- The Washington Times - Wednesday, January 13, 2010

UPDATED:

WICHITA, Kan. — The judge overseeing the trial of the confessed killer of Kansas abortion provider has reopened much of the jury selection process to the public, but with some restrictions.

Sedgwick County Judge Warren Wilbert ruled Wednesday that representatives of four media outlets, including the Associated Press, that appealed the closing of jury selection can sit in the courtroom once the pool is narrowed to 42 jurors.

All the prospective jurors in the murder trial of Scott Roeder, the Kansas City, Mo., man accused of shooting Dr. George Tiller inside a Wichita church in May, will be questioned about sensitive private issues behind closed doors.

Media attorney Lyndon Vix announced the ruling after a closed hearing over whether to open jury selection. The judge also released a copy of a jury questionnaire to the media.

Mr. Vix said Judge Wilbert forbade any broadcast or recording of the proceedings, including updates on mobile devices.

The Kansas Supreme Court ruled late Tuesday that Judge Wilbert did not provide the public and media enough time to respond before he closed the proceedings and sealed the jury questionnaire in the first-degree murder case against Mr. Roeder.

The state’s high court ordered Judge Wilbert to reconsider requests from the four media outlets that wanted access, but he wasn’t ordered to open the proceedings.

Earlier Tuesday, Judge Wilbert allowed Mr. Roeder the chance to build a defense based on Mr. Roeder’s belief that his actions were justified to save unborn children. But the judge said it remained to be seen whether the evidence would suffice to instruct jurors, after the defense rested its case, that they could consider the lesser offense of voluntary manslaughter.

“I am going to make every effort to try this case as a criminal, first-degree murder trial,” Mr. Wilbert said. “Admittedly, Mr. Roeder’s beliefs may come into play, and as a defendant he is entitled to present a defense.”

The judge said he would rule on a witness-by-witness, question-by-question basis as necessary throughout the trial on whether to allow jurors to hear specific evidence on Mr. Roeder’s beliefs about abortion.

“This is not going to be a debate about abortion,” Judge Wilbert said, adding that attorneys will have to persuade him at trial that any evidence offered in that regard will have to be part of what Mr. Roeder believed on May 31 when Tiller was killed.

Mr. Roeder has “a formidable and daunting task” to present such evidence, Judge Wilbert said.

The facts of the case are not in dispute: As Sunday morning services were starting, Mr. Roeder got up from a pew at Wichita’s Reformation Lutheran Church and walked to the foyer, where Tiller and a fellow usher were chatting. He put the barrel of a .22-caliber handgun to Tiller’s forehead and pulled the trigger.

Mr. Roeder, 51, has admitted to reporters and the court to killing Tiller. He also faces two counts of aggravated assault for allegedly threatening two ushers who tried to stop him from fleeing after the shooting. He has pleaded not guilty.

But what was expected to be a straightforward trial was upended on Friday when Judge Wilbert refused to bar Mr. Roeder’s lawyers from building the defense calling for a lesser charge of voluntary manslaughter. The judge prohibited only a so-called necessity defense that would argue Mr. Roeder should be acquitted because the doctor’s killing was necessary.

Kansas law defines voluntary manslaughter as “an unreasonable but honest belief that circumstances existed that justified deadly force.” A conviction could bring a prison sentence closer to five years instead of a life term for first-degree murder.

The Kansas chapter of the National Organization for Women immediately condemned the judge’s decision, saying it opens the door for a society that would condone vigilantism and violence against abortion providers.

Prosecutors filed a motion Monday saying the voluntary manslaughter defense was invalid because there was no evidence Tiller posed an imminent threat at the time of the killing.

The defense argued that the prosecution misinterpreted case law, saying any rulings about evidence should be made at the time of its presentation, as is typical in any other criminal trial.

“This trial is going to be on TV, but it is not a TV trial — it is a real trial,” defense attorney Mark Rudy said.

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