Notes on the Scott Roeder Case (April 28, 2010) ---------------------------------------------- http://www.operationrescue.org/archives/george-tiller-was-no-hero-%E2%80%93-and-neither-was-scott-roeder/ Disciplinary action was sought through the Kansas State Board of Healing Arts, but was dismissed by a corrupt board run by Larry Buening, one of Tiller’s best friends. A grand jury was hampered by a district attorney’s office that misled them as to the scope of their investigatory powers. They reluctantly failed to indict. Tiller had made a lot of money in the late-term abortion business and liked to spread it around to politicians who could protect him. His ProKanDo PAC was once the largest political action committee in Kansas. His largess earned him an invitation to the Governor’s mansion where he and his staff were entertained by then Gov. Kathleen Sebelius, who now serves as Secretary of Health and Human Services. Meanwhile, Attorney General Phill Kline was blocked every step of the way in his investigations into abortion industry wrongdoing. Time fails us to list the events that led to the travesty of justice that occurred by the State’s failure to prosecute 30 criminal charges that were brought by Kline only to be dismissed on dubious jurisdictional grounds. (Read a time line of events for a clearer picture of the often-complex efforts to bring Tiller to justice.) A Legislative committee considered a subpoena for Kline’s documents so that the truth about the horrific and illegal nature of Tiller’s late-term abortion business could finally see the light of day, but no subpoenas were ever issued. Six months later, an interim legislative committee convened to hold hearings about late-term abortions in Kansas. Those hearings produced little fruit. However, during that hearing, Michelle Armesto-Berge came forward and testified of her appalling late-term abortion experience at Tiller’s in 2003, where she received an unwanted abortion after being coerced by her mother. Armesto said that because she was late for her appointment, the abortion began before she was allowed to sign her consent forms. She never saw the second physician that was required for all post-viability abortions and was shocked to learn that her 26-week old baby was falsely diagnosed as “non-viable” to avoid the second physician law, even though she and her baby were perfectly healthy. Finally, in June, 2007, Tiller was charged with 19 misdemeanor counts of committing illegal late-term abortions without the second signature of an unaffiliated Kansas physician. Buening and his cohorts were forced to resign in disgrace from the KSBHA, and were replaced with a Board that eventually moved to revoke Tiller’s medical license. While those cases wound their way through the legal system, Operation Rescue learned of another botched abortion patient who was willing to tell her story from her hospital bed. Patient S. sought an abortion at Tiller’s in September, 2008. It was almost the last thing she ever did. Patient S. has told of her abortion where she contracted a fever of 104 degrees and was held in a room against her will for four hours, sick and without care. Tiller attempted to send her away – even though her abortion was in progress – because she expressed displeasure with the way she was being treated. When she finally received the abortion, she suffered respiratory and cardiac arrest. She developed an infection from a dirty oxygen mask used during the medical emergency. After being revived, Patient S. was taken to the hospital in Tiller’s private vehicle and was told to keep her IV bag down so that protesters would not see it. To add to the emotional pain, Patient S. told Operation Rescue that she felt her baby move just prior to the abortion and is convinced that her baby was alive. If true, her abortion would have been illegal. In March, 2009, Tiller was acquitted of the 19 criminal charges during a trial that took the jury less than 25 minutes to decide. But within minutes of that verdict, the Kansas State Board of Healing Arts, newly under the direction of Jack Confer, issued a statement that the Board was proceeding with eleven similar charges that could have led to the revocation of Tiller’s medical license. Confer assured the public that the KSBHA worked under a different burden of proof than the criminal courts and that the outcome of the criminal case would have no effect on the KSBHA’s case. The timing and content of that release sent a strong message to the community that they could expect a different outcome from the KSBHA case. That message, along with indications that Tiller had taken steps to disband ProKanDo prior to his criminal trial and other intelligence gathered by Operation Rescue, led to the logical conclusion that either Tiller would soon have his license stripped by the KSBHA, or that he would retire in order to avoid the humiliation of revocation. We were cautiously optimistic that Tiller’s infamous late-term abortion mill would be closed within months – through peaceful, legal means. Then came Scott Roeder, who acted in frustration borne out of ignorance. He was either unaware or did not understand that the KSBHA was about to act. He shot and killed Tiller on May 31, 2009, claiming that all legal avenues had been exhausted and that his action was necessary to save the lives of pre-born babies. ... The KSBHA was about to act. Roeder was further ignorant that Patient S. had obtained legal counsel and was within weeks of filing a civil suit against Tiller for her botched abortion injuries that could have devastated him financially. Maybe Roeder was also unaware that in the past five years, Tiller’s late-term abortion business had dropped by 54 percent. ------------------------------------------------- 21-3211 Chapter 21.--CRIMES AND PUNISHMENTS PART I.--GENERAL PROVISIONS Article 32.--PRINCIPLES OF CRIMINAL LIABILITY 21-3211. Use of force in defense of a person; no duty to retreat. (a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force. (b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. (c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person. ------------------------------------------------- 21-3216 Chapter 21.--CRIMES AND PUNISHMENTS PART I.--GENERAL PROVISIONS Article 32.--PRINCIPLES OF CRIMINAL LIABILITY 21-3216. Private person's use of force in making arrest. (1) A private person who makes, or assists another private person in making a lawful arrest is justified in the use of any force which he would be justified in using if he were summoned or directed by a law enforcement officer to make such arrest, except that he is justified in the use of force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another. (2) A private person who is summoned or directed by a law enforcement officer to assist in making an arrest which is unlawful, is justified in the use of any force which he would be justified in using if the arrest were lawful. ------------------------------------------------- 21-3218 Chapter 21.--CRIMES AND PUNISHMENTS PART I.--GENERAL PROVISIONS Article 32.--PRINCIPLES OF CRIMINAL LIABILITY 21-3218. No duty to retreat; exceptions. (a) A person who is not engaged in an unlawful activity and who is attacked in a place where such person has a right to be has no duty to retreat and has the right to stand such person's ground and meet force with force. (b) This section shall be part of and supplemental to the Kansas criminal code. ------------------------------------------------- 21-3403 Chapter 21.--CRIMES AND PUNISHMENTS PART II.--PROHIBITED CONDUCT Article 34.--CRIMES AGAINST PERSONS 21-3403. Voluntary manslaughter. Voluntary manslaughter is the intentional killing of a human being committed: (a) Upon a sudden quarrel or in the heat of passion; or (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto. Voluntary manslaughter is a severity level 3, person felony. ------------------------------------------------- Under Kansas statute 65-6703, later-term abortions are legal if “continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman,” where “major bodily function” includes mental functions and illegal otherwise. They are a “Class A nonperson misdemeanor” if the mother consents to the killing, and first-degree murder if she does not (a peculiar contrast, but that’s what the law says). Doctor Tiller had for years been the focus of abortion protests and harassment, both legal and illegal. Once he was shot in the arms, but he continued his practice, with bodyguards. One Kansas Attorney-General tried to prosecute him, and two judges ruled there was probable cause, but a third judge ruled that only the local prosecutor had jurisdiction and the case had to be dropped. The next attorney-general said that he wouldn’t pay attention to any evidence of wrongful abortion so long as two doctors signed off on it. A local prosecutor did bring Tiller to trial because the second opinions he obtained to satisfy the state law were from a disgraced doctor who had been stripped of her right to even write prescriptions and had no source of income except the abortion-okaying fees from Tiller. A jury acquitted, however, finding that the second doctor’s financial dependence on Tiller was not clear beyond a reasonable doubt. In 2009, Scott Roeder shot and killed Doctor Tiller while Tiller was attending church. Other churchgoers tried to stop him from escaping, but he brandished his gun and left, only to be captured shortly afterwards. Roeder wished to plead the Necessity Defense under the following Kansas Statute 21-3211 : (a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force. (b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. Roeder’s public defenders refused to raise this defense, so he raised it himself, “pro se”, but the judge turned him down. His lawyers did try to get the charge reduced to voluntary manslaughter, which is, under statute 21-3403, killing with “an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211”. The judge looked at the evidence that Roeder had for that “unreasonable but honest belief” but decided to block the jury from seeing it. He also decided not to instruct the jury that voluntary manslaughter was an option. Since Roeder admitted on the witness stand that he killed Doctor Tiller, the jury quickly convicted him. The judge’s claim was that even if Roeder were allowed to bring into evidence the beliefs of the former attorney-general, the prosecutor who prosecuted Tiller, and other evidence about Tiller’s abortions of viable infants, no jury could reasonably believe that Roeder was saving anyone from imminent use of unlawful force. Roeder’s argument was he did have at least mildly plausible evidence that Tiller was behaving illegally. That evidence was a rational basis for a belief that Tiller was routinely doing late-term abortions under the pretence that immediate killing of the child was necessary and efficacious to avoid substantial and irreversible impairment of a major bodily function when actually the woman just didn’t’ want to have the baby. The evidence would show that these women were not, for example, hospitalized for psychosis that experts agreed would become permanent if the baby were born alive. As for the “imminence” requirement, Roeder argued that it means something will surely happen unless someone intervenes--- and not that something is going to happen in the next five minutes. A blog with the title “Campaign finance ruling likely imminent,” has the subtitle “Either tomorrow or Monday next week”, not “Just wait five minutes”. When OSHA requires businesses to report imminent dangers, that means an accident might happen at any time, not that an accident will surely happen next week. When The Guardian says that “Almost half of all primates face 'imminent extinction'”, that doesn’t mean the chimpanzees are going to die this year. Since the purpose of the Necessity Defense is to allow the use of force when necessary to prevent a worse evil, “imminent” refers to the evil being “highly likely”, not “immediate”. ------------------------------------------------- 21-3452 Chapter 21.--CRIMES AND PUNISHMENTS PART II.--PROHIBITED CONDUCT Article 34.--CRIMES AGAINST PERSONS 21-3452. Application of certain crimes to an unborn child. (a) This section shall be known and may be cited as Alexa's law. (b) As used in this section: (1) "Abortion" means an abortion as defined by K.S.A. 65-6701, and amendments thereto. (2) "Unborn child" means a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth. (c) This section shall not apply to: (1) Any act committed by the mother of the unborn child; (2) any medical procedure, including abortion, performed by a physician or other licensed medical professional at the request of the pregnant woman or her legal guardian; or (3) the lawful dispensation or administration of lawfully prescribed medication. (d) As used in K.S.A. 21-3401, 21-3402, 21-3403, 21-3404, 21-3405, 21-3412, 21-3414, 21-3439 and 21-3442, and amendments thereto, "person" and "human being" also mean an unborn child. (e) The provisions of this act shall be part of and supplemental to the Kansas criminal code. ------------------------------------------------- 1. Roeder trial: Judge rules out manslaughter option In the end, Wilbert allowed the testimony but restricted how much Roeder could say about abortion. And at the end of the day he ruled that he would not give jurors the option of considering a voluntary manslaughter conviction. Such a defense requires that a person must be stopping the imminent use of unlawful force, he said. “There’s no imminence of danger on a Sunday morning in the back of a church,” Wilbert said, “let alone unlawful conduct.” “In the state of Kansas, abortions are legal.” ------------------------------------------------- Lawrence, 281 Kal1. at 1092-93, 135 PJd 1211 (Kan. 2006) ------------------------------------------------- State v. Carter, 284 Kan. 312, 160 P.3d 457 (Kan. 2007): In Lawrence, 281 Kal1. at 1092-93, 135 PJd 1211 (Kan. 2006) the defendant argued that both perfect and imperfect self-defense should be considered simultaneously with first-degree premeditated murder because each concept involved an underlying thought process. In other words, imperfect self-defense would not require the absence of reason, only the absence of sound reason. We rejected that argument, holding that the honest but unreasonable belief of imperfect self-defense and the premeditation of first-degree murder are mutually exclusive concepts . We decline Carter's invitation to change our position and rciterate that the imperfect self-defense relating to voluntary manslaughtcr is not appropriately considcred simultaneously with premeditated first-degree murder. State v. Carter, 284 Kan. at 325-326, 160 P.3d at 467. ------------------------------------------------- 4. State v. Bell, 280 Kan. 358, 121 P.3d 972: [Pjrclllcditatcd first-dcgree murder would not be reduced by an honest but unreasonable reiiance on self-defense because, as with premeditation and heat of passion, the two are mutually exclusive concepts. If a murder were committed with premeditation, it would not be the result of an unreasonable but honest belief that circulllstances justified deadly force. Premeditation requires reason; imperfect selfdefense requires the absence of reason." Id. at 367. That's just plain wrong. Teh Bell Court has just finished saying that premeditation and heat of passion are mutually exclusive. That's true. But "If a murder were committed with premeditation, it would not be the result of an unreasonable but honest belief that circulllstances justified deadly force." makes no sense. Moreover, this is dictum because it is about Instruction 11 and "Since Bell requested Instruction 11, he cannot now argue that it was clearly erroneous. Although that would normally end our inquiry, we do not find Instruction 11 erroneous and feel we should set out our reasons for so finding." Moreover, Instruction 11 syas "In determining whether the defendant is guilty of murder in the second degree, you should also consider the lesser of-fense of voluntary manslaughter. Voluntary manslaughter is an intentional killing done upon a sudden quarrel or in the heat of passion or upon an unreasonable but honest belief that circumstances existed that justified deadly force in de-fense of a person. "If you decide the defendant intentionally killed Jose Felix, but that it was done upon a sudden quarrel or in the heat of passion or upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person, the defendant may be convicted [***15] of voluntary manslaughter only." So the holding is that this instruction is correct, and this instruction says nothing about premeditation. ------------------------------------------------- State v. White, 284 Kan. 333, 351-52,161 PJd 208 (2007) ------------------------------------------------- Federal cases: Stevens (1993) 2nd circuit. Holding: A mere generalized fear is not enough for imminence. Obvious and irrelevant. ------------------------------------------------- Haynes (1998, 7th, Easterbrook) "Haynes, who listened to Flores-Pedroso's menaces for a month without seeking help, had no conceivable justification for a preemptive strike." He could have done something else, like call up a lawyer. Support for the general idea that Imminence should be defined sensibly: "When A threatens C, and B hits A, the name is "defense of another." But in all of these cases, the defense fails if the use of force was unjustified. This is the idea behind the "imminence" requirement (if the threat is not imminent, a retreat or similar step avoids injury) as well as the requirement that the object of the threat prefer a lawful response to an unlawful one." ------------------------------------------------- Wofford (1997, 9th, O'Scannlain) ------------------------------------------------- Contento-Pachon (1984, 9th) ------------------------------------------------- Haney (2002, 10th) ------------------------------------------------- Gomez(1996, 9th, Kozinski) "The defendant must establish four elements in order to make out a justification defense: (1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. Lemon, 824 F.2d at 765." Kozinski discussses Contento-Pachon (1984, 9th), where imminence did not mean immediate, in a duress case. Kozinski and Eaterbrook both say clearly that Duress, Necessity, and Self-Defense are the same idea. "To prosecute Gomez for trying to protect himself, when the government refused to protect him from the consequences of its own indiscretion, is not what we would expect from a fair-minded sovereign. " Government failure idea. Here, the DA published murder-for-hire informant Gomez's name and then wouldn't protect him despite his pleas after specific threats, and then prosecuted him for possession of a shotgun that he obtained as a last restort. ------------------------------------------------- 323 F.Supp.2d 894 (W.D.Tenn.,2004) ------------------------------------------------- http://uslegal.com/: Example of a state statute using the word imminent. Cal Wel & Inst Code § 3104. Imminent danger of addiction; Informing as to constitutional rights; Appointment of counsel; Hearing set by judge If the report is to the effect that the person is addicted or is by reason of the repeated use of narcotics in imminent danger of addiction, the person shall be taken before the judge, who shall then inform him of his right to be represented by counsel, to make a defense to the petition, to produce witnesses in his behalf, and to cross-examine witnesses. ------------------------------------------------- Lemon, 824 F.2d -------------------------------------------------