SALT LAKE CITY — When prosecutors file expected charges against the husband who reportedly confessed to killing his missing pregnant wife, they will signal whether they intend to accuse Mark Hacking of double or aggravated murder — a crime that would warrant the death penalty.
But without a body, legal experts say, the district attorney will find it difficult to prove the elements of aggravated murder. Whether Lori Hacking was five weeks’ pregnant, as she reportedly told friends before being reported missing July 19, is one element of that charge.
His lawyer, D. Gilbert Athay, has said he will raise the defense of mental illness and challenge the credibility of his client’s admission to relatives that he killed his wife and dumped her body in a garbage bin.
Police are searching a municipal landfill for her remains.
Doctors say it would be difficult but not impossible to determine if Lori Hacking was pregnant without her body. They’d need more than a few drops of blood and serum to run a test. If the body is found, they can examine the contents of her uterus, using a microscope to look for cells of a nascent fetus.
District Attorney David Yocom has declined to say whether he would seek the death penalty, but did say he gives the wishes of the victim’s family great weight in such decisions. Lori Hacking’s family hasn’t asked for capital punishment, even as the husband’s family appears resigned to that possibility. Both Mormon families have shown an unusual bond during the ordeal, holding hands at news conferences and professing their love for both Mark and Lori Hacking no matter what the outcome of the case.
Yocom has until 5 p.m. Monday to file charges against Mark Hacking, who was jailed a week before on suspicion of killing his wife. Yocom was supposed to file the charges three days after Hacking’s arrest, but a judge granted an extension as prosecutors prepare their case.
“District Attorney Yocom is a fine prosecutor, and there’s no reason to jump the gun. He’s going to evaluate all the evidence, and I’m sure he recognizes that without a body, it may be difficult to prove the aggravating circumstances allowing for the death penalty,” University of Utah criminal law professor Erik Luna said.
Luna said the defense can try to raise one issue he called more scholarly than legal: Whether double-murder charges can apply to a victim who would have been able to legally abort an early-term fetus. But he doubts the defense would get far with an argument that “for the most part comes down to a woman’s constitutional right to choose versus an act of violence against her will.”
Utah is among the 30 states that treat the unlawful killing of an unborn child as homicide. State laws differ, especially on how many weeks old a fetus must be to become party to a homicide. But in Utah, an “unborn child” at any stage of development can be a victim of foul play.
Four days before she vanished, Lori Hacking told friends she was five weeks’ pregnant, based on a home pregnancy test unconfirmed by doctors.
Elements other than pregnancy can shore up the foundation for aggravated murder, but they’re harder to prove, Luna said.
One element is a murder wrought in “especially heinous, atrocious, cruel or exceptionally depraved manner.” But that usually can be proven only by showing that death followed torture or abuse. Even a “gruesome killing” isn’t sufficient on its own for aggravated murder, he said.
Another element is murder for personal gain. Prosecutors could allege Mark Hacking killed his wife to conceal his lack of academic credentials or failure to get in medical school, “but that’s a stretch,” Luna said.
For years Mark Hacking lied to his wife, family and friends about his education and career plans — deceptions that began to unravel after he reported his wife missing. Not only wasn’t he enrolled at medical school, he hadn’t even graduated from the University of Utah. Yet, he and his wife were packing for the move to Chapel Hill, N.C., where she had presumed he was to begin medical school.
Police and family members believe that three days before she vanished, Lori Hacking discovered her husband’s academic deceptions.
She took a phone call at work that left her stunned and sobbing, and she left the Wells Fargo brokerage house early for the day. Her colleagues say she had been making some arrangements at the North Carolina school and that they believe an administrator called back to say he was not enrolled there.
One of Mark’s brothers and father are doctors, and another brother is an electronics engineer. The father, Douglas Hacking, has said Mark probably felt pressure by the achievements of his relatives.