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, during his opening statements Wednesday 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 her from the toilet.
A mistrial was averted Tuesday after Kostur shunned her attorneys’ advice and asked to proceed with an 11-member jury.
That morning, the prosecution had given its opening statement, laying out the case. 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 found.
Judge Lily Oeffler and the attorneys agreed that jurors probably confused Kostur’s case with Erin Pendleton’s. Pendleton was sentenced in February to 40 years in prison for giving birth in a Cherry Creek sports-bar restroom in 2004 and placing the newborn in a bag in a 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.
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.
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.
“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
