This is Part II of a series of articles on a criminal trial being conducted in Wichita, Kansas. Scott Roeder is accused of shooting to death Dr. George Tiller inside Dr. Tiller's church. Dr. Tiller was one of the few physicians in the US who performed late term (third trimester) abortions. Mr. Roeder admitted to shooting Dr. Tiller in an interview with a television crew, but claimed at the time that the shooting was done to save unborn babies.
Previously up to this point:
In December, 2009 the Hon. Warren Wilbert, the trial judge in the matter, ruled that he would not allow Mr. Roeder to use the "necessity defense", (i.e. that it was necessary to kill Dr. Tiller to save unborn babies), as that defense is not recognized under Kansas law. This came as no great surprise; most legal experts agreed that Kansas law does not permit this defense.
On January 8, 2010 Judge Wilbert indicated that he would consider allowing the defense to present evidence indicating voluntary manslaughter, claiming that Mr. Roeder had the honest but mistaken belief that circumstances existed to justify the use of deadly force. The prosecution objected, but Judge Wilbert indicated on January 12, 2010 that he would indeed allow the defense to argue those points, although he has refused to indicate in advance whether he will give an instruction on voluntary manslaughter to the jury. Appellate courts tend to want a defendant to be given every opportunity to present every reasonable (i.e. permitted by law) theory of his/her defense, and thus by leaving open the possibility of a manslaughter instruction, the judge is probably hoping to make sure that the defense on appeal cannot claim they were not permitted to present a theory of defense, no matter how nutty we may think it to be.
In an order issued on Monday, January 11, 2010, Judge Willard also, at the joint request of the prosecution and defense, closed the process of jury selection. This prompted an appeal to the Kansas Supreme Court, which ordered Judge Willard to reconsider his order. He did so and on Wednesday decided to question individual jurors privately about their views on abortion, and then allow the other questions from the attorneys for the state and the defense to be public. Attorneys for the prosecution as well as the defense will be present during the questioning in the judge's chambers, as will the defendant. This gives the defendant his guaranteed right to be present during all proceedings, and allows for protection of juror's privacy while balancing the public's right to know information.
Discussion of the law
This case will be goverened by Kansas law. Kansas law has several types of crimes relating to the killing of another person. These are:
Capital Murder: Intentional, premeditated murder (1st degree) with any one of several circumstances present, including (but not limited to) killing for hire, killing during a kidnapping, killing during a rape, killing a law enforcement officer, killing a witness, etc. Capital murder has a penalty of death or life in prison without parole.
1st Degree Murder: This means killing with premeditation and with malice. It also includes felony murder, i.e. a death which occurs during an inherently dangerous felony. 1st Degree murder carries a minimum of 25 years in prison without parole, and depending on aggravating circumstances, can have a maximum of 50 years in prison with parole eligibility after 50 years.
2nd Degree Murder: This is either intentional murder, without premeditation, or unintentional murder, but with extreme disregard for human life. This carries a minimum of 15 years to a maximum of life in prison.
Voluntary Manslaughter: This means a killing during a sudden quarrel in heat of passion, or, in an unreasonable but honest belief that circumstances existed that justified the use of deadly force. Voluntary Manslaughter carries a maximum of about 10 years in prison.
Involuntary Manslaughter: This means a killing in which the actor was reckless, or in which they are fleeing from a felony, or in which they have committed a lawful act in an unlawful manner. Voluntary Manslaughter is punishable by up to 5 years in prison.
Vehicular homicide: This is used when a death results from negligence in an automobile or other vehicle. Its commonly used in cases of a drunk driving situation resulting in death (if it was a misdemeanor drunk driving case) It carries up to 1 year in jail.
In Kansas, a judge commonly is held by case precedent to allow any reasonable defense that is permitted under Kansas law. This is why the judge in this matter said that he would allow the defense to try to put evidence that might give rise to a jury instruction for voluntary manslaughter. It is highly doubtful that the judge will eventually give this instruction, for several reasons. The first is that it is going to be extremely difficult for the defense to introduce relevant evidence that would indicate to anyone that Mr. Roeder could have felt that there was a threat that required deadly force. The second is that in order to do so, the defense will almost certainly need to have Mr. Roeder testify in his own defense. Because Mr. Roeder's state of mind will be the telling issue in this defense, only the defendant can truly testify as to what he was thinking at that time. No defense attorney wants their client to testify in this situation, because they have waived their 5th amendment privilege, and are subject to cross examination at that point.
A jury of 12 with two alternates will hear the case. Opening arguments by the prosecution were held on Friday, January 22, 2010. The defense, as is common in these types of proceedings, reserved its opening argument until the state has rested its case. I will publish regular updates as they become available.
Previously up to this point:
In December, 2009 the Hon. Warren Wilbert, the trial judge in the matter, ruled that he would not allow Mr. Roeder to use the "necessity defense", (i.e. that it was necessary to kill Dr. Tiller to save unborn babies), as that defense is not recognized under Kansas law. This came as no great surprise; most legal experts agreed that Kansas law does not permit this defense.
On January 8, 2010 Judge Wilbert indicated that he would consider allowing the defense to present evidence indicating voluntary manslaughter, claiming that Mr. Roeder had the honest but mistaken belief that circumstances existed to justify the use of deadly force. The prosecution objected, but Judge Wilbert indicated on January 12, 2010 that he would indeed allow the defense to argue those points, although he has refused to indicate in advance whether he will give an instruction on voluntary manslaughter to the jury. Appellate courts tend to want a defendant to be given every opportunity to present every reasonable (i.e. permitted by law) theory of his/her defense, and thus by leaving open the possibility of a manslaughter instruction, the judge is probably hoping to make sure that the defense on appeal cannot claim they were not permitted to present a theory of defense, no matter how nutty we may think it to be.
In an order issued on Monday, January 11, 2010, Judge Willard also, at the joint request of the prosecution and defense, closed the process of jury selection. This prompted an appeal to the Kansas Supreme Court, which ordered Judge Willard to reconsider his order. He did so and on Wednesday decided to question individual jurors privately about their views on abortion, and then allow the other questions from the attorneys for the state and the defense to be public. Attorneys for the prosecution as well as the defense will be present during the questioning in the judge's chambers, as will the defendant. This gives the defendant his guaranteed right to be present during all proceedings, and allows for protection of juror's privacy while balancing the public's right to know information.
Discussion of the law
This case will be goverened by Kansas law. Kansas law has several types of crimes relating to the killing of another person. These are:
Capital Murder: Intentional, premeditated murder (1st degree) with any one of several circumstances present, including (but not limited to) killing for hire, killing during a kidnapping, killing during a rape, killing a law enforcement officer, killing a witness, etc. Capital murder has a penalty of death or life in prison without parole.
1st Degree Murder: This means killing with premeditation and with malice. It also includes felony murder, i.e. a death which occurs during an inherently dangerous felony. 1st Degree murder carries a minimum of 25 years in prison without parole, and depending on aggravating circumstances, can have a maximum of 50 years in prison with parole eligibility after 50 years.
2nd Degree Murder: This is either intentional murder, without premeditation, or unintentional murder, but with extreme disregard for human life. This carries a minimum of 15 years to a maximum of life in prison.
Voluntary Manslaughter: This means a killing during a sudden quarrel in heat of passion, or, in an unreasonable but honest belief that circumstances existed that justified the use of deadly force. Voluntary Manslaughter carries a maximum of about 10 years in prison.
Involuntary Manslaughter: This means a killing in which the actor was reckless, or in which they are fleeing from a felony, or in which they have committed a lawful act in an unlawful manner. Voluntary Manslaughter is punishable by up to 5 years in prison.
Vehicular homicide: This is used when a death results from negligence in an automobile or other vehicle. Its commonly used in cases of a drunk driving situation resulting in death (if it was a misdemeanor drunk driving case) It carries up to 1 year in jail.
In Kansas, a judge commonly is held by case precedent to allow any reasonable defense that is permitted under Kansas law. This is why the judge in this matter said that he would allow the defense to try to put evidence that might give rise to a jury instruction for voluntary manslaughter. It is highly doubtful that the judge will eventually give this instruction, for several reasons. The first is that it is going to be extremely difficult for the defense to introduce relevant evidence that would indicate to anyone that Mr. Roeder could have felt that there was a threat that required deadly force. The second is that in order to do so, the defense will almost certainly need to have Mr. Roeder testify in his own defense. Because Mr. Roeder's state of mind will be the telling issue in this defense, only the defendant can truly testify as to what he was thinking at that time. No defense attorney wants their client to testify in this situation, because they have waived their 5th amendment privilege, and are subject to cross examination at that point.
A jury of 12 with two alternates will hear the case. Opening arguments by the prosecution were held on Friday, January 22, 2010. The defense, as is common in these types of proceedings, reserved its opening argument until the state has rested its case. I will publish regular updates as they become available.
I am enjoying your series ToE.
ReplyDeleteOf course, I happen to particularly enjoy your opening quotation (but I'm quirky that way, LOL).