Prosecutors today will make a final attempt to stop Scott Roeder from telling a jury he killed Wichita abortion provider George Tiller in defense of the unborn.
Sedgwick County District Judge Warren Wilbert scheduled a hearing for 1:30 p.m. today on the state's arguments that Roeder should be prohibited from using voluntary manslaughter as his defense while on trial for first-degree premeditated murder.
The motion filed Monday pushed the beginning of jury selection back two days.
Roeder's public defenders say they're confident the last-minute motion will fail and the judge will allow them to proceed with their case. Public defender Mark Rudy said he expects to file his team's legal response this morning.
In a hearing Friday, Wilbert said he envisioned testimony that would require him to give the jury an option of less severe charges than premeditated murder, including voluntary manslaughter.
"We think the judge correctly stated the law on Friday," said Rudy, one of Roeder's public defenders.
Roeder, 51, is charged in the May 31 shooting death of Tiller, one of four doctors nationally who performed late-term abortions. Roeder had claimed he killed Tiller to protect the unborn.
Kansas law defines voluntary manslaughter as the "unreasonable but honest belief that circumstances existed that justified deadly force" during an intentional killing. This is known in legal circles as an imperfect self-defense.
Chief Deputy District Attorney Kim Parker has asked Wilbert to "exclude all references in jury selection, opening statements, direct and cross examination" and rule any proposed evidence about "imperfect self-defense" irrelevant to the murder trial.
Wilbert said Friday that case law requires him to give options on other charges when the evidence supports it, no matter how weak the evidence might be.
"That's why it's difficult to rule on these types of issues until you hear the evidence," Rudy said. "The law says that if the evidence supports a lesser included charge, the judge has to give it, even if the defendant doesn't ask for it.
"We're confident the judge will say, 'This is the law,' and not change what he said on Friday."
Parker also wrote in her motion that case law indicates "the attacker must have an actual fear of an imminent attack, regardless of whether the belief is reasonable."
The prosecutor argued that there was no immediate threat to the unborn because Tiller wasn't shot at his clinic but in the foyer of his church, as he stood at a snack table serving as an usher.
"The Kansas cases that have allowed an imperfect self-defense argument involve situations where the perceived threat was capable of being carried out immediately and was likely to occur within minutes," Parker wrote.
"It has been the uncontroverted law in the State of Kansas since 1883 that no one can attack or kill another because he may fear injury at some point in the future," Parker added.
Parker said to allow Roeder to have the voluntary manslaughter instruction would create anarchy and lawlessness based on political beliefs.
"Taken to its logical extreme, this line of thinking would allow anyone to commit premeditated murder, but only be guilty of manslaughter, simply because the victim holds a different set of moral and political beliefs than the attacker," Parker wrote, and "allow an attacker to choose the time and place of the murder, regardless of whether the victim was engaged in threatening conduct at the time of the killing."
Picking a jury
Jury selection is now set to begin at 9 a.m. Wednesday, when 61 potential jurors will be called in for individual questioning by lawyers.
They have already faced questions about religious beliefs and opinions on abortion, Wilbert said in a separate order Monday morning.
"The potential jurors were asked very personal and sensitive questions regarding their religious beliefs, their views on abortion, their knowledge of George Tiller and any pretrial publicity regarding the defendant, Scott Roeder," in a written questionnaire last week, Wilbert said.
Jury selection is usually held in open court, even when jurors have to talk about sensitive issues such as past sexual abuse, domestic violence or their opinions on the death penalty.
But Wilbert has closed jury selection in this trial.
The Eagle, the Kansas City Star, the Associated Press and KWCH-TV plan to ask the Kansas Supreme Court to allow public access to the proceedings through reporters covering the trial.
A potential jury pool of 140 filled out pretrial questionnaires last week. The list of questions has also been sealed from public view by Wilbert.
Questioning by lawyers will determine the final panel of 12 jurors and two alternates who will decide the case.