THE POSTPARTUM PROSECUTOR

By SALLY B. DONNELLY/COLUMBIA

A viable fetus," Charles Condon has repeatedly declared, "is a fellow South Carolinian." Condon, the state's attorney general, has been searching since 1989, when he was a local prosecutor in Charleston, to find support for that proposition. Now he has found three people who agree with him--and they're three who count. In October three justices of the state's supreme court--a majority--supported Condon's assertion. The court thus became the first in the U.S. to rule that a viable fetus could be considered "a person" under child-abuse laws and that a pregnant woman carrying it could be charged with doing harm, even with murder. Similar arguments were earlier rejected by five other state supreme courts and a handful of lower courts across the country, but that did not deter Condon, a Republican rising star whose career has been stoked by such battles. Says he: "This decision is much more in line with American culture. A fetus has inalienable rights that come from God. That is how most Americans feel about this."

While a solicitor in Charleston, Condon began his program of prosecuting women whose babies tested positive for cocaine. In some cases he had women taken from hospital rooms, handcuffed and jailed. The state supreme court ruling came in the case of Cornelia Whitner, who pleaded guilty to child neglect in 1992 when her baby was born with traces of cocaine in his system. She was sentenced to 8 years in jail, but lower courts overturned the decision on grounds that a fetus was not a person. The state supreme court restored the conviction. (Whitner's attorneys plan to appeal to the U.S. Supreme Court.) Meanwhile, last week, Talitha Renee Garrick, 27, a Columbia woman who said she smoked crack cocaine a little more than an hour before she gave birth to a stillborn child, pleaded guilty to involuntary manslaughter in a lower court. Condon relishes the thought that the Whitner case will be appealed to the U.S. Supreme Court. Win or lose, "South Carolina is uniquely poised to have an impact on the nation.

Condon has been selective in his campaign. No woman has been arrested for putting a baby at risk by alcohol consumption or tobacco use--despite the fact that babies born with serious health problems as a result of booze and nicotine far outnumber babies born with cocaine in their systems. "I would be on a legal slippery slope if I tried to prosecute women who used legal substances," says Condon. But he is warning social workers and drug-abuse counselors that they too could be prosecuted and jailed if they fail to turn in pregnant women found to be on cocaine.

Condon, 44, took statewide office in 1994, but already he is being touted for Governor and beyond. Condon is "the most ambitious and opportunistic attorney general this state has seen in modern times," says David Lublin, a professor of political science at the University of South Carolina. "He has taken clever political advantage of the backlash against the 'moral looseness,' and is effective at getting his message out."

Condon doesn't confine himself to Columbia, the capital; he has three offices around the state, which happen to be in the largest media markets. He has left the legal trench fighting of the attorney general's office to his underlings and has instead focused on such high-profile issues as defending the Confederate flag and cracking down on pornographers. He is especially proud of his push to hasten the process of getting death-row inmates actually put to death. Two have been executed this year in South Carolina, but Condon expects the numbers to rise next year. (Sixty-nine prisoners in the state are on death row.) Condon has long been passionate on the subject. In the 1994 campaign for attorney general, a race in which both candidates were so pro-death penalty that Professor Lublin refers to it as the "Fry-Off," Condon suggested replacing the electric chair with an "electric couch."

Condon didn't start out that way. At Duke law school, says a classmate, Condon was a middle-of-the-road Democrat. He became a local prosecutor in 1980 at age 27--the youngest in state history. But in the early 1990s, he sensed changes in the political winds, critics say, and switched parties. "Charlie Condon will be anything that 51% of the population wants him to be," says a bitter Dick Harpootlian, a Columbia lawyer who lost to Condon in 1994. "He's now helping move South Carolina faster toward the 19th century than toward the 21st."