Murder suspect Erik Ohlson is backpedaling on his latest request to represent himself in his capital murder trial.
In a court hearing Friday the court accepted Ohlson’s withdrawal of his request for pro se legal representation. But the 41-year-old Jackson, Wyo., man is still arguing that he can’t be charged with fetal homicide for killing his ex-girlfriend’s unborn child.
Ohlson is charged in the July 2016 shooting death of Jennifer Nalley and her 12-week-old fetus outside Driggs.
Ohlson’s attorneys, Jim Archibald and John Thomas, argued Friday that their client’s second count of homicide is unconstitutional.
“Mr. Ohlson is charged with killing a 2-month-old fetus, which under Roe v. Wade does not have a right to life,” Archibald said. “So if the state of Idaho wants to guilt Mr. Ohlson for killing fetal tissue that does not have the right to life, we believe that is unconstitutional.”
Teton County Prosecutor Billie Siddoway argued that murderers do not have the same rights as pregnant women.
“No one could possibly think that shooting a woman and her baby with a gun is carrying out a lawful abortion procedure,” she said.
After being arrested for DUI near the crime scene, Ohlson confessed to shooting Nalley at her Teton Valley cabin. He told Idaho State Police detectives that he shot her until his gun ran out of bullets.
Ohlson left Nalley’s body on her front porch, and it was discovered by her uncle and grandmother the next day. Nalley was a longtime roller derby enthusiast, musician and physics teacher.
The court later tossed Ohlson’s confession after his attorneys won a Miranda argument on a motion to suppress.
The second murder count makes Ohlson eligible for the death penalty, which the state of Idaho is pursuing. His attorneys are challenging Idaho statute on the second count to try to get death off the table.
“Under the abortion laws of the state of Idaho, a 2-month-old fetus can be killed by its mother,” Archibald told the court. “It has no rights to right to life.
“A 2-month-old fetus in Idaho, however, does have a right to life under the fetal homicide statue,” he said. “We’re arguing that the modification is in direct contradiction to Roe v. Wade.”
Judge Bruce Pickett asked if any other states have ruled in that direction.
“Not that I have found,” Archibald said.
Archibald said they believe the charge violates due process and is cruel and unusual punishment.
The judge took the matter under advisement and will file a written order.
A Jan. 31 motions hearing was scheduled.
Ohlson is expected to go on trial this summer in Blackfoot.
Scene Editor Julie Kukral contributed to this article, which first published in the Jackson Hole News&Guide.