Defense attorneys for a man charged with killing one of the nation’s few late-term abortion providers have subpoenaed two state prosecutors who tried unsuccessfully to convict the victim, Dr. George Tiller, on criminal charges.

Defense attorney Mark Rudy said Tuesday that misdemeanor charges filed by former Kansas Attorney General Phill Kline and new charges prosecuted later by Deputy Attorney General Barry Disney demonstrated that they believed Tiller’s actions had been lawless — even though they both failed to convict him.

Scott Roeder, 51, of Kansas City, Mo., is set to go on trial Jan. 11 on charges of first-degree murder and aggravated assault. Roeder has publicly admitted killing Tiller to save the lives of “unborn children” and has said he does not regret his actions.

Rudy told The Associated Press that Kline’s investigations “came to the conclusion (Tiller) was engaged in unlawful conduct relative to his profession.” Kline’s charges in 2006 were dismissed in a jurisdictional dispute with the local prosecutor.

“Mr. Disney was lead prosecutor (last March) when the state filed the subsequent charges against Dr. Tiller and obviously he believed … that unlawful conduct is occuring and the law was being broken at the time, in spite of the verdict of the jury,” Rudy said.

When pressed as to what point he hoped the prosecutors’ testimony would make, Rudy said there are potential defenses that could be raised based on the lawfullness or unlawfullness of the victim’s conduct. He did not explain his strategy further.

One possible defense move could be to ask jurors for a conviction on a lesser charge such as voluntary manslaughter — defined in Kansas as “an unreasonable but honest belief that circumstances existed that justified deadly force.”

Two months before his death, Tiller was acquitted of 19 misdemeanors alleging he failed to obtain a second opinion for late-term abortions from an independent physician, as required by Kansas law. Had he been convicted, the Wichita doctor would have faced a year in the county jail or a fine of $2,500 for each misdemeanor charge.

Kline, now a visiting assistant law professor at Liberty University in Lynchburg, Va., was among the first abortion opponents to publicly condemn the shooting of Tiller last May 31 at a Wichita church.

Kline said in a statement e-mailed Tuesday to reporters by his spokesman, Brian Burgess, that he had received a subpoena by mail and would comply with his legal obligation to appear.

“I still believe in the rule of law, whereas Mr. Roeder has allegedly decided to take the law into his own hands,” Kline said. “I have always condemned any act of violence toward Dr. Tiller.”

Ashley Anstaett, spokeswoman for the Kansas attorney general’s office, confirmed that Disney was also subpoenaed by defense attorneys but said the Kansas attorney general’s office was “evaluating” whether to seek to quash it.

Kline, an anti-abortion Republican, was attorney general in 2003-07 and Johnson County district attorney in 2007-08.

As attorney general, Kline investigated Tiller and filed 30 criminal charges against him in December 2006 in the waning days of his term. Those charges were soon dismissed after a jurisdictional spat with Sedgwick County District Attorney Nola Foulston, who is now prosecuting Roeder.

“Clearly Mr. Kline is not coming in to testify on behalf of Scott Roeder,” Rudy said. “He is testifying (as to) what his involvement was, what his investigation discovered and how that situation all played out.”

Tiller was later acquitted in March 2009 on new misdemeanor charges filed by Kline’s successor as attorney general, accusing Tiller of violating restrictions on late-term abortions. The jury took less than 30 minutes to find him not guilty of charges.

Roeder told The Associated Press in November that he had attended some of Tiller’s trial.

“There was always the hope and prayer that our so-called legal system would, you know, find him guilty of performing unlawfully … but that was to no avail,” Roeder said in that phone interview.

Roeder declined to say whether he made the decision to kill Tiller after the doctor was acquitted by the jury. Roeder said he believed there was evidence at the trial that Tiller was breaking the law, but that he had not been held accountable for it.

Georgia Cole, spokeswoman for the Sedgwick County district attorney’s office, said she was unaware of the defense subpoenas to Kline and Disney, but that the defense was entitled to call whomever they choose relevant to their case.