The opinion of the court was delivered by: Baker, Senior District Judge.
Robert Ford, the petitioner, is a prisoner in the Illinois
Department of Corrections and has filed a pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254. At this time, the
court grants the petition and orders the writ. This court finds
that Ford is in "custody in violation of the Constitution . . .
of the United States." 28 U.S.C. § 2254(a). Specifically, the
state failed to prove the petitioner guilty beyond a reasonable
doubt, and therefore the petitioner's incarceration violates
The Supreme Court has very recently restated that "issuance
of the writ will, at least often, avoid a grievous wrong
— holding a person in custody in violation of the Constitution
of the United States." O'Neal v. McAninch, ___ U.S. ___, ___,
115 S.Ct. 992, 993, 130 L.Ed.2d 947 (1995). The federal courts'
habeas power "protects individuals from unconstitutional
convictions and helps to guarantee the integrity of the
criminal process by assuring that trials are fundamentally
In July, 1990, Ford was convicted of intentional homicide of
an unborn child*fn1 in the Circuit Court of Champaign County,
Illinois, Sixth Judicial Circuit. He was sentenced to twenty
years in prison. Ford was convicted after a bench trial. The
bench trial included both occurrence and medical testimony.
Ford appealed his conviction. Ford's appeal was two pronged
— he claimed that the Illinois feticide statute violated the
equal protection and due process provisions of the United
States Constitution, and he claimed his conviction under that
statute violated due process. The Illinois Appellate Court,
Fourth District, affirmed his conviction. People v. Ford,
221 Ill. App.3d 354, 163 Ill. Dec. 766, 581 N.E.2d 1189 (1991).
Ford renewed each of his constitutional claims in his
petition for leave to appeal before the Illinois Supreme Court.
Leave to appeal was denied. People v. Ford, 221 Ill. App.3d 354,
163 Ill.Dec. 766, 581 N.E.2d 1189 (1992).
Next, Ford filed a petition for a writ of habeas corpus in
this court on May 18, 1994. Under 28 U.S.C. § 2254, before a
federal court can consider a petition for habeas corpus, it
must determine that the petitioner is in custody pursuant to
the judgment of a state court, and that the petitioner has
exhausted all available state remedies. On May 26, 1994 this
court recognized that the petitioner, Ford, was in custody
pursuant to a state court judgment, and that he had raised
constitutional claims. Under Habeas Rule 5, this court ordered
the respondents to answer the petition, specifying that the
respondents were to address whether the petitioner had
exhausted state remedies, and additionally to address the
substance of the petitioner's constitutional claims. The
respondents filed an answer stating that the petitioner had
exhausted all state remedies, and arguing against all of the
petitioner's constitutional claims.
The court now addresses the petitioner's substantive claim
that his constitutional rights have been violated by his state
court conviction and subsequent incarceration.
During the relevant time period, Ford lived with his wife
Mary Marion and her two daughters, Gwendalyn and Karonda.
Karonda was confirmed pregnant in August, 1989. During a
prenatal visit to the Francis Nelson Community Health Center on
August 11, 1989, Dr. Camilla Parham determined that Karonda's
fetus was approximately 20 weeks old. Dr. Parham found Karonda
to be moderately anemic, typical in teen pregnancies, but
otherwise the pregnancy was normal. Dr. Parham put Karonda on
prenatal vitamins and an iron supplement. Karonda stopped
taking the vitamins because she thought they made her sick.
The Robert Ford/Mary Marion household was often troubled by
drunkenness and violence. The animosity between Ford and
Karonda Marion seems to have been particularly acute. Two
incidents stand out: August 17, 1989 and September 17,
August 17, 1989 was Karonda's seventeenth birthday. Karonda's
uncle, Arthur Lyn Fuller, was visiting. Ford had been drinking.
He came into the house, saw Fuller eating at the kitchen table,
and started yelling "get the fuck out of my house." Fuller and
Ford were yelling back and forth. Karonda was defending Fuller
and yelling at Ford. Ford left the room and returned holding a
pool cue, he thumped the pool cue on the palm of his hand. Ford
threatened Karonda and her fetus. (Ford yelled that he would
knock the bastard out of her stomach.) Karonda got a knife out
of the kitchen drawer. Ford left the house. Karonda followed
him outside with a knife in her hand. Ford "body slammed"
Karonda, or lifted her up in the air and threw her down onto
the ground. He got the knife out of her hand and threw it. Ford
was pulled off of Karonda by Fuller and/or Gwendalyn. Outsiders
intervened and stopped the fight.
Karonda testified that she didn't suffer any abdominal pain
or vaginal discharge or bleeding subsequent to the August 17
fight with Ford. She did not receive any prenatal medical care
at that time or at any time following. Karonda testified ...