Judge Wilbert ruled out 'Necessity Defense' but allowed same defense with another name!
By Dave Leach The Covenant News ~ January 18, 2010
Seventh in a series of news commentary combined with 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. 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.
Scott Roeder is not allowed to present evidence supporting the Necessity Defense in his trial for killing the late late term abortionist Dr. George Killer May 31, but he is allowed to present evidence supporting the Defense of Others, and Voluntary Manslaughter. So ruled Judge Wilbert January 8.
The only trouble with this news is that the evidence required to support the three defenses is as alike as are a white flower, a flower that is white, and a white thingy that is called “flower”.
For all three defenses, the defendant must present evidence of the unthinkable and “unlawful” nature of Tiller’s abortions. The only difference between them is how credible the evidence seems to the jury.
What was that noise? Oh, just you fainting? At the mission of proving that at least some of Tiller’s abortions were “unlawful”?
Well, in Tiller’s case, that won’t be impossible. A powerful witness for making that case will be former Kansas Attorney General Phill Kline, who can talk about the political obstructions to his prosecution of Tiller, by officials whose political campaigns were financed by Tiller. I wonder if the defense will pursue evidence of the story that after a baby was “accidentally” born alive, Tiller carried the child over to his sink where he broke the child’s neck? Surely no other abortionist in America has so black a cloud of doubt over him, whether his abortions were “legal” even by commonly accepted legal interpretations.
And although the Defense of Others clearly says the defense only justifies preventing “unlawful force”, that does not necessarily require Scott to prove Tiller’s abortions were “illegal”, his pro se brief argues. Black’s Law Dictionary says “unlawful” means a little more than merely “illegal”. It means “morally impermissible”. Certainly Tiller’s grisly late term abortions were “morally impermissible force”, and therefore “unlawful force”, if Black’s Law Dictionary has anything to say about it.
Here are the three defenses side by side:
DEFENSE OF OTHERS: Kansas 21-3211(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force.
In other words, “I shot him, but he was in the middle of killing thousands of babies unlawfully.” Tilson ruled that as long as abortion is “legal”, it is “irrelevant” whether abortion is, in fact, the most barbaric, unthinkable, cruel genocide – anyone who stands in its way even a little bit must go to jail.
VOLUNTARY MANSLAUGHTER: Kansas 21-3403 “Voluntary manslaughter is the intentional killing of a human being committed: ...(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211....” (Notice the reference to the Defense of Others.)
In other words, “I shot him, but I honestly thought he was in the middle of killing thousands of human beings unlawfully.”
There is no difference between the Necessity Defense and the Defense of Others, that was identified in Tilson, except the name, and Tilson’s uncertainty whether the first was the law in Kansas while not doubting whether the second was. Tilson listed several versions of the Necessity Defense as it varies from one jurisdiction to another, and several names for it, saying “for the sake of simplicity we will refer to it as the necessity defense”. The Defense of Others falls well within that range of variations. Here is one of the formulations of the defense quoted in Tilson:
NECESSITY DEFENSE: Conduct constituting an offense is justified if. (1) any legally-protected interest is unjustifiably threatened or an opportunity to further such an interest is presented; and (2) the actor engages in conduct, constituting the offense, (a) when and to the extent necessary to protect or further the interest, (b) that avoids a harm or evil or furthers a legal interest greater than the harm or evil caused by actor's conduct" 2 Robinson, Criminal Law Defenses § 124(a) pp. 45-46 (1984).
In other words, “I shot him, but he was in the middle of killing thousands of human beings. Whether he was killing them legally or not is irrelevant. What is relevant is that I wasn’t just defending some drug lord under attack by the cops. I was defending thousands of unborn human beings with a constitutional Right to Life.” The pro se brief points out that not even Roe v. Wade withdrew constitutional protection from unborn human beings at any stage, but said if juries ever establish that the unborn are human beings, “legal” abortion must end.
A future installment (based on the section starting on page 45 of the brief) will explain how Robinson’s version, along with plenty of other case law, does not limit the Necessity Defense to justifying protection of human life only from illegal threats but from all threats. But for now, Tilson treats them as both being limited to stopping “unlawful force”, and Judge Wilbert has ruled accordingly.
Before the trial, a judge does not directly rule on what defense is allowed. That is decided after the case is closed, and the attorneys argue about jury instructions, where he will mash the elements of whatever defense he allows into a sugary porridge for the jury to sup (as an alternative to allowing the jury to see the actual words of the law). He has made clear that he has not yet decided what defenses he will allow to be mushed into his jury instructions. What the judge directly rules on, before trial, is what body of evidence should be excluded because it is irrelevant to any legitimate defense.
Normally this distinction doesn’t matter. But in this case there are two different defenses, and one of them with two different names, all three of which call for the same body of evidence. And the judge has ruled that the evidence in support of one of the defenses is inadmissible, while the evidence in support of the other two, including the one that is the same defense with a different name, is admissible!
In other words, Judge Wilbert has yet to rule on anything with enough precision for anyone to know what he will allow. It surely must be because he doesn't know. Since the body of evidence necessary for all three defenses is the same body of evidence, and he has ruled that body of evidence admissible under two of its three names, he has not yet ruled ANY evidence inadmissible; and yet neither has he ruled ANY evidence ADMISSIBLE, but will rule "witness by witness", in his literal words.
Judge Wilbert says he will not let this trial be about abortion, but it will be about Roeder's "beliefs". Never mind that it is impossible to present evidence of Roeder’s beliefs, that does not reflect on the unthinkably barbaric and “unlawful” nature of abortion! Furthermore, it is necessary for Scott to present evidence that is of high enough quality for the jury to feel comfortable that his belief is "honest", and not merely "insane". Once that evidence is before the jury, it will be very easy for most jurors to agree that Scott's beliefs about abortion are not merely "honest", ("Voluntary Manslaughter", 2-5 years), but are all the way up to "reasonable" ("Necessity Defense", acquittal).
Therefore, Wilbert's statement that the trial will "not be about abortion, but about Roeder's beliefs" is like saying "I don't want you to tell me what is in front of your eyes. I want you to tell me what you see."
I perceive the judge is scrambling. He perceives, though he wants to avoid facing, the reality that suppressing the evidence of the nature of abortion is legally and spiritually preposterous. He also knows he gets zero input into what will be “credible” to a jury, which is the sole judge of credibility. While jury instructions are very important indeed, they are not nearly as important as admission of evidence.
I am grateful for this evidence that his heart is not fully closed. Pro-Deathers are right to worry that Death may lose, but they are paranoid to say Death has already lost.
Judge Wilbert’s very indecision is evidence that he is a better man than trial attorney Gerry Spence’s characterization of judges: “I have come to the belief that donning the black robe magically transforms what once was a good and generous heart into a black and gloomy void.” (P. 147, “How to Argue and Win Every Time”)
Wilbert has at least a faint desire to follow the law, even if that fails to deliver the lynching expected by those in a position to reward him. The Holy Ghost should be nagged continually about this man! He appears at least as virtuous as Pontius Pilate, preferring to do his job the way he is supposed to do it, if at all possible while still keeping his job. Let us pray that he does not fall to Pilate’s path, but rises to Solomon’s. Let us urge him to allow the same rights to the defendant that he would allow in any other murder case. Indeed, if you are willing to so urge him in obedience to 1 Timothy 2:1-2, you can email him at wwilbert@dc18.org.
Because of these victories so far in the courtroom, I believe the biggest remaining battle is in the hearts of Christians, both on and off the jury.
Even if all the legal arguments in my brief were to succeed in proving Scott acted within the law - (Roe v. Wade lost its Constitutional Protection in 1992 according to a 2003 Supreme Court opinion; Roe "collapsed" under the weight of federal law in 2004 and only waits for the right case to make the autopsy official; the Preamble protects the constitutional rights of "our posterity" which obviously includes the unborn; Roe does NOT treat the fact question of whether abortion is murder as "irrelevant", but as relevant enough to "collapse" the legality of abortion; the Necessity Defense is a very real, very Biblical, spiritually and legally inescapable defense which really does justify physically stopping perpetrators of genocide even if they aren't violating laws) - there remains passionate Christian resistance to any challenge to legal interpretations that departs far enough from tradition to invite persecution.
Putting a microphone and camera in front of an average Christian and asking him what he thinks of shooting a man who boasts of 60,000 "legal abortions" turns the Christian into an Absolute Pacifist: police shouldn't be armed, our army shouldn't have guns, if I saw a rapist assaulting my daughter I really would just try to reason with him, Jesus never shot anybody, He was just kidding about the two swords, etc. (Except of course we need a military presence on our Mexican border.)
It is this kind of fear-based Gal 6:12 reasoning among Scott's jurors which will be the biggest threat to him and to future unborn Americans.
Great quotes:
“Most defenses, such as self-defense, insanity, and entrapment, require factual determinations that the jury should make, rendering pretrial disposition inappropriate.” U.S. v. Smith 866 F.2d 1092, *1096 (C.A.9 (Alaska),1989)
A “district court has broad discretion in ruling upon the relevancy and admissibility of evidence. United States v. Kelly, 888 F.2d 732, 743 (11th Cir.1989). This discretion, however, does not extend to the exclusion of crucial relevant evidence necessary to establish a valid defense. Kelly, 888 F.2d at 743; United States v. Cohen, 888 F.2d 770, 777 (11th Cir.1989). U.S. v. Williams 954 F.2d 668, *671 (C.A.11 (Ga.),1992)
It is axiomatic that defense of another, by it very nature, constitutes the paradigm of a “justification or excuse”, the absence of which is an element of murder. Therefore, “a determination of the defense of justifiable homicide- self-defense- is exclusively a jury question” U. S. ex rel. Crosby v. Brierley 404 F.2d 790, *801 (C.A.Pa. 1968)(emphasis added)
The Supreme Court has long ago stated that, because self defense (and therefore defense of others) “repels the proof of malice”, thereby negating an element of murder, “it is for the jury to say whether, on all the evidence before them, the malice....is proved or not.” Davis v. U.S. 160 U.S. 469, *490-491, 16 S.Ct. 353,**359 “(B)ecause a defendant must possess a certain state of mind in order to be convicted of that crime, any evidence showing the absence of that state of mind is relevant and thus admissible to negate that element.” People v. Jung 2001 WL 755380, *8 (Guam Terr.,2001)
NEXT: The saying “how can abortion be legally recognized as a harm, when it is Constitutionally Protected?” is based on a “straw man” argument 17 years ago.