TAMPA — A federal judge has delayed today's planned sentencing of abortion pill defendant John Andrew Welden, asking to first hear medical testimony about the potency of the drug misoprostol.
U.S. District Judge Richard A. Lazzara likely would have had the benefit of such testimony had the case gone to trial.
But because Welden took a plea deal in September, the government did little to contradict assertions early on by defense experts who said it would be impossible to know whether one 200 microgram dose of the drug caused the death of Remee Jo Lee's nearly 7-week-old embryo.
The judge opened the door Monday to a battle of the experts and said he would serve as the finder of fact.
Welden, 28, has admitted giving Lee a bottle of the pills disguised as a common antibiotic after she became pregnant and declined to have an abortion. Although intimate with Lee, the gynecologist's son also had a longtime girlfriend. Lee took only one pill before she said cramping began.
Attorneys had stitched up a plea deal that left Lazzara with little to do this week except tie a knot on a recommended sentence of 13 years and 8 months and try to get Welden accepted into a minimum security camp.
But after the judge read the pre-sentencing report and reviewed the case so far, he expressed concern about "genuine issues of relevant fact" — an apparent reference to unanswered defense claims sowing doubt about the cause of the miscarriage.
In a June court filing, Welden attorney Todd Foster reminded the judge that 25 percent of pregnancies end in miscarriage. He included an affidavit from Dr. Rebecca Allen, who teaches obstetrics and gynecology at the medical school at Brown University and who has written extensively about misoprostol.
She opined that it would be "impossible" for one 200 microgram dose to have caused serious bodily harm and also "impossible" for anyone to definitively say that it induced Lee's abortion.
The proposed sentencing calculations in the plea agreement relied on an enhanced penalty for causing serious bodily injury.
Without the enhanced penalty, sentencing guidelines could dip as low as 41 months for the crimes of mail fraud and product tampering, Judge Lazzara noted.
He put prosecutor W. Stephen Muldrow on notice Friday that he expected the government to try to refute defense experts who cast doubt on the potency of the drug to act in just one dose.
Muldrow said he had experts who could do so.
The judge granted a delay in the sentencing at Muldrow's request and told attorneys he would prefer to hear from their experts in person, not by telephone, so that he might better gauge their demeanor and responses.
A new sentencing date has not yet been set.
The judge also granted a request from the Welden family to cut back on the court-ordered private security that has enabled Welden to remain at home while awaiting sentencing.
When he was first granted bail, Welden was required to have two security guards around the clock. Later, Lazzara reduced the number to one. Now, no guard will be required at night so long as Welden's father or stepmother are home.
Staff writer Patty Ryan can be reached at firstname.lastname@example.org or (813) 226-3382.