The judge in the Scott Roeder murder trial will decide today whether former Kansas Attorney General Phill Kline can be forced to testify.
The judge also will decide how much Roeder will be allowed to say about abortion when he takes the stand — most likely today — in his own defense.
Roeder is charged with first-degree murder in the May 31 shooting death of Wichita abortion provider George Tiller, but his lawyers are hoping for a conviction on a lesser charge of voluntary manslaughter.
District Judge Warren Wilbert said Wednesday that defense lawyers had a "formidable and daunting task" if they hope to convince him to allow the jury to consider a voluntary manslaughter conviction.
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Wilbert said he will rule at the close of testimony which charges the jury will be allowed to consider.
After prosecutors wrapped up their case Wednesday, lawyers spent much of the afternoon debating what role abortion will play in Roeder's defense.
Wilbert said Roeder will be allowed to express his anti-abortion views, but he said, "We are not going to make this a referendum on abortion."
"He's not going to be able to get up there and blurt out whatever he wants to say," Wilbert said. "We're not going to discuss partial-birth abortion."
It became clear during the afternoon arguments that a key piece of the defense strategy will involve the March 2009 jury trial that ended when Tiller was acquitted of 19 misdemeanor charges. The charges related to financial arrangements in performing late-term abortions.
Roeder attended that trial, his lawyers said, and the not-guilty verdicts may have contributed to Roeder's decision to shoot Tiller at Reformation Lutheran Church.
Wilbert ruled Wednesday that Deputy Attorney General Barry Disney, the prosecutor at the Tiller trial, cannot be forced to testify on Roeder's behalf.
"I'm simply at a loss at what Mr. Disney could offer in this trial," Assistant Attorney General Michael Leitch said in asking Wilbert to quash the subpoena for Disney.
Defense lawyer Mark Rudy countered that the defense simply wanted to ask Disney whether he believed the charges against Tiller were valid.
"I think we are being handcuffed if we're not allowed to do that," he said. "We believe Barry Disney will say he had a good faith belief in these charges."
District Attorney Nola Foulston said she didn't think Disney or Kline — or the court records from the Tiller trial — had any business being mentioned in the Roeder trial. Kline was attorney general when the investigation into Tiller's clinic began.
"The state does not believe any of this mishmash is relevant and material to this case," she said.
Wilbert is expected to decide this morning whether Kline can be forced to testify. The jury is scheduled to return at 10:30, and the defense is expected to begin presenting evidence shortly afterward.
Outside the courthouse on Wednesday, Operation Rescue founder Randall Terry appeared with a handful of supporters, one who carried a sign that read, "Give Roeder a fair trial."
Over the noon break, Terry held a news conference in which he said, "This jury has a right to hear what drove Scott Roeder to such extremity."
Terry, a main figure in the "Summer of Mercy" protests at Tiller's Wichita clinic in 1991, has seen his influence wane in recent years. Operation Rescue has moved on without him and now has a new leader.
A leader for the Feminist Majority Foundation, who knew Tiller and supported his efforts, said Terry's presence amplifies their concern that extremist views fuel violence.
"I am more concerned about the extremists here at this trial, who have long had a relationship with Scott Roeder and have promoted violence against abortion doctors," said Kathy Spillar, executive vice president of the Feminist Majority Foundation.
Spillar said she was encouraged that a prosecutor from the civil rights division of the Department of Justice was in Wichita to monitor the trial and hopes it will lead to federal indictments.
"We're hoping to see charges filed beyond Scott Roeder," Spillar said. "The fact that we continue to see abortion doctors killed... tells us that something needs to be done and people should be prosecuted beyond the shooter."