Pro-choice groups fear a decision by the judge in the murder trial of abortion doctor George Tiller will essentially give defendant Scott Roeder a high-profile platform to argue that he was justified in killing Tiller last May.
In what one legal expert calls an “unprecedented” decision, Sedgwick County Judge Warren Wilbert two weeks ago declined to bar Roeder’s lawyers from pursuing a defense based on “voluntary manslaughter” — a lesser charge than first-degree murder that carries a sentence of roughly five years. Roeder faces a life sentence if convicted of murder.
But attorneys for pro-choice groups tell TPMmuckraker the real fear is not that Roeder will be convicted of the lesser crime, but that the judge’s move sets a bad precedent, and could in essence put the issue of abortion and Tiller’s practice on trial.
There are also fears that the judge’s decision will embolden extremist anti-abortion groups.
“It’s tantamount to sanctioning vigilantism,” says Alexa Kolbi-Molinas, staff attorney at the ACLU’s Reproductive Freedom Project.
Friday was the first day of the trial, and prosecutors signaled today they could conclude their case as early as Wednesday.
Judge Wilbert said Jan. 12 that he would decide on whether to give the jury a voluntary manslaughter instruction at the end of evidence — perhaps acting out of an abundance of caution to avoid a retrial down the road.
To succeed in a voluntary manslaughter defense, Roeder must show he was acting on the “unreasonable but honest belief that circumstances existed that justified deadly force,” according to Kansas law. And he must show he believed it was “necessary to defend … a third person against such other’s imminent use of unlawful force.” (Newsweek has a good rundown of the statute here.)
The standard for determining whether a defendant’s belief was “unreasonable” is asking if a reasonable, objective person in the same context and taking the surrounding circumstances into account would have come to the same belief. If the answer is no, the defendant’s belief was unreasonable.
However, Kolbi-Molinas says she has found no voluntary manslaughter cases like Roeder’s, in which an offender continues to believe his act was reasonable. It’s the difference between being mistaken about what’s happening in a given set of circumstances and being mistaken about the law.
“Using it in this way I believe is unprecedented,” Kolbi-Molinas says of the judge’s decision.
In Roeder’s case, the judge has opened the door for the defense to argue that Roeder had the unreasonable but honest belief that Tiller was going to unlawfully kill a third person by performing an abortion. In fact, abortion is legal in Kansas, and “under Kansas law a fetus is not a person for the purposes of abortion,” says Kolbi-Molinas.
There’s also the fact that one of the requirements for voluntary manslaughter is imminent danger.
“Imminent doesn’t mean it’s going to happen next week, or that he’s in the habit of doing it. It means it’s about to happen,” says Michael Kay, professor of law at Washburn University in Topeka. Roeder shot Tiller in the lobby of his church, not at his clinic.
So it will be a challenge for Roeder’s lawyers to successfully mount a voluntary manslaughter defense.
But Kolbi-Molinas says much damage has already been done by allowing the defense to pursue this tack. Constitutional rights would be meaningless, she argues, “if crimes were mitigated simply because the perpetrator is opposed to someone having that constitutional right.”
Harvard Law professor Alan Dershowitz expanded on this point in an interview with Slate:
Terrorists also argue that they’re saving lives. The implications of allowing any evidence of a theory of life-saving, as a defense for first degree murder, would destroy our legal system. It would turn law into politics.