Ohlson defense files motions to take death penalty off the table

Erik Ohlson, center, seen at the Madison County Courthouse in Rexburg.

The defense for Jackson resident Erik Ohlson filed five new motions with the court this week looking to thwart the Teton County Prosecutor’s Office from seeking the death penalty at sentencing.

Ohlson is charged with murdering Driggs resident Jennifer Nalley in 2016. He is also charged with killing Nalley’s unborn baby of 12 weeks and with one count of burglary. He could face the death penalty if convicted.

In the motions, the defense is looking to, “declare the death penalty unconstitutional,” and “unguided, arbitrary, and capricious.”

In another motion the defense is also hoping to control jury selection.

Ohlson’s court-appointed defense attorneys Jim Archibald and John Thomas are arguing that excluding jurors who have a moral objection to the death penalty results in juries that tend to be “whiter, more conservative, more male, more sexist, more conviction-prone, more death-prone, and more biased against defendants.”

And finally, the defense is making a motion seeking a “proportionality review” whereby Ohlson is requesting that his “defense be allowed to present evidence in a pretrial setting to determine whether the prosecution’s decision to seek the death penalty is disproportionate to the punishment imposed on others accused of similar crimes.”

Teton County Prosecutor Billie Siddoway wrote in an email to the Teton Valley News that the only motion set to be heard in front of Judge Bruce Pickett on Jan. 31 is whether her office should have to disclose its email messages to Nancy Nalley, the victim’s mother.

Siddoway said the hearing set for Feb. 21 could consider the five new motions filed this week.

”I previously filed a memorandum arguing that challenges to the death penalty are premature until the death penalty has been or is about to be imposed,” she said. “The court’s decision on that argument may influence when it hears these new motions.”

According to the Idaho Department of Correction website, nine offenders are currently under the sentence of death in Idaho. Also according to the DOC, three inmates have been executed since Idaho enacted a new death penalty statute in 1977.

Judge Pickett heard the motion from the defense seeking to dismiss the second count of murder earlier this month. As for the dismissal of count two of murder, Ohlson’s defense argued in their submitted brief, “An embryo or fetus in its first trimester does not have a right to life,” as cited from Roe v. Wade. “A woman and her doctors can kill an embryo or fetus in its first trimester without repercussions from the law.”

That motion was denied by Judge Pickett on Tuesday. In the judge’s decision he writes, “The defendant erroneously interprets Roe v. Wade beyond the scope of its holding,” and called the defendant’s agreement, “unpersuasive.”

The judge wrote, “Abortion is an exception to homicide, the same way that self defense, justified police shootings, the death penalty, and in some states, self-assisted suicide are exceptions to homicide laws.”

He also noted, “No person of common intelligence would conclude that because a women could get an abortion under narrow and regulated circumstances that would mean a person could kill a fetus without the consent of the mother, and beyond and regulated circumstances of abortion.”

The defense also made a direct appeal to Judge Pickett to allow a contact visit with Ohlson’s mother, Virginia Ohlson. The defense’s request was made “to help Mr. Ohlson sort through offers to settle and advise him with regard to possible outcomes and ramifications of such outcomes on settlement negotiations.”

Judge Pickett granted two contact visits for Ohlson with his mother at the Madison County Jail in the ex parte motion.

Ohlson was arrested in July 2016 after he crashed his truck into an electrical pole on 2500 South, just three miles from Jennifer Nalley’s cabin in Driggs where she lay dead from eight gun shot wounds suffered that same night, according to the Teton County Coroner’s report. Ohlson was arrested for a DUI and later confessed to killing Nalley. However, his confession was thrown out after the court determined that the Idaho State Police failed to provide legal counsel to Ohlson during the interrogation.

Ohlson is currently being held in Madison County Jail and his court trial is set for June 2019 in Bingham County.

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