TAMPA — A federal judge isn't convinced that the abortion pill John Andrew Welden gave an ex-girlfriend caused her to miscarry, and those judicial misgivings could translate to a shorter prison sentence than recommended for Welden.
An emergency hearing has been scheduled for today.
The 28-year-old son of a Lutz gynecologist is supposed to be sentenced Tuesday in a case brought under the federal Unborn Victims of Violence Act. In a plea agreement, Welden admitted to mail fraud and product tampering causing serious bodily injury. His attorney and the prosecutor recommended a sentence of 13 years and 8 months.
But in an order signed Friday, U.S. District Judge Richard A. Lazzara calls into question the strength of the government's case against Welden. He notes that defense experts say it's impossible to definitively conclude that one 200 microgram tablet of misoprostol (brand name, Cytotec) caused the death of Remee Jo Lee's nearly 7-week-old embryo in the spring.
And, to Lazzara's knowledge, the government has offered no evidence to refute that, he wrote.
"As a consequence, the Court has grave concerns with regard to whether there exists a true factual basis to support the parties' joint stipulation and recommendation," he wrote.
Lazzara's order put prosecutor W. Stephen Muldrow on notice that he would be expected to prove Tuesday "by a preponderance of the evidence that the victim's ingestion of Cytotec in fact caused her serious bodily injury and in fact caused the death of her unborn embryo."
Although Cytotec is known to trigger miscarriages, defense experts have said that repeat doses are typically prescribed. No one has claimed that Lee took more than one pill.
Absent evidence that the pill caused the injury, the judge said he could be looking at sentencing guidelines for Welden that are as low as 41 to 51 months.
Muldrow immediately asked for a delay in the sentencing, saying the government had an expert to back up its case, but that person would not be available for the Tuesday hearing.
On Sunday, defense attorney Todd Foster responded, objecting to a delay because Welden's friends and family members had already made arrangements to be in Tampa to speak on his behalf.
All parties will meet today for an emergency hearing to determine whether the sentencing should be rescheduled.
In his order, Lazzara said he appreciated that the prosecutor and defense counsel engaged in good-faith plea negotiations to resolve the case without trial, but he has an independent obligation to determine the facts of the case.
Welden pleaded guilty in September to consumer product tampering and conspiracy to commit mail fraud. In exchange, the government dropped a first-degree murder charge filed under the Unborn Victims of Violence Act, which could have been punishable by life.
Staff writer Patty Ryan can be reached at pryan@tampabay.com or (813) 226-3382.
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