A Tough Case to Make at the Tiller Trial

Weak Defense

Although the man who admits killing abortion doctor George Tiller can argue he committed voluntary manslaughter rather than murder, he is unlikely to succeed in doing so.

By Sarah Kliff | Newsweek Web Exclusive

Jan 16, 2010

On Wednesday, a Kansas Circuit judge ruled that Scott Roeder, the man who has admitted to killing abortion-provider George Tiller, could present a voluntary manslaughter defense. The judge's decision means that Roeder—who has been charged with first-degree murder—will be able to present additional evidence that, in a straightforward murder case, would have been barred from the courtroom. The decision could also impact sentencing: in Kansas, first-degree murder carries a life sentence with possibility for parole at 25 years. For voluntary manslaughter, the minimum prison sentence drops to less than five years (55 months).

The newly opened door to a lighter sentencing was largely met with disapproval and outrage among abortion-rights supporters. Warren Hern, a late-term-abortion provider in Colorado and friend of the late Dr. Tiller, called the decision a “death sentence” for himself and his colleagues. Writing for Slate (which, like NEWSWEEK, is owned by The Washington Post Company), Emily Bazelon called Judge Warren Wilbert’s decision “truly terrible.”

How does this change the trial going forward? After speaking with criminal-law experts and examining the evidence, the answer, it seems, is not much. While Roeder will be allowed to present evidence supporting a voluntary manslaughter defense, it seems all but impossible he will be able to receive such a conviction.

First, it's important to point out that Judge Wilbert has not decided whether he will instruct the jury to consider voluntary manslaughter as a charge. He has only decided to allow Roeder to present the defense. If it does not prove plausible, Wilbert can instruct the jury to disregard that charge and only deliberate on murder.

Then, there's a second, and much more central, point to consider: knowing what we do about Tiller's death, it's all but impossible for Roeder to build a defense fitting Kansas's definition of "voluntary manslaughter."

News reports have pointed out that, in order to create a voluntary manslaughter defense, Roeder must show that he had "unreasonable but honest belief that circumstances existed that justified deadly force." This is true, but only partially so. A closer reading of Kansas law shows that Roeder's defense has to do more than prove their client acted on "sincere beliefs," as one Huffington Post writer put it. To be convicted of voluntary manslaughter, Roeder must have believed his act to be "necessary to defend … a third person against such other's imminent use of unlawful force."

This means Roeder has to demonstrate not one, but four things. First, that there was a threat to a third person. Second, that the threat was imminent. Third, that imminent threat was the result of an unlawful act. And, fourth, that he honestly believed all of this. If Roeder fails to prove just one, his defense falls apart. Roeder will have to convince the jury that he believed the fetus counts as a "third party"; so far, no state has ever declared a fetus a person. Proving Tiller to have been an imminent threat also poses a challenge, given that he was shot at church, not at his abortion clinic. Even if Roeder could prove that he honestly believed the fetus to be a third party, and that Tiller was indeed an imminent threat, he would still have to convince the jury that he honestly believed Tiller was committing an "unlawful act." Such a belief, however, would have absolutely no basis: despite numerous attempts by former Kansas Attorney General Phil Kline, Tiller was never convicted of performing an "unlawful" abortion.

Roeder has made it known he disagreed with Tiller's work. But can he plausibly argue that he really believed it was "unlawful," when the Supreme Court and Kansas courts have affirmed abortion and Tiller's work, respectively, to be within the bounds of the law? Will jurors say he really, absolutely thought Tiller to be an imminent threat, as he handed out fliers in church?

As Joshua Dresser, a criminal-law expert at Ohio State's Moritz College of Law, told me, "He can get up and say, I honestly in my head believed this would prevent an imminent death of a fetus, who is a person, even if that is unreasonable. But if he says that, the real argument is mental illness." To argue a voluntary manslaughter defense, Roeder must convince jurors that he believed a number of things that, at best, are implausible (Tiller being an imminent threat) and, at worst, flat-out untrue (Tiller's work being "unlawful").

Could the mere introduction of Roeder's manslaughter defense bias the jury in his favor? It's possible and, admittedly, an unfavorable situation for abortion-rights supporters. But the overall impact will be relatively small. This is a highly publicized trial on a hugely controversial issue. Views on abortion, specifically views on those who decide to kill abortion providers, do not budge easily. Roeder has won himself more time to talk but, with the varied and strongly held opinions and biases his jurors will have, it's unclear how closely they will be listening.

© 2010