Accused Tiller assassin won’t be allowed to use ‘necessity defense’

A district court judge ruled Tuesday that the man accused of murdering Kansas abortion doctor George Tiller will not be allowed to use the “necessity defense” put together for him by Des Moines anti-abortion activist Dave Leach.

Scott Roeder (mugshot)

Leach, who publishes a newsletter that advocates the doctrine of justifiable homicide in the case of abortion doctors, drafted a legal brief for Roeder arguing that the murder was permissible because it stopped the greater harm of Tiller performing abortions. In order to use the defense, last month Roeder confessed to the Associated Press that he gunned down Tiller.

Leach hoped that by Roeder stipulating the facts of the case and ultimately admitting he committed the crime that the judge would have no choice but to allow the defense, setting a legal precedent that could be used in future trials of abortion activists. He also saw this trial as a “opportunity, through education of both the public and the courts, to end abortion.”

Judges across the country have uniformly rejected that argument. Des Moines attorney Mike Falkstrom called the idea of Roeder using the defense “absurd.”

“Given the facts of Dr. Tiller’s murder, this defense is laughable, and Roeder’s attorneys almost certainly know it,” he said in an e-mail to The Iowa Independent.

The necessity defense is only available when the law recognizes the harm the defendant tried to prevent, Falkstrom said. In fact, he points out that the Kansas Supreme Court has already ruled that the harm or evil which a defendant who asserts the necessity defense seeks to prevent must be a legal harm or evil as opposed to a moral or ethical belief of the individual defendant.

“Abortion is legal in the United States, and is a constitutionally protected activity,” Falkstrom said. “There is no legal harm that Roeder’s killing of Dr. Tiller can possibly be seen as preventing, though Roeder and many others have moral or ethical systems that are opposed to abortion.”

To allow people to assert the necessity defense based solely on their moral or ethical beliefs “invites anarchy into our system,” he said.

“Any would-be murderer of an abortion doctor would know he or she would have a chance at acquittal,” he said. “Many who would otherwise be deterred may be willing to take the risk knowing they could plead necessity.”

Roeder was asking the judge to throw out the rule of law, Falkstrom said, and to give him special treatment because he disagrees with the law making abortion legal. The legal maneuver was simply an attempt to “politicize Dr. Tiller’s tragic murder” and turn “a murderer into a martyr.”

Leach told The Iowa Independent Tuesday night that he hasn’t spoken to Roeder in several days, and thus, doesn’t know how he feels about the judge’s decision. He said several months ago Roeder told him that the public defenders were discussing a plan that would result in a shortened jail term. Leach said he believes that defense will be “voluntary manslaughter.”

Leach characterized the defense as “I honestly thought I did right at the time, but I was stupid,” as compared to the necessity defense, which he characterized as “I did right, and reasonable people will agree, who see the evidence I saw.”

The goal of the first is a reduced sentence, he said, since the crime was committed in the heat of passion. The goal of the second is acquittal, because the crime was justified.

Roeder’s trial is scheduled to start next month.