Manslaughter defense possible in abortion killing

[February 04, 2010]  WICHITA, Kan. (AP) -- A man accused of killing one of the nation's few late-term abortion providers can try to build a case that the slaying was voluntary manslaughter because he sincerely believed it was necessary to save unborn babies, a Kansas judge ruled Friday.

Scott Roeder, 51, of Kansas City, Mo., is charged with one count of first-degree murder in Dr. George Tiller's death and two counts of aggravated assault for allegedly threatening two ushers who tried to stop him during the May 31 melee in the foyer of the doctor's Wichita church. Roeder has pleaded not guilty and his trial begins Monday.

Roeder faces life imprisonment if convicted of first-degree murder. A voluntary manslaughter conviction could bring a prison term closer to five years, depending on prior criminal record.

Voluntary manslaughter is defined in Kansas law as "an unreasonable but honest belief that circumstances existed that justified deadly force."

Sedgwick County District Judge Warren Wilbert ruled that defense attorneys can present evidence to support such a conviction. He said he will consider everything Roeder's lawyers present at trial before deciding whether to tell jurors if they can consider a conviction on a lesser offense.

The judge warned defense attorneys they faced "a substantial uphill battle" in showing Roeder had a sincere belief that the use of deadly force was necessary in the defense of others.

"This will not become a trial on the bigger issue of abortion. It will be limited to Mr. Roeder's beliefs," Wilbert said.

Roeder has confessed to reporters to shooting Tiller, saying it was necessary to save "unborn children." He filed a motion made public Friday in which he admitted to the court that he killed Tiller, arguing his trial would be a "charade" if he could not present to jurors his only defense. He asked the judge to reconsider his decision last month prohibiting a so-called necessity defense.

Such a defense would allow his attorneys to argue for acquittal on the grounds that the shooting was justified.

Wilbert again denied the request, telling Roeder at Friday's hearing that the argument "I had to shoot and kill Dr. Tiller to save unborn babies" from abortion doesn't meet the necessity defense because abortions are legal and there has never been a finding that Tiller was performing illegal abortions. Wilbert said the argument also fails by its very definition because one life is not worth more than another.

The Feminist Majority Foundation, which supports abortion rights, said that despite his repeated rejections of the necessity defense, Wilbert is essentially allowing Roeder to present a justifiable homicide defense.

"It is unconscionable and it is unjustifiable," said Katherine Spillar, the group's executive vice president. "We fear it will simply embolden anti-abortion extremists and it will be open season on doctors."

The group is urging the Justice Department to file federal charges against Roeder under the Freedom of Access to Clinic Entrances Act.

Troy Newman, president of the anti-abortion group Operation Rescue has denounced Tiller's killing, but said Roeder should be allowed to stand trial and make his case.

"If this is his defense, he should be able to give it - anybody should - and let the jurors decide," Newman said.

Jury selection begins Monday behind closed doors. Four news outlets, including The Associated Press, are asking the state's highest court to order Wilbert to allow reporters in the courtroom when attorneys pick the jury.

[Associated Press; By ROXANA HEGEMAN]

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