A defense attorney says Dana Deegan appears to have been the first woman prosecuted in federal court for the murder of her child within the first day of its life.

Bill Schmidt argued Tuesday to the 8th U.S. Circuit Court of Appeals in St. Paul, Minn., that because of that distinction, U.S. District Judge Daniel Hovland should have been more thorough in explaining the factors he considered in giving her a sentence that fell within federal sentencing guidelines.

Hovland sentenced Deegan on May 12 to 10 years and one month in prison for second-degree murder in the death of her infant son. At sentencing, Schmidt recommended a sentence of probation while Assistant U.S. Attorney Clare Hochhalter recommended the sentence Hovland handed down.

Schmidt appealed the case to the 8th Circuit following sentencing, and Schmidt and U.S. Attorney Dave Hagler argued the case Tuesday in St. Paul.

Deegan has admitted to giving birth to a full-term baby boy at her mobile home in Mandaree on Oct. 20, 1998. She cleaned the child, fed him, dressed him and wrapped him in towels and blankets before taking her three daughters, ages 1, 2 and 5 years old at the time, to her mother's home in White Shield. The newborn was alone in the home for approximately two weeks.

The child was dead when Deegan returned alone to her mobile home, which is on the Fort Berthold reservation, and she placed him in a suitcase and put the suitcase in a ditch near her home, court documents say.

The suitcase and the child inside were found on Nov. 4, 1999, by a rancher repairing fences in the area. The child has been known as "Baby Doe" or "Baby Moses" since it was found. Community members paid for burial expenses for the child, since his identity and family were unknown at the time. Deegan was identified as the mother of the child in February 2007 by DNA tests, and she was charged in the case in May 2007.

At sentencing, Dr. Phillip Resnick, a forensic psychiatrist and expert in the murder of children by parents, testified that the case fell in the category of "neonaticide." He said the killing of infants within the first day of life is different than the murder of older infants and children in that the parent who kills a newborn often feels overwhelmed about caring for a child. He said Deegan lacked the psychological resources to care for a fourth child.

On appeal, Schmidt argued that neonaticide represents a unique situation unlike other offenses categorized as second-degree murder, and federal sentencing guidelines established by the U.S. Sentencing Commission for second-degree murder would not have taken into consideration neonaticide.

The U.S. Sentencing Commission establishes sentencing guidelines, which are voluntary for federal judges to follow, to establish consistency for sentences handed down for similar crimes committed by defendants in similar circumstances. The guidelines taken into account the offense committed, factors related to the offense, and the defendant's criminal history.

Schmidt said that while the sentencing commission takes into account thousands of cases in coming up with the guidelines, there is no empirical data on sentences dealing with neonaticide that would have been considered in establishing the second-degree murder guidelines.

"This is not your run-of-the-mill second-degree murder case," Hagler agreed.

He said prosecutors contend that Hovland correctly began with federal sentencing guidelines, then considered the factors that judges must consider before pronouncing a sentence. Hovland said at the hearing that he had considered the factors in law he had to consider, as well as the presentence report, sentencing memorandums and Resnick's report and testimony.

However, Schmidt, a federal public defender, said Hovland always says he considers those things when he is sentencing a defendant. He said the judge should have explained how the factors, which include such things as whether the sentence will reflect the seriousness of the offense and protect the public from further crimes of the defendant, played into the sentence.

"He did not go through each one specifically,"Schmidt said.

Though Deegan pleaded guilty to second degree murder as part of a plea agreement in which she waived her right to appeal any sentence falling within federal sentencing guidelines, prosecutors decided not to use that as their argument.

"It was a unique case, and we allowed it to be determined on its merits," Hochhalter, who handled the case, said.

Senior Judge Myron H. Bright, Judge Bobby E. Shepherd and Judge Steven Colloton heard the case and will issue a decision at a later date.

Schmidt said it was hard to tell what the judges were thinking about the case during Tuesday's arguments.

"It'd be just a shot in the dark" to guess they'll decide, he said.

(Reach reporter Jenny Michael at 250-8225 or jenny.michael@bismarcktribune.com.)