WICHITA — A Kansas state judge ruled Tuesday that Scott Roeder cannot use the so-called "necessity defense" in his upcoming trial in the killing of abortion doctor George Tiller.
Sedgewick County District Judge Warren Wilbert also ruled that Roeder's murder trial will stay in Wichita.
Under a necessity defense, a defendant claims he broke the law to prevent another from causing greater harm. Roeder, 51, of Kansas City, has said he killed Tiller to save the lives of fetuses being aborted.
Tiller, one of the nation's few late-term abortion providers, was shot and killed May 31 inside the lobby of his church, where he was serving as an usher.
Wilbert said the necessity defense is not recognized under Kansas law. But even under common law interpretations, Wilbert added, the act would have to stop someone else from committing a crime. That wasn’t the case with Tiller, Wilbert said, because abortions are legal.
“I recognize we could all have our own individual personal views, religious views, moral and ethical views,” Wilbert said in his ruling. “But the United States Supreme Court has come down many, many years ago in Roe v. Wade that an abortion is a legal and constitutionally protected decision by the mother and … by health care providers.”
Kansas appeals courts have ruled the necessity defense unacceptable in cases involving trespassing on abortion clinics. If it’s not a viable defense in misdemeanor property cases, Wilbert ruled, it wouldn’t apply to felonies such as murder.
But Wilbert said he would “leave the door open” for Roeder’s defense to present evidence and arguments that he killed in the belief that he was saving the lives of the unborn. That may enable Roeder’s public defenders to ask jurors to consider crimes less than first-degree premeditated murder.
Kansas law, for example, defines voluntary manslaughter as the “unreasonable but honest belief that circumstances existed that justified deadly force.” A conviction of voluntary manslaughter could carry a sentence between four and six years in prison for Roeder, compared with life imprisonment for murder.
But those issues probably won’t be decided until the judge gives legal instructions to the jury — after evidence is presented.
Wilbert said he may limit what the defense can say in opening statements. Wilbert also said it would be difficult to allow testimony indicating Roeder was acting in defense of others because the law requires an “imminent threat.”
Wilbert denied a motion to move the trial outside Sedgwick County based on defense claims that news coverage had made it impossible for Roeder to receive a fair trial. It was too soon to say an impartial jury cannot be picked, Wilbert ruled, until lawyers start questioning potential jurors when the trial starts Jan. 11.
Some 300 people are being summoned to the courthouse for the trial. Between 150 and 200 are expected to respond, Wilbert said.
Initial questioning will allow some to be excused for legal reasons, whittling the final pool to 42. From that group, lawyers will pick 14: the dozen jurors who will decide the case and two alternates.
On Tuesday, the judge rejected a motion that would have kept prosecutors from making peremptory jury strikes based on potential jurors’ beliefs about abortion.
Although Wilbert denied the motion to prohibit the strikes, he said he would deal with such issues on a person-by-person basis during the trial.