For eight months, many parts of America waited for the decision of a jury of twelve: did Scott Roeder plan out the murder of abortion provider Dr. George Tiller in a church on May 31, 2009? And many Americans feared the jury – and, often times, the judge – would not side with justice, no matter their beliefs on abortion. The trial is now over with sentencing and appeals to come. Roeder very likely will spend the rest of his life in jail. It seemed a foregone conclusion that this would be the result of the trial. So why did so many people fear Roeder wouldn’t?
Some of the fear I saw floating around the internet was that Kansans, living in a red state, would let Roeder walk because they are anti-abortion and wanted Dr. Tiller to stop providing them. Dead is as good as in jail. After all, we did elect Phill Kline. The jury would surely nullify and set him free. There are a few problems with this line of thought. Kline, for one, won in 2002 with only 50.3% of the vote against a candidate who barely campaigned. Hardly a referendum on abortion and Dr. Tiller. And the grand juries that were called due to citizen petitions twice didn’t bring charges against Dr. Tiller. When charges were eventually filed and a jury trial began, six jurors acquitted Dr. Tiller on 19 rather minor charges. Some of the jurors identified as pro-life. For all the years politicians promised to close down Women’s Health Care Services, they could never find a law he broke. And Kansas juries consistently agreed: Dr. Tiller committed no crimes as an abortion provider.
In late December, Judge Warren Wilbert, presiding over Roeder’s trial, ruled the defense could not use the so-called necessity defense – that Roeder killed to save the lives of babies. He cited a ruling from the early 90s where Elizabeth Tilson said she was justified in trespassing at WHCS because abortion is murder. The Kansas Supreme Court ruled allowing such a defense, when one’s personal and religious beliefs differ with the law, would “not only lead to chaos, but would be tantamount to sanctioning anarchy.” The ruling, made in 1993, was used in 2007 when Mark Holick of Spirit One Christian Center in Wichita tried to use the necessity defense while trespassing during an anti-abortion protest. It has also been cited in other Kansas cases and in cases in other states. However, because Wilbert did not rule out the lesser charge of voluntary manslaughter before the trial began, many feminists decried Wilbert saying he was allowing a backdoor for the necessity defense. Voluntary manslaughter carries approximately a 5 year sentence in Kansas.
But here, too, there are several problems. As defined by Kansas law, voluntary manslaughter is an “unreasonable but honest belief that circumstances existed that justified deadly force”. Most media and political attention focused on the unreasonable but honest belief part. But deadly force is only justified when an imminent unlawful use of force exists. Dr. Tiller was an imminent threat to no one, and he was not using unlawful force. Wilbert could not rule before the trial on voluntary manslaughter. Roeder has the constitutional right to present his defense with limitations. In the end, he could not present any evidence that Dr. Tiller was an imminent threat to anyone or that he was doing something unlawful. And by Roeder’s own testimony, he had planned out the murder well in advance with at least three previous attempts. The jury had to convict on premeditated murder or let him go.
There was also a great deal of worry that Wilbert would allow abortion and Dr. Tiller to be put on trial. In the Tilson case, abortion was actually put on trial. There were many witnesses that testified when life began and the wrongness of abortion. The Kansas Supreme Court ruled the judge in that case was outside his right to allow such evidence to even make it into the trial. When Rachelle “Shelley” Shannon went on trial in 1994 for shooting Dr. Tiller in both arms the year before, she was not allowed to talk about abortion at all. There are also limits on putting the victim on trial. Unless Roeder had evidence Dr. Tiller was committing a crime or preparing to do so at the time of his death, Roeder would be unable to go down that route. Kline, in his proffered testimony, made several statements alleging Dr. Tiller committed numerous crimes, crimes that either never saw the light of day, were dismissed, or of which Dr. Tiller was acquitted. Kline’s testimony was not allowed because no court ever found that Dr. Tiller committed any crimes in his practice.
The prosecution had an air-tight case. Roeder admitted on the stand he committed the crimes in question. He denied very little of the evidence presented (while not mentioned in court, he denied he ever said “Lord, forgive me” as he ran from the church). He had wanted to kill Dr. Tiller for at least a decade before he finally did. Starting in 2002, he visited the church and made nice with the other congregants in order to lull them into a false sense of security. And it completely worked: Gary Hoepner and Keith Martin both testified to letting their guard down. Roeder threatened both of them as he ran. Roeder also testified that he had brought a gun into the church three other times before May 31. Even with all the variety of factors people let play in this trial, he was not going to walk.
It’s all a lot more simple than all the reasons people gave for being afraid. In reality, we are all afraid in every criminal trial that a murderer will walk. And we have reason to be worried. We state it in a variety of ways, each sounding more legitimate than the innate fear. It has some basis in history, even in modern times. Our judicial system has loopholes. Roeder got out of jail in the late 90s because his constitutional rights were violated when he was arrested. But we all have these rights for a reason, even if they can be manipulated by people who wish to do harm. In the case of Scott Roeder, none of his constitutional rights were violated. He was properly arrested, tried, and convicted. And while our society of laws cared enough to make sure his rights were respected, he himself did not respect society. He chose to kill a man many knew and cared about because that man cared enough to help women.
A couple months ago, I had the opportunity to listen to someone talk about the times some people tried to use the law against Dr. Tiller, failing each time. He told us Dr. Tiller had great faith in Kansas juries. It’s comforting to know Dr. Tiller’s faith continues to be well-placed.
For the daily coverage of Roeder’s trial, visit my blog on RH Reality Check.
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