Manslaughter defense still an option for Roeder

The judge won't rule out the possibility of Tiller's murderer being convicted on a lesser charge

Published January 13, 2010 4:14PM (EST)

At a hearing on Tuesday, Judge Warren Wilbert was not swayed by prosecutors' argument that he should bar Scott Roeder's attorneys from presenting a defense that could lead to the confessed killer being convicted of voluntary manslaughter, rather than first-degree murder, in the premeditated slaying of abortion provider Dr. George Tiller. According to the Associated Press, Wilbert "said that until the defense decides which evidence it will present, it's difficult for him to rule out Scott Roeder's proposed defense claim..." The judge has promised to "make every effort to try this case as a criminal first-degree murder trial," but he's leaving open the possibility that, based on the evidence presented, he'll have to instruct the jury that they have the option of convicting Roeder of the lesser charge.

I wrote yesterday about why reproductive rights advocates find that possibility outrageous -- and more disturbingly, why anti-choice crusaders are excited about the precedent it could set. As Wendy Kaminer wrote in The Atlantic online, "If [Roeder's] defense succeeds, the right to life movement will have effectively won the right to kill." But to be fair, objections to the decision might be more properly directed at the legal system than at Wilbert himself. The Kansas City Star's Mike Hendricks initially felt Wilbert's ruling was "a bone-headed decision," but changed his mind after consulting with legal experts and examining the judge's reasoning. "Wilbert is doing exactly what you'd expect from a judge in such a sensitive case," he writes. "He's being careful."

Hendricks dismisses the opposition to Wilbert's decision as "hysterical fears from abortion-rights groups," which doesn't sit too well with me -- when an Army of God representative tells the press that a voluntary manslaughter conviction for Roeder could mean more zealots "may be willing to take that risk" of murdering providers, a fear response from people on the front lines is only logical. That's why it's called "terrorism." But Hendricks isn't wrong to point out that focusing on what this could mean down the line arugably gives a distorted impression of what it actually does mean, right now.

For instance, some mistakenly think Wilbert has already decided to instruct jurors to consider a lesser charge of voluntary manslaughter when it's time for deliberations. He hasn't.

Nor is he promising that he'll allow Roeder's attorneys to present evidence in support of their client's contention that he thought he had to kill Tiller to protect others.

All Wilbert has done is left open those options so Roeder can't later assert in an appeal that he was denied a fair trial.

Certainly, no one wants that to happen. And both Wilbert and legal experts Hendricks spoke to have pointed out that even if Roeder's attorneys aren't explicitly prohibited from presenting a defense that points toward voluntary manslaughter, they'll still have an awfully hard time proving it. Frankly, I don't know enough about what's in Wilbert's heart or what's required of him by law to have a firm opinion on whether he made the right decision under the circumstances. But still, while it's important to maintain perspective, there's no question that the decision opens a big -- and yes, frightening -- can of worms.

The key question is whether Roeder can prove he had an "honest but unreasonable belief" that Dr. Tiller presented an imminent threat. Since the doctor was killed while attending church services, it seems clear that he did not. But according to the Wichita Eagle, defense attorney Mark Rudy argued, "The imminence of danger was greater than mere fear of future harm. There was a state-licensed facility operating in Sedgwick County to perform abortions. It had staff. It had a practitioner. It had a budget. It had clientele. It assumedly had a schedule of pending abortion procedures. In the mind of Mr. Roeder, the victim presented a clear danger to unborn children."

Believing that that constitutes an "imminent threat," of course, means believing that doctors performing legal medical procedures are committing murder. There's little doubt that Scott Roeder does believe that, but just how unreasonable is he allowed to be here? It's one thing to believe sincerely but erroneously that someone is trying to kill you. It's quite another to argue that your victim was routinely committing murder, even when he was not by any legal definition. Kaminer writes, "If Tiller had been, say, a gerontologist instead of an abortion provider, if Roeder murdered him because he harbored an honest belief that Tiller was euthanizing his patients, I bet the judge would not have been quite so sympathetic" -- but even that's a lousy analogy, because under Kansas law, euthanasia is considered the unlawful taking of a human life; abortion is not. So Roeder is essentially being permitted to argue that the law should ratify his unreasonable belief that the law is wrong.

As I said, I don't know whether Wilbert made the right decision, technically speaking -- if he'd barred Roeder's team from presenting this defense, only to see a murder conviction overturned on appeal, I wouldn't be any happier. But I still feel comfortable saying that in layman's terms, this is bullshit. And it's not the only decision of Wilbert's drawing fire; Roeder's trial has been further delayed because the Kansas Supreme Court has ordered the judge to rethink his decision to ban media from the jury selection process, which is particularly loaded in this case. A CBS News blog writes, "The abortion issue will still loom heavily over the trial and jury selection is expected to take at least a week and at least 300 prospective jurors will be summoned. Each side is allowed only 14 strikes but the judge has said that any juror that shows a clear opinion one way or another will be eliminated without costing either side." I'm all for attempting to eliminate bias, but is that even possible in this case -- finding a full jury of people who have no opinion on abortion? Jury consultant Philip Anthony (who is not working on this case) states the obvious: "Even if they haven't stopped to think about it in their lives, at the end of the day they probably have an opinion." And unless Wilbert changes his mind, this attempt to find a jury that's neutral on one of the most polarizing issues of our time will go unobserved by the media.

I don't envy Judge Wilbert the task in front of him; emotionally and politically, this case is complex and full of land mines. But legally, it really shouldn't be. Scott Roeder killed a man in cold blood because he didn't like what that man did for a living. He planned it in advance, he did it in a public place in broad daylight and he confessed to it. They don't come much more straightforward than that -- but because of religious zealotry, personal opinions and deeply held unreasonable beliefs, it's become achingly complicated. Whether that's because the letter of the law demands it or because Judge Wilbert's made poor decisions, something is very wrong when a man can argue that his demonstrably false conviction that another man committed murder mitigates his own conscious, premeditated choice to do so.


By Kate Harding

Kate Harding is the author of Asking For It: The Alarming Rise of Rape Culture--and What We Can Do About It, available from Da Capo Press in August 2015. Previously, she collaborated with Anna Holmes, Amanda Hess, and a cast of thousands on The Book of Jezebel, and with Marianne Kirby on Lessons from the Fat-o-Sphere. You might also remember her as the founding editor of Shapely Prose (2007-2010). Kate's essays have appeared in the anthologies Madonna & Me, Yes Means Yes, Feed Me, and Airmail: Women of Letters. She holds an M.F.A. in fiction from Vermont College of Fine Arts and a B.A. in English from University of Toronto, and is currently at work on a Ph.D. in creative writing from Bath Spa University

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