'Necessity' defense: Did abortion doctor need to die?

[IsItJustMe]

Source: The Christian Science Monitor

By Mark Guarino Mark Guarino – Mon Jan 11, 7:56 pm ET

Chicago – The killing of an abortion doctor in Kansas has set the stage for a closely watched trial that could affect how future abortion-related cases are tried.

Scott Roeder has admitted to gunning down George Tiller in the vestibule of his church in May 2009. Mr. Roeder is charged with first-degree murder, but late last week, his defense lawyers persuaded the judge in the case, Warren Wilbert, to allow them to argue that their client’s actions warrant the lesser charge of voluntary manslaughter.

Voluntary manslaughter is applied in cases when a defendant acts believing that his or her actions are justified. Roeder has insisted his actions were justified because they prevented Dr. Tiller from performing further abortions. Some call this a “necessity defense” argument.

Judge Wilbert will not rule on whether the jury can consider a voluntary manslaughter charge until after the trial begins. Jury selection was supposed to take place in Wichita, Kan., on Monday, but it was postponed until probably Wednesday....

Read more: http://news.yahoo.com/s/csm/20100112/ts_csm/273239

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If this judge allows thie guy to be charged for manslaughter, I would imagine that would send a chilling effect on abortion doctors in this country. What is wrong with Kansas and why is this judge even considering this?

Kill an abortion doctor in cold blood and you only get 5 years. Even allowing this guy to make such an arguement seems dangerous and could lead to more of the same in the future.

[Lasher]

1. The 'he needed killing' defense.

Seems a more accurate description than 'necessity defense'.

[stray cat]

2. DO you kill someone to save the life of another?

thats their argument - since they believe the unborn child is a living human. Its also an argument you occassionally hear about attacking soldiers in the US. I disagree with both arguments.

[IsItJustMe]

4. Abortion is legal in this country, so I don't even believe the arguement that two wrongs make a

right can even be made with regards to this case. It seems to me that the murderer's arguement is that he believes abortion is wrong and therefore that gives him the right to go out and kill someone.

If that be the case, I would imagine that lots of people believe things are wrong, and I guess if you follow up on this type of thinking, that gives them the right to go out and kill people.

[zipplewrath]

19. Context is all wrong

The "necessity" defense relies upon the context that one must act or the opportunity to protect some one else will be lost. He didn't shoot this guy during a operation. There was no necessity here despite this guys personal beliefs. He could have contacted the police, gotten a lawyer, or arranged with the DA to get a grand jury. He didn't choose any of those because in fact they had already tried all of that and so they knew it would not work. He now wants the very system he by passed and ignored, to recognize that some necessity existed because the system wasn't working. Isn't going to happen. The system was working.

If one is this principled, one is suppose to accept the result of ones actions. It is my problem with the whole torture schtick. If they felt that torture was so necessary, if they felt they were Jack Bauer saving the country from terrorists, let them go to trial and prove it to a jury of their peers.

[namelessone]

3. Manslaughter?

I don't post much but this sends me into rage and fear. I can imagine the response if this is allowed to be used as a defense... "gee your honor, I thought he/she needed to be killed..."

[wordpix]

5. terrible the judge would even consider this defense - if jury can consider it, then

watch how it will be used in every murder case in the country. I can see it now, "Gee, I just had to kill that child because she recognized me as her neighbor/uncle/father's buddy when I raped her." :grr:

[rbixby]

27. I think that a ruling against the this defense would set a precedent

Then in the future when folks try to use it, it'll automatically be denied. Its ridiculous to try to use the necessity defense for killing someone who was doing something completely legal. I say let them try it, give them the rope to hang themselves and everyone who comes after and wants to use this defense, and then watch them get shot down.

[boobooday]

6. The judge should consider insanity before this

This would be a horrible precedent.

[Piewhacket]

7. The defense won't fly. Otherwise,

it might become "necessary" to kill anti-abortion
militants before they kill an abortion doctor.

Or to levy the death penalty on Scott Roeder to
prevent him from killing again.

you know what I'm talking about,
the "Bush Doctrine" of preemptive war.

[IsItJustMe]

10. I would think that rational people would come to that conclusion, even in Kansas, where there is a

heavy concentration of fundamentalist religion (American Taliban). I am not as certain as you are however.

Not only that, If this guy is able to use this defense in his trial, I think that the trial could become about how bad abortion is and thus become an infomercial for these types of wack jobs in this country.

I hope it is not even allowed, in any way, shape, or form, to get in this trial.

This is completely inappropriate.

[Piewhacket]

23. the threat must be comparable, imminent, with no effective alternative response.

What Dr. Tiller was doing was legal. He was killed sitting in church.
There was no imminent threat of any illegal act by him that could not be
dealt with by the proper authorities. No necessity to kill him.

Your concern about the ramifications of allowing such a (stretch) defense are
correct, but there are even more serious consequences of allowing it that
would reverberate far beyond this case. Honest, I think it would be
a catastrophe of law, and just isn't going to happen.

The defense is basically obliged to offer it, though, and the judge to consider it.
"Your honor, our client is not so BAD a man as all that."
That is all that is going on here. That and a little PR for jurors inclined to acquit.

Yet The Christian Science Monitor reports the defense proposal as news, but
without proper context, to bolster it as reasonable. Propaganda, not news.
In short they are "smirking" at the death of Tiller and giving aid and comfort
to those who think it is not such a bad thing to kill abortion doctors.
That's what should piss us off.

This was cold-blooded and premeditated murder. First degree. Life without parole.
I think that's what should happen.

[Hepburn]

26. You said it better than I did...

...where I posted below. But that was exactly what I was thinking.

[Piewhacket]

44. I saw it, and you were CORRECT, just like you usually are Hepburn.

:toast:

[caseymoz]

8. How could this be a necessity?

When abortion has been legal for close to 40 years? It's legal, but we'll just let somebody murder you if you do it?

I sense a hung jury.

[struggle4progress]

48. Judge disallows 'necessity defense' in Tiller Case: Judge Warren Wilbert also says the murder trial

will stay in Wichita
THE WICHITA EAGLE, KAN. | RON SYLVESTER | Wed, Dec 23, 3:08 AM

... Judge Warren Wilbert ruled Roeder could not use the so-called "necessity defense" in the killing of Wichita abortion provider George Tiller last May.

But the judge said he would "leave the door open" for Roeder's defense to present evidence and arguments that he killed in the belief that he was saving the lives of the unborn ...

Wilbert said he may limit what the defense can say in opening statements. Wilbert also said it would be difficult to allow testimony indicating Roeder was acting in defense of others because the law requires an "imminent threat."

Tiller was shot and killed May 31 inside the lobby of his church, where he was serving as an usher ...

http://dailyme.com/story/2009122300000374/judge-disallows-necessity-defense-tiller-case-.html

[fasttense]

9. Deleted, posted downstream. n/t

[liberal N proud]

11. Makes no sense coming from a "pro life" point of view

But then the pro-lifers are only interested in bringing a fetus into the world. Once in the world they are expendable and worthless.

[asjr]

12. I am not so much worried about the judge as

I am about the jury that is selected. This is, after all, Kansas.

[change_notfinetuning]

18. You make a good point. Whether or not the judge allows it, it only takes one

lone holdout juror, who will not vote to convict no matter the evidence. How hard would that be in Kansas? There could be endless mistrials.

[beyurslf]

13. Right now, the judge is only considering it. He hasn't agreed they can present that

defense to the jury. In the end, I believe he will not allow the defense to present that claim to the jury.

[high density]

14. Necessity? So what about the fetuses that needed aborting?

These abortions were necessary for the women who had them. They weren't doing it for fun.

I don't see any "necessity defense" given that Roeder was a living adult that had allegedly progressed beyond the fetus stage, even though his thought process doesn't seem to hold that up.

[madmom]

15. If THAT"S the case I can think of several people........ just saying! ....

:banghead: :scared:

[change_notfinetuning]

16. Is it justifiable to kill health insurance executives before they deny more

life-saving surgeries and treatments? Can we torture lawyers to keep them from torturing logic?

[Dinger]

52. + 1,000 (nt)

[fasttense]

17. So which is it? Voluntary manslaughter or Necessity defense?

Here is the definition of voluntary manslaughter:

"Voluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted during "the heat of passion", under circumstances that would cause a reasonable person to become emotionally or mentally disturbed. In the Uniform Crime Reports prepared by the Federal Bureau of Investigation it is referred to as non negligent manslaughter."

This is used frequently when a person comes upon their spouse in bed with another. The person loses control and kills them. So he would have to claim he lost control when he saw the good doctor. But if he had staid away from the church he would never have seen the doctor. So this is not likely to win.

"The necessity defense has long been recognized as Common Law and has also been made part of most states' statutory law. Although no federal statute acknowledges the defense, the Supreme Court has recognized it as part of the common law. The rationale behind the necessity defense is that sometimes, in a particular situation, a technical breach of the law is more advantageous to society than the consequence of strict adherence to the law. The defense is often used successfully in cases that involve a Trespass on property to save a person's life or property. It also has been used, with varying degrees of success, in cases involving more complex questions.

Almost all common-law and statutory definitions of the necessity defense include the following elements: (1) the defendant acted to avoid a significant risk of harm; (2) no adequate lawful means could have been used to escape the harm; and (3) the harm avoided was greater than that caused by breaking the law. Some jurisdictions require in addition that the harm must have been imminent and that the action taken must have been reasonably expected to avoid the imminent danger."

The problem with this defense is that "no adequate lawful means could have been used to escape harm." If he really believes these fetuses are babies, he could have offered to raise the babies himself. He could have developed a non-profit to give money to women to raise the babies themselves. There are just too many lawful means that could have been used besides murder. This defense just wont work.

I think insanity is his best defense.

[Kolesar]

22. "the harm must have been imminent "

Roeder does not want to defend himself and avoid justice. Roeder wants to use the court as a vehicle to promote his political agenda.

Lee Harvey Oswald was crazy that way, too.

He deserves a sentence that involves wading in a lagoon of infectious sewage.
Thanks for the update :thumbsup:

[jmowreader]

53. Your "adequate lawful means" won't cover Dr. Tiller's practice

Women didn't fly to Wichita from all over America because they wanted routine first-trimester abortions, they went there because Tiller specialized in two basic kinds of abortion: those done to save the life of the mother, and those done because the fetus had such severe abnormalities it was going to die soon after birth (or live in pain for a couple of years then die horribly). IIRC a LOT of Tiller's cases were done to remove fetuses that were dead before they got to Wichita, and that couldn't be removed at the local level because there weren't any local doctors who would do a D&X procedure even on a dead fetus.

[treestar]

20. Legally abortion is legal, so that should not fly

He's trying to claim he's defending others, which might be an issue if the victim was threatening another person in some way.

But it won't fly, because abortion is legal and not considered to be harming someone under the law.

[Odin2005]

21. WTF?

:grr:

[ck4829]

24. This won't just affect how abortion-related cases are tried, it will affect everything

Roeder murdered Tiller because he believed that abortion should be illegal, if you believed it should be acceptable to kill prostitutes or drug users, should you be allowed to do it?

[Hepburn]

25. Chilling effect just on abortions and MDs?

Wow...the first thing that crossed my mind was "defense of necessity" is murdering someone and then claiming that it was necessary to protect yourself or orders. That could be applied in a lot of situations.

[sharesunited]

28. Access to guns and ammo empowers everyone to be judge, jury and executioner.

Punishment for the resulting vigilantism is merely a housekeeping issue.

[JoeyT]

29. I don't think it's going to work out very well for him.

Necessity defense kind of relies on...well, necessity.
When you kill someone to stop them killing someone else, they have to be about to or in the process of killing them. IIRC You also have to show that no other action could have stopped the original murder from being carried out. Unless Dr. Tiller's church is radically different from any of the churches I've ever seen, I'm reasonably certain he wasn't performing an abortion right there on the spot. So even if the judge/jury are fundamentalists and concede the point that abortion is murder, he'll still have to prove that he was stopping an abortion that was happening right that particular second. A tough row to hoe given all the witnesses.

There's also the argument that for all he knew Tiller might never have performed another abortion again. Allowing the necessity defense will set a godawful precedent if he wins. "I knew he'd killed before and I thought he might kill again, so I killed him." shouldn't be a winning legal argument. Otherwise if someone goes to prison for murder then gets released at the end of his sentence, you could possibly justify shoot him in the face on nothing more than "gut feeling". So the chilling will be for far more than abortion doctors.

[Alcibiades]

32. And these abortions were medically necessary

The outrage directed at Dr. Tiller was that these were late-term abortions. They completely overlook the fact that these are not abortions performed for shits and giggles: the vast majority are performed on women who wanted to become pregnant.

Lawyers have to argue the case they have. It's what they do, and their clients are entitled to adequate legal representation. I doubt very much that this judge will give people the legal right to make a subjective judgment about whether a killing is necessary.

[Rozlee]

38. You hit that nail on the head, JoeyT,

If Roeder gets released, would a pro-choicer get the same treatment for offing him in the fear that Roeder would go out and kill other abortion providers? If Palin is Prez, what are the odds?

[Doctor_J]

30. If he gets off, look for a lot of this, and maybe

after a couple more we will actually fight back.

[no_hypocrisy]

31. Defense won't work.

1. No "imminent" danger
2. You can't kill to save the POTENTIAL life of another. This defense is a backdoor way to establishing legal precedence of the unborn as a "person".

[ProgressiveProfessor]

37. Don't be so sure...

I was on a jury many years ago. It was a black letter law case, slam dunk guilty. Jury (including me) accepted a defense the judge and the appelate court had ruled illegal. Its called jury nullification, though in this case we ignored a ruling, not the criminal law. Not saying it will happen here, but all it takes is one......

[no_hypocrisy]

39. That's the rub all right.

Can't appeal an acquittal even for jury nullification. And bad law becomes stare decisis.

[Manifestor_of_Light]

33. Necessity defense won't work in this case.

What Dr. Tiller was doing was legal.

I am a lawyer.

I hope that they bust him for first degree murder. That's what this case is. I don't know what the penalty is for first degree (premeditated)is in Kansas.

In Texas it's five to 99 or life. They may call this second degree, if they call capital murder first degree.

The highest level of murder in Texas is capital murder, which is murder in commission of a felony, or killing a police officer or fireman.

[dipsydoodle]

46. My understanding

of the defence of necessity is that it cannot be used for murder given that there is no greater crime. :shrug:

[Manifestor_of_Light]

47. Can be used in self-defense or defense of other people.

Live people at the scene. Not embryos.

[superconnected]

34. Imagine all those doctors that would be killed if this defense were upheld.

[kiranon]

40. Wouldn't same apply to drunks who drive? Dangerous precedent to set.

It was murder and not manslaughter and there is no legitimate right to a defense based on necessity in this case.

[slackmaster]

35. The laws of the state of Kansas concerning homicide are quite clear

Killing a person is justified for defense of self or others, only if you or someone else is in IMMEDIATE danger.

There is no way that the defense could get away with claiming that Dr. Tiller posed an immediate danger to anyone.

[fascisthunter]

36. Somebody Who Understands Law, Please Answer this Question for Me...

is this "consideration" part of protocol?

[Betty]

41. Then Roeder shouldn't object if someone kills him

as a necessary defense of other abortion providers. We can all be judge, jury and executioner, who needs laws?

[Guilded Lilly]

42. This is absolutely

true, isn't it, using this ruling's logic?

Such a monstrously twisted precedent would blow the lid off of Pandora's box.

And I am not so sure that this country's weakening justice system could handle this kind of potentially "open season on murder" ruling.

[CBR]

43. WTF. This better not fly. nt

[DebbieCDC]

45. This judge's ruling is total bullshit

[Solly Mack]

49. Oh goody! Everyone gets to use their he/she needed killing list!

America would be a better place if only __________ were dead.

Now everyone gets to fill in the blank!

Isn't that great! Isn't that wonderful!

[RainDog]

50. The voices in his head say this was justified. that's insanity.

If anyone lessens a conviction to manslaughter based upon the religious teaching of a hate group, this is a sad day, indeed, for America.

[defendandprotect]

51. Back later . . .

[sofa king]

54. Wait! Take my list with you, too!

[defendandprotect]

55. You comments and summation of this make clear . . .

the real threat of this case being reduced to "manslaughter" --

If this judge allows thie guy to be charged for manslaughter, I would imagine that would send a chilling effect on abortion doctors in this country. What is wrong with Kansas and why is this judge even considering this?

Kill an abortion doctor in cold blood and you only get 5 years. Even allowing this guy to make such an arguement seems dangerous and could lead to more of the same in the future.