TOPEKA — Scott Roeder had an unreasonable but honest belief that abortion provider George Tiller posed an unlawful and imminent threat to human life, and a jury should have been allowed to consider a lesser charge, a public defender said Wednesday as she sought to overturn his first-degree murder conviction.
Rachel Pickering told state Supreme Court justices that the jury should have been instructed to consider voluntary manslaughter in addition to first-degree murder and that failure to provide that instruction meant the decision should be reversed. Roeder, an anti-abortion activist, was convicted of killing Tiller in 2009 at Reformation Lutheran Church in Wichita.
The justices were vocal about their skepticism that the threat by Tiller could be considered “imminent.”
Justice Lee Johnson put it bluntly: “There weren’t going to be any abortions at the church.”
Pickering argued that the Legislature has yet to define a firm standard for imminence and that the case law in Kansas is limited. She cited a case from Pennsylvania in which two weeks was considered imminent.
The justices also grilled Pickering on the notion that Roeder had an “honest” belief in the unlawfulness of Tiller’s actions based on his belief that Tiller was wrongly acquitted of misdemeanor charges linked to late-term abortions.
Boyd Isherwood, the chief appellant attorney representing the state, said Roeder’s belief could not credibly be considered honest. He said that Roeder’s use of deadly force contradicted his stated belief that a man should not end human life and that his goal was to end all abortion and not just late-term ones.
Johnson also questioned how Roeder could be certain Tiller would perform an abortion, noting Roeder’s own testimony about his work as a “sidewalk counselor” who had successfully dissuaded women from having abortion. He said this testimony showed Roeder knew there were alternative ways to prevent abortions other than killing Tiller.
The judges posed a series of hypothetical scenarios to Pickering. Justice Eric Rosen asked if by her standard a person with an honest belief that smoking kills would be able to kill the CEO of Philip Morris and only be convicted of manslaughter.
Pickering argued that the tobacco CEO was less directly responsible than a doctor performing procedures and said that smoking kills people over time whereas Roeder believed Tiller would perform an abortion the next day.
Justice Carol Beier pressed her on the validity of this distinction.
“If you accept the underlining premise that smoking kills, this person’s life work is to promote smoking and to sell cigarettes to people who will consume them and eventually die,” Beier said. “What’s the difference other than time?”
Pickering said that was for a jury to decide.
Justice Dan Biles asked if a man who murders a doctor about to remove a patient from life support would fall under the same category as Roeder.
Pickering struggled to answer the justices’ queries for nearly an hour – about 30 minutes past her original allotted time.
“Despite all your questions, the question still remains: Should Mr. Roeder have been convicted of first-degree murder? That was a simple jury question,” she said toward the end of 95-minute hearing. “We don’t know that answer because the instruction was never given. He was not given a fair trial.”
She would not comment after the hearing.
By comparison, Isherwood’s address of the court was breezy and collegial, with the justices concluding their questions after 20 minutes.
The one point the court pressed Isherwood on was whether Roeder’s killing of Tiller qualified for the Hard 50 standard, something the defense is appealing. The automatic 50-year sentence requires that the crime include aggravating factors such as torture of the victim.
The justices noted that Tiller’s shooting death, though tragic, occurred almost instantaneously.
Isherwood argued it did qualify did because the murder – performed publicly in a church – was a “terroristic” action.
“It was meant to stop other people from seeking procedures that are protected by the Constitution,” Isherwood said. “That’s what separates this out. It’s absolute terrorism, not necessarily of Dr. Tiller but terrorism of everybody else.”
Pickering said that specific argument was not made by the prosecution in the original case.
In an e-mailed statement, Julie Burkhart, executive director of Trust Women and South Wind Women’s Center, supported the claim that Roeder had committed terrorism. The clinic, in the building that used to house Tiller’s clinic, offers reproductive health care including abortions.
“Scott Roeder committed first-degree murder, and his sentence should be appropriate to that crime,” Burkhart said.
“He sought to terrorize physicians who provide abortion care. We believe that doctors should not be bullied out of providing necessary health care to women.”