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Murder case might spur debate on abortion here and here and here

By John Patterson Daily Herald State Government Editor
Posted September 17, 2003

SPRINGFIELD -- If Elizabeth Ehlert's murder conviction is wiped out, Illinois' courts will have provided homicidal mothers a how-to guide for getting away with killing their babies, prosecutors told the Illinois Supreme Court on Tuesday.

Attorneys for Cook County State's Attorney Richard Devine are asking the state's high court to reinstate a first-degree murder conviction against Ehlert for the 1990 death of her daughter shortly after the baby was delivered at her Palatine home. Prosecutors allege she put the live infant in a garbage bag and tossed it in a creek behind her home. The baby was found dead two days later in one of the lakes at Twin Lakes Golf Course.

But an appeals court overturned her conviction late last year on the rationale it was never proved the baby was fully delivered and separated from Ehlert. The appeals court said under Illinois law there cannot be a murder victim until there is an individual life. Ehlert's attorneys asked the Illinois Supreme Court to uphold this ruling. Ehlert's defense maintains the baby died during complications. She could walk free if the Supreme Court agrees her conviction was a mistake.

The court's ruling has the potential to launch a full-blown debate on Illinois' abortion laws. The law determining when a baby is an independent life dates back to 1820 and says the baby must be completely separated from the mother. So far the General Assembly has not addressed the issue, leaving the court to decide if and how it should be modified.

Prosecutors said given current forensic and medical technology, the 183-year-old law no longer makes sense and should be overturned.

"What you have here is the horrific scenario in which a mother who doesn't want her baby delivers the baby, the baby is out and still connected by the cord, and under the complete separation doctrine ... she can kill that baby," said Peter D. Fischer, an assistant Cook County state's attorney. "She can stab it, she can strangle it, do anything and it's not murder. It's not intentional homicide of an unborn child because a mother can't be prosecuted for that. It's nothing."

"This killing of a full-term, 6-pound, 19-inch long baby is nothing and we believe that rule cannot stand in the modern age," he said.

Ehlert's attorneys, however, contend even if the court overturns the law, the justices cannot change how it applies to Ehlert's case. Doing so would violate constitutional rights, they said.

Allan R. Sincox, her state-appointed attorney, said the court faces two risks in deciding this case. If the justices leave the law the way it is, a woman could theoretically kill her child during the birth and escape prosecution. But if the law is changed, Sincox claims, a woman who has a stillbirth could be convicted of murder and sent to prison simply because someone claims the child was alive.

Sincox maintains Ehlert was never proven guilty beyond a reasonable doubt and the Supreme Court should uphold the appellate court's ruling. "This evidence is just simply too weak," he said.

Ehlert, who is now 44, was first convicted in 1993 by a jury and sentenced to prison for 58 years. But that conviction was overturned in 1995 on the grounds the prosecution presented prejudicial evidence that Ehlert had two abortions. She was tried again and convicted in a bench trial in 1998. Cook County Circuit Court Judge Karen Thompson Tobin sentenced her to a 30-year prison term. That conviction was overturned late last year leading to the current Supreme Court case.

Chief Justice Mary Ann McMorrow noted Ehlert has twice been convicted and openly questioned the appeals court's decision.

"Didn't the appellate court simply substitute its judgment for that of the trier of fact (judge)?" McMorrow asked during Tuesday's hearings.

Although the court heard arguments Tuesday, an opinion on the case may not come for several months.

Ehlert has been in custody at downstate Lincoln Correctional Center since 1993 and is eligible for parole in July 2005.

Baby: Mother up for parole in '05

From your posted article:

By John Patterson

Daily Herald State Government Editor

Posted September 17, 2003

Ehlert, who is now 44, was first convicted in 1993 by a jury and sentenced to prison for 58 years. But that conviction was overturned in 1995 on the grounds the prosecution presented prejudicial evidence that Ehlert had two abortions. She was tried again and convicted in a bench trial in 1998. Cook County Circuit Court Judge Karen Thompson Tobin sentenced her to a 30-year prison term. That conviction was overturned late last year leading to the current Supreme Court case.

From the origanl posted article ("Illinois Leader", by Jill Stanek):

Is a crying baby alive? No, not necessarily, decided Cook County Circuit Court Judge Karen Thompson last November when she acquitted a mother previously convicted twice of murdering her newborn daughter...Nevertheless Ehlert was convicted again by bench trial, the conviction Thompson Tobin overturned last November.

Just a question...these two stories seem at odds, with the (apparent) same judge both "sentencing", and then "overturning" her own ruling...is there some way this makes some sense?! Is it the judge who's in question here, or some kind of horrendous "legal precedent" voted on ("referendum"-style) or gained as a ruling by "defense lawyers"?

Or is one of the reports not factually true? No one could possibly condone "aborting" a child whose only remaining "in utero" connection to his/her mother is an attached umbilical cord.