Lane and her husband eventually took the baby to a nearby hospital, where Lane said she had suffered a miscarriage. Wilkins survived the attack; the baby did not.
According to a statement late Thursday from the victim’s family, Wilkins is in “critical but stable condition.” Lane is now being held on $2 million bail in Boulder County Jail. She was arrested on suspicion of attempted first-degree murder, first-degree assault and child abuse knowingly/recklessly resulting in death, but the county district attorney’s formal charges against her could be different.
Some, like Longmont resident Maryann Zegarra, who is eight months pregnant, believe prosecutors have no moral choice but to charge Lane with first-degree murder for the death of Wilkins’s baby. “I feel every movement of my baby. Every hiccup. Every kick,” Zergarra told the Boulder Daily Camera. “It’s just sad to think that little baby girl was just kicking probably 15 minutes before her mom got to the door.”
But the specific details of the horrific crime will make it harder for prosecutors to determine which charges are warranted, as Boulder County District Attorney Stanley Garnett told the news media Thursday.
“The issue of whether or not murder charges are appropriate involving a case involving a death of a fetus or late-term pregnancy is always a difficult issue,” Garnett said. “Under Colorado law, essentially there is no way murder charges can be brought if it’s not established that the fetus lived as a child outside the body of the mother for some period of time.”
Keith Mason, the president of Personhood USA, an anti-abortion group that has been pushing for a fetal homicide law in Colorado, called the situation “literally absurd.”
For now, prosecutors are waiting for the results of an autopsy that the Boulder County Coroner’s Office said was scheduled for Friday. That autopsy may or may not shed light on which charges the state can bring against Lane.
Prosecutors are scheduled to formally charge her on Wednesday.
The results of the autopsy are so potentially crucial to the case against Lane that her defense attorney has asked for an independent expert to observe it, the AP reported.
Among other things, prosecutors will have to determine the length of time the baby was living outside the womb. But state law doesn’t make a precise determination on what length of time prosecutors must find. “It’s not a defined time,” Garnett told the media.
In an affidavit filed with the state court on Thursday, Longmont police described what Lane’s husband, David Ridley, saw when he arrived at the house to take his wife to a prenatal appointment:
He arrived home and walked down the stairs towards the basement. As he did so, Dynel walked around the corner covered in blood. She told David she just miscarried and the baby was in the bathtub upstairs. David ran upstairs to the bathroom and found a small baby lying in the bathtub. He rubbed the baby slightly then rolled it over to hear and see it take a gasping breath. David wrapped the baby in a towel and ran back downstairs.
The two took the baby to the hospital. Although it is not clear from the police report how long the baby was breathing, hospital staff told police the baby “was approximately seven months old and would have been viable.”
Colorado is one of a dozen states that doesn’t allow for homicide charges for the death of a fetus, as the AP notes. If prosecutors determine that Lane cannot be charged with murder, there are a few other possible charges she could face for the death of the fetus, legal experts told the Daily Camera.
Those include child abuse resulting in death, a felony charge that would also require that investigators establish the baby was living after it was removed from the womb. Charges under the state’s unlawful termination of a pregnancy statute could also be possible.
There have been several attempts to change Colorado’s laws pertaining to fetal homicides. Anti-abortion groups have tried and failed to get voters to pass “Personhood” amendments to Colorado’s constitution, most recently in 2014. That amendment, which would have changed the state’s criminal code to define a fetus in the womb as a “person,” was rejected by more than 60 percent of voters. Similar but not identical proposals were rejected in 2008 and 2010.
Supporters of the 2014 measure said it had nothing to do with Colorado’s abortion laws and was simply meant to address holes in the state’s ability to prosecute suspects for the death of a fetus. But reproductive health advocates who support abortion access provisions said that the bill’s wording could potentially lead to future restrictions on abortion.
Legislators have also tried to clarify state law on the deaths of fetuses. Rep. Mike Foote, a Democrat, proposed a “crimes against pregnant women” bill in 2013 to allow district attorneys to add felony charges against a suspect who, in the course of a criminal act, caused a woman to end her pregnancy. That bill passed.
Foote spoke to the Daily Camera about how it might pertain to charging Lane:
Foote said his measure, the “Crimes Against Pregnant Women Act,” filled gaps in previous state laws covering cases where offenders’ intentional, negligent, careless or reckless actions cause a pregnant woman to lose her child, setting different felony levels.
Foote argued that his proposal was a compromise measure, designed to clarify state law without wading into the issue of whether the state defines a fetus as a “person” or not.
Other bills addressing fetal homicide charges have been introduced and rejected by the state legislature, often after a high-profile crime against a pregnant woman raises scrutiny of the state’s confusing laws on the issue. Those include a previous Longmont tragedy: a hit-and-run accident that severely injured Heather Surovik, who was pregnant. Surovik was a leading advocate for the failed 2014 amendment referendum.
But there is another factor investigators are considering as the case moves forward: Lane’s mental health. Police have not given a motive for Lane’s attack, although Longmont Police Cmdr. Jeff Satur told The Post on Thursday that investigators have “a pretty good idea” of her motivation, and that it would be “something everybody would think.”
In court on Thursday, Boulder County Assistant District Attorney Ryan Brackley said that “this was an extremely violent act, a premeditated act,” the Denver Post reported.
In the police report, a doctor who treated Wilkins said the incision used to remove her fetus was “well performed” and that the “person who did the incision would have to have researched the subject of Cesarean Births in books or on-line to achieve the level of accuracy.” Lane was a certified nurse’s aide until her license expired in 2012.
But investigators have not ruled out the role mental illness may have played in Lane’s attack.
Longmont’s public safety chief, Mike Butler, addressed the potential role of mental illness in Lane’s case, and in another stabbing in the town this week. Saying that he believed it was a factor in one or both of the attacks, Butler told reporters that “the conversations need to change dramatically” about how to address mental illness in communities across the country.
Correction: Originally, this piece incorrectly stated that a 2013 bill, the “crimes against pregnant women” bill, had failed in Colorado legislature. The piece has been corrected to note that the bill, in fact, passed. An earlier bill fetal homicide measure proposed that same year failed, as the AP explains here.