Monday, March 24, 2003
Copyright © Las Vegas Review-Journal

Attorneys seek dismissal of manslaughter charge related to death of fetus

In a case that has received national media attention, defense attorneys are asking a Nevada judge to dismiss a manslaughter charge against a man accused of causing the death of his girlfriend's fetus.

In October, police arrested Jesus Villagomez, alleging he stabbed his pregnant girlfriend in the stomach during a domestic dispute at a Swenson Street apartment. The stabbing, according to authorities, resulted in the termination of the woman's 18-week-old fetus.

Authorities subsequently filed an attempted murder charge against Villagomez, then added the extremely rare charge of manslaughter of an unborn quick child. Nevada law doesn't define a "quick child," though elsewhere it has been defined as a child who has developed to the point it can move within the uterus.

The case has since garnered national exposure because the viability of a fetus has long been the center of the abortion debate. Generally speaking, the viability of a fetus has been considered a baby's ability to survive once outside the womb.

A baby is usually viewed as viable in the third trimester of pregnancy, although some babies have survived outside the womb just 20 weeks into a pregnancy.

Last week, Villagomez defense attorney Frank Kocka filed a motion before District Judge Valorie Vega, asking the judge to toss the manslaughter count. Kocka argued that the charge should be dismissed because state law doesn't even define what a "quick child" is.

"Without a clear definition, there is nothing to support a charge of manslaughter," Kocka wrote. "There is no one who can say with any degree of accuracy what constitutes a quick child."

Nevada prosecutors are expected to oppose the motion. Clark County Deputy District Attorney Ravi Bawa has previously said the charge is justified.

"Whether or not the fetus was killed as a result of the defendant's actions, that is a fact for a jury to decide," Bawa said.

Vega is scheduled to consider the motion Tuesday.

GLENN PUIT

Jury verdict reinstated

A federal appeals court has reinstated the $3.2 million jury verdict awarded in 1998 to a Mexican man who sued the MGM Grand.

Fernando Duk required a heart transplant after MGM Grand security officers detained him in 1994. He filed a lawsuit in January 1995 that accused the hotel of negligence.

The case first went to trial three years later, when a jury awarded Duk $3.2 million. The MGM successfully asked for a new trial, which resulted in a jury verdict in favor of the hotel in March 2001.

Las Vegas attorney Robert Martin said security officers took Duk, then a tourist from Mexico, into custody around 10 p.m. on Oct. 8, 1994. Duk began complaining of chest pain while detained in the security office, the lawyer said.

Martin said security called paramedics to the Strip hotel after learning Duk had diabetes but never told them about the man's chest pain.

Las Vegas police came to the hotel and booked Duk around 2 a.m. on a misdemeanor charge of drunken and disorderly conduct, Martin said. The lawyer said Duk went to the hospital after his release later that morning and learned he had been suffering a heart attack since the night before.

A heart transplant was performed months later in San Diego, where Duk now lives.

Martin said expert testimony revealed that Duk probably would not have needed the transplant if he had received treatment soon after the onset of his symptoms.

The first jury returned a verdict of $6.3 million but found Duk 49 percent liable and reduced the award by that amount. The second jury found that the hotel was not negligent and awarded nothing to Duk.

In a published opinion filed March 3, a 9th U.S. Circuit Court of Appeals panel ruled that U.S. District Judge Howard McKibben abused his discretion when he ordered the new trial.

Las Vegas attorney Bruno Wolfenzon, who represents the MGM Grand, could not be reached for comment on the appeals court's ruling.

CARRI GEER

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