Judge "Leaves Door Open" For Biblical Defense as Tiller Murder Motive By Wendy Norris, RH Reality Check December 23, 2009

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Wendy Norris is an editor and investigative reporter in Denver, Colorado. She covers the Rocky Mountain West and Plains States for RH Reality Check.

A Kansas judge curbed but did not disallow the use of a radical "Biblical defensive force" strategy at Scott Roeder's murder trial next month.

Sedgwick County District Judge Warren Wilbert ruled Tuesday that Kansas law does not recognize the "necessity defense" — a legal claim that a defendant is justified in breaking the law to thwart a greater imminent threat. Roeder admitted to news reporters last month that he killed Wichita physician George Tiller May 31in the foyer of a church to prevent him from performing abortions.

The judge said allowing the personal beliefs of defendants to justify unlawful actions would "not only lead to chaos but would be tantamount to sanctioning anarchy."

For months, the Army of God, a militant anti-abortion group linked to murders, clinic arsons and domestic terrorism, has egged Roeder on to claim Tiller's death was Biblically justified.

However, that ultimate aim has not been entirely lost.

Wilbert said he would "leave the door open" for Roeder's defense team to argue to jurors that his religious beliefs about abortion compelled him to act.

Wichita Eagle reporter Ron Sylvester, who attended the hearing and tweeted the proceedings, notes that could signal the defense could seek a conviction on lesser charges mitigated by Roeder's extreme views. A voluntarily manslaughter verdict could result in a prison term of less than 10 years rather than life imprisonment for first-degree murder.

While the "necessity defense" is a legitimate secular legal strategy, Roeder's motives are something altogether different.

The "defensive force" argument was originally penned by Army of God member Paul Hill and is rooted in a rambling manifesto based on a radical Christian Dominionist interpretation of the Bible.

The Army of God claims the Bible justifies "defensive force" to attack, maim or murder abortion providers. Christian theologians universally reject the strained paleo-conservative interpretation of meting out Earth-bound justice against imagined foes in the name of God. The tactic has never been allowed in court as a defense for clinic violence. Including for its own author.

Hill was convicted and put to death by the State of Florida for the 1994 murders of physician Dr. John Britton and clinic escort Jim Barrett and the wounding of Barrett's wife, June, outside a Pensacola clinic.

In reaction to Roeder's arrest, the Iowa Independent recently reported that Des Moines resident Dave Leach claims to have updated Hill's "Defensive Action Statement." The revised canon was signed by 21 anti-abortion militants, including three who are serving prison sentences. One of those signatories is Shelley Shannon, who was convicted of attempted murder for a 1993 shooting of Tiller and is in federal detention for subsequent arson and acid attacks at clinics in the Pacific Northwest.

Leach is credited with writing the Army of God bomb-making manual used in clinic ambushes by Shannon and others.

The pair and other Army of God members have been regularly corresponding with Roeder since his June arrest encouraging him to stake out the Biblical defense motive.

“Now, hopefully, the public can begin to hear about how essential this defense is to the Rule of Law in America,” he said. “Our everyday lives would become insane if the letter of every law were enforced even in situations where that would cause tragedy and death.”

Despite their initial hopes, the proposed defense was supposedly off the table, according to a Nov. 11 story in the Wichita Eagle.

"There's no such thing as the necessity defense," said Steve Osburn, head of the Sedgwick County Public Defender's Office and Roeder's lead counsel. "This is a fictional defense made up by these people." It's not a legal defense, either, Osburn said. "There is nothing in the law of Kansas, or anywhere else, that allows this kind of defense," Osburn said.

That outburst was contradicted two weeks later when Osburn later claimed he was simply disavowing the strategy in the media to confuse the prosecution about his defense planning.

Though Osburn's courtroom kabuki theater got a bit more complex after the pretrial hearing. The defense team withdrew a motion requesting Tiller's calendar following the judge's denial of the necessity defense negating the need to prove the physician's death prevented scheduled abortions.

In two other rulings Tuesday, the judge barred lawyers from dismissing potential jurors based on their views about religious or abortion.

Wilbert also refused to move the trial after Roeder's court-appointed public defenders requested a change of venue arguing that their client cannot get a fair trial in a city scarred by decades of virulent anti-abortion protests. The defense motion claimed the ability to seat an impartial jury was constrained by press accounts of people who claimed to be close to Roeder were quoted in news stories "with inflammatory statements damning the defendant."

The aggrieved friends and family excuse may be the least of the lawyers' problems considering their client has been blabbing for weeks to any journalist with a stenographer's notebook that he murdered Tiller.