Scott Roeder court documents
Contents below: Background and summary of issues, Appellate briefs, News stories, Statutes (laws), Cases, Trial documents, Sentencing
information (Scott was sentenced to 50 years, twice the usual sentence, because Judge Wilbert considered shooting in a church lobby more eggregious than other
murders), an important unrelated prolife brief, legal opinions.
U.S. Supreme Court brief. Filing deadline set
by the courts: the 42nd Anniversary of Roe v. Wade, January 22, 2015.
"Questions presented" to the Supreme Court:
1. Has the fact that all unborn babies are humans/persons been sufficiently established by [the unanimous
all four categories of court-recognized finders of facts*] - juries, expert
witnesses, state legislatures, and Congress to invoke Roe's ruling that state legislatures and courts should
now protect their 14th Amendment rights? [*this bracketed qualification was not in the formal "questions presented"
but was central to the argument.]
2. Is the 6th Amendment right to trial by jury satisfied when the only contested issue of the trial is kept
secret from the jury and decided by the judge alone?
3. Can any interpretation of any element of any defense, which leaves no way to lawfully save thousands of lives
using the least necessary force, stand, once fact finders are allowed to remove all reasonable doubt that the many
lives saved were of humans, a.k.a. persons?
U.S. Supreme Court's notice that it will not hear Roeder's case.
Latest news: as of May, 2016, there will be at least one more hearing in this case, which could start the whole appeal
again. After the jury found Roeder guilty, trial Judge Wilbur doubled the sentence to 50 years, calling the crime
"aggravated". Later, the U.S. Supreme Court ruled that a finding that the crime was "aggravated" had to be made
by a jury, so that without another jury trial the sentence would have to be returned to 25 years. So Kansas is
on a new jury trial on whether the murder was "aggravated". But one defense against the charge that a murder
is "aggravated" is the existence of "mitigating circumstances". Won't Roeder be able to argue that the fact
that abortion is now legally recognizable as murder, since at least 2004, be a "mitigating circumstance"?
This trial will not be about whether Scott is innocent. He has been convicted of murder and those
appeals are "exhausted". This is about whether his sentence should be doubled because he saved babies in church,
making his crime especially "heinous". Therefore his claim that all unborn babies are humans with human rights does not
need to meet the demanding elements ["imminence", for example] of a "defense". Scott faces a much lower standard:
he only needs to show that the fact that the babies he saved were humans/persons
is a "mitigating factor" to be balanced against any supposed "aggravating factors". Although a win won't make
much difference for Scott personally - he would get out a little before an average life span instead of a little after -
the acknowledgment of a court that unborn babies are humans/persons as "established" by all court-recognized fact finders
would topple abortion's frail "legality" almost as effectively as a Supreme Court win.
Docket (A timeline showing who filed what documents when)as of May 17, 2016
Summary of the most interesting issues in the record
Verbatim copies of several interesting motions and responses in a single file
Documents, Briefs, etc. below the U.S. Supreme Court
BACKGROUND Scott Roeder killed abortionist George Tiller, and was convicted of
murder by the trial court in January, 2010. He is appealing the decision of the trial judge to exclude evidence and
pleadings that he killed Tiller in order to prevent imminent illegal physical
harm. This webpage is a collection of links to statutes, rules, decisions, and
articles relevant to the case. For more information contact Dave Leach. Business phone 515 244 3711.
I, Dave Leach, assembled all the pro se briefs, and wrote much of the content. I had expert, highly credentialed anonymous help. I had
different help preparing the trial brief than I did
preparing the appellate briefs. On "imminence", the concept of "the window of opportunity to prevent harm" being that which must be "imminent" was mine, but the
legal research to back it up was theirs. On Necessity, that was mostly mine. On 18 USC 1841(d), that was from the help I had with the trial brief. But
none of it was "you write about this and I'll write about that." It grew out of conversation. There were many phone calls with Scott to go over the legal concepts and
get his approval, there were conversations with lawyers about taking over our work but they wanted over twice the $25,000 our potential contributors
could afford (one offered to do it for less but to only present an "insanity" defense), and appreciated contributions tht covered the much lower costs
of just phone calls and printing.
ISSUES ARGUED: the "collapse" of abortion's fragile legality The most significant attack on the legality of abortion itself
is that federal law 18 U.S.C. 1841(d), by legally recognizing ALL unborn babies as "members of the species homo sapiens", said precisely what Roe v. Wade
said must be said for the legality of abortion to "collapse". This law was enacted on April Fool's Day, 2004, but is no joke. Numerous courts have declared it,
and its version in several states, as constitutional. This argument is developed in Scott's pro se briefs #3 and #8 under "Appellate briefs", and #10 under
This argument is applied to the defense of any stae law that outlaws abortion, in the article
"No Greener Light". (Future proposed "personhood" laws and amendments are "no greener light" than the bright green light
already in federal law for states to criminalize abortion as if Roe never existed. So why are prolife groups still raising money for more "personhood" laws,
before they will be ready to bring a case before the Supreme Court that directly addresses Roe's "collapse"?)
More details at www.Saltshaker.US/SLIC
ISSUE ARGUED: the legal authority to save lives regardless of the legal status of a killer
The "Necessity Defense" is a law found in every state under a variety of names. The U.S. Supreme Court recognizes its authority even in states
which do not spell it out in their laws. It sets aside the applicability of any law in any situation where its enforcement would cause
serious harm, injury, or death. For example, it is not a crime to speed to the hospital, to save your son who is profusely bleeding from a head wound.
A number of state supreme courts, including Kansas in Tilson v. City of Wichita, have said Necessity can't
justify saving humans from being killed by abortion because (1) who knows if they are human so that there is any greater "harm" in killing them
than in breaking the law in the way of saving them? (2) "Necessity" only works when the harm to be prevented is "imminent". (3) The killer has
special legal protection -- the Constitution itself protects his right to kill human beings! Roeder's pro se briefs argue that Roe itself
specifically refrained from granting any such license! The briefs also point out that whether the unborn are human beings, juries are
supposed to be the "judges of the facts" so it was "reversible error" to withhold from the jury the knowledge of the very existence of this issue, and this
fact issue was the only contested fact issue of the trial so withholding from the jury the only contested issue is to withhold from a U.S.
citizen his right to a trial (of the contested issues) by a jury.
ISSUE ARGUED: Tiller's abortions, scheduled the next day, were "imminent" according to Federal and Kansas case
law. No law, case law, or dictionary definition limits the word "imminent" to meaning "seconds away" or even "minutes away", as Judge
Wilbert did in Scott Roeder's trial. Federal case law gives examples of "imminence" that was days away in one case, possibly months away in another, and
who knows when in another. The essential meaning is the certainty that the harm will happen if steps are not taken to prevent it. The only reason imminence is even
a reasonable limit is as a way of measuring indirectly whether the defendant could have stopped it with a less violent alternative. The closer it is in time,
the less possible an alternative would have been.
Appellate briefs in the Kansas Supreme Court (briefs filed by the lawyers, and the "Pro Se Supplemental Briefs" filed directly by Scott Roeder himself)
- First brief of Appellate Defender (Scott Roeder's lawyer)Part 1 ---
Issues: The jury should have been told about Scott's
"Voluntary Manslaughter" defense. Censorship of it violated Scott's 5th Amendment "due process" rights. The trial should have been moved to another area.
Scott should have been allowed to tell the jury about his "necessity defense", "defense of others", and "intentional 2nd degree murder" defenses.
The "hard 50" sentencing law is unconstitutional because it doubles a sentence according to subjective criteria which need not be proved beyond reasonable doubt.
- Scott's application for permission to submit a Pro Se Supplemental brief
We tried to explain why Scott's defense could not be fully represented without the points he alone was willing to make.
- First Pro Se Supplemental brief filed by Scott Roeder himself
Both of Scott's witnesses were censored from the jury's knowledge.
Judge Wilbert wouldn't allow the jury to even know about Scott's key witness, former Kansas Attorney General Phill Kline, because he was "too credible"!
Because of the danger that he might “prejudice” the jury to believe the defendant’s beliefs, if not actions, were “reasonable”! That ain't right! Judge Wilbert's
other reason for not letting the jury hear Kline's testimony was that Scott's own testimony was enough to prove his point - a second witness would just
Imminence: Judge Wilbert assumed that the condition of Kansas' "defense of others" defense, that the
"unlawful force" prevented by the defendant be "imminent", always means considerably less than 24 hours away. Where is the authority for that
restriction? In the absence of any authority, shouldn't the jury have been allowed to decide as a matter of fact whether a danger is imminent?
What if the harm itself is 24 hours away, but the closing of the window of the only opportunity to stop it is only seconds away? Weren't Tiller's
scheduled unlawful abortions, in that context, "imminent"?
Necessity Defense: Judge Wilbert mischaracterized
City of Wichita v. Tilson, saying it made the Necessity Defense unavailable in Kansas. Instead, the court said they would save that
issue for "another day". Well, this is "another day". So will the Kansas Supreme Court now decide? Here are some reasons to decide Kansas needs
it, and law requires it.
- First response of "The State"
Issues: the court had no obligation to
let the jury hear a defense which it could not reasonably believe. Scott wasn't denied his constitutional right to a fair trial just because his
only witnesses and his only defenses were kept from the jury's knowledge.
Scott didn't need the trial moved; Wichita, where Scott shot the
abortionist in his church lobby, was not prejudiced against him.
City of Wichita v. Tilson said the Necessity Defense is unavailable
in Kansas, so the trial court was right to reject it. The trial court was right to reject the "Intentional 2nd Degree Murder" defense, ("Voluntary Manslaughter"),
since there was no evidence that the killing was not premeditated.
Sections #12-13 specifically responded to the pro se supplemental
brief's arguments about Voluntary Manslaughter and Necessity.
- Amicus ("Friend of the Court") filed by the ACLU/National Abortion Federation
there is no "necessity" to justify violence whose purpose is to obstruct the exercise of a constitutional right.
Voluntary manslaughter wasn't intended
to mitigate crimes based on political beliefs.
Even if Tiller committed unlawful abortions, that is irrelevant.
- Scott's application for permission to submit a second Pro Se Supplemental brief
- Scott's second Pro Se Supplemental brief
Issue: Should an American citizen have the right to present the defense of his choice in a court of law? "The State" brought up the Harvey case as authority that there are conditions for a compulsion defense. We
responded that not only are those conditions met, but the case affirms the right of a defendant to present the defense of his choice even if there is only the
slightest evidence for it. 3 months after this brief was filed, Scott's Appellate Defender amplified this same point from this same case.
We also showed from Harvey that "the State" was wrong in its mantra that Tiller's scheduled baby killings were
not "imminent" because they were 22 hours away - as if "imminent" can only mean 2 minutes away. In Harvey, the threatened harm avoided by the defendant's
lawbreaking was not even necessarily 22 hours away, but was only sometime, and not necessarily a certainty, in the indefinite future. Yet the Kansas Supreme Court
accepted the threat as "imminent".
We argued that "imminence" does not mean nearness in time, outside the context of certainty that a harm will happen
before any less violent way of stopping it is possible. The Appellate Defender later repeated and amplified this point also.
The ACLU offers a "straw dog". My argument is not that
my beliefs should govern courts, but tha federal law should - in this case 18 USC 1841(d). We respond to the ACLU's "straw man" argument, that Scott's defense is that his "sincere beliefs" entitle him to
break the law! Such absurdity was never his position! But rather, "I have really presented a multi-faceted, comprehensive defense, which I hope this
Court will address, rather than the absurd argument attributed to me by the ACLU and the State, which never entered my mind, that I must be found
innocent because I feel that I am innocent."
"The State" relies on an unpublished case that suggests my "real motive" is to stop all abortions, so therefore
my action can't be for the reason I argue, to stop unlawful abortions. We respond, "A lawful act is not made unlawful by the intermingling of good and bad
motivations, or, indeed, even by its motivation being entirely bad....If it be granted that a defense would lead to a defendant's acquittal because he
had to act to prevent a legal harm, his opinions about the non-legal harms prevented is irrelevant."
Another idea from Hollick is that I didn't need to shoot Tiller to save the babies he scheduled to kill; I
could simply have persuaded the mothers as they entered. "If I were to shoot a mass killer inside a school, defense-of-others would not be inapplicable
just because some of the threatened students had escaped through a window and I could have perhaps saved a few more that way instead of shooting the killer."
The ACLU is wrong to say that my action to stop unlawful abortions was irrelevant because I also stopped lawful abortions.
Roe allows Kansas'
requirement that the need for 3rd trimester abortions be attested by two doctors. The Kansas law was never struck down.
"The State" says
my belief that Tiller committed unlawful abortions was unreasonable because Tiller had been tried and not convicted. "The State" confuses standards of proof.
In prosecuting Tiller, the jury had to believe "beyond a reasonable doubt" that Tiller was guilty. It didn't. In prosecuting me,
"the state" has to prove "beyond a reasonable doubt" that Tiller was innocent! My jury has to believe "beyond a reasonable doubt" that none of
the abortions I prevented were "unlawful force". Thus a properly instructed jury, that thought the probability of Tiller's abortions being unlawful was
50/50, would have acquited Tiller, and would also have acquitted me.
As for the "hard 50" ruling, can any killing location be especially "heinous", when no other location was possible?
"The state" is crazy to count my thinking bout killing Tiller as a separate "crime" from killing him, making that my "prior criminal history"!
"I hope the Supreme Court justices will put aside whatever beliefs they may have about abortion and just follow the law.
On that, my defense depends."
- Second brief of the Appellate Defender
Issues: "The state's" Kansas cases about "imminence"
were where the future feared harm was only a possibility. Roeder's case is different because the future feared harm was scheduled: it was certain
that 22 hours later, several more babies would be killed. (This point reinforces the same point made in the pro se brief filed earlier,
that "imminence" is more about the certainty of harm if nothing is done now to stop it, than about how many minutes away it is, a definition
found in no authority. It adds to the argument, by observing that the dicta of the Kansas cases was appropriate to the facts of those cases,
but the facts of Roeder's case are different.)
"The State" cited the Shelley Shannon case of 1993 (Shelley shot Tiller in each of his arms), but the facts there are
different: Shelley had no reason to suspect Tiller's abortions were unlawful; Roeder did.
"Voluntary Manslaughter", whose sentence is only 2-5 years,
requires only evidence that Roeder had an "honest, if unreasonable, belief" that Tiller's abortions were unlawful. The evidence establishes that,
especially if we give it the benefit of the doubt, which we must do as we weigh whether the court can prohibit a man from being allowed to present the
defemse of his choice to the jury.
- Second brief of "The State" (As of April, 2013, still no 2nd brief or even "motion for extension of time to file" from "the state". Perhaps
"the state" is tired of all this arguing, and is dropping out, and the last three briefs allowed by Kansas law will never be written.)
- Final brief of Appellate Defender (Never written because "State" never submitted the second brief)
- Final brief of "The State" (Never written)
- Kansas supreme Court docket for Scott Roeder (A timeline showing who filed what documents when)
- KANSAS SUPREME COURT RULING with Dave Leach's comments
- The Wichita Eagle's roundup of everything related to Coverage of the trial of Scott Roeder in the
killing of Kansas late-term abortion doctor George Tiller.
- KWCH's trial
Abortion Battle, Fought to the Death", a long article in the New York Times
July 26, 2009 detailing Doctor Tiller's history.
- The June issue of the Prayer & Action News, which contains
notes taken during the trial, relevant Kansas Supreme Court rules, and the Kansas Supreme Court's model application for permission to file an amicus.
StatutesCh 21Article 34Crimes-Against-Persons.htm
- Kansas sentencing statute: ch21ar 46Sentencing.html
- Kansas self-defense and
defense of others statute: KS-ch21.3211.selfdefense.htm
- Kansas conspiracy statute: KS-ch.21.3302
- Kansas sentencing guidelines explanation and grid
- State stalking laws
- Kansas cases:
City of Wichita v. Tilson (1993)
Hunt (2003) and Carter (2007) and Lawrence (2006) and
White (2007) and
Vann (unpublished) and Hurt (2004) 278_Kan._676 and Bell, 2005, 280_Kan._358 and Rose, 1883, 30_Kan._501 and 284_Kan._312-2007
- Federal cases:
Stevens (1993) and Haynes (1998,
7th, Easterbrook) and Wofford (1997, 9th,
O'Scannlain) and Contento-
Pachon (1984, 9th) and Haney (2002, 10th)
Gomez(1996, 9th, Kozinski) and 323
F.Supp.2d 894 (W.D.Tenn.,2004)
- "The Bar's Extraordinarily Powerful
Role in Selecting the Kansas Supreme Court," Stephen Ware, 18 Kansas
Journal of Law & Public Policy 392 (2009)
- "When Murdering Hands Rock the
Cradle: An Overview of
America's Incoherent Treatment
of Infanticidal Mothers,"
Brenda Barton, 51 S.M.U. L. Rev. 593 1997-1998.
- The 18th Judicial District Court of
Kansas in Sedgwick County and Kansas court record search site
Kansas appellate court rules (procedures, brief formats, brief advice, and so
Kansas court record search site and
Kansas appellate court case search
The Tenth Circuit and
Federal courts, District of Kansas
Trial Documents (The most interesting are boldfaced.)
- Court log of 30 hearings and 160
- Nov. 20 Defense Response
- Pro-se brief filed by Scott Roeder himself.pdf
- Dec 22. Judge's ruling denying
Necessity defense, other rulings too.
- ACLU and Nat. Abortion Federation amicus.pdf
- 02.05.motion.for new.trial
- 01.28. Judge
Wilbert quoted in a news story as denying the Manslaughter defense.
Sentencing: The "Hard Fifty"
- Kansas sentencing statute: ch21ar 46Sentencing.html
- "The Bar's Extraordinarily Powerful
Role in Selecting the Kansas Supreme Court," Stephen Ware, 18 Kansas
Journal of Law & Public Policy 392 (2009)
- A news article on the sentencing and possible
Cliff Zarkowski Personhood Brief Corpus Christi attorney Cliff Zarkowski
defends himself for "trespass" on a baby killer's property. He attacks abortion's alleged legality several
ways. He brings in Plyler v. Doe, the immigration case, to prove the rights of children who will one day be citizens.
From probate law, he shows how a court ruling is invalid where some of the parties to the case are
unrepresented; in this case, the unborn. Where Roe said the alleged failure of states to protect
the unborn as fully as the born proves the unborn are not "persons in the whole sense", Zarkowski
points out that by that reasoning, any state's failure to protect anyone's rights proves those people have no
rights; therefore, it is logically impossible for any state to be found guilty of violating constitutional rights!
He attacks the very integrity of Roe by showing that the very cases and articles Blackmun relied on say the opposite!
Concerning Stare Decisis, he quotes a case which says it is not an end in itself; that the need to avoid turbulence in case law
must be balanced with the need to decide matters rightly. And much more.
- Jacob Sullum's Tiller's Killer:
Is it wrong to murder an abortionist? at Reason, June 2009.
Is it wrong to murder an abortionist? William Saletan, Slate, Jun 01,
- George Tiller Was No Hero – And Neither Was Scott
Roeder, Operation Rescue, February 2, 2010.
- A discussion of "Imminence" as
a legal concept.
- A discussion of Trial by jury and due
process in connection with justification defenses.
Roeder-Resources Page .
- The Dr. Tiller Murder: Deconstructing the Scott Roeder
- Justifiable Murder? Who Is Scott Roeder?
Gene Lalor, March 1, 2010, American Conservative Daily.
Kansas Supreme Court Blog
"What the Judge Ate for Breakfast" Wichita Eagle legal blog
" Issues in Brief
Late-Term Abortions: Legal Considerations" from the pro-abortion Gutmacher Institute
- The American Catholic Lawyers Association, Inc., ACLA
- What Made George Tiller So Special? He did the abortion procedures that other doctors couldn't or wouldn't do.
By Brian PalmerPosted Monday, June 1, 2009, Slate.
- March 31, 2009
How the 'not guilty' verdict was secured for abortionist George Tiller
By Jenn Giroux on the 2009 acquittal of Tiller on abortion charges.
- Pastor Mark Holick Holds Wichita Pastors Feet to the Fire
Pastor Mark Holick with foreword by Rev. Flip Benham • 6/11/2009
- JPay prisoner email and money site
- Defender blogs list
- Kansas Federal Defender blog and
- How Appealing .
For a page of notes on details, click on web