JACKSON, Wyo. — A Wyoming man charged with killing his girlfriend in Idaho in July 2016 argues the death of her unborn baby does not qualify as a second murder that makes him eligible for the death penalty.
Attorneys for 41-year-old Erik Ohlson of Jackson say it's "legal insanity" for Idaho law to protect a first trimester fetus under the homicide law but not under the abortion law.
Ohlson is charged with killing 39-year-old Jennifer Nalley and her unborn baby. His trial is set for July 2019 in Bingham County, Idaho.
"A woman and her doctors can kill an embryo or fetus in the first trimester without repercussions from the law," Ohlson's attorneys Jim Archibald and John Thomas wrote in their Nov. 9 motion to dismiss the murder charge related to the fetus. "To say a potential mother has protection from being prosecuted but a potential father does not have protections violates equal protection under law."
They argue the 12-week-old fetus wasn't old enough to have a right to life.
"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."
The attorneys also argued the fetus didn't die because it was shot, but because Nalley was shot. There was no autopsy or death certificate for the fetus, meaning Ohlson can't be charged with a second count of murder.
Prosecutors plan to use text messages apparently sent by Ohlson as evidence for premeditation in Nalley's death.
"She seems to be interested in having this baby without me except for when it comes to money," investigators said Ohlson texted to a friend just before the shooting. "I want to strangle her and witness her last mortal moment."
A motions hearing is set for Dec. 7, the Jackson Hole News & Guide reported .