‘Necessity defense’ rejected in abortion case

December 23, 2009|Associated Press

WICHITA, Kan. - A judge ruled yesterday that Kansas law doesn’t allow a so-called necessity defense in the trial of a man charged with killing one of the nation’s few late-term abortion providers.

The decision was another blow to lawyers for 51-year-old Scott Roeder, who has confessed to shooting Dr. George Tiller on May 31 and says it was necessary to save unborn children.

In his ruling, Judge Warren Wilbert cited a 1993 criminal trespassing case involving an abortion clinic in which the Kansas Supreme Court said that to allow the personal beliefs of a person to justify criminal activity to stop a law-abiding citizen from exercising her or his rights would “not only lead to chaos but would be tantamount to sanctioning anarchy.’’

But he noted that that case dealt only with a property rights issue, whereas the case involving Roeder has elevated the argument to whether it is justified to take one life for another. “That is certainly not a position I want to be in - because I am not God,’’ Wilbert said.

However, the judge told attorneys he would “leave the door open’’ to consider later whether to allow specific evidence on the use of force for the defense of another person before letting the jury hear it.

The decision came during a hearing that mostly dealt setbacks to Roeder’s defense. The judge refused to move the case from Wichita, where pretrial publicity has been intense, and rejected a motion that would have kept prosecutors from making peremptory jury strikes based on potential jurors’ beliefs about abortion.

Roeder, of Kansas City, Mo., is charged with one count of premeditated, first-degree murder in Tiller’s death and two counts of aggravated assault for allegedly threatening two ushers during the May 31 melee in the foyer of the doctor’s Wichita church.