A Death in Wichita (29 page)

Awaiting trial, Roeder had deepened his relationship with the anti-abortionist Dave Leach of Des Moines, Iowa. If Randall Terry had for decades represented the flamboyant, media-grabbing wing of the pro-life movement, the aging Leach was less intrusive and more scholarly, but every bit as committed to stopping abortion. With his wife, he ran a music store in Des Moines and instructed children on various instruments, but nowadays he needed Social Security to keep up with his bills. He was curious and a good listener, but his extremism regarding abortion wasn’t far below the surface. Once Tiller was dead, Leach had begun studying how to use the killing as a vehicle to bring the necessity defense into the courtroom in a serious way, during a high-profile case, in order to get crucial issues in front of a judge, a jury, and the national press. He wanted the Roeder trial to become a publicized legal forum on abortion. While not an attorney himself, he was a dedicated student of the law and had finished his 104-page motion, written on behalf of Roeder and submitted to Judge Wilbert in the weeks preceding jury selection.

Like others in his movement, Leach drew parallels between the fight to stop abortion at the start of the twenty-first century and the battle to end slavery in the years leading up to the start of the Civil War in 1861. The anti-abortionists liked to cite the infamous 1857 Dred Scott U.S. Supreme Court decision, which ruled that people of African descent imported into the United States and held as slaves—and their descendants—were not protected by the Constitution and could never become American citizens. Further, Congress could not prohibit slavery in federal territories, slaves could not sue in court, and they could not be removed from their owners without due process. The failure of the legal system to remedy slavery had fed the momentum that created the War Between the States. When abortion opponents brought up the Dred Scott decision, one implication was that because the U.S. Supreme Court had made abortion legal under
Roe v. Wade
, the only option left to prevent the killing of the unborn was violence against abortion providers.

With Roeder having sacrificed his freedom in order to make this point, Leach saw his chance to have an impact on the trial and possibly on setting legal precedents. He’d taken the writing of his motion very solemnly, citing case law and quoting the Bible, but then presented the document as if Roeder had penned it himself.

“Every defendant,” the motion began, “has the right to present his theory of his defense…”

While Roeder appreciated the efforts of his attorneys, Steve Os-burn and Mark Rudy, the letter said, “they have publicly given mixed signals about their willingness to represent me on the central theory of my defense, which is the only reason I maintain my innocence and demand a trial by jury, and is the only reason I took the action which got me here…American justice embodies the vision of the freedom of defendants to at least raise their defense high enough to be shot down in a public forum after all sides are heard…The facts and arguments motivating defendant are not the exclusive fabrications of wild-eyed fringe kook radical fanatics, but are established by American leaders who include Congressmen, presidents, and Supreme Court justices…”

As the document unfolded under the guise of the defendant, Leach delivered his own subtle warnings and threats:

“Courts simply have failed to squarely address questions about the legality of abortion to the satisfaction of even a majority of Americans. This case presents the court an opportunity to resolve these lingering disputes and heal America, which will end the violence. It is America Herself which will suffer, if Courts gloss over these unanswered questions one more time. Conscience’s cry for justice will continue to press for satisfaction outside legal channels, as long as legitimate questions cannot be addressed
through
legal channels…

“Defendant desires the violence to stop. On both sides. Defendant offers the rest of his life for the lives of the unborn whose murders he prevented…Kansas law will not help a hero who saves thousands of lives if the cruel and unusual slaying of these human souls is legal…what really made me despair [was] the law could not or would not touch him [Dr. Tiller].”

To support his argument, Leach mentioned another famous American criminal trial: hadn’t the deceased unborn Connor Peterson been legally regarded as a person and a homicide victim, along with his mother, Laci, in the notorious 2005 Scott Peterson double murder case? Therefore, shouldn’t
all
unborn fetuses be viewed the same way in the courtroom? Since 2005, Leach wrote, the “entire legality of abortion has been reversed,” even though this may not yet appear to be true because of current inconsistencies in case law.

“The only mechanism for resolving this is a case that requires those inconsistencies to be resolved. This is that case.”

Leach ended with a flourish, evoking the cultural war that had pervaded the United States since the 1960s. Woven into his words was the same impassioned rhetoric about a changed and changing America used by the men in the Order a quarter century earlier. They’d hated what their country had become and saw no alternative but to blame others for the massiveness and complexity of that change.

“I pray,” Leach wrote, “along with God’s spiritual army that the terrible natural consequences prophesied for crimes so great as America’s need not fall any harder than they already have. I pray America will turn from kicking the roses barefooted (Acts 9:5) to cradling the bruised but still fragrant roses, allowing the bloodshed to stop on all sides. What suffering has been the natural consequences of hearts hard enough to slay 50 million of our own offspring! Unfaithfulness. Divorce. Domestic violence. Child abuse. Crime. An economic black hole at hand, created by political corruption added to a depleted work force from abortion and the turning away of immigrant labor. Are we bloody enough yet to stop kicking?

“It is not my vision that America’s judiciary will walk still in the dark footsteps of
Dred Scott
until reversed by a civil war, carrying this scar until America ceases as a nation, but that this time courts will reverse the evil which they initiated and lead our nation in righteousness. Scott Roeder.”

The motion claimed that the trial would be a “charade” unless the defendant could argue that his actions were needed to save unborn children.

“This is not,” Judge Wilbert had said, “going to become a trial over the abortion issue. It will be limited to his [Roeder’s] beliefs and how he came to form those beliefs…”

After the judge had received the 104 pages, he cracked open still more legal doors on January 8, saying that he could imagine “the very real possibility evidence could come from the defendant alone that would give me a duty to instruct the jury on voluntary manslaughter.” And that one instruction could change the entire course of the trial, and its verdict.

This handful of words angered abortion rights supporters across the country, and by sundown of the eighth, Katherine Spillar, executive vice president of the Feminist Majority Foundation, prepared a statement in response to Judge Wilbert’s ruling.

“Today’s perplexing decision,” she said, “is effectively back-door permission for admitted killer Scott Roeder to use a ‘justifiable homicide’ defense that is both unjustifiable and unconscionable. Allowing an argument that this cold-blooded, premeditated murder could be voluntary manslaughter will embolden anti-abortion extremists and could result in ‘open season’ on doctors across the country…”

In Boulder, Dr. Hern characterized the judge’s ruling as a death sentence for those physicians trying to help women. In Kansas City, Lindsey was in complete shock, thinking about the possibility of her ex-husband being freed within the next few years. At Harvard Law School, Professor Alan Dershowitz told
Slate
that Wilbert’s ruling was “an absurd approach to the law that would open the door to the most dangerous extension of the defense of imperfect necessity.”

On January 11, the prosecution filed a last-minute motion asking the judge not to give the jury the option of convicting on voluntary manslaughter charges. Roeder couldn’t seek this legal outcome, the DA said, because that required the presence of an imminent threat by Dr. Tiller, and he wasn’t at his clinic performing an abortion when he was killed.

“The State,” prosecutors wrote, “encourages this Court to not be the first to enable a defendant to justify premeditated murder because of an emotionally charged political belief. Such a ruling has far reaching consequences and would be contrary to Kansas law…Taken to its logical extreme, this line of thinking would allow anyone to commit premeditated murder but only be guilty of manslaughter, simply because the victim holds a different set of moral and political beliefs than the attacker.”

This would further “allow an attacker to choose the time and place of the murder, regardless of whether the victim was engaged in threatening conduct at the time of the killing.”

Judge Wilbert delayed the start of jury selection for two days to hear the lawyers argue the issue in front of him. Because his latest ruling had given so much hope to the anti-abortion movement, the activist Donald Spitz and other Army of God members announced they were coming to Wichita for the trial. While some of his colleagues hadn’t killed abortion doctors in the past because of their fear of life imprisonment or the death penalty, Spitz told the AP, they might be more willing to take that risk now.

On Tuesday, January 12, the defense filed a new motion stating that when Roeder had committed the crime he’d in fact believed that Tiller was an “imminent threat” to the unborn. The physician was not a threat “based on character, or exchange of words, or provocation of physical self defense, but instead based on abortion procedures that have resulted in deaths and been reported to the state of Kansas…

“The imminence of danger was greater than mere fear of future harm. There was a state licensed facility operating in Sedgwick County to perform abortions. It had staff. It had a practitioner. It had a budget. It had clientele. It assumedly had a schedule of pending abortion procedures. In the mind of Mr. Roeder, the victim presented a clear danger to unborn children.”

It was up to the jurors and not the judge, the defense said, to decide what charge Roeder was guilty of. That afternoon, Judge Wilbert agreed with this position, saying it was improper for him to rule out the voluntary-manslaughter defense before a jury was even seated.

“We don’t fast-forward,” he said. “We don’t jump to conclusions, and we don’t arrive at the end of the process without a full and complete—and hopefully impartial—hearing.”

The prosecutor Kim Parker tried to salvage a partial victory by asking Judge Wilbert to prohibit the defense from commenting on Roeder’s beliefs about protecting the unborn during jury selection and opening statements.

Mark Rudy objected.

“The state,” he said, “is trying to script the trial, and trials aren’t scripted. This trial is going to be on television [with national coverage provided by TruTV], but it’s not a TV trial. It is a real trial.”

On Wednesday afternoon, January 13, the whittling down of the jury pool began in earnest. By Friday evening, only twenty-five potential jurors had been questioned and then came a three-day weekend, followed by several more days of jury vetting. The trial was finally set to start on January 22—thirty-seven years to the day since
Roe v. Wade
had been handed down by the U.S. Supreme Court. People on both ends of the abortion issue saw this as a providential sign that their side was about to triumph in the courtroom. That same evening abortion foes and supporters planned rallies in Wichita and Topeka to commemorate the anniversary.

In mid-January, Wichita was frigid, foggy, drizzly, and snowbound, its downtown streets covered with sleet and ice. Tree branches were brittle enough to snap and you often couldn’t see more than two blocks in any direction, during what became the coldest winter in the city since 1888, when they began keeping records. The single-digit temperatures and the hardships of bad weather seemed to add to the gravity of what was about to take place at the Sedgwick County Courthouse. Regardless of how one felt about abortion, life-and-death issues were in play in Judge Wilbert’s courtroom and the assembled press corps, which could be incredibly snarky during murder trials, would be respectful at this one. Media from around the nation, including both coasts, had flown in for the event, and like the public they were subject to extremely tight security measures. Bomb-detecting canines and ATF officers patrolled the ninth-floor hallways and Judge Wilbert’s crowded courtroom. They were assisted at all times by at least nine hefty (some would say overweight), blue-clad, heavily armed Sedgwick County sheriff’s deputies.

“Not exactly,” one journalist noted while studying the cops, “a thin blue line.”

The same bailiff who’d presided over the Tiller trial was in charge of this one. Once again, Jeanne Tiller, this time accompanied by her four grown children, would be in the courtroom with Scott Roeder, seated just a few feet to the right rear of the defendant. He’d make no eye contact with them or acknowledge their presence; as he was about to tell Dave Leach, to him Mrs. Tiller was no different from the wife of a Mafia killer. The Tiller family and friends were kept isolated from all other spectators and placed just in back of the three female prosecutors: DA Foulston, Kim Parker, and Ann Swegle. At the defense table, Roeder sat between Osburn and Rudy, and behind them was a row of reporters. Behind the journalists were two rows holding women’s rights activists, led by Kathy Spillar of the Feminist Majority Foundation, and a representative of the Department of Justice, on hand to see if there was fodder for a federal prosecution of Roeder or other anti-abortion extremists.

Jammed together with Spillar and the federal government rep was a who’s who of the radical wing of the anti-abortion movement—in town to make a show of force and solidarity for the defendant. They included Michael Bray, a former U.S. Naval Academy midshipman who’d been convicted in 1985 of two counts of conspiracy and one count of possessing unregistered explosive devices in connection with ten bombings of women’s health clinics and offices of liberal advocacy groups. He’d served forty-six months in prison between 1985 and 1989, and in 1994, according to a confidential teletype sent out to all fifty-six FBI field offices, the feds suspected him and others of developing “a conspiracy that endeavors to achieve political or social change through activities that involve force or violence.” Throughout Roeder’s trial, Bray, who was still considered a terrorist by the National Memorial Institute for the Prevention of Terrorism, was upbeat, friendly, and accessible to reporters. He liked to remind journalists that just because Scott Roeder had murdered one abortion provider didn’t mean that if he were acquitted and released from prison, he’d ever harm anyone again. Wasn’t Bray himself proof of that?

Also present was Regina Dinwiddie, the Kansas City activist who’d protested at clinics with the defendant. Her red lipstick and red hair stood out as she described walking the streets of Wichita with a “defense action petition” that attempted to justify Roeder’s actions; according to her, scores of local people had signed it. Joshua Graff, another trial attendee, had spent three years in prison for a 1993 clinic arson in the Houston area. From her cell in Minnesota, Shelley Shannon lent her support to Roeder in an e-mail she’d sent to Dave Leach. Dr. Tiller, she wrote, had “needed to be killed for the sake of justice…Whatever happens in the Kansas courtroom, justice was done on May 31, ad 2009.” Jennifer McCoy of Wichita, who’d done time for two clinic arsons in Virginia, was in the gallery and pregnant with her tenth child. For two decades she’d demonstrated at WHCS and had visited Roeder in the local jail.

Donna Holman was the wife of Dan Holman of the Iowa anti-abortion group Missionaries to the Preborn. He’d sent the defendant some graphic photos and writings since his arrest. Donna had come down from Iowa in a “truth van” with pictures of aborted fetuses on its side panels, like the ones Operation Rescue drove around Wichita (neither Operation Rescue nor its Truth Trucks nor its leader, Troy Newman, were to be seen during the trial, as Newman did everything possible to distance himself and his organization from Roeder). Donna had parked the vehicle in front of the courthouse and in full view of the press. Her husband had not been able to make the trip to Kansas because he was awaiting sentencing in Michigan for an aggravated-assault charge for a road rage incident involving the same truck.

Dave Leach was at the trial and the rumor was that Randall Terry was about to arrive and do what he did best—make the biggest media splash of all. A few days later, he showed up looking dapper in a long winter coat, a tweed hat, and a pair of expensive-looking square-toed alligator boots. He smiled at everyone and was eager to make contact with any journalist he could find. He’d brought with him several colleagues, who also seemed to function as bodyguards, and before the trial began each morning, they stood in front of the courthouse in the biting cold and held up a sign accusing Dr. Tiller of killing tens of thousands of babies. Like Leach, Terry was using the trial to draw comparisons between the defendant’s situation and the start of the Civil War.

“We are not coming to condone or condemn Scott Roeder’s actions,” read a handout Terry had prepared for reporters and the public. “That decision will soon rest with the jury. However, there are those who want to pretend that this trial has nothing to do with child-killing by abortion; that is a farce. It’s like saying that the trials of Nat Turner and John Brown had nothing to do with slavery…George Tiller murdered 60,000 babies by his own hand. Scott Roeder knew this. How can Mr. Roeder receive a fair trial if this data is kept from the jury?”

Had Judge Wilbert prevented the defendant from getting a fair trial by “having a jury questionnaire that was geared to identify Christians and pro-lifers, and thereby exclude them? In other words, has His Honor denied Mr. Roeder a fair trial by a
jury of his peers
?” Terry called some inquiries on the jury questionnaire “patently offensive and discriminatory:

• What is your religious affiliation/denomination, if any?
  
• Do you attend a place of worship, i.e., Church, Temple, etc.? It yes, state where and how often?
  
• If applicable, does your place of worship and/or particular denomination take an official stand on the practice of abortion?
  
• How would you rate the importance of your religious beliefs in your day to day life? Utmost important. Very important. Somewhat important. Not important at all.
  
• Do you have any principles based on religious or ethical teaching or dogma that would affect your ability to serve as a fair and impartial juror? If yes, please explain.
  

Living up to his reputation, Terry had become the focal point of the anti-abortion protests as soon as he’d hit town.

The only thing perhaps more unusual than the tension in the gallery was Roeder’s legal position. He was not disputing that he’d “killed” Dr. Tiller. The defendant not only agreed with nearly every aspect of the state’s case against him, but was about to provide some new details that made him look even guiltier of the premeditated destruction of the physician. He revealed, for example, that he’d thought about cutting off Tiller’s hands. Roeder’s goal, like Leach’s and Terry’s, was to make the trial about abortion and to give the jury the opportunity to consider his beliefs and motives in killing the doctor. If just one juror among the eight men and four women agreed with his views and felt that he’d stopped a greater evil in Wichita, he or she might vote for his acquittal. If the judge gave the jury the instruction that they could find the defendant guilty of voluntary manslaughter, instead of murder, this might make casting that vote much easier. Across the country, but especially in Boulder and Bellevue, Nebraska, abortion doctors were watching the trial closely (in late January, the pro-choice movement would lose another champion when Tiller’s ex-colleague Dr. Susan Hill of North Carolina died of breast cancer). Wichita was on edge.