Defining Murder DownWhy does Dr. Tiller's killer get to argue that his alleged crime was justified? By Emily Bazelon Posted Wednesday, Jan. 13, 2010,

Defining Murder DownWhy does Dr. Tiller's killer get to argue that his alleged crime was justified?

By Emily Bazelon

Posted Wednesday, Jan. 13, 2010, at 11:31 AM ET

The trial of the accused killer of Dr. George Tiller looked extremely simple. A man walks up the steps of a church, pulls out a gun, and shoots another man in the face. He planned the whole thing after allegedly stalking Tiller. We call that murder, as we should, and after a suspect is convicted, we sentence accordingly.

Scott Roeder

But on Tuesday, the judge trying Scott Roeder, Tiller's accused killer, left dangling the possibility that Roeder can show that he committed not murder but voluntary manslaughter. To show this, Roeder will be allowed to argue that he was justified in shooting Tiller because he was trying to "protect the unborn." This is a truly terrible interpretation of the criminal law that would allow for all kinds of bogus political defenses to murder, handy for pro-life vigilantes as well as any terrorist who believes he is on a holy mission to save lives.

What is Judge Warren Wilbert thinking? He seems to have gotten tangled up in the words of the governing Kansas statute. In 1992, Kansas extended the definition of voluntary manslaughter from an intentional killing "upon a sudden quarrel or in the heat of passion"—the traditional scope—to an intentional killing that results "from an unreasonable but honest belief that deadly force was justified in self-defense." This is called an "imperfect self-defense." It is "imperfect" because it cannot win you an acquittal. But it can get you a reduced sentence, by giving the jury the option of convicting you of the lesser charge.

Judge Wilbert said he wouldn't rule on whether voluntary manslaughter could apply until he'd seen Roeder's evidence. But this is a mistake: The word unreasonable in the statute is unhelpfully capacious. It's hard to imagine what category of killers the statute is trying to single out. But this law cannot possibly give comfort to Scott Roeder. It cannot mean that the mere fact that a killer had a subjective ideological belief that his crime was justified in the name of saving life knocks down the charges against him from murder to manslaughter. There has to be a limiting principle here. At the very least, it has to exclude planned acts of murder. And Roeder and every terrorist have to be on the other side of it.

Harvard law professor Alan Dershowitz calls the interpretation of imperfect self-defense at Roeder's trial "an absurd approach to the law that would open the door to the most dangerous extension of the defense of imperfect necessity." He gave me this illustration:

Eight days after Prime Minister Yitzhak Rabin was killed, there was a knock on my door. It was the family of the person who had killed him, asking if I'd come to Israel to defend him. They wanted me to argue he was justified in committing the killing because it would save many lives. They cited Maimonides and the concept of the rodef—the chaser after justice. I politely threw them out of my house.

Terrorists also argue that they're saving lives. The implications of allowing any evidence of a theory of life-saving, as a defense for first degree murder, would destroy our legal system. It would turn law into politics.

Judge Wilbert seems to think that Roeder's "unreasonable but honest belief" can constitute manslaughter if he can show that he was trying to forestall deaths that were imminent. This suggests that Roeder's act wasn't murder if, for example, Roeder knew the doctor was scheduled to perform an abortion within—what time frame? Tiller was killed in church on a Sunday. How imminent could Roeder's conception of harm have been? How can the law possibly turn on the answer to this cock-eyed question?

In reading up on how the Kansas Supreme Court has interpreted the "unreasonable but honest belief" part of the manslaughter statute, I don't see support for Wilbert's interpretation. To begin with, the imperfect self-defense is usually allowed only for unintentional killings. That's the approach of the Model Penal Code, which many states follow. Kansas and apparently a few other states allow this partial defense for intentional killings as well, according to a 1997 decision of the Kansas Supreme Court, State v. Ordway. The reasons for this aren't so clear. Ordway talks about "the practical realities of plea bargaining and jury verdicts" and continues, "Often it is unjust to prosecute and convict such killers of murder and it is equally unjust to acquit them."

This isn't much of an explanation. Isn't that middle-ground manslaughter, traditionally and narrowly defined as a spur of the moment, unmeditated murder? Why add another confusing middle-ground gradation? But even if we accept the statute, the Kansas Supreme Court ruled in Ordway that imperfect self-defense can't be based on psychotic delusions or mental illness, because the statute doesn't mention those defenses. This statute certainly doesn't say anything about politically motivated vigilante killings, either. So why add that even more far-out interpretation into the law?

Surely the Kansas appeals courts will set the judge straight if he doesn't fix this himself by the trial's end. But by then, harm will have been done. Scott Roeder will get to put on testimony about why he thought he was justified in killing Tiller. He will have a show trial in which he can present himself as a martyr to the cause of the unborn. Judge Wilbert has repeatedly insisted that he won't let this trial become a trial about abortion. But that's exactly where his ruling is taking us.

COMMENTS:

Bazelon writes as though the judge ruled that the jury would receive a voluntary manslaughter instruction. In fact, the judge made no such ruling. The judge made a procedural ruling. All he said was that he's not going to decide what instructions the jury receives until after the evidence is in. This isn't controversial. At all.

The prosecution is still free to argue that certain evidence is irrelevant to any potential voluntary manslaughter defense, and will likely get a ruling at the conclusion of evidence that no voluntary manslaughter instruction will be given to the jury.

There is, of course, the danger that the defense will try to use this nonruling as an excuse to introduce irrelevant evidence, or to create a sideshow. This is a valid concern and may make the judge's ruling a bad one, and I think there's an interesting debate to be had about it. But that debate should involve some reference to Kansas procedural law, and it's an entirely different question than the one Ms. Bazelon seems to be answering.

-- dudeguy

The judge is pointing out that he will consider what instructions to give the jury after he's heard the testimony. If he lets in extrinsic evidence about the "evils" of abortion, then he's wrong. But he can't stop the defendant from testifying why he did the act. Then he'll decide if manslaughter is an option for the jury. Counsel shouldn't argue in opening statement; the purpose there is for counsel to state what the evidence will (or might) show. If the judge decides not to instruct on manslaughter, then counsel can't argue it.

Dershowitz is correct that there's a lot of dangerous mischief if indeed that's the way it works. But I'll bet he's argued in favor of the necessity defense in other contexts. Operation Rescue, when they were committing acts of civil disobedience, tried that one, usually for naught.

-- Algernon

Emily Bazelon's thoughtful article on the potential absurdity of Dr. Tiller's killer being able to secure a manslaughter conviction rather than be convicted of murder points the finger at Judge Wilbert, suggesting then, in even considering the prospect of a manslaughter conviction, the judge is way off beam. But surely the judge is right, given the wording of the statute? If I understand it correctly, the statute allows the defence of an 'an unreasonable but honest belief that deadly force was justified in self-defence' to reduce a murder charge down to manslaughter if the defence succeeds. Is the problem not the statute, rather than the judge? The wording of the statute has both an objective (unreasonable) and a subjective (honest) component. The objective component will not allow the perpetrator of a homicide to secure an acquittal and escape the consequences of his action, but the subjective component surely gives the accused person the ability to argue that they honestly believed that the use of force to be justified in self-defence (and self-defence has long been accepted as including the defence of another). It seems to me that the judge is correct in law in saying that he will not rule on the honest belief aspect until he has heard evidence from the accused. If he allows the defence, then presumably under the US system, as here, it would be a matter for the jury having heard the evidence to decide whether the accused's honest belief was reasonably held? I hold to the view that the common sense of juries can be relied on in specific cases.

-- Oliver Costello