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Minnesota man argues fetal homicide was not a homicide but an “abortion”

Dave Andrusko
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October 22, 2013 (NRLC) - According to a criminal complaint, Roger Holland stands accused of strangling his pregnant wife at their town house and trying to make it look like Margorie Holland died when she accidentally fell down a staircase. Her unborn baby also died last March.

If convicted of his wife’s murder, Holland faces life in prison. But the murder of an unborn child also carries a sentence of up to life in prison.

Remarkably, Holland’s attorney has filed a “novel” motion. According to the St. Paul Pioneer Press’s Marino Eccher, attorney Marsh Halberg is arguing that “The death of the fetus was an abortion, not a murder, and the only person whose rights that such an act could have violated — the mother — already was dead.”

As Eccher explains, “The facts of the case would make it difficult for jurors to conclude Holland killed the child but not his wife, and a first-degree murder conviction for his wife’s death would carry a sentence of life in prison regardless of the other charges.” But Halberg is obviously angling, at a minimum, to have his client face only one set of murder charges.

Halberg’s argument is based, bizarre as it sounds, on the constitutional right to equal protection, according to Eccher, in a front-page story.

“It’s rooted in the idea that two state laws — one barring unlawful abortion, the other barring the murder of an unborn child — govern essentially the same conduct but carry different punishments. …

“’The exact conduct he is being accused of is chargeable under a separate, less severe statute,’ Halberg wrote in a motion seeking to have the charges dismissed.

“Criminal abortion is an unranked offense in Minnesota, leaving the sentence up to the court’s discretion depending on the case. Murder of an unborn child carries a sentence of up to life in prison.

“Halberg said the abortion law is the proper fit for what Holland is accused of doing — ending a pregnancy without consent.

“’If there are different statutes that can be used to penalize criminal conduct, then you should use the statute that most accurately depicts the crime involved,’ he said in an interview.”

“The crime of murder of an unborn child is consumed by the crime of murdering the pregnant woman,” he wrote in the motion,” according to Eccher. “Charging an accused murderer solely with murder of the mother correctly incorporates the severity of the crime.” Halberg said he’s not arguing that killing an unborn child isn’t a crime — only that it can’t be charged if the mother also dies.”

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But that argument is as unpersuasive as expecting the jury to “conclude Holland killed the child but not his wife.” Here are some of the reasons Dakota County Attorney James Backstrom cited in response to the motion.

The argument that the law on abortion and the murder of an unborn child are interchangeable “ignores the profound legal differences between an abortion” and the murder of an unborn child, Backstrom wrote. He keenly noted that a case Halberg cites as a reason not to charge his client with murder does not apply because it took place BEFORE Minnesota passed a fetal homicide law in 1986, thanks to the work of Minnesota Citizens Concerned for Life, NRLC’s state affiliate. The two-victim principle was upheld by the Minnesota Supreme Court in “State v. Merrill” in 1990.

That law specifies that the perpetrator is to be charged with two murders when he kills a pregnant woman and her unborn child dies.

The claim that a murder charge in the mother’s death covers the death of an unborn child as well is “offensive and legally unsupported,” Backstrom said, according to Eccher. “For the court to accept this argument, it would have to place no value in the life of the unborn child separate and apart from the life of the mother.”

Reprinted with permission from NRLC

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