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Scott Roeder might serve 25 fewer years

Wednesday, January 29, 2014

Topeka, Kansas

Scott Roeder, who shot late term abortionist George Tiller May 31, 2009, will get 25 years shaved off his 50 year sentence but will not get a new trial, one might conclude from listening to oral arguments in his case today. Whether he gets more may depend on whether his court appointed appellate attorney can clear up some confusion and mixing of metaphors among the justices.

The justices were certainly intrigued with the case. They had scheduled only 30 minutes for oral arguments, but an hour and forty minutes elapsed before they were through asking questions. Rachel Pickering, Scott’s attorney, got an hour and five minutes of their attention; the opposing attorney got 30.

The justices gave most of their attention to Scott’s Voluntary Manslaughter defense, an interesting defense which, had it been allowed at trial, could have reduced Roeder’s sentence from 25 years to 2 to 5 years. To qualify, the jury has to agree that Roeder had at least an honest belief, even if it wasn’t a reasonable belief, that “unlawful harm” was “imminent” unless he intervened to stop it. At trial, Roeder had called to the witness stand both the previous Kansas Attorney General, Phill Kline, who now teaches law at Liberty University, and a current assistant Attorney General, Larry Disney. Trial judge Wilbert had not allowed the jury to hear Kline’s testimony, on the ground that Kline was too credible a witness; he might cause the jury to believe Roeder’s defense was not only “honest”, but “reasonable”!

(I’m not making this up. Trial Judge Wilbert actually said, “And for Mr. Kline, having the status of being the former Attorney General, the chief law enforcement officer for the State of Kansas, and the official charged with interpreting and enforcing the laws, would give way too much weight and credit and influence on the jury, to have a former Attorney General opine whether Mr. Roeder's actions were reasonable or unreasonable on May 31, 2009.” …. “But to bring in Barry Disney or Phill Kline to somehow collaterally bolster up his [Roeder’s] beliefs or to give it more credence or more validity is inappropriate.” [Trial record, Volume 12, page 40, 48.])

The justices wondered if Roeder was sincere in saying he was moved to action by the unlawful abortions, since Roeder had been very clear in regarding all abortions as unlawful. In mixing these issues, the judges were confusing Roeder’s legal arguments for Voluntary Manslaughter with his arguments for the Necessity Defense, of which the latter was not mentioned today. They called his view that abortion kills anyone a “religious” view, which they said is not legally factual.

Actually the justices are out of touch with legal reality on this point: no legal authority in America, including Roe v. Wade, has expressed certainty that unborn babies are not human beings with a 14th Amendment Right to Life, while every legal authority which has taken a position – governors and presidents in proclamations, and state legislatures in their laws – has unanimously affirmed that unborn babies are human “persons”.

We Christians all have Biblical beliefs that shape our goals, and understandings of law that affect our actions. The fact that someone has a Biblical conviction calling for more action than the law allows, should not be taken as evidence that his separate legal argument for what the law does allow is mere hypocrisy.

The justices said that even if Roeder were right about unlawful abortions being performed, based on Roeder’s knowledge of prosecutions of Tiller, those illegalities were “paperwork errors”, they said; a matter of not getting a second opinion from another doctor affirming the special “mental health” need for a late term abortion. An illegality that minor doesn’t justify a lethal response. That would be like shooting someone to keep him from jaywalking, one justice said.

What made the conversation bizarre is that if the justices wanted to throw out the possibility of Voluntary Manslaughter as a defense, all they had to do was positively affirm that unborn babies are not “persons”. Or that Roeder’s “honest belief” that unborn babies are persons doesn’t matter. Because the law applies only when Roeder honestly believes “that such force is necessary to defend...a third person....”
None of the justices said anything about the absence of “a third person” being a problem, so apparently they accepted that Roeder’s “honest belief” that babies are “third persons” satisfies that requirement, and yet they were saying the only illegality in the case being a “paperwork problem”!

There are many places in American law where adults are protected less in some circumstances than others, depending on sometimes technical factors that balance rights and risks with protection. But when someone dies as a result of pure negligence, with those mitigating factors missing, it is not just a “paperwork problem”.
Two “far fetched”, in Pickering’s words, analogies were put forth by two justices to illustrate the absurdity of turning loose Pickering’s interpretation of the Voluntary Manslaughter statute. Actually the arguments of the justices seemed to hit the statute itself as much as Pickering’s reliance on it.

Suppose some airhead “unreasonably but honestly believed” that some fellow was going to die of smoking in the next hour – making the harm “imminent” - so he shot the CEO of Phillip Morris to save the smoker! In other words, the justice asked, is there any limit to how “unreasonable” an “honest belief” can be before it can’t be considered a case of Voluntary Manslaughter? They agreed that Voluntary Manslaughter isn’t invoked by “psychotic delusion”, but they expressed confusion where to draw the line between that and “unreasonable but honest”. They seemed sincerely interested in any light Pickering could shine on the location of that line.
Pickering answered that such a line should be left to a jury to draw. But the justices marveled that Pickering would let even so bizarre a choice go before a jury.

Some differences that justify Pickering’s description of the analogy as “far fetched”:

1. The smoker’s death within the hour could not possibly be avoided by shooting the CEO within the hour, in the way babies were saved by shooting Tiller. The farther a belief recedes from “reasonable”, the harder it is to believe it is “honest”: the easier it slides towards “psychotic delusion”.

2. The smoker chose his risk of death. The baby did not.

The other bizarre analogy, which the justices actually said they could not distinguish from Roeder’s case, was that a family decides a relative has essentially died, and agrees to let the doctor disconnect the ventilator. A prolifer intervenes and shoots the doctor as he has his finger on the button to shut off the ventilator.

One difference: shooting the doctor can’t stop the disconnection. There are plenty of other doctor ready to do it after the shooter is arrested. By contrast, Tiller was the most popular ultra late term abortionist in the free world according to trial testimony, so with Roeder’s shooting, there was simply no one for moms from many lands to come to, to murder their children. After Tiller died, Wichita and the surrounding area remained abortion-free for 5 years, which saved many babies who were never scheduled for abortion elsewhere.

Some of the justices believed “honest belief” could be about the circumstances of the harm, but “imminence” or whether the harm was “lawful” ought to be determined objectively, as a matter of law, even though the statute really doesn’t read that way. In other words, if Roeder’s understanding of the lawfulness of Tiller’s abortions was wrong, they didn’t want to give him any slack just because it was “honest”. That would make it easier to keep Roeder’s jury from learning about Voluntary Manslaughter. But in a surprise response, the attorney opposing Roeder agreed with Pickering (possibly without realizing it) that “honest belief” modifies all the elements of the defense.

Roeder’s 50 year sentence got a little discussion. Under Kansas law, the sentence for first degree murder is 25 years, but it can be increased to 50 years if there are “aggravating circumstances” that make the crime especially “heinous”.

The extra 25 years is added by the judge after the jury has gone home, after additional testimony and sentencing statements that the jury never hears.

Earlier this year the U.S. Supreme Court decided in Alleyne that it was unconstitutional for facts that increase the sentence to be decided without the jury present.

But in today’s discussion, Alleyne was barely mentioned. The justices appeared to think that even without Alleyne, the facts of Roeder’s shooting simply didn’t meet the especially “heinous” standard.

Trial Judge Wilbert had said that in his view, the fact that it occurred in a church is what made it especially “heinous”. The justices asked, is that it? Do you know of any other aggravating circumstances?

The attorney opposing Roeder mentioned stalking. The justices shot that down, since the stalking charge requires that the person stalked knew that he was. The attorney said that is true for the stalking charge per se, but not for the stalking element of especially “heinous”. The justices didn’t buy it.

The attorney tried, “it was a terrorist act. Roeder terrorized everyone in the church, preventing them from exercising constitutional rights.” The justices asked if Wilbert ever said anything like that. (On appeal, new facts can’t be introduced; only new arguments.) The attorney admitted that “no, but I think that is what you can read between the lines.”

But seeing nothing on the lines, the justices appeared unimpressed.

In about a week, the oral arguments in Roeder’s case will be available at:

About the author: Dave Leach has worked with Scott Roeder to insert legal arguments in his trial record that challenge the constitutionality of abortion. His vision for ending abortion is here. Roeder's trial record, including briefs and cases, is here.

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