Illinois Supreme Court considers whether a fetus can be ‘victim’ of murder

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. 

“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.”

“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.”

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.

‘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.