Archive for Tuesday, December 22, 2009

Judge rejects ‘necessity defense’ in Tiller murder case

December 22, 2009, 1:32 p.m. Updated December 22, 2009, 5:38 p.m.


— A judge ruled Tuesday that Kansas law doesn’t allow a so-called “necessity defense” in the trial of a man charged with killing one of the nation’s few late-term abortion providers.

The decision was another blow to lawyers for 51-year-old Scott Roeder, who has confessed to shooting Dr. George Tiller on May 31 and says it was necessary to save “unborn children.” Roeder listened intently, at times twiddling his thumbs nervously under the defense table, as the judge gave a lengthy recitation of case precedents that mostly undermined that contention.

In his ruling, Judge Warren Wilbert cited a 1993 criminal trespassing case involving an abortion clinic in which the Kansas Supreme Court said that allowing a person’s personal beliefs to justify criminal activity to stop a law-abiding citizen from exercising his rights would “not only lead to chaos but would be tantamount to sanctioning anarchy.”

But he noted that the 1993 case dealt only with a property rights issue, whereas the case involving Roeder has elevated the argument to whether it is justified to take one life for another.

“That is certainly not a position I want to be in — because I am not God,” Wilbert said.

The judge said he has heard enough evidence to anticipate what might be presented at trial. He noted abortion is legal and told attorneys he found it difficult to consider the shooting of Tiller in the back of a church on a Sunday morning, with no overt act by Tiller himself, as an act spurred by an imminent threat of death or bodily harm.

However, Wilbert told attorneys he would “leave the door open” to consider later whether to allow specific evidence on the use of force for the defense of another person before letting the jury hear it.

“That doesn’t mean it is wide open ... we can discuss it,” Wilbert said.

Defense attorneys could later ask the judge to allow jurors to consider a lesser offense such as voluntary manslaughter — defined in Kansas as “an unreasonable but honest belief that circumstances existed that justified deadly force.”

Roeder’s public defenders are keeping their defense strategy secret, but such a move could make the verdict ultimately turn on jury instructions. Roeder now faces life imprisonment if convicted of first-degree murder. A voluntary manslaughter conviction could bring a prison term closer to five years, depending on prior criminal record.

The necessity defense ruling came during a hearing that mostly dealt setbacks to Roeder’s defense. The judge rejected a change of venue request and a motion that would have kept prosecutors from making peremptory jury strikes based on potential jurors’ beliefs about abortion.

While Wilbert denied the motion to prohibit the strikes, he said he would deal with such issues on a person-by-person basis during the trial, which is scheduled to begin Jan. 11. He refused to move the case out of Wichita, where pre-trial publicity has been intense.

Roeder, 51, of Kansas City, Mo., is charged with one count of premeditated, first-degree murder in Tiller’s death and two counts of aggravated assault for allegedly threatening two ushers during the May 31 melee in the foyer of the doctor’s Wichita church.

Roeder, who has pleaded not guilty, confessed to the shooting on Nov. 9, telling The Associated Press he had no regrets about killing Tiller and suggesting the necessity defense should be the only contested issue at his trial. He declined to say when asked if he would kill another abortion provider if he were acquitted.

Prosecutors have overwhelming evidence against Roeder, chiefly the witnesses who identified him during a July preliminary hearing as the shooter. Legal experts have said prosecutors likely will want to keep the trial limited to a straightforward murder case and avoid a discussion of abortion.


Amy Heeter 8 years, 6 months ago

Now Roeder has a good chance on appeal to have this case remanded back. Either way I doubt it will matter to Roeder as he clearly feels whatever happens to him is worth it.

Cait McKnelly 8 years, 6 months ago

Actually he doesn't have a good chance for an appeal. The man committed murder in about as clear and straight forward a way as can happen according to the laws of the state. If he feels that life in prison without parole is worth it so be it. In five to ten years he will be a forgotten man. Add his name to that of Kopp and Griffin and people saying "Who?" when they are mentioned.

meggers 8 years, 6 months ago

Oh, I don't think this gives him a better chance at appeal. Such a defense might be plausible if Tiller had been committing an illegal act and Roeder had interrupted him. Gunning a man down in church, because one disagrees with that man's legal profession hardly constitutes a "necessity".

I agree, though, artichokeheart, I doubt it will matter to Roeder much. He wanted to be a martyr for the anti-abortion cause and he got his wish.

Amy Heeter 8 years, 6 months ago

Sure it does. The judge is not allowing a zealous defense and is also refusing a change of venue. No way can Roeder get a fair trial in the abortion capitol.

GmaD321 8 years, 6 months ago

A change of venue would be pointless. This was national news when it happened. A jury that had not heard of it in the media could not be found. Is KS now "the abortion capitol"?

meggers 8 years, 6 months ago

The change of venue issue might come up on appeal, however the case has been so widely publicized, there probably isn't anywhere else in the state that it wouldn't be well known. If Roeder did not wish to be tried in the "abortion capital", as you call it, perhaps he should have committed his crime elsewhere.

A "zealous defense" does not include anything the defense attorney tosses out there to get his client off- there has to be sound legal precedent.

As far as a fair trial, since Roeder already pleaded guilty, whether or not he committed the crime isn't in question. It appears that the judge will still allow some latitude for his attorney to argue that Roeder was somehow justified in his actions. Is it a long shot? Sure, but that's what happens when one murders a man in cold blood in front of numerous witnesses.

ebyrdstarr 8 years, 6 months ago

I'm with cait and meggers. Today's rulings on venue and the necessity defense are not likely to be overturned on appeal. Decisions on venue change motions are almost never overturned by appellate courts. I can't think of a Kansas case that was overturned on this basis. And the Kansas Supreme Court has previously rejected the necessity defense. District courts are well within their power and discretion to limit defense evidence and arguments to only that which comports with the law.

ThatGirl2 8 years, 6 months ago

The right to an appeal would be automatic in this case, assuming he is found guilty.

Amy Heeter 8 years, 6 months ago

They will use this case to appeal: State v. Irons, 250 Kan. 302, 827 P.2d 722 (1992), where the court stated in general that it is fundamental for a fair trial to allow the accused to present his or her version of the events so that the jury may properly weigh the evidence and reach its verdict. The court also stated that the right to present one's theory of defense is absolute and that motions in limine are not to be used to choke off a valid defense in a criminal action. 250 Kan. 302, Syl. ¶¶ 2, 3.

ThatGirl2 8 years, 6 months ago

As I already stated, the right to an appeal is automatic on conviction of first degree murder. Coming from someone who actually went to law school.

ThatGirl2 8 years, 6 months ago

Artichoke studied at the University of Google.

ebyrdstarr 8 years, 6 months ago

Arti, you're citing nothing more than hornbook law from that case. You'll find dozens of cases where that exact quotation is cited and then the district court's denial of a requested defense instruction is affirmed. A motion in limine should not be used to choke off a "valid" defense. The KS Supreme Court has said "necessity" is not a valid defense. Nor is defense of others when there is no imminent threat, like when a guy's ushering at a church service. This is not a strong appellate issue.

brujablanco 8 years, 6 months ago

ivalueamerica (Anonymous) says…


Where did you study law? ///////////////////////////////////////////////////////////////// chokie studied at the Marion Syndey Lynn school of law. Ask her how her last appellate case turned out. BWAHAHAHAHAHAHAHAHAHA!!!!!!

Amy Heeter 8 years, 6 months ago

As I recall the same suspects argued with me on the internet suicide case. You were all so sure of the outcome and that one went to hell too.

ThatGirl2 8 years, 6 months ago

(Sniff). Smells like red herring in here.

Kirk Larson 8 years, 6 months ago

Necessity defense is useless since Tiller was engaged in a legal activity. If we allowed it then you would see people shooting bankers foreclosing on homes and such. If Roeder wanted to stop abortion he should have worked to change the law (although most want it kept legal, whatever they think of it). If he wanted to reduce abortion he should have supported comprehensive sex education, freely available contraception, and more aid for low income families. Otherwise, he's just a murderer; more so than Dr. Tiller. I hope there's a hell for him to burn in.

Amy Heeter 8 years, 6 months ago

Time will tell. I can wait to see how this plays out. Either way 5-25 years isn't that long and I suspect alot will hinge on psycological evaluations when it comes to sentancing Roeder in the end.

meggers 8 years, 6 months ago


I think by sentencing time, it'll be too late for a psychological evaluation to determine his fate. If he were going to try to be declared incompetent to stand trial, or plead temporary insanity, that would have happened by now. The man is completely unrepentant, which will not gain him much sympathy at sentencing. But keep rooting for him if you must.

ebyrdstarr 8 years, 6 months ago

Arti, I don't think you know anything about criminal sentencing in Kansas. The sentence for first degree murder is not discretionary.

madameX 8 years, 6 months ago

ThatGirl2 (Anonymous) says…

Artichoke studied at the University of Google.

I am stealing this. It will work in so many other situations.

But I'll cite you.

jaywalker 8 years, 6 months ago

"No way can Roeder get a fair trial in the abortion capitol"

And the question as to which axe 'choke is grindin' is answered.

"where the court stated in general that it is fundamental for a fair trial to allow the accused to present his or her version of the events so that the jury may properly weigh the evidence and reach its verdict."

First of all, focus on the words "in general". Second, so what? Citing the Irons case has no relevance as to the defense. The defendant can still 'present his version of events', he just can't hide behind the 'necessity' rationale, which, by the way, was only being served up so Roeder could use the court as his bully pulpit. He knows he's goin' to the Gray Bar Motel for a looong time, no matter what.

Anybody know if they're closing the courtroom to reporters?

brujablanco 8 years, 6 months ago

Be sure to remember your attitude on anarchy (do you truly know the definition of this word?), chokie, the next time you want our court of law to mete out justice.

ebyrdstarr 8 years, 6 months ago

jaywalker asked:

"Anybody know if they're closing the courtroom to reporters?"

The court can't just close the courtroom to reporters or anyone. That would run afoul of both the First Amendment and the Sixth Amendment (right to a public trial). There are some limited circumstances in which the courtroom can be closed, but those have to be extreme cases with no other possible remedies and the closing must be as narrowly tailored as possible. In this case, if the judge felt that pre-trial publicity had been so bad, he would have changed venue long before he would consider closing the courtroom.

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