Justifiable Homicide

[Political Waves]

Last week, the courts gave a nod to vigilantism as the people of Kansas heard arguments in defense of Scott Roeder. Ultimately, the jury deliberated a mere 37 minutes -- always a bad sign for the defense -- before finding Roeder guilty of premeditated, first-degree murder in the shooting death of Dr. George Tiller, one of the few remaining providers of late-term abortion. The Doctor, who sustained not only personal and legal attacks over the last decade but was the target of a FOX News propaganda blitz portraying him as a serial killer of the innocent, was shot dead in his church on a Sunday morning in May of last year. During the trial, radical Christianist activists marched around the courthouse, holding signs that said, among other things, "Tiller murdered 60,000." Fundamentalist's consider abortion a continuing Holocaust of the un-born.

Pleading voluntary manslaughter, Roeder's attorneys were permitted to argue the defendants justification for murder for the first time in US legal history; in short, that he was compelled by his conscience to perform a justifiable homicide. Pro-Choice activists were stunned by the judges acquiescence to this strategy, as the case was promptly turned into a rallying-point for Pro-Life activism and had the potential to weaken penalties for home-grown acts of terrorism. Eventually it became clear that the defense -- arguing that Roeder had an unreasonable but honest belief that deadly force was justified -- could not make its case, and the judge ruled that he would not allow the jury to consider a verdict of manslaughter or second degree murder because Roeder's act was premeditated, he was not acting in defense of an immediate threat to life.

Indeed, Mr. Roeder, a white-separatist who came to Jesus one day in 1992 watching Pat Robertson's "700 Club," testified that he had been planning Dr. Tiller's death for seventeen years. He had considered cutting off the Doctor's hands, but then decided Tiller could continue to teach, so he must die. Roeder showed no remorse, and, after the fact, jurors said that his testimony gave them no recourse. The jury foreman said abortion, per se, played no part in their decision, although the tightened security that surrounded the trial made the whole process surreal. The constraints of the legal system won this round.

But what if? What if the defense had been more persuasive in convincing the jurors that "an unreasonable but honest belief" was all it took to get someone off the hook for murder? Couldn't such a defense have been applied to the Ft. Hood incident? Hasan was convinced that he was acting to save Muslims from being murdered by the American military. And couldn't all the terrorists around the globe benefit from such a defense? Assassins everywhere could plead their sincerity, hoping to win their freedom. And -- lest we forget -- this nation used just such a justification when it went to war, twice, in the last decade.

Sincere belief in ones cause can't be the whole of a defense against taking another persons life -- except in these extraordinary times, belief has turned rationality on its head. I read recently that England's academia is coming down hard on creationism; the evangelical movement sides with Muslim fundamentalism in this instance and seems to be growing disproportionately in secular Europe. This is the legacy of Pluto in Sagittarius -- the 'all or nothing at all' radicalism that still echoes around us and, despite our shift of focus to corporatism and economic wobble, religion continues to impede political progress. In the US, choice is at the core of the culture war and has played a major role in the failure of healthcare reform. Irrationality is still alive and well in politics, in our personal lives and certainly in Kansas. God/dess bless the Roeder jury for sticking to the rule of law -- but with this case, we find ourselves still skidding around on the slippery slope.

I happened to have the television set on Court TV when the decision was announced. The courtroom was full of security, beefed up by a prudent Wichita police presence, in full force outside, keeping an eye on the activists. Like it or not, when a movement feels justified in killing to make their point, we're dealing with terrorism -- even if they're our neighbor. The GOP howl over trials for terrorists in our nations courts refuses to acknowledge this fact. We have home-grown problems here, our share of radicals and wing nuts; too many of them in the Republican base. If Wichita can manage this trial, New York City can get its act together for Khalid Shaikh Mohammed, and if American justice IS just, there's no real argument to prevent it. Too bad KSM isn't a Republican -- then he'd get his day in court.

Notice that most of these articles are from the UK. Getting the gritty truth is easier there than here, especially with topics of culture war. The bonus piece gives us a look at the conservative argument -- careful, it sounds so SANE. It ain't.

Jude

crossposted at Planet Waves Daily Astrology and Adventure


'I had to act to save unborn babies': Right-to-life killer to tell court why he gunned down abortion doctor
Graham Smith, Daily Mail/UK
28th January 2010
http://www.dailymail.co.uk/news/worldnews/article-1246741/Dr-George-Tillers-killer-Scott-Roeder-Judge-warns-daunting-task-lawyers-face-voluntary-manslaughter-defence.html

The right-to-life killer who gunned down a U.S. abortion doctor will tell a court today that he had to act to save unborn children.

Scott Roeder's lawyers face a 'formidable and daunting task' trying for a lesser sentence by arguing he sincerely believed his actions were necessary, a judge has warned.

Roeder, 51, is charged with premeditated, first-degree murder in the shooting of Dr. George Tiller, one of America's few late-term abortion providers, in Wichita, Kansas, on May 31 last year.

The Missouri man also was charged with two counts of aggravated assault for allegedly using a gun to threaten two ushers who tried to stop him after the shooting.
 
His lawyer, Mark Rudy confirmed to the court for the first time yesterday that the defence would build a case based on the lesser charge of voluntary manslaughter - defined in Kansas as 'an unreasonable but honest belief that circumstances existed that justified deadly force.'
 
A voluntary manslaughter conviction for someone with little criminal history carries a sentence of about five years, compared to the life sentence Roeder faces if convicted of first-degree murder.   

'I didn't enact the voluntary manslaughter statute - the Legislature did,' District Judge Warren Wilbert said.

But Wilbert reminded lawyers they must couple a voluntary manslaughter defence with a showing of imminent danger posed by the doctor.

Wilbert will rule at the end of the defence's case whether there is sufficient evidence to instruct jurors that they can consider the lesser charge.

Roeder will be allowed to testify about his personally held beliefs, the judge said, not about medical procedures of which he has no knowledge or expertise.

'He is not going to be able to get up there and just blurb out what he wants to say,' Wilbert said.

Also on Wednesday, Wilbert threw out a subpoena defence lawyers had issued to Kansas Deputy Attorney General Barry Disney.

He was the lead prosecutor in a case that brought 19 misdemeanor charges alleging Tiller failed to obtain a second opinion for late-term abortions from an independent physician, as required by Kansas law.

Tiller was acquitted just two months before his death after a trial Roeder has said he attended.

Rudy had argued Disney's testimony was a necessary 'building block' in the defence case to show Roeder went to the trial and relied on Disney's honest belief as a prosecutor that Tiller was breaking the law.

'The state does not believe any of this mish-mash is relevant... to this case,' District Attorney Nola Foulston countered.

'This is the kind of psychotic, circuitous kind of logic we are dealing with.'

The judge told the defence they could put their client on the stand to make the same point.

'Scott Roeder can testify 'til the cows come home about the (Tiller) trial,' Wilbert said.

The judge also will decide whether to allow former Kansas Attorney General Phill Kline to testify.

Kline, now a visiting assistant law professor at Liberty University in Virginia filed misdemeanor charges against Tiller in 2006 that were dismissed in a jurisdictional dispute with Foulston.

'We are not going to make this a referendum on abortion,' Wilbert said.

The American Civil Liberties Union filed a friend-of-the-court brief on behalf of the National Abortion Federation, the ACLU and the ACLU of Kansas asking the court to bar Roeder from arguing his anti-abortion beliefs in support a voluntary manslaughter conviction.

Vicki Saporta, president of the National Abortion Federation, said outside the courtroom that if Roeder is allowed to argue that his anti-abortion beliefs justify reducing his accountability 'we fear for the safety of abortion providers' and women's access to abortions.

Eight abortion doctors have been killed since 1977 and 17 others have faced murder attempts.

That is in addition to 175 arsons and 41 bombings, Saporta said.

Earlier this week, prosecutors methodically reconstructed Scott Roeder's movements in the days leading up to the killing of Dr Tiller.

They heard how he made three visits to a gun shop to purchase a handgun, then visited a second gun shop to purchase new ammunition when the gun didn't fire properly.

Roeder also had a morning of target practice the day before the shooting.

Tiller was killed with a .22-caliber bullet, shot point-blank into his forehead as he worked as an usher in the foyer of his church on May 31.

For years, his clinic and his church were the sites of antiabortion protests. ++


Conviction angers anti-abortion militants
Some fear Scott Roeder's guilty verdict will embolden others to violence
MSNBC
Sat., Jan. 30, 2010
http://www.msnbc.msn.com/id/35162547/ns/us_news-crime_and_courts/

WICHITA, Kan. - Those living on the virulent edge of the anti-abortion movement pinned their hopes on Scott Roeder.

Testifying in his own defense, a remorseless and resolute Roeder insisted he had committed a justified act for the defense of unborn children by killing Dr. George Tiller, one of the country's few physicians to offer late-term abortions. It was a bold legal strategy that, if successful, had the potential to radically alter the debate over abortion by reducing the price for committing such an act of violence.

When it failed, those who share Roeder's passionate, militant belief against abortion were outraged: One said they are getting tired of being treated as a "piece of dirt" unable to express the reasons for such acts in court. So while relieved at the outcome, abortion-rights advocates worry a verdict that should be a deterrent will instead further embolden those prone to violence.

"Many of those who came here in his support will be key to making (Roeder) a martyr for their cause - all in furtherance of advocating deadly violence," said Kathy Spillar, executive vice president of the Feminist Majority Foundation.

Roeder faces a minimum sentence of life imprisonment with the possibility of parole after 25 years in prison when he's sentenced March 9, although prosecutors will ask the judge to require the 51-year-old Kansas City, Mo., man to serve at least 50 years behind bars before he is eligible for parole. His attorneys plan to appeal, arguing jurors should have been allowed to consider the lesser charge of voluntary manslaughter, requiring proof that Roeder had an unreasonable but honest belief that deadly force was justified.

'Everybody is pretty angry'

The Rev. Donald Spitz, of Chesapeake, Va., who runs the Army of God Web site supporting violence against abortion providers, said the rejection of that argument has upset those who view Roeder as a hero.

"I know there is not a lot of good feeling out there - everybody is pretty angry," he said.

Spitz was the spiritual adviser to Paul Hill and was with him at his 2003 execution for the killing of a Florida abortion provider and a clinic escort in 1994, an event that led to a lull in violence at abortion clinics. While saying he knows nothing of impending plans by others against abortion doctors, Spitz scoffed at suggestions that Roeder's conviction will have a
similar effect.

"Times change," Spitz said. "People are not as passive as they have been. They are more assertive."

Such comments terrify abortion-rights advocates, who say they'll continue to press the Obama administration for deeper protections, such as buffer zones around clinics, to protect doctors against others who might follow in Roeder's steps. Vicki Saporta, president of the National Abortion Federation, said her group had noticed a rise in anti-abortion violence over
the past year.

"We used to have members report incidents once a month - now it's every day," Saporta said. "Every time, we forward it on to Justice Department task force, and they report it to FBI so nothing slips through the cracks."

Network of extremists

Others are demanding a federal investigation and prosecution of what they claim is a network of extremists, citing Roeder's testimony that he talked to others about justifiable homicide of abortion doctors.

"To see each murder as an isolated attack by one individual misses the fact there are these connections," said Nancy Northup, president of the Center for Reproductive Rights. "It's of extreme concern that some anti-choice fanatics will want to see themselves martyred in similar ways. It is a frightening possibility there will be copy cats."

Spitz said he has twice been subpoenaed to testify before grand juries in the past and FBI agents have been to his house several times. He disavows the existence of any organized conspiracy.

"We don't have a group," he said. "It is a belief system."

At least one Justice Department official attended the trial, along with agents from the FBI. Justice officials in Washington declined to comment Friday. But in the wake of Tiller's death, the Justice Department increased security around women's health facilities and opened an investigation to try to determine if Roeder had accomplices.

Among the other spectators at the trial was Randall Terry, the founder of Operation Rescue, which organized the 1991 "Summer of Mercy" protests that included attempts to block Tiller's Wichita clinic and led to more than 2,700 arrests. As the jury was deliberating in Wichita, Terry said he believed that no matter the outcome of Roeder's trial, more violence was
inevitable.

"The blood of these babies slain by Tiller is crying for vengeance," he said.

Decision opens the door

Justice Department spokesman Alejandro Miyar declined to comment, citing an ongoing investigation.

In Des Moines, Iowa, even militant anti-abortion activist Dave Leach agreed that the decision opens the door to presenting the same evidence as for justifiable homicide. It was Leach who wrote the 104-page legal brief that Roeder signed and submitted to the court in which he admitted killing Tiller. ++

bonus



Judge Denies Scott Roeder Trial Rights
CJ
02/01/10
http://cjonline.com/interact/blog/reasonmclucus/2010-02-01/judge_denies_scott_roeder_trial_rights

It is unfortunate that Sedgwick County District Judge Warren Wilbert decided to deny Scott Roeder his right to a trial by a jury that was independent of government control.

Roeder had admitted to the crime of Voluntary Manslaughter [the "honest but unreasonable belief" that the use of force was necessary in defense of another] in the killing of Dr. George Tiller, but the prosecution decided it wanted him convicted instead of the much broader crime of 1st Degree Murder.

Instead of giving the jury the choice between the two different crimes, Judge Wilbert sided with the prosecution and told the jury that it could only find Roeder guilty of 1st degree murder or not guilty of any crime. Jurors went into the jury room, did what the judge told them to do and found Roeder guilty of 1st degree murder 37 minutes later.

The framers of the Constitution knew that the British court system had been used in the past to punish those who opposed the crown. They made the judiciary independent to keep the executive from coercing the courts into serving the government's needs. Juries selected from the citizenry provided a means of dealing with a situation in which judges might become to close to the executive branch.

A jury cannot perform its constitutional function if a judge denies it the opportunity to decide the major controversies in a trial. Juries under U.S. law have broad authority to make their own decisions and in precedents that predate the establishment of the Constitution may choose to ignore laws like judges sometimes do.

The first example of jury nullification occurred in the case of journalist John Peter Zenger who was acquitted by a jury for publishing defamatory comments about New York Governor William Cosby in 1735 because the statements were true. At the time the law allowed prosecution for negative comments about government officials even it the comments were true. Jury nullification provides an added check on the legislative power by allowing citizens to in effect invalidate what citizens believe are unreasonable restrictions on their freedom.

In the Roeder trial the controversy wasn't whether Roeder committed a crime when he killed Dr. Tiller, but the nature of that crime.

Judge Wilbert decided that he was some type of infallible god instead of a human being who is capable of making mistakes in spite of the fact he had been reprimanded by the state in 2006 in response to a sexual harassment complaint by a court employee.

Wilbert is educated in the law, but so are the defense attorneys who had a different opinion about the meaning of the law defining voluntary manslaughter.
It is not the judge's role in a jury trial to side either with the opinion of the prosecution or the opinion of the defense about how to interpret the law or the facts of the case. A judge usually knows more about the law than jury members, but then so do the attorneys for the prosecution and the defense.

In modern society, judges may have more power to decide legal cases, but the most knowledgeable attorneys are usually not judges.

As far as I know Roeder's defense attorneys Mark Rudy and Steve Osburn sincerely believed that Roeder was only guilty of voluntary manslaughter. Also as far as I know Sedgwick County District Attorney Nola Foulston sincerely believed that Murder One was the appropriate charge. As far as I know she did not choose the more severe charge to punish Roeder for being an opponent of abortion.

American courts are supposed to be biased in favor of the defendant rather than the government. The defendant doesn't have to prove his innocence. If a defendant says he didn't take the action for which he is accused the government must prove him guilty of the action beyond a reasonable doubt.

Scott Roeder admitted in court that he had killed Wichita abortion provider Dr. George Tiller to prevent Tiller from performing any more late term abortions and thus he was guilty of the crime of voluntary manslaughter. Judge Wilbert should have instructed the jury it should find Roeder guilty of voluntary manslaughter unless it felt that the prosecution had proved beyond a reasonable doubt that the crime was not voluntary manslaughter, but 1st degree murder. The jury should not have considered a verdict of "not guilty".

The claim that abortion is legal is a spurious argument in considering whether or not Roeder's action could be considered voluntary manslaughter. Late term abortions are only legal in Kansas under certain circumstances and Tiller had been accused of performing abortions that didn't comply with Kansas law.

Shortly before the killing, Tiller had been on trial for illegally performing late term abortions. There was sufficient evidence against him for an Attorney General who supported abortion to charge Tiller with violating the law, but not enough to convince a jury of his guilt beyond a reasonable doubt.

Roeder might easily have been convinced himself that Tiller was getting away with murder and decided to impose the type of vigilante justice shown in old westerns and occasional cop shows. To Scott Roeder, George Tiller was a serial killer who had escaped punishment because he had a more effective attorney than the state had.

Obviously Scott Roeder violated the law when he killed Dr. George Tiller. The question is which law he should have been convicted under. An independent jury should have been allowed to choose which law to convict Roeder under. The right to a jury trial should always allow a jury to choose a lesser charge than that desired by the prosecution regardless of the wishes of judges who want to limit the right to trial by jury by controlling what the jury can do. ++


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