Saturday, January 16, 2010

A couple of reasonable articles

"Reasonable" is not a judgement on quality but a statement of reasonableness.

Friday, the AP published a story regarding the public vitriol directed towards Judge Wilbert, Kansas judge in abortion case comes under scrutiny. The article mentions that Wilbert was endorsed by the Kansans for Life PAC in 2008. We had been informed of this a few days ago, but knowing how endorsements are given for judges, we did not feel this would impact his decisions. We also discovered Dan Monnat, one of Dr. Tiller's attorneys, had represented Wilbert a couple of years ago. The AP expanded further on that saying Monnat had donated to Wilbert's re-election campaign. Honestly, from what Judge Wilbert has said in court so far, we could not tell one way or the other what his opinion on abortion was. He has used fair language (even using "medical clinic" to describe WHCS), and his rulings have made sense.

Which leads us to A Tough Case to Make at the Tiller Murder Trial in Newsweek.

This means Roeder has to demonstrate not one, but four things. First, that there was a threat to a third person. Second, that the threat was imminent. Third, that imminent threat was the result of an unlawful act. And, fourth, that he honestly believed all of this. If Roeder fails to prove just one, his defense falls apart. Roeder will have to convince the jury that he believed the fetus counts as a "third party"; so far, no state has ever declared a fetus a person. Proving Tiller to have been an imminent threat also poses a challenge, given that he was shot at church, not at his abortion clinic. Even if Roeder could prove that he honestly believed the fetus to be a third party, and that Tiller was indeed an imminent threat, he would still have to convince the jury that he honestly believed Tiller was committing an "unlawful act." Such a belief, however, would have absolutely no basis: despite numerous attempts by former Kansas Attorney General Phil [sic] Kline, Tiller was never convicted of performing an "unlawful" abortion.

A "formidable and daunting task" indeed.

And now to some unreasonableness. We've had two comments left on another post pointing out what appears not to be obvious: here on Roeder Watch, we're biased. We are honest in our pro-choice bias, but we are not blind in our bias. We're not, as danbeyer said, "pro death zealots". In fact, we're quite pro-life. We're anti-war (which is pro death) and anti-death penalty (likewise pro death) among other things. We're also actively anti-discrimination. And denying women a choice in reproduction is discrimination against women. The right to choose abortion is not in any way similar to slavery in America. Abortion is not our "golden calf" as Mark Archer says. We do not worship or idolize choice. We're quite well-rounded in our activism, but the past few months since Scott Roeder came to our city and killed a doctor in his church has shifted our focus for the time being. That being said for the past few years,we have worked to stop the slow destruction of access in Kansas. The right and access to reproductive options, including abortion, are among the several rights necessary for women to be able to fully participate in society. It is not the only right, but it is a fundamental right for full participation.

In May 2009, Scott Roeder walked into a church here in Wichita, Kansas, and shot Dr. George Tiller. This act was intended to scare other people from providing access to abortion and to frighten women in general. This was an assassination, and this was terrorism. You are free to disagree. But this is what Roeder has admitted to, and we will call it what it is.

Trial update: jury selection continues. Thus far, 25 out of 61 jurors have passed legal challenges with very few being dismissed. The defense has stated they fear the jury may be in danger and has requested special instructions to be given to jurors.

Wednesday, January 13, 2010

Todd Tiahrt Does Not Care About the Medical Needs of Women in the Military

I've got to step away from the Roeder terrorism trial for a minute to share this E-mail I just received from Rep. Todd Tiahrt. No comment from me is necessary.

Thank you for contacting me to express your thoughts regarding the provision of emergency contraception to women in the military. I appreciate hearing from you on this important issue.

As you may know, Rep. Michael Michaud (D-ME) introduced H.R. 4386, the Compassionate Care for Servicewomen Act, on December 16, 2009. This bill would require emergency contraception to be made available upon request at all military health care treatment facilities. It is currently awaiting consideration in the House Armed Services Committee.

Due to the potential health risks, and controversial nature of emergency contraception, I cannot support this legislation. There are many physicians and pharmacists across the country with moral and professional reservations about the use of emergency contraception, and this bill does nothing to recognize those reservations. Although emergency contraception contains the same hormones that compose standard oral contraception, emergency contraception contains a much higher dosage than oral contraception. Specifically, one dose of EC is the equivalent of taking twenty single-dosage pills, followed by twenty more single-dosage pills 12 hours later of prescription only birth control pills. Reports have shown that the drug's side effects include nausea, infertility, ectopic pregnancy (which can be life threatening), and blood clot formation.

Again, thank you for contacting me. If you have any additional questions on this matter, please do not hesitate to call on me or Richard Henkle of my Washington, D.C. staff. It is an honor to serve the people of Kansas in the United States Congress.

Best regards,

Todd Tiahrt
Member of Congress


The Sky Is Not Falling

I was going to write about why we feel the concerns many have over Judge Wilbert's recent rulings are overblown. Trying to determine just how to approach this issue I came across this great piece by Mike Hendricks of the Kansas City Star.

The title of his editorial, Judge being commendably cautious in Roeder trial, says exactly what we're thinking.

Hendricks said it best:

And guess what? Despite the continuing hysterical fears from abortion-rights groups, Wilbert is doing exactly what you’d expect from a judge in such a sensitive case.

He’s being careful.

“Every defendant has the right to have his theory of defense presented,” says Carl Cornwell, an Olathe defense attorney who has handled his share of murder cases.

For instance, some mistakenly think Wilbert has already decided to instruct jurors to consider a lesser charge of voluntary manslaughter when it’s time for deliberations. He hasn’t.

Nor is he promising that he’ll allow Roeder’s attorneys to present evidence in support of their client’s contention that he thought he had to kill Tiller to protect others.

All Wilbert has done is left open those options so Roeder can’t later assert in an appeal that he was denied a fair trial.

None of us want to see Scott Roeder walk free. But we especially don't want it to happen the way it did the last time he was arrested, because his constitutional rights were violated - something that can be prevented.

Give Judge Wilbert a break. He's following the law and that is what we want in a Judge. If you don't like the law as it is (and there is reason to dislike it for sure) then the appropriate response is to work in the legislature to change the law. Judge Wilbert can't write the law, all he can do is follow it.

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.

First day of trial delayed

Yesterday, jury selection was set to begin in The State of Kansas v. Scott P. Roeder. Over the weekend, however, the prosecution filed a motion to stop so-called "imperfect self-defense" from being used. Yesterday, the defense filed a motion to allow the defense saying Roeder thought Dr. Tiller was an imminent threat to "unborn children". They will be arguing these motions today. We will try to live-tweet the hearing.

Since Friday when Judge Wilbert said he would leave the door open on the lesser charge of voluntary manslaughter, pro-choice activists have been screaming. And we at Roeder Watch have been trying to figure out how best to approach this. We're quite befuddled that in December when Judge Wilbert said the exact same thing, people were praising him and last week, he has suddenly opened up the possibility of open season on abortion providers (the quotes from Spitz and Leach are a nice touch, basically confirming what the Feminist Majority Foundation and Dr. Hern said). Today's hearing might settle this, but we'd just like to say yelling at Judge Wilbert isn't the answer. It's the law that is unclear, not the ruling.

We're also befuddled that, of all the things Judge Wilbert said on Friday, they jump on that one statement. Not that he feels Roeder will have "an uphill battle," that Roeder admitted to the cold-blooded murder, or that the trial will not be about abortion but about murder. That last one is what we all want, is it not? And why is it that uphill battle? Because it was so obviously premeditated: Roeder drove three hours to Wichita on more than one occasion, stalked Dr. Tiller at his church, shot him, and ran off. That's pretty cut-and-clear on premeditation. While we don't know if Judge Wilbert will allow this defense, we trust Kansas juries to see through the bull. Others may not, but Kansas juries have had more than a few opportunities to find Dr. Tiller guilty of something, anything, and they time and time again have not, no matter their opinion on abortion.

But even though the trial will not be about abortion, the defense is continuing in their effort to make it so. In addition to subpoenaing Phill Kline, the request for Dr. Tiller's professional calendars switched from asking the prosecution for it to subpoenaing it from Mrs. Tiller. We expect these records -- which constitute confidential medical records under federal law -- to stay out of the courtroom.

One last note before I prepare to go to the courthouse. We don't care your opinion on abortion, Dr. Tiller, Scott Roeder, or most anything else for that matter. Calling up a reporter and threatening his life? Go directly to jail; do not pass "Go". While we are not to fond of "abortion doctor" and "abortion trial," Ron Sylvester has shown to be an excellent and dedicated reporter.

In short: stop being assholes.