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.