TAMPA — John Welden admits he intended to cause his pregnant girlfriend to miscarry when he tricked her into taking an abortion pill.
But even though Welden pleaded guilty to product tampering and mail fraud, the prosecution and defense still disagree over the effects the dose of Cytotec had on Remee Jo Lee and the embryo she was carrying.
On Thursday, a federal judge scheduled hearings for Jan. 8 and 9 to hear expert testimony from both sides, saying he had to make his own finding about what happened to Lee. The judge said he couldn’t just “rubber stamp” the plea agreement that recommended a sentence of 13 years and eight months.
The plea agreement had appeared to paper over the question of the effects of the Cytotec because the prosecution agreed to dismiss a more serious charge against Welden: a rarely invoked form of murder under the “Unborn Victims of Violence Act,” which carries a mandatory sentence of life without parole.
And Welden admitted that whatever the drug dose did, he intended to end the pregnancy without Lee’s knowledge.
But U.S. District Judge Richard A. Lazzara says the issue of the drug’s effect on Lee is still crucial to determine what sentence he will impose, notwithstanding the recommendation of the prosecution and defense.
“There’s a lot at stake,” the judge said Thursday.
At the heart of the issue rests the federal sentencing guidelines, under which judges determine what penalties to impose. The guidelines contain detailed formulas, including the degree of injury a victim has suffered, that are used to develop a sentencing range. In Lee’s case, both sides recommended in the plea agreement that Lee’s injury should be considered between “serious bodily injury’’ and “permanent or life threatening injury.’’
Before the plea agreement was reached, the defense had filed with the court affidavits from experts who said there was no way to prove the single dose of Cytotec caused Lee’s miscarriage. The prosecution never provided opposing expert information, but the issue seemed moot once Welden agreed to plead guilty.
However, Lazzara notified the parties last week that the issue was important to his sentencing determination. The judge told lawyers Thursday that the probation officer who prepared a pre-sentencing report included the defense expert information in determining the level of injury sustained by Lee.
So instead of the sentence of 13 years and eight months in the plea agreement, the guideline range could fall low enough to require a sentence of between 41 and 51 months.
“This is a very unique and rare case,” said Assistant U.S. Attorney W. Stephen Muldrow, who told Lazzara he could present testimony from two experts that Lee’s injury could be considered permanent or life threatening. But he said the prosecution would stand by its recommendation in the plea agreement for a finding of the mid-level of injury.
Welden, the son of a practicing OB/GYN physician, was a college student who hoped to attend medical school at the time of the offense.
According to a defense sentencing memorandum, a psychiatrist has determined that Welden was suffering symptoms of bipolar disorder when he tricked Lee into taking the drug. Welden had taken Lee to see his father, and then told her she needed to take an antibiotic for a nonexistent infection. Welden then altered Cytotec pills to them look like a common antibiotic and gave them to Lee.
At the time Welden was involved with Lee, he had another long-term girlfriend he hoped to marry, according to court filings.
Welden, who attended Catholic school, is devoutly religious, and even organized a jail Bible study group after he was arrested and before he was released on bond, according to a defense court filing.
His friends and family believe his actions in this case were against his nature, the defense filing states, “a panicked and thoughtless reaction brought on by extreme anxiety.”