Scott Roeder Friend Charges Judge will block Right to Trial by Jury

Scott Roeder Friend Charges Judge will block Right to Trial by Jury

October 18, 2009

Scott Roeder Friend Charges Judge will block Right to Trial by Jury

Scott Roeder Friend Charges Judge will block Right to Trial by Jury

Video series alleges what Roeder did is more legal than what his judge is about to do

(The quotes from two law professors in this press release are actual quotes from news articles excerpted below, written about me. Contact: Dave Leach, 137 E. Leach, Des Moines IA 50315, cell 515/480-3398, AcknowledgeHimN2010@Saltshaker.US.)

Scott Roeder shot and killed late term abortionist Dr. George Tiller May 31, but Dave Leach believes the “only seriously contested issue of the trial” will concern what Tiller did that Roeder stopped, not what Roeder did.

Roeder’s judge is unlikely to ever allow Roeder’s jury to learn about that issue, Leach says. At least two law professors agree.

Leach asks, in a video series released today, [October 21], “can Americans call it a trial by jury, where the judge decides, all by himself, that your defense is no good, and won’t let you tell the jury about it? Where the judge just lets the jury judge what everyone agrees to anyway? Wouldn’t you call it ‘busy work’, to let the jury ‘decide’ facts upon which both parties already agree?” The issue is called the Necessity Defense. It is the “fact question of whether abortion is in fact unthinkably harmful enough to justify being prevented”, Leach says.

The last time a Kansas judge allowed the Necessity Defense, in 1992, he acquitted Elizabeth Tilson of blocking an abortion door. But the Kansas Supreme Court overturned the acquittal in 1993, ruling that it was a mistake to allow Tilson’s defense. (City of Wichita v. Tilson, 855 P.2d 911 (1993).”

Consistent with that, when Shelley Shannon shot Tiller in each arm in 1993, the Wichita judge in 1994 repeatedly shut her down when she tried to testify about abortions the doctor performed, according to her Wichita defense attorney, E. Jay Greeno.

The Tilson decision stated that “whether an affirmative defense exists is a question of law subject to unlimited review.” But when a judge rules that the only trial issue, and the defendant’s only defense, is a “question of law”, which the jury must never learn about, “doesn’t this violate the 6th Amendment to the Constitution”, asks Leach, “which says ‘In all criminal prosecutions, the accused shall enjoy the right to a...public trial, by an impartial jury’? Doesn’t it go without saying that the 6th Amendment demands that the jury have meaningful participation in deciding the sole trial issue, especially when it is the defendant’s sole defense?”

November 13 is the court’s deadline for the prosecutor to file an expected “In Limine” motion to suppress Roeder’s defense from the knowledge of the jury. A hearing on pretrial motions is scheduled for a month later. Roeder’s trial is scheduled to begin January 11.

Leach, who is listed in Marquis’ “Who’s Who in America” and in Wikipedia, makes his claims through a video series posted at several online video sites, and at http://www.Saltshaker.US where a transcript of the videos is also posted. The videos present a fictitious news special starring 8-year-old Lexi and 10-year-old Vanessa, doubling as news reporters and later as lawyers, interviewing and debating Leach who plays himself, a law professor, and an abortionist’s personal lawyer. University of Iowa law professor Margaret Raymond agrees the “likelihood...is quite small” that Roeder will be allowed to present his defense to the jury.

“Typically, you don’t get to use that defense in murder cases,” she said. “The question would be whether the necessity defense would permit somebody to claim that something that is legally protected created a necessity to justify homicide.”

Leach agrees that is the question, but says the only reasonable answer is that when something is in fact unthinkably harmful, in the eyes of “reasonable people” represented by the jury, it cannot be a crime to prevent it, regardless of its legal status. Leach says this is the essence of the Necessity Defense, an ancient common law defense which sets aside the letter of any law which otherwise would punish life saving heroes. He quotes Black’s Law Dictionary which says “Necessity is not restrained by law; since what otherwise is not lawful necessity makes lawful....Necessity...derides the fetters of laws.”

The Tilson ruling asserts otherwise: “...one thing is clear: The harm or evil which a defendant, who asserts the necessity defense, seeks to prevent must be a legal harm or evil as opposed to a moral or ethical belief of the individual defendant.”

Leach responds, “The Tilson Court talks as if the only alternative to its ruling against Necessity would be to let the ‘belief of the individual defendant’ decide trials. No one is suggesting Roeder should go free because he believes he should! We support the 6th Amendment’s demand that the jury justify what they think ‘reasonable persons’ would justify, if they knew the evidence available to Roeder.

“As for the Tilson Court’s statement that Necessity justifies only ‘unlawful harms’, that is how Kansas 21-3211(a) defines the ‘defense of others’ defense. Clarifying one aspect of the Common Law in a statute does not repeal other details of the Common Law which are not so clarified. In fact, the Tilson ruling itself said ‘Whether the necessity defense should be adopted or recognized in Kansas may best be left for another day.’”

Tilson said “...evidence of when life begins is irrelevant and should not have been admitted.” But Leach says Roe v. Wade considered such evidence so relevant that should it ever be accepted by triers of fact, Roe itself should “collapse”. In other words, Leach says, Roe itself affirms the essence of the Necessity Defense, that no law or ruling should be enforced in any situation where a jury finds that its legalistic enforcement would cause unthinkable harm.

Leach says the Rule of Law would collapse if ultralegalism had no restraint even in situations where laws unintentionally enable unthinkable harm. “Jesus faced charges for doing great good, in violation of the letter of the law, in the view of the Supreme Court of the time. Jesus asked ‘Is it lawful to do good?’ Mark 3:4. His prosecutors had to leave him alone, because their Rule of Law could not survive their admission that it was the intent of any of their laws to criminalize good.

But whatever one thinks of the merits of the Necessity Defense, Leach says, “the fact is that where the judge decides its merits before the trial even begins, and doesn’t allow the jury to even know it exists, when it is the defendant’s only defense and the sole contested issue of a trial, only by a legal fiction can the judge say he has given Roeder his constitutional right to a trial by jury.”

Richard Levy, a professor at the University of Kansas School of Law, agrees the jury is unlikely to hear Roeder’s defense, even if it is his only defense. “Any claim that killing an abortion provider is justifiable likely would fail,” he said. “The question is whether a judge would allow jurors to consider that defense.”

Levy sees two problems with the defense in addition to the problem stated by Raymond that abortion is lawful: “The law requires that the threat be imminent, [and] the force reasonable in response....” Leach says the jury, but not the judge according to Roe v. Wade, is qualified to judge whether killing one abortionist is “force reasonable in response” to the 60,000 souls which that abortionist boasted of already killing, and the thousands more he would have killed. Roe said “the judiciary...is not in a position to know” what must be known to determine the harmfulness of abortion.

Leach responds to the imminence requirement from his video: “‘Imminence’ is so vaguely defined in case law that if you broke down your neighbor’s door to save him from a fire, some prosecutor would say you should have waited until the fire had actually started burning his hair. You should at least have waited until the fire was in the room! You should have waited until unthinkable harm was at least that ‘imminent’.

“But if anyone cares about saving lives, then ‘imminence’ needs to be defined in a way that permits lives to be saved when there is opportunity to save lives. Requiring Scott Roeder to wait until the next day when the abortions were resuming only requires Scott Roeder to wait to act until the window of opportunity for acting has closed, because Tiller’s office was a fortress. Imminence therefore should be defined as the nearness in time to the closing of the window of opportunity to prevent serious harm. Scott Roeder’s window of opportunity was extremely brief. He saved lives the only time he could.”

“But even if these legal objections were sound”, Leach asks, “Americans need to ask, when a judge calls the sole contested issue of the trial a ‘question of law’ which the jury is not qualified to even know about, does a citizen still have a Constitutional Right to Trial By Jury in America?”

Leach and others are planning future public awareness projects, including a 3rd Edition of the “Defensive Action Statement”, and an auction to raise funds for Scott Roeder’s defense.

Supporting Information

Links to 4 of the videos in the 5 part series:

http://www.Saltshaker.US/Scott-Roeder-Resources/TrialByJuryPt1.wmv

http://www.Saltshaker.US/Scott-Roeder-Resources/TrialByJuryPt2.wmv

http://www.Saltshaker.US/Scott-Roeder-Resources/TrialByJuryPt4.wmv

http://www.Saltshaker.US/Scott-Roeder-Resources/TrialByJuryPt5.wmv

These videos are not yet available on the internet; that is, no internet page links to them. You can’t find them without a link in my email. On October 21, God willing, I will link to them on http://www.Saltshaker.US/RoederPage.htm, where the transcript for all 5 parts is already posted, and where I will list several internet video sites such as Youtube where they will also be listed.

The Necessity Defense, defined in Black’s Law Dictionary, 4th Edition (to look them up, look up the phrase in Latin):
“Necessity is not restrained by law; since what otherwise is not lawful necessity makes lawful. Necessitas sub lege non continetur, quia quod alias non est licitum necessitas facit licitum. 2 Inst. 326.”

“Necessity overrules the law. Necessitas vincit legem. Hob. 144; Cooley, Const. Lim. 4th Ed. 747.” “Necessity overcomes law; it derides the fetters of laws. Necessitas vincit legem; legum vincula irridet. Hob. 144.

Quotes from Law Professors Margaret Raymond & Richard Levy, and E. Jay Greeno Des Moines man hopes to free alleged Tiller assassin with ‘necessity defense’

By Jason Hancock 8/14/09 1:18 PM

(Reprinted on RHRealityCheck.org (http://www.rhrealitycheck.org) Des Moines Anti-Choicer Hopes to Free Alleged Tiller Assassin, By Jason Hancock, Created Aug 19 2009 - 7:00am)

....Margaret Raymond, a law professor at the University of Iowa who previously practiced as a criminal defense attorney, has not read Leach’s legal brief but said the likelihood that a judge will allow a jury to hear an argument of “necessity defense” in a case like this is quite small.

“Typically, you don’t get to use that defense in murder cases,” she said. “The problem with a necessity defense in this case is that it is hard to say that something that the law permits is an act that must be prohibited at the cost of death.”

Juries are only permitted to hear claims that fit within legal parameters. If the law permits the claim, the facts surrounding the claim would go to the jury to decide.

“The jury doesn’t get to hear a claim that isn’t legally plausible,” Raymond said. “If there is no legal basis for the claim, then it cannot go to the jury. Juries are not supposed to decide things outside of the law. They get to decide fact within the law.”

The necessity defense, in general terms, says that it is OK to commit a crime in order to avoid a much greater harm, she said. For instance, a person with a suspended drivers license could drive a person to the hospital if it meant saving their life.

“The question would be whether the necessity defense would permit somebody to claim that something that is legally protected created a necessity to justify homicide,” Raymond said, adding: “My guess is that this is not going to be a strong defense. The irony is that the first thing he is asking him to do in order to use a necessity defense is admit he committed the crime. That is not necessarily something a criminal defendant wants some third party going around announcing.”

Justifiable homicide defense eyed in Roeder's case ROXANA HEGEMAN, Associated Press, | Posted: Saturday, August 29, 2009 2:15 pm

Richard Levy, a professor at the University of Kansas School of Law, said such defenses can work, but not necessarily in the context of abortion. The law requires that the threat be imminent, the force reasonable in response and the activity involved unlawful.

Any claim that killing an abortion provider is justifiable likely would fail, he said.

"In particular in the circumstances of the murder of Dr. Tiller there is an imminence problem, there is no imminent threat and, more fundamentally, the activities he was engaged in were legal," Levy said.

The question is whether a judge would allow jurors to consider that defense.

Wichita attorney E. Jay Greeno, who defended Rachelle "Shelley" Shannon for shooting Tiller in both arms in 1993, said the judge repeatedly shut her down when she tried to testify about abortions the doctor performed.

Procedurally, the judge in Roeder's case would likely hold a pretrial hearing on whether Roeder's attorneys could raise that defense at trial.

"There might be some hope that there would be jury nullification _ the jury would vote to acquit _ if there were right-to-life advocates within the jury who accepted the argument that an unborn child is a human being and that abortion is murder and therefore the murder of a physician who performs abortion is also justifiable," Levy said.

Text of description of my videos at http://www.Saltshaker.US/RoederPage.htm
Script for an October 10, 2009 video press release on video sites such as Youtube and on its home page, http://www.Saltshaker.US/ Scott-Roeder-Resources.htm. It is a drama with two girls, 8-year-old Lexi and 10-year-old Vanessa, playing the roles of lawyers and news reporters, interviewing and debating myself. (Dave Leach.) I play myself, a law professor, and an abortionist's personal lawyer. This script explains with humor, and in language anyone can understand, how our project is not to urge anyone to do what Scott Roeder had to do, but to endorse giving a Christian his constitutional right to a trial by jury. It explains what courts have been doing all these years to keep abortion “legal” all these years: deny 100,000 Christians their Constitutional right to a Trial (of the only seriously contested issue of their cases) By Jury. “Nothing can be more illegal than what courts have done all these years to keep abortion ‘legal’.” It explains how courts have maintained an appearance of a right to trial by jury, and how my proposed legal strategy will strip courts of that pretense, pressuring Scott’s judge, and all future judges, to finally allow the jury to be told what the trial is all about – and how that will end abortion.) Links to downloadable video files, the same as posted on Youtube: (Not yet posted. Anticipated release date: October 10, 2009 AD)

Case citations:
State v. Branson, Sept 21, 2007, 96422. “Whether an affirmative defense exists is a question of law subject to unlimited review. See City of Wichita v. Tilson, 253 Kan. 285, 291, 855 P.2d 911, cert. denied 510 U.S. 976 (1993).”

City of Wichita v. Tilson, 855 P.2d 911 (Kan.), cert. denied, 510 U.S. 976, 114 S. Ct. 468, 126 L. Ed. 2d 420 (1993) Regardless of what name is attached to the defense (and for the sake of simplicity we will refer to it as the necessity defense) one thing is clear: The harm or evil which a defendant, who asserts the necessity defense, seeks to prevent MUST BE A LEGAL HARM or evil AS OPPOSED TO A MORAL OR ETHICAL BELIEF of the individual defendant.


Contact:
Dave Leach
137 E. Leach
Des Moines IA 50315
cell 515/480-3398
AcknowledgeHimN2010@Saltshaker.US.

Posted by Editor at October 18, 2009 08:45 PM