Judge ponders Roeder's 'necessity defense'

WICHITA | A judge is weighing a critical legal question in the case of a man who confessed to killing one of the nation's few late-term abortion providers: Can the man claim at his trial that the slaying was justified to save the lives of unborn children?

Scott Roeder, a 51-year-old Kansas City area man, is charged with one count of premeditated, first-degree murder in George Tiller's death and two counts of aggravated assault for allegedly threatening two ushers during the May 31 melee in the foyer of the doctor's Wichita church.

District Judge Warren Wilbert has yet to rule on a bevy of court filings that will set the course for the Jan. 11 trial, and will consider some of them in court Tuesday. But the documents offer a glimpse at the unfolding legal strategies in a case played out amid the rancorous debate over abortion.

Since the killing, Roeder has confessed to reporters that he shot Tiller, while his anti-abortion allies have urged Roeder to present the so-called "necessity defense" in hopes that an acquittal could turn the larger debate over abortion in their favor.

"I choose this action I am accused of because of the necessity defense," Roeder told The Associated Press in November. "I want to make sure that the focus is, of course, obviously on the preborn children and the necessity to defend them."

If the judge rejects that defense, Roeder and his attorneys would not be allowed to make that argument to jurors at his trial. Similar efforts to use such a strategy in cases involving abortion-related violence have generally been banned — perhaps most relevantly at the 1993 trial of an Oregon woman accused of shooting and wounding Tiller.

Roeder, who has pleaded not guilty, confessed to the shooting on Nov. 9, telling The Associated Press he has no regrets for killing Tiller and suggesting the necessity defense should be the only contested issue of his trial. Roeder declined to say when asked if he would kill another abortion provider if he were acquitted.

The so-called "necessity defense" has rarely been successfully used in abortion cases. Roeder's attorneys — while arguing that their client has a right to present his theory of defense — have so far kept their own strategy secret.

Legal experts and others close to the case have suggested his public defenders may actually be aiming at a conviction on a lesser offense such as voluntary manslaughter — defined in Kansas as "an unreasonable but honest belief that circumstances existed that justified deadly force."

That would be an easier argument to make to jurors than a necessity defense, which is unlikely to win, said Melanie Wilson, a University of Kansas law professor. A necessity defense, also known as the "choice of evils defense," requires proof that the defendant reacted to an immediate danger, an argument that is undermined by abortion's legality.

"The defendant has a right to a defense and so if he can put forth evidence that shows adequate facts to support such a defense, well then he should be allowed to do so," Wilson said. "I suspect that is what the big fight is going to be at the motions hearing."