A Sedgwick County district judge Tuesday said Scott Roeder could pursue a defense of voluntary manslaughter.
Prosecutors had asked Judge Warren Wilbert to block Roeder, 51, from building a case that might lead to a lesser charge than first-degree premeditated murder. Roeder is charged with killing Wichita abortion provider George Tiller on May 31 at the doctor's church. Roeder has admitted to the shooting but said he killed to protect the unborn.
Kansas law defines voluntary manslaughter as the "honest but unreasonable belief" that the use of force was necessary in defense of another. It's called the imperfect self-defense.
But Wilbert said at a hearing Tuesday afternoon that voluntary manslaughter was a legal instruction given to a jury before it begins deliberations and it wouldn't be proper for him to rule on it before a jury was even seated. Jury selection is set to begin this morning.
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"We don't fast-forward," Wilbert said during the hearing. "We don't jump to conclusions, and we don't arrive at the end of the process without a full and complete — and hopefully impartial — hearing."
Prosecutors said the "imperfect self-defense" required an imminent threat by Tiller, who was not at his clinic ready to perform abortions but in his church serving as an usher when he was shot. The prosecution said the jury should consider only whether the killing was premeditated.
A manslaughter conviction would mean a sentence of four to six years for Roeder, compared to life in prison for first-degree murder.
But Wilbert said he'd received a barrage of e-mails and public comments and had heard misstatements in news reports that he had definitively ruled he would instruct the jury on voluntary manslaughter.
Some may have confused his opinions with his ruling that Roeder could not use the so-called "necessity defense." That is where Roeder would claim he killed Tiller to prevent abortion, which is not allowed by law.
Wilbert spent the first several minutes of the hearing clarifying that he had not ruled on voluntary manslaughter and would not until the end of evidence, when he compiled legal instructions for the jury.
Wilbert said he would limit testimony on abortion to Roeder's mindset at the time of the shooting.
"I am going to make every effort to try this case as a criminal first-degree murder trial," Wilbert said. "Admittedly, Mr. Roeder's beliefs may come into play, and as a defendant he's entitled to present a defense."
Prosecutor Kim Parker had asked Wilbert to prohibit the defense from remarking on Roeder's beliefs in protecting the unborn in jury selection, opening statements, or referring to evidence that might be later ruled inadmissible.
Mark Rudy, arguing for the defense, said Parker was trying to tell the defense how to run its case.
"The state is trying to script the trial, and trials aren't scripted," Rudy said. "This trial is going to be on television, but it's not a TV trial. It is a real trial."
Wilbert said he didn't think lawyers needed broad limitations put on them before trial, and he trusted both sides to try the case professionally and ethically.
"I don't think anyone is going to try to inject error into this case," Wilbert said. "We don't want to try this case twice."
2007 case informs
Wilbert, however, said his research over the weekend had led him to further case law in Kansas, which may prevent the voluntary manslaughter instruction from being presented to the jury.
The 2007 decision by the Kansas Supreme Court involved the Butler County case of Bobby Bruce White.
White drove from his home in Great Bend to Augusta and shot his son-in-law to death in the electronics department of the Walmart there. White said he killed in order to protect his grandson from abuse at the hands of his stepfather. The trial judge didn't give the jury the option of convicting White of voluntary manslaughter.
"An instruction for voluntary manslaughter based upon the imperfect defense of another is not warranted absent evidence that the defendant actually believed that an imminently dangerous situation existed at the time of the killing," Justice Lawton Nuss wrote on appeal.
But the grandson was not present at the Walmart, where the stepfather, Aaron Ruboyiane, worked — a three-hour drive from White's home.
"Indeed, because White went to Aaron's Walmart workplace, it would be quite difficult for him to present evidence that he honestly believed his 5-year-old grandson was there and that abuse was imminent," Nuss wrote.
Wilbert made comparisons to Roeder's case, in which prosecutors say Roeder drove from the Kansas City area and shot Tiller in the foyer of his Wichita church on a Sunday, away from the abortion clinic.
The judge said such a reading of the law gives the defense a "formidable duty and a daunting task."
Prosecutors had argued that imminent threat, under the law, has to be immediate, not based on a future event.
Earlier in the day, Rudy filed a defense brief suggesting how Roeder might claim Tiller posed an imminent threat to the unborn.
Rudy argued that in Roeder's mind, Tiller was not a threat "based on character, or exchange of words, or provocation of physical self- defense, but instead based on abortion procedures that have resulted in deaths and been reported to the state of Kansas."
"The imminence of danger was greater than mere fear of future harm," Rudy added. "There was a state-licensed facility operating in Sedgwick County to perform abortions. It had staff. It had a practitioner. It had a budget. It had clientele. It assumedly had a schedule of pending abortion procedures. In the mind of Mr. Roeder, the victim presented a clear danger to unborn children."
The defense contended that whether Roeder is guilty of premeditated murder or voluntary manslaughter is a decision for a jury. The jury's job is to judge the facts. It's Wilbert's job to determine the law.
Said Wilbert: "Voluntary manslaughter is an affirmative theory of defense, which they are free to develop" if they can.