Uncertified midwife charged with murder pleads to lesser charges

ASHEVILLE — Justice was not served, Justin Whitlow said late Tuesday afternoon at the Buncombe County Courthouse.

His wife, Norine, stood a foot away with tears in her eyes, shaking her head in assent.

Minutes before, Judge William Coward, of Macon County, had given Tina Louise Bailey, 46, a suspended sentence of six to 17 months incarceration and three years unsupervised probation for her role in the 2012 death of the Whitlow's unborn son, Avery.

Coward also prohibited Bailey from practicing midwifery during the probation period.

"Rowan is our son's murderer," Justin Whitlow said, using an alias of Bailey's.

In a plea deal reached between Buncombe County District Attorney Todd Williams and Bailey's lawyer, county public defender M. LeAnn Melton, Bailey pleaded guilty to one count of felony obstruction of justice and one count of misdemeanor unauthorized practice of midwifery.

Bailey, an uncertified midwife who assisted in the birth of the Whitlow's son three years ago, was initially charged with murder of an unborn child, assault inflicting serious bodily injury, obtaining property by false pretense and obstruction of justice.

In accepting the plea deal, Coward called Avery's death "a tragic situation" and also assessed Bailey with about $4,600 in attorney and jail fees.

Midwifery practitioners must be certified nurse midwives, which Bailey was not, to legally attend deliveries in North Carolina. Bailey attended the unaccredited Matrona school of midwifery in West Asheville.

Williams said that "the parties knew that Bailey was not a certified nurse midwife at the time she provided services in the failed home-birth," in a prepared statement.

"After taking office in January, I reassigned this case to assistant district attorney Pat Patton for review," Williams said. "What appeared clear from Pat's review was that Ms. Bailey neither committed a violent act, such as an assault, nor was her conduct so reckless and inherently dangerous to human life that the evidence would show that she murdered an unborn child."

The Whitlows criticized Williams' handling of the case, saying he refused to return phone calls and emails for months.

They were not aware of the plea deal until Norine Whitlow called Williams' office last week, she said.

"This was supposed to be about getting justice for Avery, not about an unprofessional district attorney," Norine Whitlow said.

Williams said in a phone interview after the court hearing that "we feel we did a solid review of the file," referring to the Avery Whitlow case.

"I understand why the Whitlows are disappointed with the results," Williams said. "We reviewed the legal standards. Our job is to do justice."

In a letter to Williams obtained by the Asheville Citizen-Times, the Whitlows wrote, "You and your Assistant DA, Pat Patton have shown a serious lack of compassion and communication for us as Avery's parents and the victims in this case."

The Whitlows also wrote, "We feel that our rights as the victims have been overlooked for your convenience."

Police identified the cause of the baby's death as "prolonged rupture of membranes with acute chorioamnionitis and funistis and meconium aspiration," which occurs when a fetus breathes in fluid during delivery. Meconium results from a bowel movement that occurs when the fetus is in distress and deprived of oxygen.

Bailey told the parents during the July 2012 birthing to disregard the presence of meconium and asked the mother to lie about when her water broke and when she went to the hospital, according to court documents.

Authorities said the mother admitted herself to Mission Hospital on July 23, 2012, where the baby was stillborn four days after her water broke.

The parents paid Bailey $2,800 to serve as a midwife in the home birth of their child, according to court documents.

In a statement Norine Whitlow read during the hearing, she said Bailey "didn't follow any protocol at all, but instead chose to march to the beat of her own drum."

Whitlow said Bailey told her that meconium in her fluid was "no big deal" and suggested that she and her husband "Google it" to learn more about it.

Whitlow also said she was "glad (Bailey) was there, so she could witness the tragedy she perpetrated. Avery came out in a brown, repulsive smelling fluid. There was so much infection that the doctor suspected that Avery had been dead for a day."

Justin Whitlow told the court "Rowan murdered our son and put my wife's life in danger." He said Bailey was not a professional midwife, despite presenting herself as one.

"She is a liar, a cheat and a charlatan," he said.

Bailey did not make any statements during the hearing.

Stephen Lindsay, of the Asheville law firm Sutton & Lindsay, who is representing Bailey in a civil suit brought against Bailey by the Whitlows in small claims court, declined to allow Bailey to be interviewed.

But on behalf of his client, Lindsay said Bailey sympathizes with the Whitlows and also feels "a great sense of loss. She hopes they can find a way to move forward in their lives."

Lindsay said Bailey is "steadfast in her belief that she did not contribute to the death of the Whitlows' son. But she also understands that nothing she feels comes close to what the Whitlows have experienced in losing a child."

Evidence that Melton presented during the hearing included a report from Dr. David Schwartz, a maternal-fetal medicine specialist in Baltimore, Maryland.

Melton said Schwartz reviewed Avery Whitlow's case and concluded that "what happened was not Bailey's fault, the parents' fault or Mission Hospital's fault."

Instead, "issues with the placenta had been going on for weeks," Melton said Schwartz found. Schwartz concluded there was no way to diagnose the condition that killed Avery Whitlow prior to his birth, Melton said.

Lindsay said that evidence contributed to the district attorney's decision to move toward a plea deal.

"I understand the Whitlows are very upset," Lindsay said. "But Williams looked at the reports, and he saw the truth."

Lindsay said Williams understood he was not going to win the case if he proceeded with the original charges against Bailey.

Bailey was jailed a second time in December 2013 after police said she made unauthorized trips to department stores just before Christmas, violating conditions of her pretrial release. At the time of sentencing Tuesday, Bailey had already served 282 days of pretrial confinement credit in the Buncombe County Detention Facility.

Hundreds of midwifery advocates across the country came to Bailey's defense at the time of her arrest, gaining national attention.

In less than a week, supporters raised more than $15,000 to help make bail for Bailey through a fundraising account on Indiegogo.com.

The Matrona school, still an active nonprofit operating in West Asheville, is not accredited by any governing body, including the U.S. Department of Education or the Midwifery Education Accreditation Council.

The school teaches "quantum midwifery" and methods of "undisturbed birth," designed for "self-directed families planning an unassisted birth," according to the school's website.