Ohlson calls fetal homicide charge ‘legal insanity’

November 19, 2018 GMT

Erik Ohlson, the Jackson man who’s charged with Jennifer Nalley’s murder, is arguing through his attorneys that he can’t be charged with a second count of homicide for killing Nalley’s unborn baby.

“Thousands and thousands of embryos and first trimester fetuses are killed each year by women, doctors and fertility clinics,” Ohlson’s attorneys Jim Archibald and John Thomas wrote in their motion to dismiss filed last week. “It would be cruel and unusual for the state of Idaho to kill Erik Ohlson if he’s convicted of killing a first trimester fetus.”

Ohlson is charged in the July 2016 Teton Valley shooting death of Nalley, his ex-girlfriend.

Prosecutors subsequently charged the 41-year-old with a second count of murder when the autopsy showed Nalley, 39, was about 12 weeks pregnant.

The fetal homicide charge makes him eligible for the death penalty, which the state of Idaho is pursuing.

Archibald and Thomas argued that the fetus wasn’t old enough to have a right to life and that makes their client ineligible to be killed by the state.

“A woman and her doctors can kill an embryo or fetus in the first trimester without repercussions from the law,” they wrote. “To say a potential mother has protection from being prosecuted but a potential father does not have protections violates equal protection under law.”

Comparing murder to abortion, the attorneys said an amendment in Idaho law that doesn’t differentiate the age of an embryo is unconstitutional.

“Erik Ohlson was put on notice that a fetus in its first trimester could be killed,” they wrote. “He knew this personally as two different women he had relationships with had aborted, or killed, their first trimester fetuses.”

Archibald and Thomas further argued that because the coroner did not conduct an autopsy and write a death certificate for the unborn baby that Ohlson can’t be charged in its death.

“Erik Ohlson is charged with two murders, but there’s only one autopsy and one death certificate,” they wrote. “There is no proof of malice or premeditation directed toward the fetus.”

Prosecutors plan to use text messages as evidence for premeditation when Ohlson goes on trial in summer 2019.

“She seems to be interested in having this baby without me except for when it comes to the money,” read a text that police said Ohlson sent to a friend just before the shooting. “I want to strangle her and witness her last mortal moment.”

But Ohlson’s attorneys argued that the fetus didn’t die because it was shot. They said it died because its mother was shot.

“According to the autopsy of Nalley in this case, the first trimester fetus did not die from a bullet, but as a result of ischemia, or the blood flow stopped from the parent to the fetus,” they said. “The suggestion that the state of Idaho is free to declare the same first trimester fetus someone to be protected under the homicide law, but not someone to be protected under the abortion law, is nonsensical. It’s legal insanity.”

Oral arguments were requested and a motions hearing is on the Teton County (Idaho) District Court’s Dec. 7 docket.

Ohlson is set to go on trial July 3, 2019, in Bingham County, Idaho. He faces two counts of felony murder, DUI and burglary charges.