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Wednesday, April 16, 2014

Scott Roeder's lawyers to ask for new trial

Associated Press

Attorneys for Scott Roeder, who was convicted of murdering abortion provider George Tiller, have asked a judge for a new trial or Roeder's acquittal, arguing that the judge was wrong when he didn't instruct jurors that they could consider the lesser offense of voluntary manslaughter.

A motion made public Monday also details a litany of adverse rulings against the defense during the murder case against Roeder. He was convicted in the May 31 shooting death of Tiller, who was serving as a church usher when he was shot.

Such motions are routine but important in preserving the court record on appeal issues. It is unlikely that District Judge Warren Wilbert will reverse himself on his own rulings when he hears arguments on it March 9, the same day he sentences Roeder for first-degree murder and aggravated assault.

Of greater importance will be the opinion of the Kansas Supreme Court when it ultimately considers during the appeal whether the judge erred in keeping jurors from considering a voluntary manslaughter conviction. The high court will review the case because Roeder was convicted of first-degree murder.

Neither prosecutors nor defense attorneys returned messages left at their offices Monday seeking comment.

In addition to contending that the court may have erred in instructing jurors on the so-called voluntary manslaughter "imperfect self defense or defense of others," the motion argued that the court also may have erred in granting a prosecution motion to ban the so-called necessity defense, which may have led to an outright acquittal.

Other arguments for a new trial included adverse rulings to the defense involving motions to reconsider bond, throwing out subpoenas of defense witnesses, denial of a change of venue, and various objections during trial, among others.

Michael Kaye, director of Washburn University's Center for Excellence in Advocacy in Topeka, said such defense motions for a new trial are taken into consideration by appellate courts.

"Lawyers do it all the time; failure to do it is often questionable. Judges expect it," Kaye said.

"The issue of imperfect self-defense will be one of the most important issues the judges will consider, so this is important for them to raise it again now and put their best arguments forward."

Roeder's attorneys built their case — including putting their client on the witness stand — on the hope that Wilbert would allow jurors to consider a conviction on a lesser charge of voluntary manslaughter because Roeder sincerely believed he was defending unborn children.

Kansas law defines voluntary manslaughter as "an unreasonable but honest belief that circumstances existed that justified deadly force."

But Wilbert rejected such a jury instruction on the lesser charge after ruling that the defense failed to show during its case that the doctor posed an "imminent threat" in the foyer of his church on a Sunday morning.

A key issue in the appeal will be whether "imminent threat" should be decided on an objective basis as ruled by the judge or on a subjective basis — as Roeder's attorneys argued in claiming their client believed the threat was imminent.

"The thing is he didn't get off on it — had he succeeded then I think the Legislature might have been more concerned," Kaye said. "I think for the state Supreme Court, they'll try to publish an opinion trying to answer any questions raised by the application of the rule in this case — and I think that will help people in the future — so it will be an important case."

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