Judge Denies Request for 'Necessity Defense' in Trial of Accused Tiller Shooter

December 23, 2009 — Sedgwick County, Kan., District Judge Warren Wilbert ruled Tuesday that Scott Roeder, the man accused of fatally shooting Kansas abortion provider George Tiller, cannot use a "necessity defense" to argue that he believed the murder was justified to save the lives of fetuses, McClatchy /Los Angeles Times reports. Wilbert did say, however, that he would "leave the door open" for Roeder to present other evidence and arguments that he killed Tiller because he believed he was saving fetuses. According to McClatchy/Times, that might make it possible for Roeder's attorneys to argue that he committed the lesser crime of voluntary manslaughter, which is defined under Kansas law as an "unreasonable but honest belief that circumstances existed that justified deadly force." Roeder is charged with first-degree murder (McClatchy /Los Angeles Times, 12/23).

Last month, Roeder told the Associated Press in an interview that he killed Tiller to save the lives of the unborn. He has pleaded not guilty to one charge of first-degree murder and two counts of aggravated assault for fatally shooting Tiller in the foyer of his Wichita church on May 31 (Women's Health Policy Report, 11/11).

Wilbert said Kansas law does not recognize a necessity defense, and even if it did, it could not be used because abortion is legal in Kansas (McClatchy/Los Angeles Times, 12/23). Allowing someone to use his personal beliefs to justify criminal activity in an attempt to stop a law-abiding citizen from exercising his rights would "not only lead to chaos but would be tantamount to sanctioning anarchy," Wilbert said, quoting a 1993 Kansas Supreme Court decision (AP/Boston Globe, 12/23). He also said that he might limit what the defense can say in opening statements and implied that he would be unlikely to allow testimony indicating Roeder was acting in others' defense because the law requires an "imminent threat."

Wilbert also denied a motion to move the case out of Sedgwick County. The defense had argued that intense news coverage there would make it impossible for Roeder to receive a fair trial (McClatchy/Los Angeles Times, 12/23). In addition, Wilbert denied a motion that would have blocked prosecutors from striking potential jurors based on their beliefs about abortion (AP/Boston Globe, 12/23). Jury selection in the case will begin Jan. 11 (McClatchy/Los Angeles Times, 12/23).

Before Tuesday's ruling, NPR's "Morning Edition" examined the history of the attempted use of the necessity defense in cases of violence against abortion clinics and providers. The defense has never been allowed in those cases (Lohr, "Morning Edition," NPR, 12/22).