Crime & Courts

Judge disallows 'necessity defense' in Tiller case

Scott Roeder listens as defense attorney Mark Rudy speaks during his pretrial motions Dec. 22 in Sedgwick County District Court in Wichita. Roeder, 51, is charged with first degree premeditated murder in the May 31 shooting death of Wichita abortion doctor George Tiller in the lobby of his Wichita church, where the doctor was serving as an usher.
Scott Roeder listens as defense attorney Mark Rudy speaks during his pretrial motions Dec. 22 in Sedgwick County District Court in Wichita. Roeder, 51, is charged with first degree premeditated murder in the May 31 shooting death of Wichita abortion doctor George Tiller in the lobby of his Wichita church, where the doctor was serving as an usher. The Wichita Eagle

A Sedgwick County district judge ruled Tuesday that Scott Roeder's murder trial will stay in Wichita, and he limited how Roeder can defend himself.

Judge Warren Wilbert ruled Roeder could not use the so-called "necessity defense" in the killing of Wichita abortion provider George Tiller last May.

But the judge said he would "leave the door open" for Roeder's defense to present evidence and arguments that he killed in the belief that he was saving the lives of the unborn.

That may enable Roeder's public defenders to ask jurors to consider crimes less severe than first-degree premeditated murder. Kansas law, for example, defines voluntary manslaughter as the "unreasonable but honest belief that circumstances existed that justified deadly force."

A conviction of voluntary manslaughter could carry a sentence of between four to six years in prison for Roeder, compared with life imprisonment for murder.

But those issues probably won't be decided until the judge gives legal instructions to the jury — after evidence is presented and before they hear closing arguments and begin deliberations.

Wilbert said he may limit what the defense can say in opening statements. Wilbert also said it would be difficult to allow testimony indicating Roeder was acting in defense of others because the law requires an "imminent threat."

Tiller was shot and killed May 31 inside the lobby of his church, where he was serving as an usher.

Voluntary manslaughter is considered an "imperfect self-defense," said prosecutor Kim Parker. Parker said such a defense "must be based on the reality of circumstances surrounding the intentional killing and not on a psychotic delusion."

Public defender Mark Rudy told the judge that prosecutors were trying to "muzzle" the defense.

"It has the effect of handcuffing and gagging us at the same time," Rudy said.

Wilbert said he would not allow Roeder to use what has been called a "necessity defense," where a defendant claims he or she broke the law to prevent another from causing greater harm.

Roeder has said he killed Tiller to save the lives of fetuses being aborted.

Wilbert said the necessity defense is not recognized under Kansas law. But even under common law interpretations, Wilbert added, the act would have to stop someone else from committing a crime.

That wasn't the case with Tiller, Wilbert said, because abortions are legal.

"I recognize we could all have our own individual personal views, religious views, moral and ethical views," Wilbert said in his ruling. "But the United States Supreme Court has come down many, many years ago in Roe v. Wade that an abortion is a legal and constitutionally protected decision by the mother and... by health care providers."

Kansas appeals courts have ruled the necessity defense unacceptable in cases involving trespassing on abortion clinics.

If it's not a viable defense in misdemeanor property cases, Wilbert ruled, it wouldn't apply to felonies such as murder.

Wilbert also denied a motion to move the trial outside Sedgwick County, based on defense claims that news coverage had made it impossible for Roeder to receive a fair trial.

It is too soon to say an impartial jury cannot be picked, Wilbert ruled, until lawyers start questioning potential jurors when the trial starts Jan. 11.

Some 300 people are being summoned to the courthouse for the trial. Between 150 and 200 are expected to respond, Wilbert said.

Initial questioning will allow some to be excused for legal reasons, whittling the final pool to 42. From that group, lawyers will pick 14: the dozen jurors who will decide the case and two alternates.

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