White decided the evidence supported Nesselroad-Slaby’s claim she forgot her child was in the car. Once he made that decision, criminal charges were out of the question.

If the mother forgot, White said, she could not have disregarded a risk because she didn’t know the child was there. He said people who don’t like his decision should push for a change in state law that would allow a misdemeanor charge if prosecutors can prove negligence, which White said would have applied in Nesselroad-Slaby’s case.

“It would make our job a lot easier,” White said. “It wouldn’t be as tough a call.”

Several current and former prosecutors say that, based on what they know about the case, White made the right decision.

“Everyone loves to believe that if someone dies, there’s a crime. And sometimes there’s not,” said Hamilton County Prosecutor Joe Deters. “If she didn’t believe the kid was in the car, it’s not reckless.

“It’s a horrible mistake.”

When police and shoppers spotted three-week-old Tylisha Melendez strapped in her car seat in a locked Plymouth minivan outside a suburban Wal-Mart on an 85-degree afternoon, they hurriedly tracked down the infant’s foster mom. Her first words upon reaching the vehicle, “Oh, my God, we forgot the baby.”

Despite being left sleeping in her car seat, the baby survived the stifling heat. But forgetfulness was no excuse. Police in Colerain Township filed a child endangering against Kathleen Morton, a 45-year-old African American woman who had taken in eight foster children. She was convicted of a first degree misdemeanor and received probation, a six-month suspended jail sentence, a $100 fine plus court costs, and was ordered to perform 100 hours of community service.

And when Morton appealed, Hamilton County prosecutors fought her and won.

(...)

But consider what Hamilton County prosecutors told the appeals court in Cincinnati about Kathleen Morton’s actions in the Wal-Mart parking lot on a hot June day in 1999 (and remember the baby did not die):

“First, the child in this case, not yet one month old, is completely dependent upon (Morton) for care and is unable to look after herself in any way. The facts demonstrate that (Morton) knew that it was likely the infant was alone in the car . . .

“Leaving a less than one-month old infant alone in a closed-up, locked vehicle on a hot, humid day creates a substantial risk of harm to the health and safety of that child. After only thirty to forty minutes, the baby’s breathing was heavy and labored. She was drenched in sweat, her clothes saturated, perspiration dripping from her ears and pooled in her eye sockets. Regardless of whether Tylisha required emergency care or hospitalization, conditions such as these certainly created risk of harm to her health and safety.”

The appeals court agreed, and ruled 2-1 Morton was reckless because she didn’t pay close enough attention, and didn’t check the minivan for Tylisha before heading into the Wal-Mart.

“The largely undisputed evidence adduced at trial was that Morton had failed to take the necessary measures to ensure that Tylisha was receiving the care that a three-week only infant requires. Morton testified she assumed (blank) or one of the older children had taken Tylisha into the store . . .

“But Morton acknowledged that the children were already out of her line of sight before she left her van and that she had not seen (blank) take Tylisha out of the van. Morton did not check the van herself to ensure that all the children were properly supervised.”

And, the 1st District added:

“Construing the evidence in a light most favorable to the prosecution, and bearing in mind the absolute dependence of a three-week-old child on her parent or guardian, we hold that the trial court could have properly concluded that Morton’s failure to ascertain the whereabouts of Tylisha constituted a heedless indifference to the consequences of leaving the child unattended in the vehicle.”