Coast Guard petty officer’s conviction overturned in baby death case

by Tommy Grant

A Coast Guard petty officer sentenced to six years’ imprisonment in the death of her five-month-old daughter has had her conviction overturned on appeal due to problems with the charging documents.

At a February 2022 court-martial, Petty Officer 2nd Class Kathleen E. Richard, 25, a yeoman stationed in Kodiak, Alaska, was convicted of involuntary manslaughter in the April 2020 crib death of her daughter but was acquitted of first-degree murder.

The case was the first murder prosecution tried by the Coast Guard in more than a decade.

Earlier this month, the Coast Guard Court of Criminal Appeals reversed the conviction, finding that the charges had failed to specify what Richard had actually done to cause the baby’s death.

The court set aside the guilty finding and the charge specification but left open the possibility of a new trial.

An autopsy found the infant’s cause of death was “consistent with asphyxia due to the prone position of the infant in the bedding,” and notes the baby was tightly swaddled when she was put down to sleep. But the appellate court found that the language of the charge sheets alleging Richard had murdered the child “by asphyxia” failed to specify an act or omission, and thus limited Richard’s ability to defend herself.

“As the Government’s own experts in this case attested, ‘asphyxia’ is a broad term that can have a wide variety of causal factors from carbon monoxide poisoning to an infant’s accidental suffocation in an unsafe sleep environment, to intentional strangulation,” Judge Kurt Brubaker wrote for the court. “Like death by exsanguination (massive loss of blood), for instance, death by asphyxia describes how a person died, not what, if any, act or omission by another human actor may have brought that about.”

Richard’s legal team, led by civilian defense attorney Billy Little Jr., took the Coast Guard to task for failing to process evidence. He also castigated the service for failing to secure the scene of the baby’s death.

The lack of specificity in the prosecution’s case left Richard and her attorneys at a disadvantage, Brubaker wrote, thus being ” forced to prepare for trial without knowing what specifically the Government alleged she did or failed to do.”

Richard’s attorneys presented evidence that might rebut intentional murder allegations but support a theory of negligence, the ruling states.

“Both parties presented evidence supporting a range of other possible acts or omissions that the members could conclude negligently caused [the infant’s] death, including placing her in the crib face down with a pacifier in her mouth, having other bedding in the crib, leaving a bib on her, swaddling her tightly, applying pressure to her, or any combination thereof,” Brubaker wrote.

Ultimately, the judge wrote, he could not rule out the possibility that more specific charges might have led to an acquittal for Richard.

Little, who was vocally critical of the Coast Guard’s handling of the case from the outset, told Military Times that he believes Richard, who has now served two years of her sentence at Naval Consolidated Brig Miramar, California, was harmed by a military legal system ill-prepared to prosecute complex legal cases.

A new law passed in December removes prosecution decision authority from military commanders for crimes including sexual assault, child abuse, murder and manslaughter, but allows military attorneys to continue to try these cases.

Little said he’d like to see the military get out of the business of trying non-combat murder trials altogether.

Richard may still be charged and tried again per the court’s ruling. But, Little said, the prosecution’s initial case, focused on a theory of first-degree murder – a theory rejected by the eight-member military jury – will hinder efforts to advance another narrative.

“If they go in there and charge involuntary manslaughter by some act or omission, and have another trial, the witnesses I’m going to call are going to be all the government witnesses from the first trial,” he said. “They built the box themselves. And thank God they did, because finally a just result came about.”

Richard, who was reduced to E-1 as part of her sentence, remains in the brig, Little said, pending an expected Coast Guard order to release her. The service has 60 days from the March 5 appellate decision to certify the case to a higher appeals court or accept it. The invalidated conviction means her rank will be reinstated and she’ll receive back pay for her time in confinement.

Hope Hodge Seck is an award-winning investigative and enterprise reporter covering the U.S. military and national defense. The former managing editor of Military.com, her work has also appeared in the Washington Post, Politico Magazine, USA Today and Popular Mechanics.

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