Hiding 'Necessity Defense' from Jury Denies 'Due Process of Law'
By Dave Leach The Covenant News ~ January 12, 2010
Sixth in a series of excerpts from the pro se brief which Scott Roeder submitted, and which Judge Wilbert accepted into the record January 8, to answer how the Necessity Defense justifies Scott’s May 31 shooting of Wichita’s late late term abortionist, George Tiller. Judge Wilbert ruled December 22, and again January 8, that Scott must not say a word to the jury about his central defense, the Necessity Defense, although Wilbert is undecided how much to allow evidence for the same defense by another name: the “Defense of Others”. Judge Wilbert’s email address is wwilbert@dc18.org. Scott’s trial is scheduled for January 11. Future installments: The Theory that Stopping Kansas Abortions can’t be Justified because Abortion is Legal Originated in a Straw Man argument in 1993 <> Not Even Roe Says Whether Abortion is Genocide is “Irrelevant” <> Imminence and Alternatives.
“Law” means penalties applied fairly to everybody, from which not even lawmakers are exempt. “Due process” means legal procedures, designed to preserve constitutional rights while prosecuting crimes, which must be followed for all defendants alike.
The way prolifers are treated in courts violates Due Process. Judges do not follow the procedures in place for everybody else, when abortion is involved.
We read about “due process of law” in two amendments to the Constitution:
The 5th Amendment: No person shall...be deprived of life, liberty, or property, without due process of law;
The 14th Amendment: ...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Judge Wilbert has done what he would not do in any other case where abortion is not involved: he has subsumed (classified) the only disputed “fact question” under a “question of law”, and then decided that “question of law” by himself before the trial even started. This leaves Scott’s jury with no seriously contested issue to hear. This common judicial practice denies prolifers basic constitutional rights which all other defendants take for granted.
The disputed fact question in Roeder’s case is not who Scott shot; it is what Scott’s shot stopped. What is abortion? Is it unthinkable genocide, or wart surgery?
If he is allowed to prove it is such unthinkable barbarism that any “reasonable person” would, in the opinion of the jury, justify the same action, then Scott will go free under the Necessity Defense, as formulated by case law and common law outside Kansas.
If he can prove that, and that many of Tiller’s abortions were illegal even by commonly accepted legal interpretations, then Scott will go free under the Defense of Others, which a 1993 Kansas precedent treats as the same defense with a different name.
If he can prove that his belief was “honest”, though “unreasonable”, then Scott’s sentence for Voluntary Manslaughter will be 5 years, and he could be paroled after as few as 2 years.
These are the only defenses available to Scott, and as you can see the evidence necessary for the three is basically the same evidence; so that a ruling by the judge that Scott can’t present evidence of the nature of abortion in support of the Necessity Defense is a ruling that Scott can’t present evidence in support of the other two defenses, either.
(Fortunately, as of Wilbert’s January 8 hearing, he has not really decided what to do. He ruled that the Necessity Defense is inadmissible, but he is still open to the Defense of Others – the same defense by another name. And he is open to the defense of Voluntary Manslaughter, which invites the same kind of evidence. He is so undecided what to do that he said he would decide “witness by witness”.)
While thousands were still blocking abortion doors before FACE was enacted, (in about 1992, which made the penalty for blocking an abortionist’s door thrice about the same as for shooting the abortionist, which ended the peaceful blockades and started the violence), Operation Rescue estimated there had been over 60,000 arrests of Christians for saving lives. In most of them, the Necessity Defense was the only defense and the only seriously contested issue of the trial. Yet most of the time judges ordered defendants not to say a word about this sole trial issue to the jury.
Scott’s prosecutor mentioned this claim from his brief in the December 22 hearing: "‘The defendant in this case has filed a 100-page brief, which even in that brief he acknowledges that across the United States, that this necessity defense has been denied 100,000 plus times,’ said Assistant District Attorney Kim Parker.” What the prosecutor left out was that when juries were allowed to know the only trial issue, they acquitted.
If a judge censored the only contested issue in any other case where abortion is not involved, that would be automatic grounds for reversal by a higher court.
Yet that denial of rights is exactly what was called for by the 1993 Kansas Supreme Court in City of Wichita v. Tilson, and in several other state supreme courts. The heavily contested fact question of the Necessity Defense –“is abortion a tonsillectomy of a tonsil, or the murder of a human being?” – was called a “question of law” which the jury is not considered qualified to decide, so is not even permitted to know about.
(Definition of terms for the next point: “Affirmative Defenses” are where the defendant affirms they did what the prosecutor said, but then presents evidence of a context that justifies that action. Self Defense: “I shot him like the prosecutor says, but he was about to shoot me.” Necessity Defense: “I shot him like the prosecutor says, but he was shooting children in a playground.” Insanity: “I shot him like the prosecutor says, but I was crazy!”)
In no other Affirmative Defense case except where abortion is involved, is there a factual dispute between the parties over whether those being saved are human beings! At least not since the Dred Scott disaster was resolved by the Civil War. (In 1856, the Supreme Court ruled that a slave owner could bring his slave with him to a free state, and the slave would remain his property. The ruling upset precarious compromises between the North and the South and precipitated the Civil War which began in 1860.)
In no other Affirmative Defense case except where abortion is involved, is it ruled “irrelevant” whether thousands of human lives were saved by the defendant’s action.
In no other Affirmative Defense case except where abortion is involved, is the contested issue not whether lives were threatened, which all admit, but whether they were human, which the defendant believes and about which the prosecutor holds no opinion other than that if they are human, they are “irrelevant” humans. The dispute is whether the life or lives saved count as “life”, or as “human life”, or as “persons in the whole sense”.
In no other Affirmative Defense case except where abortion is involved, does a judge routinely hide the only defense, and the only contested issue, which revolves around a heavily disputed fact, from the jury.
In no other Affirmative Defense case except where abortion is involved, is there one fact question that is admitted (in this case, Scott shot the doctor) and another question that is heavily disputed (thousands of human souls were saved from the most barbaric, cruel murder), and the disputed fact question is decided by the judge before the trial even begins and even kept from the jury’s knowledge, while the undisputed fact is given to the jury to “decide”, in order to present a public pretense of giving the defendant his Constitutional Right to Trial by Jury!
It is “fundamentally unfair” (a legal way of saying “it violates due process”) to do these things just because a man is on trial for saving unborn human beings.
NEXT: Understanding Judge Wilbert’s Ruling that the “Necessity Defense” is inadmissible, while ruling that he is still open minded about the same defense with another name – the “Defense of Others”