GOLDEN — Cheri Kostur awoke in the predawn hours of Jan. 21, 2007, and needed to use the bathroom.
Seven months pregnant and the mother of three children, Kostur “had no labor pains — no reason to think she was going to use the restroom and deliver her baby into the toilet,” said her attorney, Dan Katz, in his opening statement today in her trial on a charge of child abuse resulting in death.
Kostur, 29, gave birth to a daughter, Kara, who prosecutors say was born alive and drowned when Kostur failed to rescue the baby from the toilet.
A mistrial was averted Tuesday when Kostur shunned her attorneys’ advice and asked to proceed with an 11-member jury.
The prosecution had given its opening statement, laying out the case and its details in the morning. Two jurors were excused after they raised concerns that they had read or seen news stories about the case and discussed it with other jurors during lunch and later in the jury room.
No news stories predating the trial, which started Monday, could be located.
However, Judge Lily Oeffler and the attorneys agreed that jurors probably confused Kostur’s case with one in which Erin Pendleton was sentenced in February to 40 years in prison in the 2004 birth of a baby boy in a Cherry Creek sports bar restroom. After giving birth, Pendleton placed the baby in a bag in the restroom trash can, where it died.
For Kostur, giving birth to her baby in a toilet “was an unexpected occurrence with understandable responses,” Katz said.
“Before I could realize what was happening, I looked down, and my baby was in the toilet,” Katz read from a transcript of an interview between Kostur and detectives. “I looked down, and there she was.”
Katz said Kostur had difficulty pulling the baby out of the toilet, saying she did so after a few seconds and not the two minutes that a Lakewood police officer claims she said.
Kostur told police she didn’t realize what was going on. “You don’t know what to do,” she said in a statement. “You freak out. It haunts you.”
Calling the toilet birth “the most traumatizing thing ever in my life,” Kostur said she thought she was going to die and laid down on her bed.
Kostur said she woke up when an ambulance arrived. Paramedics described her as detached, disoriented and confused.
Kostur also contends she never heard the baby cry, although a Lutheran Medical Center doctor who examined her said that’s what she told him. Katz said Kostur refuted the comment, adding she never told anyone else that.
“People probably think it doesn’t hurt me, but it does,” Katz quoted Kostur as telling police. “I see her all the time. I wake up with nightmares about it all the time.”
Ann Schrader: 303-278-3217 or aschrader@denverpost.com
