Judge being commendably cautious in Roeder trial By MIKE HENDRICKS The Kansas City Star

Judge being commendably cautious in Roeder trial

By MIKE HENDRICKS

The Kansas City Star

Over the weekend I was tempted to pop off about what seemed like a bone-headed decision in the Scott Roeder murder case.

How could Sedgwick County District Judge Warren Wilbert even consider allowing a jury to find George Tiller’s confessed killer guilty of voluntary manslaughter instead of first-degree murder?

For a premeditated killing?

Surely that would send a message to extremists that they could kill abortion doctors and escape life sentences, as long as they were convinced that deadly force was necessary to save the lives of the unborn.

Those were the fears we’ve been hearing from abortion rights activists as well as some in the anti-abortion movement.

I was willing to join in the hand-wringing. But thanks to my tendency toward procrastination and laziness, I never got around to posting that piece on the Web.

That gave me time to consult legal experts, read Kansas Supreme Court decisions and hear Wilbert explain his reasoning at Tuesday’s televised proceedings.

And guess what? Despite the continuing hysterical fears from abortion-rights groups, Wilbert is doing exactly what you’d expect from a judge in such a sensitive case.

He’s being careful.

“Every defendant has the right to have his theory of defense presented,” says Carl Cornwell, an Olathe defense attorney who has handled his share of murder cases.

For instance, some mistakenly think Wilbert has already decided to instruct jurors to consider a lesser charge of voluntary manslaughter when it’s time for deliberations. He hasn’t.

Nor is he promising that he’ll allow Roeder’s attorneys to present evidence in support of their client’s contention that he thought he had to kill Tiller to protect others.

All Wilbert has done is left open those options so Roeder can’t later assert in an appeal that he was denied a fair trial.

Cornwell’s take: “I think the judge is bending over backwards.”

I heard much the same from three current and former prosecutors, among them Wyandotte County District Attorney Jerome Gorman. What’s more, Gorman made an observation that was almost identical to one Wilbert expressed in court 24 hours later:

The defense will have a nearly impossible job showing that Tiller’s killing in a church narthex came anywhere close to meeting the legal definition of an “imminent threat” required under Kansas’ voluntary manslaughter law.

“That’s the hang-up in any voluntary manslaughter case,” Gorman said.

Even when the accused kills somebody because he thinks that person might kill him any minute, prosecutors often argue successfully that such killings might have been avoided.

And as for justifying the shooting of an abortion doctor at his church on a Sunday morning?

“Admittedly, the defense has a formidable and daunting task in this trial,” the judge said.

Let’s hope so.

To reach Mike Hendricks, call 816-234-7708 or send e-mail to mhendricks@kcstar.com.

Posted on Tue, Jan. 12, 2010 10:15 PM