The criminal case of an Aurora couple charged in the co-sleeping death of their 2-day-old baby has spurred outcry from state reproductive justice groups who describe the prosecution as part of a growing trend across the country in which pregnant and postpartum people are facing more criminalization.

Brittany Diekneit, 27, and her husband Sean Byrne, 26, are each facing a felony charge of child abuse resulting in death. Diekneit and baby Walker returned home from the hospital on Sept. 22, and Walker died sometime that night or early morning. In April, three months after the autopsy was completed, arrest warrants were issued for the pair. The Aurora police arrest affidavits allege that the couple was drinking alcohol before sharing a bed with the baby and “ignored the substantial and unjustifiable risk of co-sleeping with Walker while being incapacitated and they were thus unable to check on him.”

The 18th Judicial District Attorney’s Office also upped the detective’s initial charge of a class 3 felony (criminal negligence in the death) to a class 2 (knowingly or recklessly causing the death) – increasing possible sentencing and fines.

Diekneit’s attorney Adam Yoast argues that not only is there no clear evidence to explain what killed the baby, he also points to blood tests the parents took that show they were not intoxicated. The couple’s defense teams say the young parents’ lower socioeconomic status and backgrounds likely factored into how they are being prosecuted.

“The crux” of the case is that the District Attorney’s Office has “made sleeping with an infant in your bed a criminal action, essentially,” said Alan Davis, Byrne’s attorney.

Nonprofit organizations Elephant Circle, Soul2Soul Sisters and ProgressNow Colorado penned a letter to the DA’s office denouncing the case against Diekneit, citing systemic failures as more to blame than the parents for the death. Nationwide, groups have been raising alarms about criminalization involving pregnancies — most often affecting women of color and those who live in poverty — which they fear will get worse.

“Advocates need to have the frame of reproductive justice to a different degree now, post-Dobbs (the U.S. Supreme Court case reversing abortion rights),” said Kayla Frawley, ProgressNow’s legislative director. “We have to see how these cases relate to the criminalization of pregnancy itself now. … We know the gravity of these cases and that they’re happening and they’re often not amplified and not publicized because they’re done to families that are very low-resourced.”

The nonprofits advocating for equity and reproductive justice also argue that the charges go against Colorado’s policies, which favor education, treatment and keeping families together over prosecution.

The District Attorney’s Office declined to comment on the case.

Since Walker’s death, the couple’s 2-year-old daughter and Diekneit have been living with Diekneit’s parents because she and Byrne aren’t allowed to be alone with the toddler or have contact with each other.

“I can’t make sense of it,” Diekneit said. “I can’t. I know I did not hurt my son. And I know I knowingly did not hurt my son. I would never ever, ever, ever, ever hurt my children.”

The night of Walker’s death

On the night of Walker’s death, Diekneit and her husband ordered Chinese food for dinner and celebrated the baby’s arrival with some drinks.

Diekneit – who was not breastfeeding – said she had two mimosas that night. Byrne told the officer he had four or five over the course of several hours before feeding Walker at about 1:30 a.m. and going to bed, according to the affidavit.

Shortly after 6 a.m., Diekneit woke up in a panic. She hadn’t yet looked at the time, but she knew it had been too long since Walker woke up to be fed, and he wasn’t crying.

“I don’t relive this day in my head often,” she said, as she cried. “I just instantly start saying that he’s dead. ‘He’s dead. He’s dead. He’s dead.’”

Attempts to revive Walker by his parents and then by police and paramedics were unsuccessful. He was declared dead at 7:13 a.m.

In the arrest affidavit, a detective included pictures of empty alcohol bottles found in the trash and kitchen and empty containers of dabs, a form of THC concentrate, in the bathroom as part of the officers’ investigation.

The parents also took blood tests. Although Byrne’s showed THC in his blood, his test and that of Diekneit came back negative for alcohol. The arrest document stated this was unsurprising because of the length of time between consumption and testing. But Diekneit said she also took a urine analysis test — which can potentially detect alcohol for three or more — for the Department of Human Services, and it came back negative.

Yoast called the investigation a sham to make the couple look bad by repeatedly referencing alcohol, despite little evidence that alcohol caused the baby’s death. Davis referred to the discussion about alcohol in the case as “outside noise.”

Police noted in the affidavit that Byrne had a criminal history involving alcohol and drug use, including a prior case involving his daughter — he received a deferred sentence and was required not to consume alcohol or drugs as part of a protection order.

Diekneit’s only prior criminal charge was a 2017 misdemeanor DUI charge from when she turned 21. But Diekneit hasn’t had any issues with drinking since, she said, including during her two pregnancies. She spent time in a rehab facility years ago, where she met her now-husband, and she said the couple has worked hard to make a better life for their family. They’ve also complied with a Department of Human Services plan set up for their daughter, which they’d expected to conclude until they were charged in Walker’s death.

Yoast said the case is a clear example of government “placing their perceptions on how mothers and fathers should raise their children.”

For Byrne, the months since Walker’s death have been a nightmare.

“The best thing that happened to me was both my kids, and the worst thing that happened to me and my wife is the worst thing that can happen to any parent,” he said.

The autopsy

The autopsy results of Walker’s death were inconclusive, citing only “environmental unsafe sleep and exposure to sertraline” as “significant conditions” in the baby’s death.

Including these conditions seemed unusual to Heather Thompson, one of the deputy directors of Elephant Circle — a birth justice group behind some of the advocacy for Diekneit. The sertraline likely transferred to the baby during Diekneit’s pregnancy when she used her prescribed antidepressant Zoloft, according to the autopsy, with studies showing it has a very low risk of problems for babies. 

As a postpartum doula, Thompson talks to new parents about co-sleeping and bed-sharing, including associated risks. She also served on a National Institute of Health task force about the issue.

Part of the problem with co-sleeping recommendations is parents are expected to do “Herculean things,” she said, especially in the early days of little sleep — and there’s a rush to judge parents, without compassion, if something happens to a child.

“That response causes trauma and harm above and beyond the loss of their child,” Thompson said.

Co-sleeping can increase the risk of what’s referred to as Sudden Infant Death Syndrome or the risk of accidental suffocation, but studies show bed-sharing is on the rise, even if people don’t publicly admit it. Bed-sharing is more commonly accepted in other countries, though experts say Western beds make it less safe in the U.S.

“Few imagine that the decision to co-sleep could lead to so harsh a penalty as this family is facing, especially because it is so common and problems so rare,” the Colorado advocates wrote in their letter.

The American Academy of Pediatrics recommends co-sleeping – having a baby sleep in the same room for at least six months to a year, but warns against bed-sharing or sleeping with a baby on a couch. However, the 2022 recommendations acknowledge it does happen, providing tips about what to do if a person falls asleep with a baby in bed.

When leaving the hospital, Diekneit said she received a pamphlet about co-sleeping, but she and Byrne had shared a bed with their first baby with no issues. Before the arrest, Diekneit was in a Facebook group of moms who talked about safe ways to bed-share.

While Thompson tells parents not to sleep in bed with infants if they’re intoxicated, she said the evidence in this case appears to show that both parents were not inebriated.

“I think that many, many people, both in and out of the judicial system, would hear that series of events and reach the conclusions that the parents must be drunk and smothered their baby, and that, in my opinion and experience, is as much a cultural response and it’s rarely rooted in data,” she said.

Regular postpartum drinking, she added, is culturally acceptable in society “unless something like this happens and then we vilify it.” Others involved in the case have noted how common it is for parents to be around their kids and drinking, including in public.

“Postpartum mothers and pregnant people and people in the prenatal period are treated differently in the way where it’s as if their bodies need to be controlled … We hold them to a different social standard, so when something like this happens, we’re going to be really punitive as a society and a system,” said Frawley, who’s also a certified lactation consultant and former midwife. “And it’s really inequitable, and it’s wrong.”

She hopes the case will inform future legislation, whether it’s shortening the length of time it takes for families to get autopsy reports, not removing kids from homes immediately after the death of another child, or providing training to authorities on sleep-related infant deaths.

Bed-sharing in the U.S.

The number of autopsy reports for babies that cite an undetermined cause of death has increased across the country, Dr. Fern Hauck of the University of Virginia School of Medicine noted. Hauck’s research focuses on sudden unexpected infant death and strategies to prevent it, and bed-sharing across cultures. She has no ties to or knowledge about the Aurora case.

Medical examiners will sometimes identify a cause of death as “undetermined” based on a history of those around the baby that may cause concern or if there are conflicting stories that can’t be proven by autopsies, Hauck said. They could also use that designation if a baby died of Sudden Infant Death Syndrome (a specific diagnosis) or if a baby accidentally suffocated while asleep with no evidence of trauma.

Still, as the use of bed-sharing goes up, Hauck said unless there’s clear evidence of criminal intent, it’s better to educate parents about safe sleeping and minimizing risks than to prosecute. Medical professionals haven’t been successful in getting their message out, she said, especially in Black communities where mothers are sometimes uncomfortable not having their babies in sight so they can protect them.

“I think the important thing is we need to figure out ways to make our recommendations culturally acceptable and really work harder at figuring out ways that we can move the needle on this infant mortality,” Hauck said.

Criminal prosecutions in pregnancy and postpartum

Eric Ross, spokesperson for the district attorney’s office in the 18th Judicial District — Arapahoe, Douglas, Elbert and Lincoln counties — said in an email that “co-sleeping in itself often wouldn’t result in charges,” though he did not address this case specifically.

“There is usually some other type of factor present such as alcohol or drug use prior to co-sleeping,” he wrote.

Criminal charges related to co-sleeping are uncommon — the Arapahoe DA’s office hasn’t prosecuted any of these types of cases in the last three years. However, another couple in Aurora was charged in the 2016 co-sleeping death of their 3-month-old — the second of their babies to die during co-sleeping — with misdemeanor child abuse resulting in death. The father told police that the parents had been drinking and smoking weed before the baby died.

Other co-sleeping criminal cases have occurred across the country, including last year in Ohio, and in 2020, in North Carolina.

In the Colorado groups’ letter, they wrote that a conviction in Diekneit’s co-sleeping case wouldn’t improve outcomes for newborns but instead could dissuade families from seeking help in the future.

At a two-hour preliminary hearing on Friday afternoon, Yoast argued that the couple both tested negative for alcohol in blood draws the day the newborn was found dead. Without evidence of intoxication there should be no felony charge of “knowingly and recklessly” causing death, he told the court.

Zoe Laird, with the DA’s office, argued that the blood draws were taken 14 hours after the couple had gone to bed at midnight. Prosecutors presented evidence including photographs of a garbage can inside the home that contained five empty bottles of beer, an empty bottle of wine and an empty champagne bottle. Laird alleges that the couple drank more than the amount they told investigators the morning of the incident.

Yoast asked the court to dismiss the case against Diekneit. Byrne will have a separate preliminary hearing. Arapahoe County Magistrate James Quinn ruled Friday that there is sufficient evidence to move forward in Diekneit’s case.

An arraignment hearing has been scheduled June 16.

For now, Diekneit continues emailing her son on the account she created for him, writing that she knows they’ll meet again in heaven.

Editor’s note: This story was updated May 26 to include the outcome of the preliminary hearing. 

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