Doctor Accused of Manslaughter After Fatal Abortion Takes Dramatic Plea Offer to Lesser Included Offense — Seconds Before Jury Returns With Verdict

A Queens Obstetrician/Gynecologist dramatically took a guilty plea Friday to an uncharged, lesser-included offense of Criminally Negligent Homicide at the end of the third day of jury deliberations in his trial for Reckless Manslaughter stemming from the July 2016 death of a patient following a 23+ week abortion.  The decision to take the plea occurred literally seconds before a previously deadlocked jury came back with a verdict – and only after the defendant was reported to have made contact with a juror with information about the case which had not been entered into evidence, necessitating the questioning of all 12 jurors by the court to determine if they could remain fair during deliberations.  Instead of facing up to 15 years in prison on the Reckless Manslaughter charge, the defendant, Dr. Robert Rho, will receive a sentence of 1 1/3 years in prison, eligible for work release in less than a year.

The Charges and Evidence Against Dr. Rho

Dr. Rho’s Reckless Manslaughter charge (NYPL § 125.15 (1)) followed the late second trimester abortion of Jamie Morales who had come to Dr. Rho for an abortion after previously being turned down by Planned Parenthood and another Queens abortion clinic, due to their determination that the pregnancy was too advanced.  New York law limits abortion to 24 weeks from commencement of the pregnancy (NYPL §§ 125.05, 125.40).  Supporting the charge of Reckless Manslaughter – Dr. Rho’s engaging in conduct which created or contributed to a substantial and unjustifiable risk that his patient’s death would occur after being aware of and consciously disregarding that risk – was the State’s evidence that Dr. Rho had administered the heavy sedative Propofol himself instead of from a licensed anesthesiologist, his failure to have the assistance of medically trained nurses during and after the procedure, his failure to dilate Ms. Morales’s cervix prior to the abortion, the severing of the patient’s uterine artery and the failure to surgically repair it which led to the patient bleeding to death, and finally, his discharging of the patient while she was clearly under distress, as evidenced by office security video which was shown to the jury.  In addition, one of Dr. Rho’s purportedly untrained medical assistants testified that Dr. Rho directed her to place fake vital sign numbers into the victim’s medical record during the procedure.

Conscious Disregard of Known Risks

The claim that Dr. Rho was aware of and disregarded these risks was supported by evidence that Dr. Rho had been made aware of and participated in the two year investigation by the New York State’s Department of Health’s Office of Professional Medical Conduct for his failure to employ an anesthesiologist to handle the sedation and failure to employ nurses to check vital signs during abortions. In addition, the defendant’s website promoted two day abortion procedures for late second trimester abortions; the first day would be spent dilating the cervix to prevent any damage to the cervix and uterus during the removal of large fetal tissue and bone. Instead, the evidence showed, the abortion at issue occurred soon after the patient arrived to the defendant’s office.

The Defense Theory: Lupus Caused Excessive Bleeding

The defense proffered an alternate theory for the patient bleeding to death: she had purposely lied about her serious medical history in a desperate effort to get the abortion, neglecting to inform the defendant that she was afflicted with Lupus, an auto-immune disease which can lower the body’s platelet count and cause excessive bleeding.  In support of this theory, the defense offered the testimony of a Rheumatology expert, a professor from the Johns Hopkins University who specializes in Lupus.

Jury Deliberations — and a Major Problem With the Jury

Nevertheless, the jury deliberated for two full days and appeared to be deciding between which of the two charges of which to convict.  Deliberation day three, however, started with a surprise: a juror claimed the defendant approached him in the courthouse’s security line and provided information about the case which had not come into evidence in the trial; the juror then reported what had occurred to the other 11 jurors.  Each of the jurors were questioned individually by the Court and each claimed they could continue to be fair to both sides in the trial.  An hour later, however, the jury had another note: incredibly, they were deadlocked.

After the Allen Charge is Read, the Parties Reach a Plea Agreement

The judge read the jury the Allen charge, also known as the “dynamite charge.”  This is an instruction given to a deadlocked jury in an effort to dislodge jurors in the minority from their entrenched positions.  After the Allen charge was read, defense counsel immediately offered the prosecutor a plea offer: the defendant would plead guilty to the lesser included charge of Negligent Homicide to settle the case. Instead of facing a prison sentence of up to 15 years, the defendant would be released from prison in approximately ten months.  After checking with the victim’s family and his supervisors, the prosecutor agreed to the deal.  At that point, defense counsel informed the court clerk that the parties had reached a plea agreement.  Within seconds, however, the jury came back with another note.

A Verdict is Reached — Just Seconds Too Late

While defense counsel expected the State to honor its deal, instead, once the judge announced the inevitable – that the note indicated that the jury had reached a verdict – the prosecutor announced that the deal was off and wanted the verdict read.  At that point, Rho’s defense counsel insisted that a binding contract had been made: an offer and acceptance of the plea agreement had occurred before the parties learned of the jury’s latest note, even if it was just seconds before.  The Court agreed and the prosecution relented: the plea agreement stood and the defendant entered a guilty plea to the lesser charge of Criminally Negligent Homicide (NYPL § 125.10), a sentence of which should require the defendant to spend approximately 10 months in prison.  The verdict, which could have triggered a prison sentence of up to 15 years, was never read and remains unknown.  Dr. Rho will be sentenced on June 26 and will surrender that day to begin serving his sentence.

Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense. Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series, New York Magazine and Ozy. He can be reached at (212) 581-1001.