Abortion slaying suspect may use necessity defense
james g. keegan jr.
By ROXANA HEGEMAN, Associated Press Writer Roxana Hegeman, Associated
Press Writer Mon Nov 23, 1:57 pm ET
WICHITA, Kan. � Seemingly contradicting his own public statements, an
attorney for the man accused of gunning down a Kansas abortion provider
has argued in court documents that his client has an "absolute right" to
present a defense that argues the killing was justified to stop abortion.
A defense motion made public Monday seeks to thwart prosecutors' efforts
to ban the so-called necessity defense from Scott Roeder's murder and
aggravated assault trial. A hearing on the issue is set for Dec. 22.
"For the Court to grant the State's motion to prohibit `any evidence' in
support of the necessity defense would be premature, and contrary to
Kansas law," the defense wrote. "In addition, it would be rank
speculation on the part of the state (and the Court if it were to grant
said Motion) as to the purpose of any and all evidence that the
Defendant may seek to introduce."
Roeder, 51, of Kansas City, Mo., is charged with one count of
first-degree murder in Dr. George Tiller's death and two counts of
aggravated assault for allegedly threatening two ushers who tried to
stop him during the May 31 melee in the foyer of the doctor's Wichita
church. Roeder has pleaded not guilty and is scheduled to go to trial on
Jan 11.
He told The Associated Press on Nov. 9 that he shot Tiller to protect
unborn children and he planned to present a necessity defense at his
trial. He also said one of his two public defenders, Mark Rudy, had
given him the "green light" to talk to the media about it.
But the following day, lead defense attorney Steve Osburn told reporters
the necessity defense did not exist in Kansas law and the defense team
did not plan to present that strategy.
"We have explored that possibility," Osburn said at the time. "That does
not seem to be the approach that is viable, nor is it the approach we
intend to use."
On Monday, Osburn declined to clarify the discrepancy between the court
filing and his earlier statement, but he suggested he may have used the
media to confuse prosecutors about the defense strategy.
Rudy did not immediately return a call for comment Monday. Georgia Cole,
spokeswoman for the Sedgwick County District Attorney's Office, declined
to talk about the case, saying prosecutors would make their arguments in
court.
The defense motion argued that Roeder has an absolute right to present
the necessity defense, and the state's motion is "nothing more than an
attempt to force the defense to reveal their defense strategy and forgo
what may be a valid defense."
In the wake of Roeder's confession, prosecutors filed court papers
seeking to ban the necessity defense at his trial.
To bolster their argument, they cited a criminal trespass case involving
an abortion clinic in which the Kansas Supreme Court ruled that to allow
the personal beliefs of a person to justify criminal activity to stop a
law-abiding citizen from exercising his rights would "not only lead to
chaos but would be tantamount to sanctioning anarchy."
Roeder's public defenders responded that his case differs because a
trespass at an abortion clinic is just a potential temporary
interruption of the practice of abortion.
"It is inconclusive whether the lives of the unborn were spared as a
result of the act of criminal trespass," they wrote. "In the instant
case, the result of the alleged murder resulted in the termination of
abortions being performed in the City of Wichita by the victim, Dr.
George Tiller."
Defense attorneys noted the Supreme Court also said that whether "the
necessity defense should be adopted or recognized in Kansas may best be
left for another day."
Roeder's public defenders used similar arguments to counter a move by
prosecutors to ban any evidence or argument to the jury to influence
them to vote for acquittal regardless of the evidence, a practice known
as jury nullification.
Although Roeder's attorneys are purportedly keeping their defense
strategy secret, they have filed numerous motions that may offer a
glimpse into their case.
In one motion for discovery, they are seeking Tiller's professional
calendars, appointment books, records of scheduled procedures or similar
documents for the dates of May 1 to June 30. Prosecutors responded that
they do not have the documents and that such items are irrelevant and
inadmissible at the trial.
Another defense motion seeks to prohibit the use of peremptory jury
strikes by the prosecution on the basis of a prospective juror's beliefs
and actions as religious or anti-abortion. Prosecutors responded that
such strikes are permissible if a potential juror's actions and beliefs
lead to a concern that juror may be unwilling to convict even if the
evidence supports a conviction.
http://news.yahoo.com/s/ap/20091123/ap_on_re_us/us_abortion_shooting/prin
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pnyikos
> Abortion slaying suspect may use necessity defense
> By ROXANA HEGEMAN, Associated Press Writer Roxana Hegeman, Associated
> Press Writer Mon Nov 23, 1:57 pm ET
>
> WICHITA, Kan. Seemingly contradicting his own public statements, an
> attorney for the man accused of gunning down a Kansas abortion provider
> has argued in court documents that his client has an "absolute right" to
> present a defense that argues the killing was justified to stop abortion.
He may win that procedural case, but he's sure to lose the war of
proving necessity.
> A defense motion made public Monday seeks to thwart prosecutors' efforts
> to ban the so-called necessity defense from Scott Roeder's murder and
> aggravated assault trial. A hearing on the issue is set for Dec. 22.
>
> "For the Court to grant the State's motion to prohibit `any evidence' in
> support of the necessity defense would be premature, and contrary to
> Kansas law," the defense wrote. "In addition, it would be rank
> speculation on the part of the state (and the Court if it were to grant
> said Motion) as to the purpose of any and all evidence that the
> Defendant may seek to introduce."
He may well have the right to *present* the necessity defense, but he
hasn't a leg to stand on.
> Roeder, 51, of Kansas City, Mo., is charged with one count of
> first-degree murder in Dr. George Tiller's death and two counts of
> aggravated assault for allegedly threatening two ushers who tried to
> stop him during the May 31 melee in the foyer of the doctor's Wichita
> church. Roeder has pleaded not guilty and is scheduled to go to trial on
> Jan 11.
>
> He told The Associated Press on Nov. 9 that he shot Tiller to protect
> unborn children and he planned to present a necessity defense at his
> trial. He also said one of his two public defenders, Mark Rudy, had
> given him the "green light" to talk to the media about it.
>
> But the following day, lead defense attorney Steve Osburn told reporters
> the necessity defense did not exist in Kansas law and the defense team
> did not plan to present that strategy.
>
> "We have explored that possibility," Osburn said at the time. "That does
> not seem to be the approach that is viable, nor is it the approach we
> intend to use."
Like a true lawyer, he left his options open. Fat lot of good that
will do him. Roeder is a murderer and will not be able to hide behind
such arguments, not in the USA.
Peter Nyikos