In this July 28, 2009 file photo, Scott Roeder attends his preliminary hearing… (Jaime Oppenheimer / Associated…)
Wichita, Kan. — A district judge ruled Tuesday that the man accused of killing abortion provider George Tiller would go on trial here next month, but he disallowed use of the "necessity defense."
Judge Warren Wilbert said he would "leave the door open" for Scott Roeder to present other evidence and arguments that he killed the Wichita doctor in the belief that he was saving the lives of fetuses. That means Roeder's public defenders could ask jurors to consider crimes less than first-degree premeditated murder.
Kansas law, for example, defines voluntary manslaughter as the "unreasonable but honest belief that circumstances existed that justified deadly force." A conviction of voluntary manslaughter would carry a sentence of fewer than 10 years in prison for Roeder, compared with a life sentence for murder.
But Wilbert said he would not let Roeder use a necessity defense -- in which a defendant claims that he or she broke the law to prevent a greater harm. Roeder has said he killed Tiller to save the lives of the unborn.
The necessity defense, the judge said Tuesday, is not recognized under Kansas law. But even under common law interpretations, Wilbert added, the act would have to stop someone else from committing a crime. That wasn't the case with Tiller, Wilbert said, because abortion is legal.
The judge also said he might limit what the defense can say in opening statements, and indicated it would be difficult to allow testimony indicating Roeder was acting in defense of others because the law requires an "imminent threat."
Public defender Mark Rudy told the judge that prosecutors were trying to "muzzle" the defense.
"It has the effect of handcuffing and gagging us at the same time," Rudy said.
Wilbert denied a motion to move the case outside Kansas' Sedgwick County, based on defense claims that news coverage had made it impossible for Roeder to receive a fair trial.
Some 300 potential jurors will be summoned to the courthouse beginning Jan. 11 for the trial. That group will be whittled to a pool of 42, Wilbert said. From that, lawyers will pick 14: the 12 jurors who will decide the case and two alternates.