Roeder, Padilla, Terry, Mohammed Part 1:Roeder

On April 16th, 1995 (three days before the highly-significant-to-militias April 19th anniversary of the Oklahoma City Bombing and the burning of the Branch Davidian Compound in Waco), Scott Roeder was arrested with bomb-making materials.

Roeder claimed association with the “Freemen” movement, yet another batch of personal sovereignty kooks.

On May 31, 2009, Scott Roeder shot down abortion doctor George Tiller in church in Wichita, Kansas.

There are thousands like Roeder, ignorant and disaffected, looking for an opportunity to make their mark on the world with a grand gesture like blowing up a federal building or killing a doctor. Thousands. This is the nondescript face of domestic terrorism.

After his arrest, Roeder was not spirited away for three and a half years to a navy brig in South Carolina and deprived of counsel; nor was he tried by a made-up “tribunal” or commission. Instead, he was appointed a lawyer and provided with resources for his defense and last week in Wichita, Kansas, Roeder was tried publicly before a jury of his peers for the murder of Dr. Tiller.

Roeder testified that he had no choice but to kill the doctor: “If I didn’t do it, babies would die the next day” (from Wichita reporter Ron Sylvester’s excellent live-tweeting of the trial). The former Attorney General of Kansas had filed charges against Dr. Tiller for performing illegal abortions; the charges had been dismissed because Kline had not had jurisdiction to file a case in Sedgwick County (this testimony was outside the jury’s presence).

For a killing to be legally justified, it must be in reasonable anticipation of the imminent unlawful use of deadly force. The judge in Roeder’s case let Roeder testify about the facts that he felt justified the killing, but did not instruct the jury on the law of justification. While abortion-rights groups freaked out at the idea that Roeder should have a podium from which to try to explain himself, the first half of this was the legally-correct ruling: an accused gets to present a defense. The second half was legally correct as well: the jury doesn’t get instructed on a defense unless it is raised by the testimony.

But the legally-correct ruling is not always the best ruling. Had the jury been instructed on the justification defense, the prosecution would have explained to the jury that abortion is not unlawful, and the defense wouldn’t have had much of an argument to the contrary. The result would most likely have been the same, except that ignorant disaffected domestic terrorists would have seen that, even when they are given every possible legal break, they’re still going to lose because they are wrong. Juries can tell right from wrong.

To acquit Roeder in the face of a justification jury instruction would have required jury nullification. If the twelve jurors least unacceptable to both the defense and the State of Kansas thought that abortion was not only wrong but so wrong that Dr. Tiller needed killing, then there is something wrong with the law.

Excluding a defensive instruction serves only to insulate bad laws from nullification. If you don’t trust juries and you’re intent on preserving the power of government, this is a good thing. If, however, you believe that the law is right, believe that a jury will agree, and want your jury verdict to express truly the will of the community, it’s not. If you’re not afraid that the jury will nullify, give the justification instruction.

Scott Roeder is a terrorist. And a criminal. Justification instruction aside, we were not afraid to put him to trial, in civilian court with a lawyer and cross-examination and live witnesses. Some were afraid of letting him explain his views, but their fears were unjustified. What Scott Roeder said in court will be soon forgotten; what the jury said in response will be long remembered.

8 Comments

  1. Scott Roeder is a terrorist, and a criminal. He’s also a United States citizen entitled to the full protection of our Constitution.

    With all due respect, drop the “fear of trials” aspect of your argument and ask yourself if the radicals who behead hostages, blow themselves in the midst of civilians, hijack airplanes, and attempt to blow themselves up on Christmas day flights (coincidence? Nahhh….) most resemble terrorists or criminals. The fundamental inquiry is this: Is it War-like or is it criminal?

    You get on a plane in Europe and try to blow yourself up in America, there’s no guarantee of U.S. Constitutional protection. You plan forceful, explosive attack on a sovereign state prior to boarding an airplane and it is guaranteed that you are a belligerent–unqualified or not–under the Geneva Conventions.

    Let’s give U.S. citizens like Roeder their Constitutional Right to a trial, and give our unqualified belligerent enemies, who don’t fight under a uniform or nation-state, the military tribunals that International Law says they deserve.

    Either way, no American has to be “afraid of trials,” it’s just a choice of venue. Like Nurnburg. Which was a Military Tribunal, and completely acceptable under International Law.

    1. You’re jumping the gun a bit. We’re not quite there yet in this discussion.

      There is no dichotomy between terrorists and criminals. Terrorists are criminals.

      The U.S. Constitution doesn’t only apply to U.S. Citizens. But we’ll be talking about that in part 2.

      The U.S. Constitution also doesn’t apply only to crimes committed in the U.S. Yesterday, after a trial in the Southern District of New York, Aafia Siddiqui was convicted of an attempted murder in an Afghan police station.

      “Belligerent” is a term of art with a specific legal meaning; it involves the conduct of lawful warfare. War is armed conflict between states or their equivalents. The “War on Terror” is no more a war (under law) than is the “War on Drugs” or “War on Poverty.”

      The Geneva Conventions don’t say anything about “unqualified belligerents.” The couple of references to “unqualified belligerents” I find refer to un-uniformed members of a belligerent state who are drawn into combat operations (as the crew of an airplane commandeered by the military). You are a belligerent, or you are not a belligerent, and al Qaeda operatives are not.

      Since clearly I’m not an international law expert, your mission before we get to part four (should you choose to accept it) is to find where it’s acceptable a) in international law; and b) in U.S. law before 2001 to treat someone who is not an agent of a belligerent, committing atrocious crimes in the United States, as anything other than a common criminal. “Nurnburg” is not the precedent.

      It’s not a choice of venue question. Ultimately, it’s a question of whether we uphold our most precious fundamental principles—the very principles that make us free—or in times of trouble seek excuses to repudiate them.

  2. Interesting post. Wouldn’t the “justification” jury instruction require the judge to rule that the fetus is a “person”? Seems to me that’s a legal question and not factual. And if you can’t get past that then the jury doesn’t get that instruction. I don’t know the rest of Kansas law and whether they’ve addressed this or not. You make mention of “illegal abortions” so I”m assuming that there’s probably some kind of statutory definition somewhere in Kansas law about that.

  3. Actually, the judge did not let Roeder present any justification or excuse evidence to the jury, or allow him to plead it. He had the evidence shown to him first, and then ruled that the jury couldn’t see it, because he didn’t want abortion to enter into the case. That made it impossible for Roeder to argue to the jury that he killed Tiller to prevent illegal abortions, which was Roeder’s entire defense.

  4. Oh– and Roeder’s justification was not that he was stopping abortions, but that he was preventing abortions (and maybe killing of mothers, I forget) that were illegal under current Kansas and federal law. The former Kansas Attorney-general was going to give testimony for him, he would have brought up Tiller’s recent trial for not getting second opinions of doctors, various other evidence that sounds plausible.

    An interstnig legal question: would Roeder have to show that Tiller was going to commit new abortion-related crimes beyond a reasonable doubt, or just by preponderance of evidence, or some weaker standard?

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