglect petition is dismissed.”). The benefits of vaccinations is more widely known than

any alleged harm to a minor child whose mother is breast feeding and taking morphine.

The testimony in this trial establishes that there is no reported case of an infant ever receiving

a toxic dose of morphine through breast milk. Rec. on App. at 365, ll 6-24. The question, therefore,

11

is did the State present evidence of extreme indifference, when there had never been a reported case

of a lethal amount of morphine being transferred through breast milk? For any reasonable trier of

fact to answer this question in the affirmative would required that the juror impute to Ms. Greene

more knowledge than is known to the medical community. Had Ms. Greene extensively researched

the issue, she would have found no reported study of even a toxic level of morphine being found in

an infant through breast feeding. Such research would have hardly supported a mens rea of reckless

indifference as defined by the South Carolina Supreme Court.

CONCLUSION

Stephanie Irene Greene respectfully requests this Court to grant this Petition for Writ of

Certiorari to resolve the question of if a State relies upon a scientific principle to secure a conviction,

then the state is required to establish expert testimony to support the scientific principle before such

a conviction comports with the Due Process clause of the Fifth and Fourteenth Amendments to the

Constitution of the United States of America.

November 19, 2018

/s/ C. Rauch Wise

C. Rauch Wise

Counsel of Record

305 Main Street

Greenwood, SC 29646

(864) 229-5010

rauchwise@gmail.com

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