A Novel but Failed Defense for Abortion Doc Killer

By Ted Wills

Recent media accounts of the Scott Roeder murder trial have sacrificed a precise portrayal of the law for attention-grabbing headlines. Headlines such as “Manslaughter Defense Allowed in Abortion Killing: ‘Voluntary Manslaughter’ Defense Would Carry 5-Year Sentence Instead Of Life in Prison” are misleading at best, and add fuel to the fire of the culture wars.

It took a jury just 37 minutes to convict Scott Roeder of first-degree murder in the shooting death of George Tiller, a Kansas abortion doctor who specialized in the legal, though controversial practice of performing late-term abortions.

The evidence was clear enough: Witnesses testified that Roeder walked into a church service and shot Dr. Tiller in the head before a crowd of terrified parishioners. Roeder was quickly apprehended—his shoes soaked in Tiller’s blood. However, in a pretrial ruling that aroused consternation across the nation, the trial judge ruled that Roeder would be allowed to present evidence to establish a defense of voluntary manslaughter. Under Kansas law, this defense is available to a charge of first-degree murder if at the time of the murder, the defendant had an honest belief, even if unreasonable, that his use of force was necessary to prevent imminent, unlawful harm to another.

Judge Warren Wilbert permitted Roeder’s attorney, Mark Rudy, to present evidence that Roeder was guilty of only second-degree voluntary manslaughter, not first-degree murder, because Roeder believed that killing Dr. Tiller was necessary to prevent imminent harm to unborn fetuses. The practical import of this distinction was clear for Roeder: Kansas sentencing guidelines provide that a voluntary manslaughter conviction can be punished by as little as five years in prison, while a first-degree murder conviction carries a mandatory sentence of life in prison.

But media accounts glazed over the fact that Judge Wilbert’s ruling left open the possibility that he would close off this avenue of defense if Roeder did not present enough evidence at trial to substantiate it. Indeed, at the end of the defense’s case last week, Judge Wilbert ruled that the elements of a justification defense had not been established, and that the jury would only be asked to consider a charge of first-degree murder.

Under section 21-3403 of the Kansas Criminal Code, the definition of voluntary manslaughter is the “intentional killing of a human being committed . . .  upon an unreasonable but honest belief that circumstances existed that justified deadly force . . . ” The use of deadly force is “justified,” under section 21-3211 of the code, when the defendant “believes that the use of force is necessary to defend [a] person . . .  against [another person’s] imminent use of unlawful force.” The elements of Kansas’ voluntary manslaughter statute are subjective, meaning that the defendant must prove to the jury that he held a sincere belief that the killing was justified.

Putting aside the intensely controversial issue of whether a fetus could be considered a “person” under the statute, the language in the statute presented other impediments that turned out to be fatal to Mr. Roeder’s defense. For the jury to return a verdict of voluntary manslaughter, Mr. Rudy had to prove his client believed that at the time of the murder, the harm to fetuses by Dr. Tiller’s was “imminent” and that it was “unlawful.”

After hearing the evidence, but before sending the case to the jury, Judge Wilbert ruled that the defense had not established these two elements as a matter of law, and he refused to instruct the jury to consider the voluntary manslaughter charge in its deliberations. The judge ruled that since Dr. Tiller was killed while attending a church service, at the time of the murder the death of any unborn fetus at Dr. Tiller’s hand was not “imminent.” Moreover, the judge ruled that Tiller’s practice of performing late-term abortions was not “unlawful.” Since Roe v. Wade was decided in 1973, the right of a woman to obtain an abortion, including a late term abortion, has been constitutionally protected.

Mr. Roeder is not the first defendant to attempt a legal argument based on the notion that killing abortion doctors is justified. In 1994, Paul Hill was convicted of killing an abortion doctor and the doctor’s bodyguard. At trial, the judge, exercising his regular discretion to rule on matters of law, prohibited Mr. Hill from arguing to the jury that the killings were justified because they had prevented the doctor from performing abortions. In 2003, James Kopp was convicted of murdering an abortion doctor in upstate New York. In a bench trial, Mr. Kopp’s attorney sought acquittal by arguing in part that Mr. Kopp was trying to save the life of a fetus.

However, Mr. Roeder’s situation was novel.  It was the first time that a judge used his discretion to permit a justification defense in a case involving the pre-mediated killing of an abortion doctor.  Some commentators believe that had the voluntary manslaughter defense succeeded, it would have established a new legal strategy for killers of abortion doctors to avoid long sentences and possibly death penalty. However, with the judge ultimately ruling that such a defense on these facts was impossible, and a quick conviction of first-degree murder by a jury, the future success of a similar legal strategy is doubtful.


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