DRIGGS – A man charged with killing his girlfriend and her unborn baby says the murder charge for the fetus, along with his eligibility for the death penalty, should be dropped.

Erik Ohlson, 41, is accused of killing Jennifer Nalley, 39, on July 5, 2016. Nalley was 8-12 weeks pregnant when Ohlson, her ex-boyfriend, shot and killed her in a cabin near Driggs.

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Ohlson, a Jackson, Wyoming native, is charged with two first degree murder charges and the Teton County prosecuting attorney’s office is seeking the death penalty.

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In a motion filed Nov. 9, Ohlson’s attorneys, Jim Archibald and John Thomas, argue the fetus was fully dependent on the mother and thus was not a viable organism at the time of the alleged crime. Therefore the fetus cannot legally be considered a person.

“An embryo or fetus in its first trimester does not have a right to life. A woman and her doctors can kill a fetus in its first trimester without repercussions. To kill fetal tissue which is not viable is not a crime,” the motion states.

The attorneys state that Ohlson “was put on notice that a fetus in its first trimester could be killed … as two different women he had relationships with aborted, or killed, their first trimester fetuses … Ohlson knew that the law provided no protection for a first trimester fetus, and that no punishment was meted out for such killing.”

Jennifer Nalley | Courtesy photo

The motion also says that the fetus did not die from a bullet but of ischemia, or lack of blood flow after its mother was shot.

“There was no autopsy of the fetus. There was no death certificate of the fetus. Erik Ohlson is charged with two murders, but there’s only one autopsy and death certificate,” the motion states.

Ohlson’s attorneys state the fetus was not an “unborn child” and their client should not be charged with its death.

“To declare a first trimester fetus a person is beyond the power of the state. A state cannot overrule the United States Supreme Court by changing who counts as a person for constitutional purposes,” they state.

Prosecutors say Nalley’s death was premeditated and have text messages they plan to use as evidence.

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

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A hearing on the motion is scheduled for Dec. 7 in Teton County. Ohlson’s jury trial is set to begin June 3, 2019.