- The Washington Times - Monday, December 21, 2009

WICHITA, Kan. | A judge is weighing a critical legal question in the case of a man who confessed to killing one of the nation’s few doctors who perform late-term abortions: Can the 51-year-old man claim at his trial that the slaying was justified to save the lives of unborn children?

Scott Roeder, of Kansas City, Mo., is charged with one count of premeditated, first-degree murder in Dr. George Tiller’s death and two counts of aggravated assault over purported threats to two ushers during the May 31 melee in the foyer of the doctor’s Wichita church.

District Judge Warren Wilbert has yet to rule on a bevy of court filings that will set the course for the Jan. 11 trial but will consider some of them in court Tuesday. The documents offer a glimpse at the unfolding legal strategies in a case played out amid the rancorous debate over abortion.

Since the killing, Mr. Roeder has confessed to reporters that he shot Dr. Tiller, while his few allies in the pro-life movement have urged him to present a “necessity defense” in hopes that an acquittal could turn the larger debate over abortion in their favor.

“I choose this action I am accused of because of the necessity defense,” Mr. Roeder told the Associated Press in November. “I want to make sure that the focus is, of course, obviously on the preborn children and the necessity to defend them.”

Similar efforts to use such a strategy in cases involving abortion-related violence have generally been banned - perhaps most relevantly at the 1993 trial of an Oregon woman accused of shooting and wounding Dr. Tiller.

Mr. Roeder, who has pleaded not guilty, admitted the shooting to the AP, saying he has no regrets for killing Dr. Tiller and suggesting the necessity defense should be the only contested issue of his trial. Mr. Roeder declined to say when asked whether he would kill another abortion doctor if he were acquitted.

The so-called “necessity defense” has rarely been successfully used in abortion cases. Mr. Roeder’s attorneys - while arguing that their client has a right to present his theory of defense - have so far kept their own strategy secret.

Legal experts and others close to the case have suggested that his public defenders may actually be aiming at a conviction on a lesser offense such as voluntary manslaughter - defined in Kansas as “an unreasonable but honest belief that circumstances existed that justified deadly force.”

That would be an easier argument to make to jurors than a necessity defense, which is unlikely to win, said Melanie Wilson, a University of Kansas law professor. A necessity defense, also known as the “choice of evils defense,” requires proof that the defendant reacted to an immediate danger, an argument that is undermined by abortion’s legality.

“The defense would rather have it be a trial of abortion - particularly late-term abortion - and not a trial of the killing of Dr. Tiller,” said Richard Levy, a law professor at the University of Kansas. “It is often a sound defense strategy to go after the victim.”

A wild card is Mr. Roeder’s close relationship with Iowa pro-life activist Dave Leach, who has been separately crafting a necessity defense for Mr. Roeder - including writing motions that could be used if Mr. Roeder were to represent himself. Mr. Leach said the goal is to encourage states to criminalize abortion again, or at least bolster a defense that would allow activists to block clinic entrances without fear of arrest.

“My strong conviction is that this case presents an opportunity, through education of both the public and the courts, to end abortion,” Mr. Leach said.

If convicted of first-degree murder, Mr. Roeder faces a life sentence with the possibility of parole after 25 years. A conviction for voluntary manslaughter for someone with as little criminal history as Mr. Roeder could bring a sentence closer to five years if the judge follows state sentencing guidelines.

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