Guest article by Prof John Locke
In U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. America’s abortion debate was ignited again yesterday after a judge was asked to allow the man who killed an abortion doctor in front of 250 people to make a ‘necessity defence’ in court. Judge Warren Wilbert refused to allow the defence to present a plea of necessity, but did allow them to present a case for voluntary manslaughter on the grounds that the defendant sincerely believed that he was committing a crime to prevent a greater evil.
Anti-abortionist Scott Roeder will have been allowed to testify that he believed he was saving unborn children when he gunned down Dr George Tiller in a Kansas church last May, Judge Warren Wilbert ruled yesterday. Roeder, who has confessed to the killing, is charged with first-degree murder in the Kansas trial. But Wilbert recently had decided he would allow the 51-year-old to build a defence calling for the lesser charge of voluntary manslaughter. Kansas law defines voluntary manslaughter as ‘an unreasonable but honest belief’ that there were circumstances to justify deadly force.
Pleading such a case could bring a prison sentence closer to five years, instead of a life term for first-degree murder. Wilbert said that until Roeder’s team decides which evidence it will present, he cannot rule out his proposed defence claim. The prosecution argued this week that such a defence should not be considered because there is no evidence Tiller posed an imminent threat at the time of the killing.
A voluntary manslaughter-based argument would essentially ‘enable a defendant to justify premeditated murder because of an emotionally charged political belief,’ the prosecution wrote.
But the defence hit back , arguing that in Roeder’s mind, there was an imminence of danger because Dr Tiller’s Wichita clinic was performing abortions. ‘It had staff. It had a practitioner. It had a budget. It had clientele. … In the mind of Mr. Roeder, the victim presented a clear danger to unborn children,’ the defence wrote.
While again turning aside the prosecution argument, Wilbert warned that the defence had a difficult task and he would ‘make every effort to try this case as a criminal first-degree murder trial.’ The judge said he would rule on a witness-by-witness, question-by-question basis on whether to allow jurors to hear specific evidence on what Roeder’s beliefs were at the time of the shooting.
The facts of the case are not in dispute. On May 31, Roeder got up from a pew at Wichita’s Reformation Lutheran Church at the start of services 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. This recent ruling therefore changed what had been expected to be a simple case – with the defendant’s confession and more than 250 possible witnesses for the prosecution – and galvanized both sides of the abortion debate.
