Judge to rethink jury selection in abortion murder

[February 04, 2010]  WICHITA, Kan. (AP) -- The trial set to begin Wednesday for a man who admitted killing one of the nation's few late-term abortion providers was thrown into limbo when the Kansas Supreme Court ordered the judge to reconsider his decision to keep jury selection secret.

The court ruled late Tuesday that Sedgwick County Judge Warren 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 of Scott Roeder. The Kansas City, Mo., man is accused of shooting Dr. George Tiller inside a Wichita church in May.

The Supreme Court ordered Wilbert to reconsider requests from four media outlets, including The Associated Press, that wanted access. Wilbert wasn't ordered to open the proceedings but was expected to meet with a media attorney, prosecutors and defense lawyers Wednesday morning before jury selection began.

Earlier Tuesday, Wilbert allowed Roeder the chance to build a defense based on 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," 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 Roeder's beliefs about abortion.

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

Roeder has "a formidable and daunting task" to present such evidence, Wilbert said.

The facts of the case are not in dispute: As Sunday morning services were starting, 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.

Roeder, 51, has publicly 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 had been expected to be a straightforward trial was upended on Friday when Wilbert refused to bar 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 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 had 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.

[Associated Press; By ROXANA HEGEMAN]

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