LINDA WERTHEIMER, host:
We want to bring you up to date now on the court case concerning the killing of a Kansas doctor who performed abortions. The doctor, George Tiller, was shot to death in his Wichita church in May. A Kansas court will hear several motions today regarding Scott Roeder, the man charged in the shooting. Roeder's attorneys want to present a justifiable homicide defense. That idea has been proposed before in high profile abortion cases, but it has never been allowed. NPR's Kathy Lohr reports.
KATHY LOHR: Roeder pleaded not guilty to charges of first degree murder and aggravated assault in connection with the shooting of Dr. Tiller, who had long been controversial for performing abortions later in pregnancy. Last month, the Associated Press reported that Roeder admitted killing Tiller in an interview, and that he said he did it to protect unborn children.
Is a so-called necessity defense a viable one? Paul Hill, who was convicted of shooting a doctor and security guard at a Florida clinic in 1993, tried to use it. Michael Hirsh is an attorney who wrote the thesis outlining the defense and represented Paul Hill at his appeal.
Mr. MICHAEL HIRSH (Attorney): The benefit of the doubt should always go to the criminal defendant in terms of presenting his defense. Now, if it doesn't work - that is, the jury says, sorry, not here pal - then you're done.
LOHR: But a Florida court would not allow the use of the justifiable homicide defense in Paul Hill's case. Hirsh says he has consulted with Scott Roeder in Kansas, although he does not represent him.
Mr. HIRSH: In my opinion, he ought to be allowed to present this defense because it goes to the heart of the case, that it points out that there's a child who, under any circumstance - other circumstance - you know, you and I stepping into the fore to protect a born child would be hailed as a hero.
LOHR: Prosecutors in Kansas have filed a motion to prevent the use of the necessity defense, saying it is not recognized in state law. Prosecutors also argue that such a defense does not apply because Dr. Tiller was not engaged in illegal conduct. They cite a state Supreme Court opinion in a case involving trespassing at a clinic. The court said allowing the personal, ethical, moral or religious beliefs of a person to justify criminal activity would not only lead to chaos, but would be tantamount to sanctioning anarchy. Prosecutors declined to comment further.
Defense attorneys argue the state is trying to prevent the defendant from presenting his case, and they claim the state is attempting to force them to reveal their strategy. They also declined further comment.
Professor MORGAN CLOUD (Criminal Law professor, Emory University): It's kind of like saying I did it, but so what?
LOHR: Morgan Cloud is a criminal law professor at Emory University.
Prof. CLOUD: The legal system does not permit you to kill someone else and then claim this defense, justification or necessity, as an explanation of why you're not guilty of a crime. I would be very surprised if the trial judge allows the defense to be used in the case.
LOHR: Cloud says judges are leery of defendants who seek to advance their political causes through the courts. He says most have long recognized that protestors engaging in civil disobedience must suffer the consequences when they break the law. Defense attorneys are also seeking to get the case moved out of Wichita, saying Scott Roeder cannot get a fair trial there. That trial is scheduled to begin next month.
Kathy Lohr, NPR News.
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