Justifiable-homicide defense eyed in doctor’s slaying

WICHITA, Kan. (AP) — The suspect in the killing of abortion provider George Tiller is in talks with a prominent attorney who represents anti-abortion activists and has long advocated justifiable homicide as a legal defense in such cases.

Scott Roeder, 51, has pleaded innocent to first-degree murder and aggravated assault charges in the May 31 shooting death of Tiller in the foyer of his Wichita church. The Kansas City, Mo., man has refused to discuss his case, but he has told The Associated Press that Tiller’s killing was justified to save “the lives of unborn children.”

Roeder has court-appointed defense attorneys, but he apparently has now turned to Michael Hirsh, the lawyer who represented Paul Hill on appeal for killing a Florida abortion provider and his bodyguard in 1994. Hill was executed in 2003 after the Florida Supreme Court rejected Hirsh’s argument that the judge should have allowed Hill to present to jurors his claim that the killings were justified to prevent abortions.

Hirsh confirmed he has spoken once to Roeder in recent weeks about representing him, but he has not yet been retained. Hirsh said he had not researched the facts of the case or Kansas law enough to know whether the justifiable-homicide defense could be used but said a jury should be allowed to decide if it is applicable.

Roeder’s trial is scheduled for Sept. 21, though public defender Mark Rudy said he anticipates filing for a continuance.

Rudy declined to comment on Hirsh’s possible role in the case. Roeder did not respond to a letter from the AP seeking comment.

The Florida Supreme Court ruled in denying Hill’s appeal that his motivation would not change the outcome of the case. “As a practical matter, permitting a defendant to vindicate his or her criminal activity in this manner would be an invitation for lawlessness,” the justices wrote.

But Hirsh discounted the suggestion that if a jury acquitted Roeder of murder based on such a defense, it would lead to an open season on abortion doctors.

“It has been open season on unborn children for over 30 years. I think on abortionists there will be a bag limit,” Hirsh said in a phone interview this week from his Kennesaw, Ga., office.

He previously represented anti-abortion activist Regina Dinwiddie of Kansas City, Mo., who was among the first protesters targeted in 1995 under the Freedom of Access to Clinic Entrances act. Dinwiddie was barred from going within 500 feet of a clinic.

The principle of self-defense and the defense of another has been recognized for centuries, Hirsh said. But he acknowledged its use in abortion-related cases has been stifled, saying that in Hill’s case, the prosecutor and judge made sure jurors wouldn’t hear it.

“We don’t know if it would have prevailed or not, and they were scared out of their mind, and you could see it, that it might have,” Hirsh said. “And so it’s not fair to say it never worked. Well, it hasn’t been tried, either.”

Richard Levy, a professor at the University of Kansas School of Law, said such defenses can work but not necessarily in the context of abortion. The law requires that the threat be imminent, the force reasonable in response and the activity involved unlawful.

Any claim that killing an abortion provider is justifiable likely would fail, he said.

“In particular in the circumstances of the murder of Dr. Tiller there is an imminence problem, there is no imminent threat and, more fundamentally, the activities he was engaged in were legal,” Levy said.