Tuesday, January 12, 2010

DON'T PANIC! And today's hearing. [Updated]

*Found a couple of errors, one on voluntary manslaughter and the other on previous charges against Dr. Tiller. I have corrected them below.

Earlier today, Judge Wilbert made the same ruling he did Friday and three weeks ago: he is open to allowing evidence for "imperfect self-defense". He did, however, clarify a few things.

He started off today pointing out the media and members of the public have been all fatalistic on his decision to follow the law (and filling his email inbox). And he reminded us he's made only one decision as a matter of law: the necessity defense is not allowed under Kansas law. As for the voluntary manslaughter every other Chicken Little pro-choice activist is running around screaming about? He cannot rule on that. The state presented their motion quoting cases where the Kansas Supreme Court ruled premeditation and voluntary manslaughter cannot be decided by a jury simultaneously. The defense argued that in those cases, the jury instruction was to decide on them together. Judge Wilbert's ultimate statement was he cannot rule on matters of evidence until the evidence has been heard. The Constitution guarantees Roeder's right to a fair and impartial trial and to hear all appropriate evidence in his defense. He emphasised he wants to have only one trial as free of error as possible. He also reworded "an uphill battle" as "formidable and daunting task".

He gave us a new case to look at when talking about the voluntary manslaughter charge. In 2002, Bobby White drove from Great Bend, Kansas, to Augusta, approximately a 2-hour drive, and killed his son-in-law. He believe his grandson was being abused by his son-in-law, Aaron. So he walked into Wal-Mart and shot Aaron three times -- once after he was on the ground -- walked off and gave up to law enforcement. In his first trial, a defense witness was not allowed to testify. At the time, the jury had been given instructions to include both second-degree murder and voluntary manslaughter. They returned first-degree, premeditated murder. Because the defense witness was not allowed to testify, the Kansas Supreme Court overturned the conviction and a new trial ordered. The second trial did *not* give the voluntary manslaughter jury instruction. He appealed. The Kansas Supreme Court decided because he could not present imminent threat, it was proper not to instruct the jury on voluntary manslaughter.

Whenever we see this lesser included charge talked about, we only see discussion on the second part of the law, added in 1992, that includes the honest but unreasonable belief. What is not talked about, however, is part a is the rest of that line about use of deadly force*: imminent threat. This was part of why Judge Wilbert did not allow the necessity defense. We say again: Roeder drove three hours, stalked Dr. Tiller on more than one weekend, shot him, and ran off. There is also additional evidence to be presented that we have no clue about at this time. It will be incredibly difficult for Roeder and his defense team to say Dr. Tiller represented a threat, that threat could only be solved by killing Dr. Tiller, and an embryo's or fetus's life was more important than Dr. Tiller's. While the issue of abortion will not be argued, Roeder's beliefs could be brought up. But he would still have a very difficult time arguing imminent.

The other part about these motions is these arguments are not normally had at the start of a trial. They are intended in jury instructions, instructions Kansas jurors have heard before. Judge Wilbert said decisions on evidence will be heard on a witness-by-witness basis, even question-by-question. He cannot rule on what may or may not be presented. That is Roeder's constitutional right. It is our constitutional right.

Something for everyone to remember: in 2006 and 2008, two Kansas grand juries did not bring charges against Dr. Tiller for performing illegal abortions. While Phill Kline and Paul Morrison, while serving as Attorney General, did bring up these charges, Steven Six did not. . While Phill Kline, serving as Attorney General, did bring up these charges, Paul Morrison did not.* The ones he brought up were not that Dr. Tiller performed illegal abortions but that he did not meet Kansas's law on a second opinion. This last one would have been an incredibly easy way for a jury to slow him down if not shut him down. Some of the six jurors described themselves as pro-life. And in 45 minutes, they returned 19 not guilty verdicts. While not all Kansans are law abiding citizens, our jurors are good people.

Judge Wilbert did not in any way bring about an "open season" on abortion providers. His decision is not "chilling". It in no way "sends the message that religious fanaticism can be considered a defense for murder." And while wannabe terrorists see a glimmer of hope, it is because they are grasping at straws.

What Judge Wilbert did do was his best to limit the possibility of a mistrial or for Roeder to walk on appeal. That happened in 1996 when an over-zealous police officer violated his (and our) constitutional rights. He is working within the confines of the law, both statutes and case law, and to give Roeder his right to trial by jury and presumption of innocence. It is difficult to remember that especially given why Roeder assassinated Dr. Tiller and what Dr. Tiller means. Fatalists are just working themselves into an unnecessary panic. Of course, for many of them, that's their job. For us here at Roeder Watch, we want to make sure Roeder spends the rest of his natural life in jail. But we're not willing to misrepresent the law and the case at hand.

Jury selection will start tomorrow morning. Judge Wilbert has ruled the media and public is not allowed in. A few media outlets are protesting this. We disagree with Judge Wilbert on this issue and await a decision by the Kansas Supreme Court.


  1. I applaud your explanation. It is frustrating to see so many organizations and people I ordinarily agree with so completely misunderstand the criminal process.

  2. Great analysis. I think you really did a good job explaining the case law and the role of the judge v. the role of the jury.