Scott Roeder’s Defense Attorney Uses Necessity Defense in George Tiller Killing

State   |   Steven Ertelt   |   Nov 23, 2009   |   9:00AM   |   WASHINGTON, DC

Scott Roeder’s Defense Attorney Uses Necessity Defense in George Tiller Killing

by Steven Ertelt Editor
November 23
, 2009

Wichita, KS ( — The defense attorney for former militia activist Scott Roeder, who is charged with killing late-term abortion practitioner George Tiller, is using the necessity defense. That tells the court Roeder feels compelled to kill Tiller because the lives of unborn children were in danger had he not killed him.

The legal papers with the defense come after a recent interview in which Roeder essentially admitted he killed Tiller.

"Defending innocent life – that is what prompted me. It is pretty simple," he said.

The legal motion filed today also comes after defense attorney Steve Osburn said he would not use a necessity defense to defend Roeder.

But the filing asserts Roeder has an "absolute right" to present the defense, according to an AP report. Prosecutors have been hoping to ban the defense and a hearing on whether it will be allowed is set for December 22.

"For the Court to grant the State’s motion to prohibit `any evidence’ in support of the necessity defense would be premature, and contrary to Kansas law," Osburn wrote, according to AP. "In addition, it would be rank speculation on the part of the state (and the Court if it were to grant said Motion) as to the purpose of any and all evidence that the Defendant may seek to introduce."

Roeder is charged with one count of first-degree murder in the death of Tiller, who pro-life advocates had hoped would lose his medical license for violating various state laws.

He also faces two counts of aggravated assault for allegedly threatening two people in the church where he reportedly killed Tiller.

Shortly after the recent interview, Osburn told reporters that the justifiable homicide defense did not exist under Kansas law and that Roeder’s defense team did not plan to use the strategy.

"We have explored that possibility," Osburn said at the time. "That does not seem to be the approach that is viable, nor is it the approach we intend to use."

AP indicates Osburn did not say why he went ahead with the necessity defense, but indicated he may have tried to confuse prosecutors with his previous comments.

Georgia Cole, spokeswoman for the Sedgwick County District Attorney’s Office, would not talk about the case in public and said prosecutors would address it in court.

In the recent interview, Roeder also indicated he would kill another abortion practitioner if he is ever released from prison.
"[E]ven if one changed her mind it would be worth it,” he told AP from jail. “No, I don’t have any regrets."

Roeder faces life in prison with the possibility of parole after 25 years if convicted of first-degree murder.

Tiller was one of the few abortion practitioners in the United States to do late-term abortions and he had been a subject of legal and peaceful efforts by pro-life groups at the time of the shooting.

Hundreds of pro-life groups condemned the Tiller shooting immediately or in the days following, but that didn’t stop abortion advocates from claiming they supported the killing or calling the majority of Americans who take a pro-life view "terrorists."

Roeder, who shot Tiller prior to a Michigan man killing a pro-life advocate outside a local high school for protesting abortion, will not go on trial until next year.

The date had been scheduled but is now set for January 25, 2010. That is just three days after the 37th anniversary of the infamous Roe v. Wade Supreme Court decision that allowed virtually unlimited abortions — which likely means that the trial will color the mainstream media’s coverage of the anniversary.

Church member Gary Hoepner was the first witness called at a preliminary hearing for Roeder in July and said Roeder pointed a gun at Tiller’s head and killed him.

“I wasn’t sure if it was a cap gun or what," Hoepner said, noting that he wasn’t certain that the assailant had a real gun to use to hurt Tiller. “I couldn’t believe what I was seeing."

Hoepner said he and Tiller were discussing Tiller’s fondness of doughnuts at the time he was shot.

Roeder is also charged with aggravated assault for allegedly threatening Hoepner and another member of the church as he fled the scene.

"’I’ve got a gun and I’ll shoot you’," Hoepner recalled Roeder saying. "I believed him and I stopped."

After the incident, Hoepner told the court that he wrote down the license plate of Roeder’s vehicle and informed police.

The court also heard that Roeder attended Tiller’s church several times before, including the Sunday prior to the church service during which he allegedly shot the abortion practitioner.

With plenty of evidence and witnesses, a case will likely move forward and speculation is on what type of defense Roeder’s attorneys will rely on during the trial. Some observers say they could say Roeder suffered from mental illness at various times in his life.

Roeder says he is not mentally ill now, although his family members have told the media that he has suffered from mental health issues throughout his life. He was diagnosed with schizophrenia in his late teens and Roeder blames that on drug use at the time.

Justice Department spokesman Alejandro Miyar told AP that the federal government is looking at federal charges against Roeder in connection with Tiller’s death.

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