The abortion doctor murder: “voluntary manslaughter” or cold-blooded homicide?

19 01 2010

Scott Roeder

There is a fascinating discussion of the George Tiller murder case today on Jezebel which I would like to discuss.

Basically, George Tiller, an abortion doctor in Kansas, was attending church when he was shot in the head by Scott Roeder, a violent anti-abortion activist.  Roeder believes his actions were justifiable due to Tiller’s involvement in performing hundreds of abortions, some late-term, this radical position apparently having been fueled by the irresponsible comments of conservative talking heads like Bill O’Reilly, who repeatedly referred to Tiller as “Tiller the Baby-Killer” on air.

The latest development in the case occurred last week when a Kansas judge decided to allow Roeder’s defense team to present a “voluntary manslaughter” defense, for which Roeder must show that he believed his act to be “necessary to defend…a third person against such other’s imminent use of unlawful force.”  Of course, as Jezebel pointed out, the fact that Tiller was at church when Roeder shot him and not on the verge of performing an abortion really shatters the voluntary manslaughter defense, but even the judge’s decision to allow that particular line of defense sends a shockingly positive message to violent anti-abortionists.  The sentence for voluntary manslaughter can be as few as 5 years, and abortion doctors around the country are concerned that such a lax treatment of Roeder’s crime will prove a death sentence for them all.

Personally, I am shocked that any judge would even consider entertaining a voluntary manslaughter defense for Scott Roeder, and I’m not sure how abortion activists continue to think they’re taking the moral high-road in setting clinics on fire, bombing them, and threatening to kill (and actually killing) abortion providers and those who work at clinics while claiming to be vehemently “pro-life.”

Scott Roeder is not fooling anyone by calling himself “pro-life” and then toting his loaded gun into a crowded church.  The irony would be laughable if it weren’t so tragic.

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12 responses

19 01 2010
CB

Maybe the judge has been watching too much Dexter. Dexter is a serial killer, but he only kills murderers, so he’s likeable. Weird concept, but an engaging show. Some people are so anti-abortion they empathize with people going violent over the cause. The judge needs to recuse himself from the case if that’s the reason for his idiotic decision.

19 01 2010
rockymtnhigh

Well the sad fact is that the judge, by ruling that the “lawful manslaughter” defense can be used sends a a tacit signal that he views legal abortions as being “unlawful force.”

Of course, by doing so, the judge has also put the burden of proof, I think, on the defense instead of the prosecution. The burden being that he was preventing “unlawful force” from being used by preemptively murdering the doctor.

You can see where the slippery slope lies with that argument.

The problem with the pro-lifers who take these extreme views is that they have complete cognitive dissonance. And I’ve always wondered why the majority of these pro-murdering, pro-lifers tend to be middle-aged, underemployed white guys?

Not that is phenomenon is nothing new.
http://en.wikipedia.org/wiki/Michael_F._Griffin

19 01 2010
leverman

As a former homicide prosecutor and legal advisor to the grand jury, I can weigh in on this one.

The decision by the judge in this case is a political decision, not a judicial decision. My guess is that either the judge is pro life or he lives in a district where his electorate is pro life. In either case he might be more likely to consider such a defense.

The legal question raised is not a new one. When does life begin? If you believe it begins at conception, then the argument that Roeder was acting in to defend a third person might be more plausible to you. Put another way, pro life advocates are more likely to see this decision by the judge as reasonable.

I say “more likely” because most pro life people do not condone murder of abortion doctors. Some of the more hard line pro lifers nevertheless see abortion as murder and would be more receptive to such a defense. Indeed this is the type of trial that can be won or lost during jury selection. The defense wants pro lifers, the prosecution wants pro choicers. (I would probably make the perfect juror for this case having been hopelessly conflicted over the pro life debate to the point of not taking a side until I have to).

From a strictly legal point of view, the ruling by the judge is absurd. This was not a manslaughter. It was not in the heat of passion; it was clearly pre meditated. It was not in the defense of a third person as the law would recognize one, putting aside the fact the doctor was not in the act of performing an abortion anyway.

In a society of laws judges should not get to choose and pick what law they like. I doubt the issue actually goes to the jury. Roeder’s defense team will not be able to show an imminent use of unlawful force and I predict when the verdict form actually goes to the jury, voluntary manslaughter will not be a choice on the verdict form. Looking at it from another point of view, allowing the defense to put on their evidence removes a possible grounds for appeal when Tiller gets convicted of murder. By the way, he will be convicted of murder. Juries are hard to fool, for the most part.

19 01 2010
tb

To clarify, Leverman, and I defer mostly to what you say as one with experience in prosecution… from what I understand, Kansas law defines “person” to include any unborn child between gestation and birth. Thus, this decision is not political in that it redefines the scope of the persons protected under Kansas law. Whether you feel life begins at conception or at birth, with respect to whether fetuses are protected from homicide, manslaughter, etc, this appears to be up to the legislature, not the judge.

That said, I agree that there appears to be no legitimate case to be made about manslaughter… and the judge has stated that he does not think the case will result in any change in the jury instructions once the case has been tried.

What I don’t quite understand (and perhaps you can clarify this if you get a chance to respond) is what deference judges are given to allow or disallow certain defenses. Basically I tried to read quotes and interviews from the judge in this case to determine why he made this ruling, and the only answer he’s given is that the defense is entitled to build its own case, and the jury would not automatically (and almost certainly wouldn’t in this case) hear any instruction related to manslaughter. The judge seems to be saying, “you won’t win, but you can try.”

I see from a policy standpoint why the judge should disallow the defense… because it may place in the minds of future potential killers like Roeder a feeling that the consequences of their actions may be reduced, etc. But we have always allowed defenses of insanity, etc., even in cases where everyone knows the person isn’t insane…and it seems to me that a jury would be more likely to listen to an insanity defense in this case than actually believe that he was protecting another person from imminent harm.

Like I said, you have experience in the field, so you would be the one to explain this, but basically I can’t find any article explaining what defenses should be shot down at the judge level and what should be allowed to go to the jury. I’d like to think that it boils down to the judge being able to slam dunk what he can legally, in order to avoid a dumb decision by a jury… if that is the case, it certainly seems like he should have dunked this one. On the other hand, perhaps there is a legitimate interest in limiting what a judge decides himself… if juries really are hard to fool, then there is zero risk of letting the manslaughter question be presented to it.

19 01 2010
leverman

If Kansas law does define person as unborn child, the judge’s ruling makes a bit more sense. Suppose Roeder could show Tiller was about to perform an unlawful abortion under whatever abortion laws Kansas might have. Arguably the killing would then be manslaughter.

It still sounds like a ridiculous defense given the doctor was killed in church and given there is no evidence the doctor was going to perform an unlawful abortion anytime soon. If the doctor planned an unlawful abortion later, Roeder’s remedy was to call the police, not murder the doctor. The only way this defense might possibly fly is if Roeder killed the doctor in the act of an unlawful abortion.

I did not read all the facts. It sounds like all the judge has said is that he willl let them present the defense. If they do not present any evidence from which a reasonable man/woman (isn’t “reasonable woman” an oxymoron? 🙂 ) could conclude it was a manslaughter, then the possible verdict of manslaughter would not go ot the jury.

And I said juries are hard to fool; I did not say impossible. OJ’s jury got fooled. Then again, OJ had the type of jury who could easily accept a white policeman would go to great lengths to set up a black man. A pro life jury in this case might help the defendant, but I doubt it. My prediction is the question of manslaughter never actually gets to this jury because the judge will rule there was not sufficient evidence presented to support such a verdict.

19 01 2010
bros

but wasnt the doctor performing LEGAL abortions? if so, how does this square with the whole definition of ‘person’? the doctor wasnt performing illegal abortions: he was performing legal ones (as i understand) by kansas’ own standards…so…

furthermore, Roeder was in NO position to judge what would be an illegal abortion vs. a legal one, ie he is not an obstetrician or any kind of doctor who would be able to tell 3rd term vs 1st term etc if late term abortions are illegal in kansas. he was in no position to judge what he was ‘defending’ from ‘death’

this whole argument is retarded on numerous levels.

19 01 2010
Geof

I’m annoyed that many on the pro-life side won’t use the word terrorist in this kind of situation. It’s pretty cut and dry terror tactics.

19 01 2010
bros

this was a very good article I read about this absurd defense. probably the kansas appeals court will reverse this if the judge doesnt, which bolsters leverman’s argument that this all boils down to political bias and bad jurisprudence.

http://www.slate.com/id/2241426/

20 01 2010
tb

Bros:

By the way the statute is worded, all Roeder would have to show is that the abortion was unlawful. Not whether he knew it was unlawful, or thought, or decided it was. So of course I agree that it is not his place to make such a determination, but if he met the other elements of the defense it would appear to be a plausible defense under Kansas law. But we both would clearly agree that the other elements are not met, and in a state that allows late-term abortions (I guess), it is unlikely that he would be performing illegal ones.

I’m not defending the law to say it’s reasonable, I’m just saying if the judge ruled on the legality of the abortions to dismiss the defense, wouldn’t he be making this about abortion, just like the Slate author fears? Perhaps by allowing the defense to be presented in such an open and shut case is this judge’s way of sending the jurisprudence in the right direction to prevent use of this poorly worded law as a defense for murderers.

Perhaps this judge really does have a pro-life agenda and is using this decision as a vehicle to allow lighter sentences for terrorist nut-jobs across the Bible Belt… but really? Judges have many vehicles by which they can twist laws and circumvent jurisprudence… but protecting murderers in such heinous crimes such as this just strikes me as something that most judges don’t have on their to-do list, even if it would work to promote his political interests.

Regardless of agendas, the ruling itself is being treated by everyone as though this judge wants Roeder to get minimum time, or thinks the defense is legitimate. As I said in a previous comment, I don’t know what kind of deference judges are given with respect to allowing or disallowing affirmative defenses, and if based on the law he is clearly overstepping his authority, then my thesis is obviously off the mark. But to me, a simple determination to allow the defense (remember, that’s all this is) to be presented doesn’t seem as shocking as it’s being made out to be.

20 01 2010
CB

Yeah, TB, but if the judge has the choice to allow or not allow such a defense and he chooses to allow it, his choice represents (and consequently plants seeds of) tolerance, and that’s what makes it wrong…to me, anyway.

20 01 2010
Vjane

To me Roeder needs to go from pro-lifer to Lifer in a top security prison. He murdered a man. Cold blooded pre-meditated murder. If it is OK to murder someone in this pro-life fiasco, then we should all be allowed to go around and shoot anyone who we disagree with. For instance, the white skin head who shot the guard at the Holicost(spelling) Museum. Or these people who shoot up Malls, Schools, work plaaces because they got fired or someone made him mad. Or someone who takes a cross down off a public property because he is not a Christian and the cross offends him. Is it Ok for me to shoot him later when he is not actually removing the cross because I am a Christian and his action offended ME ??? As in the Roeder case.

20 01 2010
tb

And where you and I differ (and I guess me and everyone else) is that I don’t think his choice represents tolerance. I think it is more likely a legal determination to allow the defense to say what he has to say before he fries him. No appeal saying the judge improperly excluded this and that… no, you have said your piece, see ya later.

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