When 4-year-old Dakota Lawless’ mother covered his face with a pillow to stop his whining, her action clearly was inappropriate, a Hamilton County judge said Wednesday.

But what jurors must decide, Judge Barry Steelman told prosecution and defense attorneys, is “whether it was illegal.”

Monica Hammers of Smyrna, Tn., is facing charges of attempted first-degree murder and aggravated child abuse in the May 6, 2011, incident after she allegedly covered her son’s face with a pillow to stop him from whining while he was a patient in Children’s Hospital.

Testifying in court, Omega Harkless – the only witness to the incident – told jurors, “I didn’t say she was trying to kill him,” the judge reminded attorneys.

“If the person in the room cannot say there was intent to kill, I don’t know how a jury can say it,” he observed.

Assistant District Attorney Charlie Minor is prosecuting the case against Hammers, and Harry Christensen is her defense attorney.

Three attorneys from the public defender’s office, which recently was engaged in a widely publicized dispute with Judge Steelman, sat in the courtroom and monitored the late-day discussion between attorneys and the judge, as well as proceedings in the case earlier during the day.

While it’s true the child exhibited no discernible physical or psychological abuse after the incident, prosecutor Minor told the judge, medical testimony indicates that cutting off a person’s supply of oxygen creates a temporary impairment of the lungs.

Further, he noted, if the mother had not noticed Ms. Harkless was watching her and stopped what she was doing, there’s no telling how long she might have kept the pillow over the child’s face.

Noting that the child was admitted to the hospital because doctors suspected his mother was either injuring him or reporting he suffered from imaginary ailments – a condition known today as medical abuse and to earlier generations as Munchausen’s Syndrome by Proxy – DA Minor said testimony indicates the mother became increasingly anxious during the days preceding the alleged smothering.

“She was caught and she knew it,” he argued. “ . . . (and) when the medical abuse was no longer working, that’s when the physical aggression accelerated.”

Defense attorney Christensen strongly disagreed. In fact, he told the judge, since prosecutors were unable to prove the elements of the crimes his client is accused of committing, jurors should be instructed to find Ms. Hammers not guilty.