Abortion rights groups are up in arms because Scott Roeder, the killer of late-term abortion doctor George Tiller, may be allowed to argue that the killing was voluntary manslaughter:
Before the first juror is selected or witness called, a decision allowing a confessed killer to argue he believes the slaying of one of the nation’s few late-term abortion providers was a justified act aimed at saving unborn children has upended what most expected to be an open-and-shut case.
Some abortion opponents are pleasantly stunned and eager to watch Scott Roeder tell a jury his slaying of Wichita doctor George Tiller was voluntary manslaughter. Tiller’s colleagues and abortion rights advocates are outraged and fear the court’s actions give a more than tacit approval to further acts of violence.
This is an interesting issue, but off the top of my head, the judge’s ruling may be legally correct — but only because he doesn’t yet know what the evidence will be. It’s very hard for me to believe that a voluntary manslaughter instruction will ultimately be given, however.
Here’s the basic principle (and I’m oversimplifying): you can’t be convicted of murder if you have an honest belief that your actions were necessary to prevent someone else from committing an unlawful killing. Under Kansas law, it appears that the killing must have been “imminent.”
If your belief was reasonable, it’s a justified killing. Say, for example, you are a customer in a robbery, and the robber raises his gun to kill the clerk, so you kill the robber. That’s a justified killing. Not guilty.
If your belief was unreasonable, it’s voluntary manslaughter. It’s still a crime, but it’s not murder. (It’s hard to come up with a simple example of this that clearly illustrates this concept, because people will argue about whether the belief was reasonable or justified, depending on the fact pattern.)
Roeder’s trial is in the jury selection stage. No evidence has been presented. As I understand the news reports (which are really quite bad and all over the map), it looks like the judge has already ruled that the killing is not justified, because Tiller’s abortions were legal. (The Wall Street Journal article suggests otherwise, but I think it’s wrong based on other articles I have read, e.g. here. I think the WSJ reporter doesn’t understand the arguments.) Thus, Roeder’s killing was unreasonable as a matter of law. He can’t legally get an acquittal based on the argument that he needed to kill Tiller to save babies.
As for the manslaughter charge, the judge is in a different posture. He hasn’t heard any evidence, so he doesn’t know whether Roeder would be able to argue that he honestly believed his actions were necessary to prevent an imminent killing. The stories say that the judge is skeptical, and rightly so.
Interestingly, if the killing had happened in Tiller’s office, the imminence would be far less of an issue.
To me, the more interesting and problematic issue is this: what if Roeder knew that the killing(s) he hoped to prevent were legal — but he honestly disagreed? In that case, I believe, there is no mitigation and no voluntary manslaughter instruction. (For the legal types, this is a “mistake of fact” vs. a “mistake of law” issue.) [UPDATE: But see UPDATE below.] None of the articles I read confront that issue — but that, and not the imminence of the abortions, is the real issue, it seems to me.
Of course, there’s always nullification. The instructions don’t matter when the jury has decided not to follow the instructions to begin with. And so I pose this question to the radical libertarian Balko fans who support abortion: the jury could still nullify. How do you like nullification now?
UPDATE: I wrote this post in a hurry this morning and I’m not entirely happy with the way I expressed the analysis — especially the comment about the “mistake of fact” vs. “mistake of law” issue. Don’t hold me to that language. I think this is a very cutting edge issue with few clear precedents and I’ll have to think about it more.
A commenter points me to an analysis by Paul Cassell at Volokh that agrees with the prosecution on the question of imminence. I agree that the instruction may not ultimately be given, but I disagree that the answer is obvious. The key is the unreasonableness of the belief: you might unreasonably believe that the danger is imminent even if it isn’t.
For example, it’s not unheard of at all for a battered woman to kill her husband in his sleep and get a jury instruction on voluntary manslaughter. There’s no way such a woman will get a self-defense instruction, but she might get an unreasonable self-defense instruction.
I still think the more interesting question is whether the defendant must subjectively and honestly believe that the killing he is preventing is unlawful. And then, unlawful according to whom? What if he knows these abortions are considered lawful, but he truly believes them to be unlawful under U.S. law . . . but he thinks the courts have it wrong?
Somewhere in here is an interesting law review article . . .