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Quninppiac: 45/45 Approve/Disapprove; 47/41 on Failure/Success; 37/35 on Whether It's Better Obama Won, or Would Be Better if McCain Had Won | Main | More Important: Stewart Fails to Land a Blow on John Yoo; Apologizes to the Netroots
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January 13, 2010

A Bit More on the Tiller Murder Trial

Drew wrote about this case on Monday, noting that it appears the judge will allow Roeder to present evidence related to his belief that Tiller "presented a clear danger to unborn children."

Yesterday, the judge ruled that Tiller may bring that evidence. However, the judge noted that he has not ruled on whether the jury will get a manslaughter instruction and will not rule on that issue until later in the trial. In other words, the jury may not even get the option to decide that Roeder committed manslaughter rather than premeditated murder.

I agree with the prosecutors that the jury should not be given a manslaughter instruction and that allowing Roeder's lawyers to present a whole song and dance about his beliefs is just a way of seeking a hung jury by means of confusion and sympathy. If there's no chance they're going to get to decide on the lesser crime, this evidence should not be allowed.

In comments Drew noted the the Kansas use of force defense statute. Much of the conversation revolved around whether Roeder could be considered to have prevented an "imminent" abortion, as the statute requires.

I would have focused on another part of the statute:

Statute 21-3211: Use of force in defense of a person; no duty to retreat. (a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force.

(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.

So the defense doesn't apply unless the defendant "reasonably believed" the other person's use of force is unlawful. It doesn't matter how you somehow stretch the meaning of the term "imminent" to include Tiller's Sunday prayer group as use of force against a child at some unspecific date in the future. Based on his comments in the media and his prior activism, there's no chance Roeder had a reasonable belief that Tiller's abortions were unlawful. He went gun-happy precisely because the abortions were lawful and this was the only way he could stop Tiller. In fact, there are reports that Roeder actually attended Tiller's trial in which he was acquitted of performing unlawful abortions! So the use of force defense is not going to apply and the jury should not be getting a manslaughter instruction or evidence about Roeder's beliefs.

(I'm assuming that "unlawful" in the statute has to come within the defendant's "reasonable belief." If that's actually an issue of law, then it is even clearer that the manslaughter instruction and this evidence should be denied. No matter how much I don't like it, abortion is indisputably lawful in Kansas.)

The only evidence that matters is whether Roeder killed intentionally and with premeditation. Since he admitted to that, it should have made for a short trial, notwithstanding his not guilty plea. Instead we get this politicized circus about abortion beliefs, something he's apparently been aiming at since his arrest.

And I know I should let this kind of thing slide, but really? Commenter Jim in San Diego got cute yesterday (and how the hell did I get dragged into it anyway? I didn't write that post.):

I'm just wondering if Gabe and Drew would would prosecute someone for murder who freed inmates from a death camp, but killed a few guards in the process?

Nope. I wouldn't. Good enough for you or do you want to make some more Nazi analogies?


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posted by Gabriel Malor at 11:15 AM

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