Submitted by Fox First at Ten on September 11th
By KRISTI EATONAssociated Press
SIOUX FALLS, S.D. (AP) - A defense lawyer for a South Dakota woman charged under the state's new child death reporting law says it's unconstitutional because it violates his client's right against self-incrimination.
It's one of the first attempts to question the validity of the new child death reporting laws that have been passed by several state legislatures following the high-profile death of 2-year-old Caylee Anthony in Florida.
Laurie Cournoyer and her husband, Taylor Cournoyer, 21, are charged with failing to notify police of the death of a 2-year-old girl found in a closet at their rural South Dakota home. They also face five counts of child abuse and drug charges. The Cournoyers are accused of using sleeping pills, methamphetamine and marijuana during the day and a half in July when the child's death still hadn't been reported.
They are the first people charged under a South Dakota law passed earlier this year that says a parent, guardian or caretaker who knowingly fails to report a child's death within six hours could face a felony charge punishable by up to five years in prison. It was modeled after Florida's "Caylee's Law," which was passed following the death of Caylee Anthony, who wasn't reported missing until 31 days after she vanished in 2008 in Orlando.
An 11-year-old boy also has been charged in the South Dakota case. Details of his alleged involvement are not being released because he is a juvenile.
Scott Swier, the lawyer for Laurie Cournoyer, 29, said in a motion he gave to The Associated Press ahead of its filing that he is asking the charge of failing to notify law enforcement be dismissed.
In the motion, Swier said the charge should be dismissed because it violates the fifth amendment. Swier filed the motion and a memorandum in support of it in Charles Mix County Court on Tuesday afternoon.
The law "presents a defendant with the proverbial choice between 'a rock and a hard place' - either incriminate herself or commit a crime for failing to do so," the memorandum in support of the motion says.
In a statement to The Associated Press, Swier said "essentially what the state has done is criminalized a citizen's right to remain silent."
According to police affidavits, Laurie Cournoyer had a difficult time recalling recent events and the last time she had seen the toddler. At one point when questioned about the exact time, she said, "Maybe it was yesterday, I don't know." She could not recall who had placed the toddler in the closet.
Attorney General Marty Jackley said he could not comment specifically on the motion until the state sees it.
"Because neither the state nor the court has had the benefit of receiving any constitutional challenge to South Dakota's Caylee's Law, it is difficult to respond beyond, 'It is not my interpretation that the constitution protects or creates a right to place a dead child in a closet,' " he said.
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