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.