Roeder to testify soon as defense now presents its case By JUDY L. THOMAS The Kansas City Star

Roeder to testify soon as defense now presents its case

By JUDY L. THOMAS

The Kansas City Star

WICHITA | Tempers flared Wednesday when a judge said he would allow the man charged with killing abortion doctor George Tiller to tell jurors how he formed his beliefs about abortion.

Sedgwick County District Judge Warren Wilbert gave a glimpse of how Thursday’s testimony will go during a hearing after prosecutors wrapped up their case on the fourth day of the trial. The defense will begin presenting its evidence Thursday.

Both the judge and attorneys exchanged heated words while arguing over upcoming testimony.

“Scott Roeder can testify to his personal beliefs, and the court’s prepared to give him some pretty wide latitude, and I’m sure he’s not going to paint Dr. Tiller in a very complimentary fashion,” Wilbert said. However, he added, “I want to re-emphasize, we are not going to make this a referendum on abortion.

“We’re not going to discuss partial-birth abortions, we’re not going to discuss late-term abortions and actual medical procedures. But his personally held beliefs in general about abortion, whether it’s harmful, whether it terminates a viable baby, he’s going to get to testify to that.”

Roeder, 51, of Kansas City, is charged with first-degree murder in the May 31 death of Tiller, one of a handful of doctors in the country who performed late-term abortions.

Roeder has admitted to reporters and in a court filing that he killed Tiller, saying it was necessary to save unborn babies.

A hearing on a motion to quash a defense subpoena was held after the prosecution wrapped up its case and jurors were dismissed for the day. The subpoena was issued to Barry Disney, an assistant Kansas attorney general who prosecuted Tiller in March 2009 on 19 misdemeanor counts. A jury found Tiller not guilty on all counts.

Disney argued that his testimony would not be relevant to Roeder’s trial and that his information was a protected work product.

During the hearing, Mark Rudy, one of Roeder’s attorneys, said the defense planned to build a case that Roeder killed Tiller because he had an honest belief that his actions were necessary to save unborn babies and that Roeder relied on Tiller’s trial to form those beliefs.

Wilbert said Disney’s testimony wasn’t necessary.

“We’re not going to bring in multiple collateral sources to somehow bolster his belief,” he said of Roeder. “Scott Roeder can testify until the cows come home about the trial and what it did to his beliefs, his thought process, how it frustrated him, angered him and pushed him to the brink to do what he did. But Scott Roeder has to do that.”

Rudy argued Disney’s testimony was necessary.

“We are obligated to build Scott’s beliefs to show you why he came to the honest belief that he needed to act the way he did,” he said. “We’re going to be handcuffed if we’re not allowed to demonstrate that.”

Wilbert told Roeder’s attorneys that the defense could ask the court to make jurors aware of Tiller’s misdemeanor case.

That angered Sedgwick County District Attorney Nola Foulston.

“The comments that the court has made are of grave concern to me,” she said. “The state does not believe any of this mish-mesh is relevant and material to the issues in this case. This is totally outside the scope of what a reasonable jury should be entitled to hear in the courtroom.”

Wilbert quashed Disney’s subpoena but said he couldn’t rule on the testimony of other defense witnesses until it’s offered.

Roeder didn’t attend the afternoon hearing. Friends said he was preparing to take the stand in his own defense.

“Scott is absolutely planning to testify,” said Dave Leach, an anti-abortion activist from Des Moines who visited Roeder in jail last night. “He’s been practicing with his attorneys.”

Leach said Roeder was pleased at how the trial was going and was surprised when prosecutors on Monday brought up the abortion issue during the questioning of a witness after avoiding the subject to that point.

The prosecution concluded four days of presenting evidence shortly after noon and jurors were dismissed for the day. Former Kansas Attorney General Phill Kline – who unsuccessfully tried to convict Tiller in 2006 — is expected to take the stand for the defense today.

Those on both sides of the abortion issue lined up early Wednesday morning to get a lottery ticket for the limited public seating in the courtroom.

Operation Rescue founder Randall Terry and members of his new group, Insurrecta Nex, stood outside the courthouse holding signs that said, “Tiller Killed 60,000 Children,” “Give Roeder a Fair Trial,” “Roeder’s Reason: The Babies,” and “Tiller killed 60,000 children.”

Wilbert has barred Roeder from using a so-called necessity defense, an argument that the killing was necessary to prevent a greater harm – saying such a defense wasn’t recognized by Kansas law. But the judge said he would allow Roeder to present evidence that he sincerely believed his actions were justified to save unborn children — a defense that could lead to a conviction on the lesser offense of voluntary manslaughter.

The judge said, however, that until the defense wrapped up its case, he didn’t know whether the evidence would be sufficient enough for him to instruct jurors that they could consider a voluntary manslaughter conviction. Wilbert said he would consider the testimony on a witness-by-witness basis.

Jurors on Wednesday heard from a forensics expert who testified that the cartridge case recovered next to Tiller’s body in the church and cartridge cases found where Roeder went target shooting at his brother’s residence were fired from the same .22-caliber gun.

A DNA analyst told jurors that blood found on Roeder’s left black tennis shoe had the same DNA profile as Tiller’s blood.

The prosecution’s 26th and final witness was Jaime Oeberst, chief medical examiner for Sedgwick County, who performed the autopsy on Tiller. As prosecutors displayed several autopsy photos, Oeberst described the injury as a “contact entry wound,” meaning the gun had been placed directly against Tiller’s forehead when fired. She said the cause of death was a gunshot wound to the head.

Meanwhile, the American Civil Liberties Union filed a friend-of-the-court brief on behalf of the National Abortion Federation, the ACLU, and the ACLU of Kansas asking the court to “preclude Roeder from arguing his anti-abortion beliefs in support of a lesser charge of voluntary manslaughter rather than first degree murder.”

“In a civilized society we cannot allow extremists to commit murder to advance their own religious or political beliefs,” said Vicki Saporta, President of the National Abortion Federation. “Scott Roeder should be prosecuted to the fullest extent of the law.”

Allowing the defense to argue that Roeder’s anti-abortion beliefs lessen his accountability for Tiller’s murder “sends an ominous signal to all vigilantes,” said Alexa Kolbi-Molinas, staff attorney with the ACLU Reproductive Freedom Project.

“We should all be concerned; having sincere political beliefs does not mean someone should be able to get away with murder,” she said.

More Roeder supporters showed up at the courthouse today, including Kansas City-area anti-abortion activists Eugene Frye and Anthony Leake. Both visited Roeder in jail Monday night.

“Scott is upbeat,” said Frye, who stood outside holding a large picture of a fetus at eight weeks’ conception. “He’s excited because he thinks his attorneys will do a good job and he hopes the judge will allow evidence that will result in the jury convicting him of voluntary manslaughter. That would be a victory for him.”

Michael Bray, an Ohio abortion foe who has done prison time for a series of abortion clinic bombings in the 1980s, also visited Roeder.

“He’s very calm and cordial and soft-spoken, humble,” Bray said. “He’s ready to move on and present the real issue. I’m sure he hopes to get acquitted. We prayed for him to rest and to be calm and confident and that God will work whatever he’s going to do.”

| Judy L. Thomas, jthomas@kcstar.com

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