Kansas abortion provider’s killer argues in court against Hard 50 sentence

The man who shot and killed Wichita abortion provider George Tiller was back in a Sedgwick County courtroom with his defense attorneys Friday, arguing that a Hard 50 prison term should be off the table when he is resentenced for the 2009 murder.

Mark Rudy, chief attorney for the Sedgwick County Public Defender’s Office, said a change in the state law that fixed the way Hard 50 sentences were imposed shouldn’t retroactively apply to Scott Roeder, who was convicted of Tiller’s murder in January 2010.

Roeder’s Hard 50 prison sentence was among those vacated after the U.S. Supreme Court ruled in a 2013 Virginia case that juries, not judges, must decide which evidence warrants increasing the penalty for a crime beyond its mandatory minimum sentence.

Roeder’s sentence – life in prison with no chance of parole for 50 years – was imposed by a judge.

It was thrown out last year by the Kansas Supreme Court in response to the U.S. Supreme Court ruling.

To fix the problems with Kansas’ Hard 50, “the state Legislature changed the law – we believe unconstitutionally – and made it retroactive,” Rudy said.

“The law they (prosecutors) are trying to sentence him under didn’t exist in 2010, so he should default to the 25-to-life sentence. The state shouldn’t even be able to ask for 50 to life.”

The Sedgwick County District Attorney’s Office in a written response to Roeder’s motion said the legislative changes to the Hard 50 law were procedural rather than altering its substance. Prosecutors also argued that the new Hard 50 law is constitutional and that seeking the sentence for Roeder after it changed doesn’t violate his rights.

The motion was one of two that Rudy argued Friday morning before Sedgwick County District Court Judge Warren Wilbert.

The other asked for a new trial based on a change in Kansas law that now defines conception as the beginning of life. Roeder has said he killed Tiller to save the lives of unborn children.

Wilbert denied both motions, according to Rudy and Dan Dillon, spokesman for the Sedgwick County District Attorney’s Office.

A new sentencing date for Roeder has not been set.

Roeder, 57, was found guilty of first-degree murder in Tiller’s death and of two counts of aggravated assault for threatening to shoot two other men inside Reformation Lutheran Church on May 31, 2009.

Roeder testified at this trial that his 1992 conversion to Christianity left him strongly opposed to abortion. After seeing other failed attempts at preventing Tiller from performing abortions, Roeder testified that he decided to kill him.

He walked into the church during a Sunday morning service and shot Tiller, who was serving as an usher.

Roeder is serving his sentence at Ellsworth Correctional Facility, according to the Kansas Department of Corrections’ online inmate records. He was brought to Sedgwick County for Friday’s motions hearing.

Rudy said the next hearing in Roeder’s case is scheduled for March 23. Attorneys will use it to argue more motions leading up to his new sentencing proceeding, including more arguments from the defense about the constitutionality of Kansas’ Hard 50 law.

Rudy said he doesn’t expect Roeder to be resentenced until next summer at the earliest. When that happens, attorneys will pick a new jury, which will decide whether Roeder’s crimes warrant a Hard 50 sentence a second time.

It will be a lot like having another trial, except jurors won’t have to decide whether Roeder is guilty. They will be told that he already has been convicted.

But beyond that, jurors “have to hear basically the whole thing over,” Rudy said.

“The state will decide what they have to do to present to them what’s called the aggravating circumstances” – evidence that justifies a harsher than usual penalty, Rudy said.

“Their two theories to get to the Hard 50 will be that the death was caused in an unusually cruel and heinous manner and that he posed a risk to more than one life,” he said. “So to do that, they’re pretty much going to have to put their case back on.”

That will mean calling witnesses to testify and presenting evidence, just like what’s done during a trial.

“And then we’ll counter that to test that evidence and then to put on our own evidence” to argue against a Hard 50 sentence, Rudy said.

“It’s not just a quick resentencing, obviously.”

This story was originally published October 23, 2015 at 10:13 PM with the headline "Kansas abortion provider’s killer argues in court against Hard 50 sentence."