Scott's Motion Hearing Live Feed Notes by Cliff Judy

Thanks for joining us for today's coverage of Scott Roeder's motion hearing.

Motions are set for 9:00 a.m. They include a change of venue motion, and Roeder has said he wants the right to use the "necessity defense" for trial strategy. He's told the media he killed Wichita late-term abortion provider Dr. George Tiller because he wanted to protect unborn children. This should be a one-day hearing.

Prosecutors have already told me they don't want abortion mentioned at all in Roeder's trial. They want to stick to the facts of the day Tiller died.

What is security like. I heard ATF swept the courtroom.

Security is pretty tight. Besides the standard security and metal detectors downstairs, there is another round of security checks just before you get into the courtroom.

Yes, officials have swept the courtroom, but I don't know if that consisted of the Sedgwick County Sheriff or if they have extra assistance today. I do know they just took sniffer dogs through the courtroom for a quick check. Originally, there was supposed to be a parole violation hearing in an unrelated case before Roeder's motion hearing got started.

Looks like that's been continued to another date.

Still waiting for the motion hearing to begin.

Prosecutors are in the courtroom, but Roeder and his defense team aren't yet.

Probably still a few minutes before we'll get going.


So everyone knows, courtroom security requires us to disconnect our feed during breaks.

If you click on our streaming video feed and see nothing, there's a good chance court's just not in session at that particular moment.

Roeder's defense attorneys are now in the courtroom, but he hasn't been escorted in yet.


Prosecution team from the Sedgwick County District Attorney's Office: DA Nola Foulston, Kim Parker, and Ann Swegle.

Defense team from the Sedgwick County Public Defender's Office: Chief Public Defender Steve Osburn and Mark Rudy.


Has Roeder been in the Sedgwick Co. jail all this time?

Yes, Roeder has been held on $20 million bond.

Roeder is being led into the courtroom right now. He's wearing a black suit and tie. He and Osburn exchange a very brief conversation before the judge enters the courtroom.

Sounds like the first motion will be from the defense (there are five motions total for today).

The defense wants to make sure Roeder's criminal history isn't brought up at trial.

Mark Rudy begins talking about all of the publicity surrounding the case and why Roeder should be granted a change of venue.

Rudy points out the significant amount of media coverage this case has received and introduces front pages of the Wichita Eagle.

Rudy says Dr. George Tiller was a controversial and well-known figure in Wichita before he was killed, and his death is set against the background of abortion.

Rudy says in the last month, anyone could see the Eagle headlines "screaming about his confession" to killing Dr. Tiller.

Rudy: "It is unfathomable to think that someone could say, 'Despite everything I've heard about his background and his confession, I can walk into this courtroom and be impartial.'"

Rudy: "It's right to move this case to an area where people haven't been inundated with the barrage of media coverage."

I did a preview of this hearing yesterday. Judges who've worked for Sedgwick County for decades say they can't remember a single case where the judge allowed the trial to leave Wichita.

We have live video up on our website. Last I checked, it was working.

You can click on the link at the top of this page to see the video.

District Attorney Nola Foulston is making her argument.

She says in a community of around 500,000, court officials will be able to find 12 impartial jurors.

Foulston says past court precedents show that media coverage alone shouldn't be the sole reason to move a trial.

She says the reason to consider is whether attorneys can empanel a jury, and we won't be able to say that's impossible until January when trial begins.

Foulston also points out a significant amount of the continuing coverage on Roeder has been due to him meeting with and calling reporters.

Comment From GuestGuest: ] If the trial left Wichita, where would it be held?

Good question. If the motion was granted, defense attorneys would like look for a comparable-sized county to Sedgwick. They also probably wouldn't want a county in the same viewing area as Wichita TV stations.

Hard to say. Maybe Johnson County in KCK? It's a moot point until the judge's decision.

Rudy again mentions Foulston's public comments that Roeder's actions amounted to an act of terrorism.

Rudy calls terrorism the "boogey-man word" that would further influence potential jurors.

Looks like Judge Warren Wilbert is going to deny the change of venue. Hasn't ruled yet, but his words are leading to it.

Judge Wilbert says 300 summons have been sent out with the hopes of receiving 150 responses from potential jurors.

He says he feels like a sufficient number of individuals have been summoned and an attempt should be made to try the case in Sedgwick County.

He also says the court will closely monitor jury questionnaires to see if there are over-riding prejudices.

Judge Wilbert denies the change of venue motion, but says he will keep an open mind. He says it would be premature to move the trial before attorneys even tried to set a jury.

Defense attorneys are now arguing a jury selection motion.

Defense attorneys say that jurors' opinions on the issue of abortion should be revealed, and beliefs shouldn't have any bearing on whether they're allowed to stay in the jury pool.

Defense attorneys are citing a previous court case where jurors were protected from being removed from the jury pool based on race. Mark Rudy is arguing that precedent should be extended out to a person's opinions on abortion.

Prosecutor Ann Swegle is arguing that protecting a juror based on race is one thing, but it's a jump to protect them based on beliefs.

Swegle points out potential jurors are dismissed all the time for capital murder trials based on their beliefs regarding the death penalty.

Sounds like Judge Wilbert will deny this motion as well.

He says it'd be hard to even establish the parameters of whether a juror should be protected based on their abortion beliefs.

"I've heard people who are openly pro-life regarding abortion who've condemned Dr. Tiller's murder," says Judge Wilbert.

He also says until we're actually engaged in the process, we won't be able to know if there's an issue here.

Judge Wilbert officially says he denies the jury selection motion.

And here comes perhaps the biggest motion of the day...the prosecution motion asking the judge to limit any "necessity defense" argument or defense trial strategy.

Prosecutor Kim Parker says the necessity defense isn't a recognized defense in Kansas.

Roeder has told the media he killed Dr. Tiller because he was trying to protect unborn children.

Parker cites a 1993 Kansas Supreme Court case involving someone who trespassed on Tiller's property. The defendant tried to use the necessity defense, and the Supreme Court ruled that allowing that trial strategy would be "tantamount to sanctioning anarchy."

Parker says research shows the necessity defense in any kind of criminal case has been rejected more than 100,000 times nationwide.

Parker says there is "no logical reason to parade the defendant's beliefs on abortion in front of a jury to distract them from the facts of the case."

This is a point Parker made to me during Roeder's preliminary hearing. Prosecutors want jurors to only be thinking about the facts of the shooting that killed Dr. Tiller. Abortion is a controversial, murky issue they don't want jurors thinking about.

Prosecutors want jurors to think about a defendant who pulled a trigger and killed another human being, nothing else.

Parker also says the prosecution will be opposed to any defense that proposes a possible conviction for voluntary manslaughter.

Roeder is charged with first degree murder, which would carry a life sentence with the possibility of parole in 25 years. Voluntary manslaughter would carry far less time in prison.

Counsel has approached the bench...which means we had to cut our audio feed.

That's why you can't hear anything right now.

Court is into the morning recess. Court will be back in session at 11:00.

That's when we'll likely hear the defense's argument their trial strategy shouldn't be limited.

Sounds like there's a decent chance this hearing will be done before noon.

Court is back in session. We've already heard two of five motions, and we're well into the third.

If I remember correctly, the two remaining motions aren't the kind that'll draw lengthy arguments.

We'll see.

Defense attorneys are basically saying they've never come out and said they want to use the necessity defense (Roeder has, but attorneys haven't).

Mark Rudy says it's unreasonable for prosecutors to ask the judge to order the defense to limit its strategy so significantly.

Rudy says to order the defense to hold back evidence or strategy before they've even presented it "is effectively handcuffing and gagging us at the same time."

Judge Wilbert is making his ruling. He starts by saying the basic issue is...whatever defense is presented must be recognized by the law.

Judge Wilbert says Scott Roeder's confession to the media that he killed Dr. Tiller to protect unborn children was a "defense of others" argument in Roeder's mind.

Judge Wilbert says he's researched "defense of others," and he's prepared to make a ruling on a possible necessity defense.

However, the judge is giving defense attorneys the opportunity to do more research if they want before he rules.

Judge Wilbert says the primary precedent regarding the necessity defense in Kansas is the City of Wichita vs. Tilson in 1993. This is the case where the Kansas Supreme Court denied the necessity defense saying it was "tantamount to sanctioning anarchy" (the same case prosecutors cited).

Doesn't sound good so far for Roeder's hope to use necessity defense.

Judge Wilbert reads from the 1993 ruling. It says that it's clear that whatever evil or harm the defendant was trying to prevent must be a legal harm, not a moral or ethical belief.

Judge Wilbert has already talked about how the law makes it clear abortion is legal.

Again, sounds very likely Judge Wilbert's about to announce he won't allow the necessity defense as a trial strategy.

Judge Wilbert continues to read from previous rulings.

"Some people will be compelled to break the law based on their beliefs, but they must be prepared to face the consequences."

Judge Wilbert says, "Now, that was a ruling set against the backdrop of a question over property rights vs. abortion."

The Tilson case involved trespassing on Dr. Tiller's property in 1993.

"We've now elevated that to taking a life to save a life in abortion?" says Wilbert.

Judge Wilbert now goes into the self-defense theory. He says it's clear this isn't a case of self defense, but the defendant's perceived defense of another.

There was no imminent threat as Dr. Tiller served as an usher at his church.

Okay, I'm back.

Just before the noon hour, Judge Wilbert announced he wasn't making an official ruling on the prosecution motion to ban the necessity defense at trial.

However, he did say, "I think I've made it pretty clear I don't consider it a viable option for this case."

What does that do here?

This is a little less than what prosecutors were likely hoping for. They hoped for a straight ban of the necessity strategy at Roeder's trial.

The judge said he'd try to keep an open mind, but coming out and saying he doesn't consider it a viable option doesn't leave much of a crack in the door.

Court is done for the day. Judge Wilbert and attorneys were able to wrap up all of the motions before the lunch break.

Thanks for joining me for this morning's coverage of the Roeder motion hearings. We'll have stories tonight on Eyewitness News at 5:00, 6:00, and 10:00.

Just ran into prosecutor Kim Parker. Says judge calling necessity defense not viable is "exactly what we wanted."