The errors in the trial of Dr. George Tiller's killer.

The errors in the trial of Dr. George Tiller's killer.

The errors in the trial of Dr. George Tiller's killer.

The law, lawyers, and the court.
Jan. 29 2010 3:14 PM

Murder He Wrote

A jury convicted Scott Roeder of killing Dr. George Tiller after a rocky trial.

Scott Roeder. Click image to expand.
Scott Roeder

A Kansas jury convicted Scott Roeder of the murder of Dr. George Tiller today after deliberating for only 37 minutes. The verdict is a big relief, and not just for pro-choice advocates who supported Tiller as one of the rare doctors in the country who did the latest of late-term abortions. It also straightens out a crooked reading of criminal law that threatened to derail Roeder's trial.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

When the trial began earlier this month, the presiding judge, Warren Wilbert, said he might let the jury consider convicting Roeder, who admitted on the stand to killing Tiller, of voluntary manslaughter rather than murder.

On Thursday, Wilbert came to his senses and ruled out manslaughter. This was the right decision, but his hesitation had already done some damage. Before Wilbert ruled that the jury may not consider a charge of voluntary manslaughter, he let Roeder explain at some length why he thought he was justified in killing Tiller. This was supposed to go to Roeder's motive, the judge said. But motive is for detective stories, not murder trials. The judge created a precedent for turning the courtroom into a vehicle for Roeder to explain his extremism. A trial that should have been a straightforward reinforcement that murder is the deliberate taking of human life instead will be remembered in part as the forum for justifying why a person's life can be sacrificed to save a fetus.

Roeder took the stand at 11:30 a.m. on Thursday as the sole witness testifying for his defense. Asked whether he disputed any of the state's testimony against him, he said, "No." This testimony included eyewitnesses who'd seen him shoot Tiller, forensic evidence tying him to the gun used for the crime and more. His defense lawyer then asked, "On May 31, 2009, did you go to the Reformation Lutheran Church and shoot and kill George Tiller?"

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"Yes," Roeder answered.

Under Kansas law, the only question left was whether Roeder killed Tiller "intentionally and with premeditation." Later in the day, the prosecution easily proved that part of its case, verbally leading Roeder through the way he'd scoped out the church to figure out where to park and backed in for an easy exit, the way he'd considered killing Tiller on other dates, and the way he'd also thought about cutting off his hands with a sword. (After the killing, he bought a pizza.)

But before that, Judge Wilbert has opened a space to explore the manslaughter charge. Kansas law allows a manslaughter conviction for an intentional killing that results "from an unreasonable but honest belief that deadly force was justified in self-defense." The self-defense part extends to the killing of others, Alexa Kolbi-Malinas, staff attorney for the ACLU Reproductive Freedom Project, explained to me, "if you, had you been in my position, could have killed to defend yourself. As in, you weren't looking, but I saw a gun pointing at you, and so I used deadly force to protect you."

The proper interpretation of this part of the Kansas law, the prosecution and the ACLU argued, based on how the statute has been used in previous cases, involves a killing that is based on a belief that's honest but mistaken. As in, "I see someone holding a gun to your head, and I kill him to save you, but then it turns out you were on a movie set," Kolbi-Malinas says. "Or I kill someone because I see him go to stab you with a knife, but it's really a comb." This has nothing to do with the pernicious notion that murder can be justified based on political ideology or even paranoia. How could it? That would open the door to every terrorist to claim that the deaths he causes now will save more people later.

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But since Judge Wilbert hadn't made all this clear, Roeder was allowed to elaborate on why he committed his crime. (For video clips and a riveting step by step account, check out Ron Sylvester's story for The Wichita Eagle.) Roeder got to explain that his opposition to abortion strengthened after his religious conversion. And he was allowed to answer this irrelevant question from his lawyer: "So what are your feelings on abortion?"

"From conception on, it is murder," Roeder argued. "It is not man's job to take life. It is our Heavenly Father's."


Finally, Roeder's lawyer led Roeder through anti-abortion protests he'd participated in, and his feeling that they were futile. "Did you decide that it was incumbent on you to do something?" the lawyer asked. Roeder answered:

There was nothing being done. And the legal process had been exhausted. And these babies were dying every day. And, uh, I felt that if, if someone did not do something he was going to continue aborting children so I felt that I needed to act, and quickly, for those children.

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Also, later, in a phrase that mirrors the language of the state manslaughter statute: "My honest belief was that if I didn't do something they would continue to die."

None of this has anything to do with whether Roeder committed murder. Now that the judge has decided against allowing a manslaughter charge, he should tell the jury to disregard Roeder's testimony about abortion. But we can't know whether juries always follow such instructions. And even if Roeder is sentenced to life, as other murderers of abortion doctors have been, this time the defendant got to calmly put abortion on the stand, and with the imprimatur of the court argue that he acted in the honest belief that he had no choice. Abortion providers already have plenty of reason to worry about their safety, as sociologist Carole Joffe details in her instructive and memorable new book, Dispatches from the Abortion Wars. They didn't need this boost for the vigilantes.

It could have been worse. The defense also tried to call former Kansas Attorney General Phill Kline, who notoriously tried and failed twice to prosecute Tiller. The idea was to show that Tiller's abortions were legally suspect. Judge Wilbert listened to Kline without the jury present and said no.

But in ruling out the manslaughter charge, the judge stuck to technical grounds: Manslaughter requires proof that the killer stopped "the imminent use of unlawful force," the judge said. "There's no imminence of danger on a Sunday morning in the back of a church," Wilbert said, and "in the state of Kansas, abortions are legal."

True enough, but Judge Wilbert didn't say what he should have known from the start: Under the law, Roeder's opposition to abortion could never justify this crime. According to the Washington Post, the judge has a reputation for being fair, but in 2008, during a tight race for re-election, he paid Kansans for Life $75 to have his name listed in a newsletter ad that read: "The Kansans for Life PAC urges you to vote for, work for and pray for the following pro-life candidates." Maybe Wilbert's personal opposition to abortion has nothing to do with how he handled this case. And in the end, the jury reached the only verdict the evidence allowed.  Still, along the way, this trial may have done harm.