12/23/2015 First Motion: (by defendant)Kansas' Minimum sentences law is disproportionate and unconstitutional!
First motion, page 1, factual assertion #1 Roeder “put an end to the abortion practice of Dr. George R. Tiller
by killing him....” [Not, “slimebug fanatic Roeder murdered a doctor” - progress in the rhetoric war]
Proportionate punishments are central to the 8th Amendment. Scott’s sentence is disproportionate if
they are more severe than those of others convicted of similar crimes. Characteristics of the defendant are
part of the analysis: sentences against minors and defendants with low intelligence are lighter because
their culpability is less. [Is this leading to consideration for acting on principle rather than personal gain?] The nature of a sentence as “cruel and unusual” encompasses duration. It is “cruel and unusual” if it “shocks the conscience and offends fundamental notions of human dignity”. Or if more serious crimes are found with lesser punishments.
“Page 9, #36: The offenses in this case are motivated by Scott Roeder’s desire to save the lives of innocent unborn
children.
#37: Scott Roeder caused the absolute minimum of harm necessary to accomplish his goal of stopping abortions by
George Tiller. [In other words, these elements of the Necessity Defense are introduced as relevant, not to the Necessity
Defense which Wilbur censored 6 years ago, but relevant to the factor of “characteristics of the defendant” which
should be considered in reducing a sentence to a level below “cruel and unusual”.
#38: Scott Roeder has been making productive use of his time in prison.
#40 The defense hopes the court will pay careful attention to the character of the defendant.
Second motion, “To challenge the mandatory penalty statute”. (by defendant)
#20 KSA 21-4601 indicates the following critical language that should be considered in sentencing the defendant,
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance
with their individual characteristics, circumstances....”
#21 policy considerations...(1) the defendants history of prior criminal activity...(5) Whether there were
substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish
a defense; (6) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission; …
#22 These policy considerations, found in statute, provide a supplement to the considerations of the balance
between aggravating and mitigating factors.
#23 (The prosecutor wants the 50 year sentence to serve as a “statement” that would deter future crime)
#29 Using the sentencing of the defendant to "make a statement" (to others who might oppose abortion through
violent means) is not a permissible basis for a sentence.
3rd brief, page 18: Brief regarding prosecution jury selection
#1 excluding jurors because they are religious, prolife, or proabortion violates the Batson v. Kentucky
ruling. [Which is about race-based exclusion.]
In support of this theory, a 35 page (Count ‘em!) 35 page study was attached that proves popular support is
slipping for keeping abortion legal! [I do not find argument tying this together, showing what abortion’s
declining popularity has to do with discriminating against prolife abortions. Oral argument is scheduled for
this, so I assume Public Defender Mark Rudy will further explain there. I might guess that the study establishes
religious prolifers as what courts call a “discrete group” that is the target of discrimination.]
4th brief, p. 60, “Motion...for new trial”
This motion lists 21 very questionable rulings by Judge Wilbur during the first trial which are given
as reasons a whole new trial should be granted, or Scott should be acquitted. I would have thought that was
“water under the bridge”, since it was appealed and the Supreme Court heard these concerns and was unmoved by
them. But if the Public Defenders know how to bring them back to life, more power to them! Especially since,
among the 21, are the rulings by Wilbur censoring from the jury’s knowledge the “defense of others” and the
“voluntary manslaughter” defenses, whose elements include an inquiry into the humanity of unborn babies.
5th Motion, p. 65, “Motion for discovery conference”.
#16 KSA 21-6620(e)(3) provides:...evidence...shall include...any mitigating circumstances. (Even hearsay
may be presented) provided that the defendant is accorded a fair opportunity to rebut....Only such evidence
of mitigating circumstances subject to discover under KSA 22-3212 ...that the defendant has made known to
the prosecuting attorney prior to the sentencing proceeding shall be admissible....”
[So what “discovery” (questioning of witnesses and of the other side before trial) does the Public
Defender envision? From what I have read so far, it must be about the harm of abortion. It could be to insert,
into the record, the testimony which Judge Wilbur censored 6 years ago, such as records from the abortionist
proving how may babies he was scheduled to murder the next day, or the testimony of former Kansas Attorney
General Phill Kline about the abortionist’s own lawbreaking.]
6th Motion, p. 69, Motion for order that jury selection must not discriminate
The public defender anticipates:
#19 (jurors will be excluded) “based on race, gender, religion, or pro life belief/action.
#22 The prosecution will be unable to articulate a comprehensible religion neutral explanation for the strikes....
#23 ...unrelated to...the prolife issue.
#26 Members of the pro-life community are also a [legally re]cognizable group.
#27 The group is definable and limited by some clearly definable factor. Their belief is identifiable.
Their advocacy is identifiable. Their religious views make them identifiable.
#28 Members of the pro-life interest group share a common thread of attitudes, ideas or experiences.
They believe that life is sacred. They believe that unborn children are alive. They view abortion as killing.
They view abortion as wrong. They engage in advocacy and protest activities to stop abortion. They express
their points of view. Some hold their points of view to themselves and act in other ways in support of their views. (?)
#29 A community of interests exists among the group’s members ...such that the group’s interest cannot be
adequately represented if the group is excluded from the jury selection process. Exclusion of members of the
prolife community from jury service would leave a vacant view point in the deliberation room. It would be
difficult, if not impossible, to understand the facts of the case, from all relevant view points, without
some member of the pro-life community. Guaranteeing the exclusion of that community would assure that their
viewpoints could not be represented.
#30 The group members experience unequal, i.e. discriminatory, treatment, and need protection from
community prejudices. Active members of the community who protest and engage in confrontational advocacy
may be subject to arrest and restraint of their liberties under state and federal law.
#31 By treating members of the pro-life community, they are placed in a distinct group. [This is the kind of
legal language necessary to legally protect the equal rights of a group.]
#32 Members of the pro-life community merit equal protection analysis when subjected to peremptory jury strikes.
#35 (Ties prolife discrimination to racial and gender discrimination by proving, from the 35-page study,
that there is significant prolife support among women and blacks!)
#36 (In fact the support is so strong that prolife support, as a ground for a “strike”, could be a pretext
for excluding women and blacks!)
#38 (And a pretext for religious discrimination!)
#48 The abortion issue is so contentious, that by eliminating prolife jury panelists impartiality is compromised.
It is the contemplation of a heated deliberation, by jurors of all views, including those who are pro-life, that
will ensure impartial jurors. A juror who is partial from the commencement of the trial (such as one who is
pro-abortion) who also knows they are in an environment absent those holding views they oppose (because jury
selection was allowed to eliminate pro-life panelists) would be ripe for partiality.
Motion #6 p. 80 Opposition to a Hard 50 [years] sentence
and anticipating prosecution’s alleged “aggravating factors” [which the law says must be proved to justify 50 years
instead of 25]
#24 As the prosecution pointed out, this case is an act of political assassination. The target of that
assassination was the abortion provider George Tiller. If the politics is considered to be the exercise
of power-then the political action of George Tiller was the power of ending the lives of innocent unborn
children. Scott Roeder terminated that brutal exercise of power by killing George Tiller. [In other words,
if as the prosecution argues we should characterize this case as a “political assassination”, in order to
count that spin as an “aggravating factor” justifying a 50 year sentence rather than just 25 years, let’s
not overlook the “mitigating fact” that Tiller’s “political” action was “brutal killing”.]
#25 There was no other intended target.
#26 The angle of the discharged firearm, and targeting of the shooting to George Tiller’s head,
minimized the risk of any other person being shot.
#27 The firearm used was not a fully automatic firearm. The ammunition used was single projectile ammunition.
#28 The assassination took place in an area removed from the greater congregation.
#38 ...attempts to define heinous, atrocious, or cruel – in reference to evil – [because it was
done in a church, but where the actual killing was instant, with no lingering suffering] sets up a
completely subjective standard that is meaningless in application to this case, and contrary to the
method of objective standards intended for the criminal justice system.
Motion #7 p. 87 objection to hearsay, judicial notice, evidence by transcript, lack of confrontation of witnesses
(Any effort to have a jury consider only whether there were “aggravating factors” that made Scott’s action even
worse than just killing Tiller, without a whole new trial from scratch, would require this whole list of
unconstitutional procedures. The judge would have to tell the jury that Scott has already been convicted,
and give a version of the facts. Scott’s Public Defender wants a whole new trial if there is to be any
further trials at all.)
Motion #8 p. 91 to circulate a written questionnaire to the prospective jurors. This proposed questionnaire would go to jurors before they come to court. It would ask what they know, and what they think, about the Scott Roeder case.
States Response p. 100 about a new trial:
(Summary: When a supreme court “remands” back to the district court to hear just one isolated part of
the case, that is all the district court can deal with. They can’t do the whole trial over. Besides, there
are time limits. A request for a new trial has to be made within 45 days of the original trial.)
[This argument ignores the fact that the statute quoted is largely about a trial without a jury.
It ignores the fact that this new trial is the result of a Supreme Court ruling 4-1/2 years later.
It ignores the fact that a jury trial is required by the U.S. Supreme Court in this case, which creates a
puzzle not solved by the quoted statute, where substantial constitutional violations will result from
anything less than a new trial from scratch.]
States Response p. 104 about a jury questionnaire
(Additional questions are proposed for jurors, that are more intrusive.)
States response p. 115 to opposing hard 50 sentence and aggravating factors
(Summary: the Public Defender has guessed what our case for “aggravating factors” will be, but we haven’t
presented it yet, so it is premature to rule against it.) [This promises there will be brand new evidence of
aggravating factors that was not part of the original trial. I can’t imagine.]
State’s response p. 118 cruel and unusual?
...the defendant committed a well planned out, cowardly, political assassination of a defenseless man
in a house of God. This violent crime is of the most severe nature....His acts demonstrated an animus towards
our laws and legal system and total disregard for the rights and welfare of others who did not share his
extremist views. ...His “minimum harm” argument was rejected by the Kansas Supreme Court, which said (he
could have saved lives by sidewalk counseling).
(In response to Public Defender saying Roeder has been behaving in jail, the prosecutor posted a list of
infractions over the years, including the youtube of his conversation with me on Youtube, with a transcript
of what Scott said then.)
(Where the Public Defender asked the Court to observe Roeder’s “character”, the prosecutor said)
The evidence at trial established that character of the defendant is that of a cowardly, cold-blooded assassin
who killed a defenseless man in a church, and who values no other laws than those he deems appropriate.
State’s motion In Limine p. 137
(Summary: the prosecutor wants to censor anything) that would (1) constitute or bolster a claim that the
defendant was legally justified.... [OK, even if not “legally justified”, isn’t it at least a “mitigating
factor”?] (2) describe...abortions performed by Dr. Tiller...
The defendant may attempt to re-litigate his culpability for the murder through the re-sentencing procedure.
This would be inappropriate....
[This argument confuses the standard of allowing evidence for a legal defense during trial with the standard for
weighing evidence of a “mitigating factor” to balance an “aggravating factor” during sentencing. The law
cited by the Public Defender specifically said evidence that would fail to support a defense might still
support a mitigating factor.]
State’s response p. 142 about the hard 50 law being constitutional
(Prosecutor complained that the public defender failed to point out that one of its quotes was of a law that expired in 1993. But that isn’t true; that was the first thing the public defender acknowledged. After I noticed that I lost interest in reading the rest of the argument. Besides it’s getting late and I need to get this in the mail to Scott.)
States response p. 148 to demand for whole new trial rather than judicial notice, etc.
(Summary: Kansas law specifically allows hearsay at a sentencing hearing.