Illinois Supreme Court considers whether a fetus can be a ‘victim’ of
murder
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[May 13, 2023]
By ANDREW ADAMS
Capitol News Illinois
aadams@capitolnewsillinois.com
CHICAGO — In 2007, Reginald Lane shot and killed Jwonda Thurston, his
pregnant girlfriend. For the murder, he was sentenced to life in prison,
following state statute for someone who is found guilty of killing “more
than one victim.”
On Thursday, the Illinois Supreme Court heard arguments in Lane’s case,
specifically around whether Lane was given the appropriate sentence.
Lane’s appeal hinges, in part, on whether Thurston’s unborn child can be
considered a “victim” of the murder and, more broadly, whether it can be
considered an “individual” under the law.
“As it stands now, the unified code of corrections defines a victim as
any natural person who suffered direct harm,” Talon Nouri, an attorney
representing Lane, told the justices. “And again, the statute on
statutes notes that whenever the word ‘person’ or ‘individual’ is used,
that person must have first been born alive.”
Nouri also cited the state’s Reproductive Health Act, a 2019 law that,
among other things, stipulates fetuses do not have independent rights in
the state of Illinois.
In addition to the question of what constitutes a “victim” under state
law, Nouri also argued Lane’s sentence was inappropriately applied
because the lower courts had sentenced Lane in alignment with the
sentence for a double murder.
Lane was convicted of both first-degree murder and killing an unborn
child – also called feticide – which are two distinct crimes.
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“While the penalty section of the ‘intentional homicide of an unborn
child’ statute states that the sentence shall be the same as for first
degree murder, the relevant statutes and definitions unambiguously
exclude intentional homicide of an unborn child from this double murder
sentencing statute,” Nouri told the court.
Assistant Attorney General Josh Schneider, who argued the case on behalf
of the state, relied on the statute’s language identifying the sentence
for feticide as being the same as murder.
“When a person is convicted of intentional homicide of an unborn child,
the sentence they receive for that offense is the same sentence they
would receive if they had been convicted of first-degree murder under
those same circumstances,” Schneider said.
Several justices interrogated that line of reasoning.
“So we really don’t even need to go to these definitions in the other
statutes because the legislature has directed us to apply the same
sentence as in murder?” Justice Lisa Holder White asked of Schneider.
“That’s exactly right,” Schneider replied.
The justices took the matter under consideration with a ruling to come
at a later, unspecified date.
Stop and frisk
The justices on Thursday also considered the case of Francisco Lozano.
In 2018, Lozano was the subject of a “Terry stop,” sometimes also known
as a “stop and frisk” or “field interview” in Chicago’s East Garfield
Park neighborhood.
From their unmarked police car, two officers noticed Lozano running on a
rainy afternoon with his hands in his pockets. After turning their car
around, officers saw him run up the stairs of an abandoned apartment
building before stopping him and finding that he had a car radio, two
screwdrivers and a wallet.
As a result of this stop, Lozano was eventually found guilty of burglary
to a vehicle and possession of burglary tools.
Lozano’s lawyer, Pamela Rubeo, argued the police violated Lozano’s 4th
Amendment right against unlawful search and seizure by stopping him for
“running in the rain.”
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“The parties agree the officers needed reasonable suspicion of criminal
activity at the inception of this stop,” Rubeo told the court. “Here, no
such reasonable suspicion existed.”
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![](../images/051323PIX/news_a1.jpg)
Attorney Pamela Rubeo, representing
Francisco Lozano, speaks to the Illinois Supreme Court on May 11 in
front of hundreds of students and attendees at a special court
session, part of the court’s “riding the circuit” program. (Capitol
News Illinois photo by Andrew Adams)
![](http://archives.lincolndailynews.com/2023/May/13/images/ads/current/graue_lda_preowned_050123.jpg)
Assistant Attorney General Jalan Jaskot, who argued on behalf of the
state, told the justices that police had reasonable suspicion by the
time they stopped Lozano, citing the behavior that police observed as
they approached Lozano for the stop.
This received some pushback from Chief Justice Mary Jane Theis, who
referenced the lower court’s opinion on the case.
“According to the officer’s own testimony, the reason why he stopped him
was to conduct a field interview and ask him why he was running,” Theis
noted during oral arguments. “Why shouldn’t we just accept that was the
basis of the stop – as the officer himself described – and evaluate
whether that was an appropriate Terry stop?”
Jaskot responded that the officers saw Lozano “flee” to the abandoned
building when they turned their car around and that while they were
approaching, they saw a “bulge” in Lozano’s front sweatshirt pocket,
giving them reasonable suspicion for a Terry stop.
“If the facts of this case were simply that the defendant was running in
the rain, officers would not have the reasonable suspicion to conduct
that Terry stop,” Jaskot said after further questioning on the subject
from the justices. “However that is not all that we have. Very
importantly, we also have the defendant’s evasive behavior where he did
change that direction and run towards this building that appeared
abandoned.”
Rubeo also argued that some evidence in Lozano’s trial was
inappropriately introduced, as it was taken from statements Lozano gave
during his arrest, without being given a “Miranda warning,” a set of
notifications police are required to give people they arrest. These
notifications include the right to remain silent, the right to an
attorney and the warning that anything a defendant says can be used
against them in court, among other things.
In their court filing, the attorney general’s office argued that Lozano
forfeited the chance to suppress the statements he made before being
given a Miranda warning because his lawyers failed to bring it up in his
trial.
The case will also be considered by the justices, although there is not
a set timeline for how long they will take to deliver a final opinion.
![](http://archives.lincolndailynews.com/2023/May/13/images/ads/current/goodman_sda_SHG_2023.png)
‘Riding the circuit’
The justices did not hear arguments for these cases at their typical
venue at the Supreme Court’s building in Springfield. Rather, the court
was “riding the circuit” and heard arguments on the campus of Chicago
State University on Chicago’s South Side.
The court uses a version of the historical practice of judges traveling
to district courts to “raise public awareness and confidence in the
judicial branch,” according to Theis.
It’s a practice that had been temporarily stalled in recent years amid
the COVID-19 pandemic. The court held a virtual “riding the circuit”
program in 2021 in conjunction with schools from the state’s Second
Judicial District in northern Illinois. The court’s previous in-person
road trip took place in Sept. 2019 when arguments were heard at Lewis &
Clark Community College in Godfrey.
“It is the first time in our history of this court and our state that we
have come to the First District here in Chicago,” Theis told attendees
of the arguments on Thursday.
Around 300 students from schools around the region attended the event.
Following the oral arguments, students participated in a
question-and-answer session with representatives of the Cook County Bar
Association.
Capitol News Illinois is a nonprofit, nonpartisan news
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Illinois Press Foundation and the Robert R. McCormick Foundation, along
with major contributions from the Illinois Broadcasters Foundation and
Southern Illinois Editorial Association. |