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Court looks unlikely to grant new trial in doctor’s murder

TOPEKA, Kan. — Justices on Kansas’ highest court expressed skepticism Wednesday that a man convicted of first-degree murder in the shooting of a Wichita abortion provider should get a new trial because he sincerely believed he was saving the lives of unborn children.

All seven Supreme Court justices had pointed questions for the attorney representing Scott Roeder, who is serving at least 50 years in prison for killing Dr. George Tiller in May 2009. Roeder gunned down Tiller in the foyer of the doctor’s church where he was serving as an usher just as a Sunday service was starting.

Rachel Pickering, an appellate defender, argued that Roeder should get a new trial because jurors weren’t allowed to consider whether they could convict him of voluntary manslaughter, rather than first-degree murder. The lesser crime covers killings that occur when people have a sincere but unreasonable belief that harm to themselves or others is imminent and justifies deadly force.

Tiller was among a few U.S. physicians known to perform late-term abortions. Roeder had strong anti-abortion beliefs, equating Tiller’s procedures with murder. Pickering noted Roeder also believed the doctor was violating Kansas law, though Tiller had been acquitted of misdemeanor state charges of violating late-term abortion restrictions weeks earlier.

“We’re talking about his view that this doctor is performing illegal abortions resulting in the deaths of others,” Pickering told the court.

During Roeder’s trial, Sedgwick County District Judge Warren Wilbert allowed the confessed killer to testify to his beliefs but ultimately refused to let the jury consider the lesser charge after hearing all the trial evidence. The defense’s tactic outraged Tiller’s colleagues and abortion-rights advocates nationwide, who feared it gave a more-than-tacit approval to further acts of violence.

Roeder raised multiple issues in his appeal, but the Supreme Court’s hearing focused mainly on whether jurors should have been allowed to consider the lesser charge. The justices did not say when they would rule.

The justices questioned Pickering for more than an hour, twice the amount of time set aside for her arguments. In contrast, Assistant Sedgwick County District Attorney Boyd Isherwood didn’t use his full half-hour in defending Roeder’s first-degree murder conviction and “Hard 50” sentence.

Justice Dan Biles asked Pickering whether, in line with her legal arguments, someone who morally opposed ending life support for an otherwise dying patient would face the lesser charge if he or she shot a doctor who shut off a ventilator at a family’s request. Pickering acknowledged her position could lead to such a result.

Justice Eric Rosen asked about someone with a strong belief that, because smoking leads to deadly illnesses, selling tobacco products places others in imminent danger.

“That gives someone the right to go out and kill the CEO of Philip Morris?” Rosen said, referring to the tobacco company. “It’s the same principle.”

Pickering said the health harm would not be immediate enough to warrant the lesser charge in such a situation, and she emphasized that she was arguing only that the jury should have been allowed to consider the lesser charge in Roeder’s case.

“You’re saying this statute, this jury question, will be applicable any time anyone wants to shoot a doctor,” Biles responded.

The justices also struggled with Pickering’s argument that Roeder believed unborn children were at imminent risk from Tiller, noting that the doctor’s clinic was closed at the time and he wasn’t scheduled to perform abortions for another 22 hours.

“There weren’t going to be any abortions performed at the church,” Justice Lee Johnson said.

Pickering said Roeder believed the harm was imminent because he was certain Tiller would perform more abortions when his clinic reopened for business.