Judge: Murder Applies To Fetus

The Salt Lake Tribune ^ | 1.8.02 | Stephen Hunt

[victim soul]

When Susan MacGuire was gunned down a year ago, her unborn child also died. Counting the fetus as a human being, prosecutors charged the woman's ex-husband with two counts of capital murder.

But Roger MacGuire's defense attorneys argue there was only one death, claiming the fetus -- estimated at 13 to 15 weeks old -- was not a person under Utah's homicide statute because it could not have survived outside the womb.

On Monday, a 2nd District Court judge sided with prosecutors -- a decision that probably will send the case to the Utah Supreme Court and force the justices to define what is an "unborn child."

It will be the first appellate challenge of the statute since the state Legislature added the term to Utah's homicide laws in 1983.

At least one other defendant has been charged under the revised law with a double murder, but that case was settled with a plea bargain.

In his written ruling, Judge Michael Allphin said the Legislature clearly intended the term "unborn child" to refer to both a viable and nonviable fetus. MacGuire, therefore, can be tried for a double slaying, Allphin said.

The two deaths are the main grounds prosecutors have cited as support for the capital murder charges. But they have decided against seeking the death penalty, citing MacGuire's lack of prior criminal history.

Defense attorney Glen Cella had argued in December that Susan MacGuire's fetus, fathered by her new fiance, was nonviable and not a human being.

"The fetus carried by Mrs. MacGuire was a potentiality, not an unborn child," Cella argued. "You cannot be held liable for killing a potentiality."

The U.S. Supreme Court's 1973 Roe v. Wade ruling, which legalized abortion, defined fetal viability as the point at which a fetus can survive outside the womb -- approximately the 28th week of pregnancy.

But Deputy Davis County Attorney William McGuire countered that the definition of a "person" in reproductive rights cases is not relevant in a criminal context.

Allphin agreed: "Reproductive rights cases are simply inapplicable to restrict the state's interest in protecting unborn life."

In addition, the judge said that "a plain reading" of the homicide statute led him to conclude "the Legislature intended to protect unborn children 'from the outset of pregnancy.' "

Roger MacGuire is charged with killing his pregnant ex-wife on Jan. 15, 2001, at the Layton insurance office where she worked.

Following their October 2000 divorce, Cella claims the 48-year-old used car salesman had been on an emotional roller coaster.

Susan MacGuire purportedly told the defendant she still loved him, but she also obtained a protective order forbidding contact.

Then MacGuire learned that his ex-wife was pregnant by her new boyfriend and that they were planning to wed.

The morning of the slaying, the defendant told a co-worker he was going to kill his ex-wife, according to preliminary hearing testimony.

Soon after, MacGuire went to her office, where she picked up the phone and threatened to call the police.

MacGuire later told police he "lost it." He went to his car and retrieved a newly purchased .380-caliber handgun, then returned to the office and started shooting. Susan MacGuire was struck in the back of the head, the left arm and the abdomen.

The defendant told police he meant only to frighten the victim, and claimed the gun "just went off."

Davis County Attorney Melvin Wilson believes the number of shots fired and their location -- two struck the woman in the abdomen -- show MacGuire's intent to kill both the woman and her child.

Following the shooting, MacGuire confessed to a friend, who accompanied MacGuire to the Riverdale Police Department.

Flagging down an officer in the parking lot, MacGuire blurted: "I just killed my wife."

Judge Allphin also ruled MacGuire's statements to police were voluntary and can be used at trial.

The most recent similar case occurred in 1994, when 21-year-old Calvin Shane Myers fatally stabbed 20-year-old Irene Francis Christensen on the shore of Rockport Reservoir in Summit County.

The woman's 16- to 18-week-old fetus -- apparently fathered by Myers -- also died.

Charged with two counts of capital murder, Myers avoided a possible death-penalty conviction by pleading guilty to a single count of capital murder. He was sentenced to life in prison with the possibility of parole.

[GraniteStateConservative]

Davis County Attorney Melvin Wilson believes the number of shots fired and their location -- two struck the woman in the abdomen -- show MacGuire's intent to kill both the woman and her child.

Let's shoot MacGuire twice in the abdomen and then throw his ass in a cell.

[Alas]

On Monday, a 2nd District Court judge sided with prosecutors -- a decision that probably will send the case to the Utah Supreme Court and force the justices to define what is an "unborn child."

Praise God, but let me give them some help, an unborn child is a BABY IN THE WOMB!

Ever hear any one say, "I'm having a fetus" or "I'm going to change this thing in my womb from an unborn child to a born child in just # months"? Neither have I, everyone knows it is a baby. He or she is simply a BABY IN THE WOMB!

A cute little cuddly baby living in the most dangerous place on earth, the womb. A little guy or girl just dying to get out and hug mommy and daddy, a BABY IN THE WOMB! One of the two out of three that make it out of the womb in one piece.

Alas

[Psalm 73]

Big Bump for LIFE!!

[FreeTally]

In addition, the judge said that "a plain reading" of the homicide statute led him to conclude "the Legislature intended to protect unborn children 'from the outset of pregnancy.' "

Hmmmmm....... So lets see here. This State law obviously conflicts with Roe v. Wade, which stops states from enforcing laws that would allow for the punishment of killing a "non-viable" fetus. I dont think any court could logically say that if the woman consents to the fetus being killed, then its not murder, given that the Judge says the State HOMICiDE law is clear in its intent to protect unborn babies. Abortion is de facto illegal in this State due to the law. This is where the "pro-choice" crowd gets into a quandry. Most people can not buy the argument that its only murder if the woman did not intend on the fetus being killed.

[Alas]

God bless you, your wife and Naomi Elizabeth.

Alas

[FreeTally]

Actually, this court case could be a basis for overturning Roe v. Wade. Im not sure who would appeal this to the Supreme Court, but if it got there, I see trouble. IF the State law is clear that homicide does in deed apply to the unborn, then this, IMO, evades the "privacy" issue that the court said was in the 14th amendment. IF the SCOTUS wants to argue(as they did) that the U.S. Constitution did not "grant" rights to the unborn, then thats fine from this standpoint, because nothing precludes States from enacting laws to protect the unborn. Then again, I am going by the actual correct meaning of the Constitution.

[victim soul]

FYI

[victim soul]

FYI

[One More Time]

This judge appears to be following the clear intent of the legislature; which is the proper place to make such decisions, not the courts.

[Dr. Good Will Hunting]

Most people can not buy the argument that its only murder if the woman did not intend on the fetus being killed.

Bizzarrely, this is the feminist argument.

They divest themselves of objective reality.

They divest themselves of morals.

When reality and morals are gone, all that remains is a single power centre: the woman who seeks to abort an innocent prenatal baby.

Therein lies the perversion and the peril...

[Dr. Good Will Hunting]

Well said. Remember that when the USSC has a vacancy.

We need two more justices. If "W" sticks to his guns, that can be accomplished.

[patent]

Thanks for the bump.

The two deaths are the main grounds prosecutors have cited as support for the capital murder charges. But they have decided against seeking the death penalty, citing MacGuire's lack of prior criminal history.

A wise, wise move if you want to win this case with two convictions.

Allphin agreed: "Reproductive rights cases are simply inapplicable to restrict the state's interest in protecting unborn life."

What! Have they read Roe? The whole issue balances the state’s interest in protecting unborn life with the woman’s “right” to privacy, penumbras and perversion.

patent  +AMDG

[middie]

One important legal question would be whether a civil negligence action can be brought in that state for the death of a fetus caused by the negligence of another. Example: Suppose a pregnant woman is driving and gets hit and severed injuried by a driver who runs a stop sign? That might be simple negligence resulting in bodily injury to the driver but causes a trauma-induced miscarriage regarding the fetus. If the law of that state allows a separate cause of action for wrongful death for the fetus, then it should be permissible to provide that the state's criminal law would protect that fetus as it would have the mother had she died from the consequences of a criminal act, eg: DUI or the other driver fleeing the scene of a crime. If no such civil remedy is available then a criminal charge of the sort described would not appear to be constitutionally enforceable.

Note, this response takes no measure of the moral or any ecclesiastical argument that might be urged by any individual.

[aruanan]

was not a person under Utah's homicide statute because it could not have survived outside the womb.

And how many other individuals could live outside the support of their culture--say, if dropped in the middle of a desert? Very, very few. The "not viable outside the womb argument" is an ad hoc argument guaranteed to reach a predetermined outcome.

I can't believe that people are using the survivability issue with a straight face. You'll notice that adults who tell an 18-year-old to leave the house and start living on his own suffer much less obloquy than those who kick out a 14-year-old and certainly much less than those who abandon a newborn on the steps of a police station. The only ones looked down on more are those who toss a baby into a dumpster, and this, presumably, because the baby could be crushed to death. (Well, I guess someone who strangles the newborn and leaves him in a public toilet is frowned upon. Though some have sympathized even with these people.)

One of the reasons for the increasing ire associated with the abandonee's decreasing age is that the people who are abandoning their parental responsibility for ensuring their offspring's health and safety are putting him into situations that are increasingly dangerous precisely because he is less and less able to take care of himself; that is, he is placed into a situation in which he is increasingly unviable. Then many of these same people turn around and say about an unborn child who literally depends entirely upon one single other person for his viability, "Well, it would be criminal for me to abandon you in a dumpster a few months from now where you could possibly die, but it's okay for me to kill you now because apart from me you cannot possibly live. If someone else theoretically could take you off my hands through early surgical intervention, then maybe, theoretically, it would be bad for me to cut you off. But short of that, your life is mine to give or take depending on how I happen to feel."

[victim soul]

There are no states' rights to limit any kind of method of abortion since Stenberg vs Carhart was decided in the Supreme Court. Justice Kennedy realized he got snookered in his decision to side with the pro-aborts in Casey -- and basically said that the abortionist has the power to take a child's life even partially born.