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Infant’s Death Prompts Review of Georgia’s ‘Year-and-Day’ Murder Law

August 15, 1990

ATLANTA (AP) _ No one is charged in the killing of baby Sala Shavon Cross. Under unwritten common law dating to the Middle Ages, she took too long to die.

Murder charges against Sala’s father, David Lebron Cross, were thrown out earlier this month. His attorney argued that, under common law, too much time had passed between the night the 3 1/2 -month-old girl was shaken into a coma and her death 18 months later.

The case renewed scrutiny on the ″year and a day″ rule, which doesn’t exist in Georgia’s official code but snakes through its judicial decisions and has become complicated by modern medicine.

An appeal of the Cross case, to be filed with the Georgia Supreme Court this month, provides the state with its best opportunity in nearly a decade to confront the issue. Cases that could potentially involve the death penalty must be appealed directly to the Supreme Court, bypassing a lower appellate court.

The ″year and a day″ rule is that a person can’t be prosecuted for murder if the victim dies more than a year and a day after an injury. It is based upon the precedents of English common law and dates back to the 13th century.

A prosecutor in the case said the rule leaves would-be murder cases hanging in a limbo created by advances in medical technology.

″The moral of this rule is if you hurt somebody, make sure you hurt them near a hospital, so they can stay on life support for a year and a day. Then, go on about your business,″ said Cobb County assistant district attorney Bruce Hornbuckle. ″That’s the nightmare scenario.″

Cross’s attorney said the rule keeps a person from having the threat of a murder charge follow him through the rest of his life.

″How long should somebody have something like this hanging over his head?″ asked defense attorney Bert Cohen. ″We value individual rights in this country, and it’s pretty cruel to have something like this indefinitely hanging over someone’s head.″

Cross still faces a child cruelty charge. If convicted he would face a maximum of 20 years. On the murder charge, prosecutors had said they would seek a life sentence.

Many states have over the past decade purged the rule through legislation, court decisions or a combination of the two, said Deborah Young, assistant professor of law at Emory University.

″Some of the reasons for the law have clearly passed their time in history,″ she said.

At least two other states, Nevada and Maryland, still have ″year and a day″ rules; in Nevada it’s a state law and in Maryland it is a matter of common law. Two states, California and Washington, have rules stipulating three years and a day.

In a 1981 case, a Georgia judge ruled the ″year and a day″ defense could not be used because the rule was not included in the state criminal code when the Legislature revised it in 1969. But the case never reached the state Supreme Court.

The rule has only been tested on appeal once, in 1943. The Georgia Court of Appeals let the ″year and a day″ defense stand.

Cross, 27, was arrested on charges of aggravated battery and cruelty to children in August 1987, one week after he carried his unconscious daughter to the hospital. He said she choked on her formula.

Medical tests found evidence of 11 old and new fractures of Sala’s ribs, arms and legs. And doctors at Scottish Rite Children’s Hospital determined Sala had suffered irreversible brain damage and would not regain consciousness.

In October 1988, the hospital and Sala’s mother, Linda Lawson, asked a judge to allow doctors to withhold lifesaving efforts if Sala stopped breathing on her own.

Cross refused to give his consent. His attorney asked that lifesaving procedures continue.

A judge denied Court’s request for continued resuscitation in December 1988. Sala died two months later.

Cross was indicted in October 1989 on charges of murder and cruelty to children.

At Cohen’s request, Cobb County Superior Court Judge Watson White dismissed the murder charge Aug. 2, saying the ″year and a day″ rule was the law in Georgia.

Hornbuckle said that on appeal he plans to use the same argument as in the 1981 case: the rule was not written into the revised criminal code.

″It’s our position that that recodification of the law did away with that common law rule,″ Hornbuckle said. ″Nobody decided that this is the rule. It attached itself to us and it stayed there.″

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