There has been lots of media attention to the Kansas abortion case, in which defendant Scott Roeder plans to tell a jury that his slaying of Wichita doctor George Tiller was voluntary manslaughter. Typical is this New York Times article.
The defendant plans to argue that what would otherwise seem to be cold-blooded, first degree murder was in fact voluntary manslaughter because it was necessary to save unborn children.
The Kansas voluntary manslaughter provision, found here, provides:
Voluntary manslaughter is the intentional killing of a human being committed:
(a) Upon a sudden quarrel or in the heat of passion; or
(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.
Sec. 21-3211 is a combined self defense and defense of others provision, found here, which provides:
(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. (emphasis added)
While the trial judge was initially inclined to allow Roeder to press his defense, the judge recently stayed proceedings to consider the prosecution’s argument that no killing was “imminent” and therefore the defense is not available.
I have not studied Kansas case law specifically, so I can’t specifically on the merits of the prosecution’s filing under Kansas law. (Update: the prosecution brief is found here.) But reasoning from general principles of criminal law, the prosecution’s argument seems quite well-founded. The imminence requirement rests on (among other things) the notion that the defendant has no other option than to use force. Here Roeder had ample time to pursue other options, and no reasonable juror could find otherwise. According to the Times article, the facts of the case are these:
On a balmy Sunday morning, Roeder got up from a pew at Wichita’s Reformation Lutheran Church at the start of services and walked to the foyer, where Tiller and a fellow usher were chatting around a table. Wordlessly, he pressed the barrel of a .22-caliber handgun to Tiller’s forehead and pulled the trigger.
If that is a situation in which a defendant is allowed argue that death of another was “imminent” requiring a violent response, than the floodgates are truly open.
Update: An insightful commentor on my initial post drew my attention to Sec. 21-3211(a), found here, which provides:
(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.
This provision obviously greatly strengthens my initial conclusion, because no one can plausibly argue that an abortion is “unlawful” force.
THESMOPHORON says:
The concept of “imminent” is inherently pretty squishy. I’m not convinced that a textualist interpretation of the statute wouldn’t apply.
Realistically, though, making a discussion of the defense of unborn children part of the defense seems wise. It’s not only an almost-plausible application of the necessity defense, but opens up the door for the kind of testimony that could lead to jury nullification if the jury felt so inclined.
January 12, 2010, 5:11 pmDilan Esper says:
I’m glad to see Professor Cassell, who has real credibility with pro-lifers, make this point.
I’d also note the broader point– something that I think was pointed out during eras of anarchist and leftist violence as well– which is that if the legal system allows violent protesters to stretch the concept of necessity too far, you will have the breakdown of law and order. For this reason as well, courts have to be very careful about allowing necessity defenses where the alleged necessity is essentially a political dispute about what policy will save lives.
January 12, 2010, 5:15 pmMalvolio says:
Textualist, maybe, but the original intent of having the word “imminent” in there was as an abbreviation for “and there isn’t time to call the police” (which there clearly was in this case, just that the police wouldn’t help).
January 12, 2010, 5:17 pmSteve says:
If some al-Qaeda member believes that terrorism is necessary because driving the U.S. out of the Middle East will save innocent Arab or Palestinian lives or whatever, I sure wouldn’t see that as a legitimate defense to a murder charge. It doesn’t matter if the murderer thought he was doing God’s work.
Others have pointed out that this defense would seemingly entitle them to kill this murderer, or others who advocate violence against abortion providers, on equivalent grounds of necessity. “I had to kill him before he could kill all those doctors.”
Kansas is basically condoning terrorism if this ruling stands.
January 12, 2010, 5:17 pmCMH says:
Sec. 21-3211(a), not quoted in the post, seems to condition the use of any amount of force on the defense of a third person against another’s “imminent use of unlawful force” (emphasis mine).
(b) of the use of force statute refers back to (a) ["...use of deadly force under circumstances described in subsection (a)..."]. So as I read the whole statute, deadly force is only allowed when the prerequisites of both subsections are met, while non-deadly force requires meeting only the prerequisites of subsection (a)
If that read is right, isn’t this issue resolved by the term “unlawful?” Policy arguments aside, abortion is not “unlawful.” I can’t imagine a scenario under which anyone who feels passionately about abortion could be said to “honest[ly]” believe that it is “unlawful.”
January 12, 2010, 5:23 pmDavid Schwartz says:
CMH had better be right. Otherwise, this would apply to an armed assault on a prison about to conduct a lawful execution. It would also apply to a bank robber shooting a policeman who is shooting at another bank robber.
January 12, 2010, 5:27 pmAnon21 says:
From a procedural standpoint, is the trial judge’s ruling that Roeder should be allowed to present his theory as to the lesser-included (voluntary manslaughter) charge subject to an interlocutory appeal? I would assume that if not, and if Roeder is able to avoid the murder rap through this tactic, no appellate court will ever have a chance to address the issue. I suppose the Kansas legislature could amend the statute prospectively, but that seems like a good deal of trouble to go to where, as Prof. Cassell points out, the statute already appears to bar the argument as to voluntary manslaughter.
January 12, 2010, 5:27 pmDennis N says:
Continuing CMH’s line of reasoning, if the court upholds the immanence argument, it would be legally justified to murder a state executioner, because some time in the future, he might put a criminal to death.
The murdere had no way of knowing when or whether the victim had planned to perform another abortion.
I think it can be disposed of on technical grounds, without even addressing the putative merits of the argument.
[edit] I see my executioner argument was sniped by David Schwartz. ;-)
January 12, 2010, 5:29 pmBama 1L says:
If he really, truly believes abortion is unlawful even though that’s an absurd thing to believe, is that an “honest but unreasonable” belief. I thought the point of “honest but unreasonable” was to eliminate the “But you can’t really believe that!” response.
January 12, 2010, 5:33 pmCrunchy Frog says:
The danger whenever a lesser included charge is present is that the jury will find an excuse to split the difference, even when evidence of guilt is overwhelming for the primary charge.
I’m puzzled that the prosecutors would even give the jury an out by by charging VM in the first place, unless they were REALLY scared of jury nullification.
January 12, 2010, 5:36 pmJeff R. says:
If you’re going to get into the courthouse at all with this kind of arguement, you’re going to spend most of your time on that “unlawful” point, I think. Specifically, if you get to re-try Tiller’s own trial [with or without a few additional incidents, and without the man there to defend himself this time] and make the argument that the victim was performing late-term abortions in case where there was not an actual medical necessity, you’re going deep into the give-somebody-on-the-jury-an-excuse-to-nullify territory…
January 12, 2010, 5:37 pmtamerlane says:
Can anyone argue that Sec. 21-3211(b) would not provide an affirmative defense had Mr. Roeder managed to surreptitiously enter Dr. Tiller’s abortion mill and confront and kill Dr. Tiller as the doctor was about to perform a third trimester abortion that Mr. Roeder truly believed was the deliberate killing of an innocent human being.
January 12, 2010, 5:39 pmDavid Schwartz says:
Dennis N: Your hypothetical is a bit different from mine. Yours also shows why you need both imminence and unlawful force. Otherwise, if someone says, “I’m going to murder someone some day”, you can shoot them. The requirement that the force be imminent not only preserves the civilized requirement that you go to the police before resorting to self-help, but it also has the practical effect of precluding defenses based on unreliable inference chains. (The “he was going to kill someone some day, I know it” argument.)
Tamberlane: Only that it’s obviously unreasonable to argue that the law allows you to shoot an executioner to stop a lawful execution. The law is incoherent if read to include a right to use force to stop lawful conduct.
January 12, 2010, 5:40 pmChris Travers says:
Question: If a self-defense claim here is allowed, then is it open season on executioners working for the department of corrections?
January 12, 2010, 5:43 pmChris Travers says:
Sort of my first thought, but also consider that if this was imminent, then assassinating the police officers likely to respond to a planned bank robbery the day beforehand, or assassinating executioners a few days prior to an execution would also qualify.
January 12, 2010, 5:47 pmBlue says:
While I generally think the necessity defense here is a massive Pandora’s Box, I would like to point out that Tiller, at least arguably, was engaged in the practice of at least some abortions that should not have been performed under Kansas law.
January 12, 2010, 5:51 pmSoronel Haetir says:
I’m not sure about this case but defendants can move for having lesser charges as well. In fact it was brought up in the Spisak opinion today that in capital cases defendants actually have a right to such charges.
January 12, 2010, 6:00 pmCMH says:
The prosecution only charged 1st degree murder, and are opposing the defendant’s request to give a voluntary manslaughter instruction. I absolutely agree with you that lesser-includeds present too much opportunity for the compromise verdict, which is presumably why they only charged murder.
The Kansas prosecutors can. Although I’ve not read the cases themselves, they cite several cases in their brief for the proposition that premeditation and imperfect self-defense are mutually exclusive concepts. Assuming the cases do in fact hold that, then “surreptitiously” entering the office certainly suggests premeditation.
Then that gets us back to the imminence issue. Even if he was demonstrably, admittedly performing illegal abortions, you still can’t blow his brains out in church on Sunday morning.
I guess that’d be the argument, but there is no doubt in my mind that there is not, nor could there be, any evidence to support that claim. And if there’s no evidence to support the defense, the jury wouldn’t be instructed on it.
January 12, 2010, 6:16 pmG.R. Mead says:
The test is on the mens rea. You do not have to agree with his unreasonable belief, but to put it in terms those who disagree might yet have more sympathy for, suspend Godwin’s rule for moment, and consider the following hypothetical:
It is 1942. Rudolf Hoess is sitting in church before you and gets up to go to the vestibule; he might be leaving, he might be getting ready for a lunch with friends, but there is only one train that afternoon back to Auschwitz, and he has guards outside the church. You are a plumber who is personally aware of what is happening there and what Hoess will order when he returns to the camp. In his own words, with Zyklon B, he said that it took 3–15 minutes for the victims to die, and that “we knew when the people were dead because they stopped screaming.”
This is the last clear chance to stop him from ordering the death of many human beings, 2000 at a batch in the most improved process — and lawfully, as it happens, as far as positive law of the place at the time is concerned. Your belief that it is unlawful killing is an unreasonable belief, at the time.
If you do not kill him, he will kill them — it is merely a matter of time. It is your last clear chance to act.
The question is whether the mens rea of “imminence” should attach both to the act of the defense in the sense of ‘last clear chance,’ as well as to the act of killing to be prevented, or only the latter. If it is exclusively attached to the act to be prevented, on these facts, why?
What legal or moral policy is served by that?
Whether it is technically an unlawful killing to be prevented or the controlling imminence is on the killing to be prevented or the last chance to prevent it should not matter — it is an “unreasonable but honest belief” that is in play as to both issues.
January 12, 2010, 6:25 pmThorley Winston says:
Only if the third trimester abortion was illegal at the time it was being performed. If it wasn’t illegal, then even if one believes that it would be the taking of an innocent human life, because the statute only provides an affirmative defense against another’s “imminent use of unlawful force,” I don’t think that affirmative defense would succeed.
January 12, 2010, 6:38 pmThorley Winston says:
I’m not that familiar with Tiller’s practice, what’s the basis for your belief that he may have been performing abortions that were illegal under Kansas law?
January 12, 2010, 6:40 pmJeff R. says:
Thorley: Tiller was prosecuted and acquitted of 19 counts of that charge, which means that at least a prosecutor and a grand jury thought it was a ham sandwich-I mean, arguable.
January 12, 2010, 6:44 pmAnthony says:
If in fact he was performing abortions that were illegal under Kansas law, the obvious (and legal) response would be to provide the evidence to law enforcement officers. “I thought he was going to do something bad, but I have no evidence supporting my belief” is not adequate as a defense.
January 12, 2010, 6:44 pmBama 1L says:
This seems about right, since the imperfect self-defense statute seems crafted to cover only heat-of-the-moment and stupid-mistake killings.
Yes, I think even getting in the door would be a toughie, because it’s hard to imagine there’s any evidence besides the killing and the assertion of the defense that this defendant honestly believed the law prohibited abortion. There’s likely to be evidence to the contrary.
This further convinces me that the imperfect self-defense statute was not meant to cover anything like this case.
January 12, 2010, 6:47 pmChris Travers says:
Not just should imminence apply but so should the question of whether the killing was lawful. In that case, the genocide is being done according to Nazi law, and therefore no self defence claim will prevail in a court.
Let’s broaden this. Suppose someone is convicted of arson-murder and sentenced to death. Forensic science evolves in the mean time and more or less undermines that entire conviction. Now, you are in church and you recognize the executioner who will go back to the prison and kill someone who is widely believed to be innocent but whom the governor will not pardon because he doesn’t want to be seen as soft on crime. Is it self defence to kill the executioner under this statute? Many people REASONABLY believe the man is innocent. Certainly one has no reason to question the honesty.
But I don’t think it would apply.
January 12, 2010, 6:55 pmMichael Ejercito says:
Because Dr. Tiller performed his abortions at church, right ?
The police have no duty to protect you ( South v. Maryland ).
It would be open season on a police officers in Houston, Texas, as they have killed people while breaking into their homes to looks for drugs.
January 12, 2010, 6:57 pmJustin says:
Shouldn’t the question of imminence be one answered by the jury? Particularly when it is couched in terms of the Defendant’s mind set?
January 12, 2010, 7:44 pmruuffles says:
Quite realistic when you think about how worked up some people get over Mumia Abu-Jamal (3rd circuit) and Troy Davis. The latter especially if SCOTUS denies relief on purely technical (no constitutional bar to execution of innocent person) grounds.
January 12, 2010, 8:02 pmMichael Ejercito says:
Does such a constitutional bar exist? What is the relevant case law?
January 12, 2010, 8:38 pmreadery says:
The “Amy Carter defense” has traditionally allowed a certain amount of leeway in protest situations — after all, a sit-in on a military base has little imminent relationship to military action in El Salvador or elsewhere. Yet Amy Carter was permitted the defense, and the Courts have traditionally given protesters a certain amount of leeway.
That said, the “Amy Carter defense” is traditionally used in cases where the conduct involved is in the nature of trespassing, grafitti or similar light vandalism, obstruction of ways and the like, typical protest offenses. Using it in a case like this would seem to take it well outside its traditional grounds.
Nonetheless, Kansas appears to have an unusual manslaughter law, and the defense would be foolish not to attempt to argue it applies.
January 12, 2010, 9:09 pmArthurKirkland says:
The proposed defense strikes me as a subset of “kookoo for Cocoa Puffs” — diminished capacity for reason led the defendant to perceive and act upon an irrational (delusional, supernatural) command to kill another person.
With respect to statutory interpretation, it seems difficult to reach “imminent” or “unlawful” by application of reason. Perhaps that is what would recommend the statute to the defendant, his attorney and his supporters?
January 12, 2010, 9:19 pmRicardo says:
I think even in that case, the charge was not “illegal” abortion. Under Kansas law, a woman needing a late-term abortion needs two independent doctors to sign off on the procedure. The accusation in that case was that the second doctor in those 19 cases had a professional relationship with Tiller and so prosecutors alleged that he was gaming the system by sending patients to a doctor who would rubber-stamp his own medical conclusions. Needless to say, the jury rejected this argument. I would imagine in small-town Kansas that all doctors know each other one way or another.
January 12, 2010, 9:59 pmDavid Schwartz says:
Not if no reasonable juror could find so. Otherwise, it’s just inviting the jury to be unreasonable. In this case, I think it’s virtually indisputable that no reasonable juror could find that he had a reasonable belief that he was preventing the imminent, unlawful use of force. The only point in raising this defense is hoping for at least one unreasonable juror.
January 12, 2010, 11:08 pmVoluntary Manslaughter and the Tiller Abortion Killing « Weblog says:
[...] Paul Cassell has a post discussing whether the killer of the abortionist Dr. Tiller can plead voluntary manslaughter because he believed he had to kill Dr. Tiller to save a baby’s life. Professor Cassell argues no, because he killed Dr. Tiller while Dr. Tiller was in church, so the danger to the baby was not imminent. That is persuasive. [...]
January 12, 2010, 11:18 pmMike McDougal says:
The state has no interest is promoting its own undoing.
January 13, 2010, 1:38 amreadery says:
It is worth saying, however, that in Amy Carter’s case there was no more imminent a danger than here. Moreover, the individuals Amy Carter was protesting over had no more right not to be killed. After all, war just like abortion means the right to kill. Understanding, again, that the defense has generally been used only for relatively non-violent conduct, nonetheless, are the elements of the argument different?
Not only did the judge permit Amy Carter’s argument to be presented to the jury, Amy Carter was acquitted. Was the jury in the Amy Carter case irrational and lawless? Was the judge?
January 13, 2010, 2:12 amDavid Nieporent says:
I don’t understand your hypo. Are you planning to assassinate Hoess, and then when arrested by the Gestapo, argue at trial that your killing of him was justified as necessary to protect Jews?
January 13, 2010, 4:35 amG.R. Mead says:
In order of your questions. Yes to assassinate. No, as far as argument, only because there would none and summary execution would be the expected result, in that circumstance.
But that would be a question of procedure — not law — would it not? …
;->
January 13, 2010, 9:53 amG.R. Mead says:
How’d that work out for them …?
January 13, 2010, 9:54 amG.R. Mead says:
But we are not talking about the law itself but the policy of the law, in specific and in broader brush. Allowing his “unreasonable but honest belief” as a partial defense admits the possibility that the law, though law still, may yet be wrong. Wrong systemically as in the death camp hypo, or wrong circumstantially, which even some general abortion supporters might acknowledge in some circumstances.
If the incompleteness theorem applies rigorously for physics, how much more to human action? That’s what juries are for.
I’ll give you a middle case: say your executioner was killed to prevent the execution and it turns out only after the fact that the executioner’s killer was right and uncontroverted exculpatory evidence proved the death-row convict could not have committed the crime — what then?
Is the death of the truly innocent inmate or the dutifully mistaken executioner to be preferred as a matter of policy? Because one or the other dies in this hypo. If the inmate dies, his death is based on the executioner’s “false but honest belief” in his guilt. If the executioner dies his death is based on a “true but unreasonable belief” in his victim’s innocence. It seems to me that if the executioner is justified — so is the person killing the executioner. Is this not why executioners wore hoods as instruments of office, classically — and their (more noble) victims often forgave them publicly — precisely to avoid the laying the vengeance that attached to the killing ?
When it comes to legal policy and death we have to get at the old stuff that underlies why people do such things, for good or ill, because the visceral basis for it never really changes… that’s why the abortion debate has no rational conclusion and it is utterly foolish to hope for one.
January 13, 2010, 11:01 amG.R. Mead says:
It is not sensible in policy terms to cut them apart so fine, however, because this is ONLY a partial defense and only to the element of “malice” — not a justification that avoids the offense, but a lessening of it. Your argument would give a jury an all-or-nothing proposition, and where there is this unavoidable visceral component in play, the policy of law should be to have that middle position — between clear order and moral doubt — to avoid nullification as the only choice of conflicted jurors.
“Imminence” is not “immediacy.” “Immediate” is “without middle”, i.e. without any notable intervening interval of time between the events.
“Imminent” is related to “impending” in the sense of threatening, looming, inevitable … which is why ‘last clear chance’ is an appropriate measure of the mindset of the killer rather than immediacy …
January 13, 2010, 11:14 amBama 1L says:
Isn’t it based on the executioner’s reasonable, honest, and correct belief that the law empowers–indeed, requires–him to kill the innmate? I didn’t realize the executioner had to take a position on the inmate’s guilt.
I think that is because there was uncertainty whether even the state’s law could absolve the moral wrong of killing. So the executioner had a lingering worry–a sort of “no atheists in foxholes” effect. Also, there was a certain theatricality or spectacularity to it all that we cannot now reproduce or even fully comprehend.
January 13, 2010, 11:22 amChris Travers says:
I am familiar with other cases of this sort. In general though the defence isn’t just a necessity or self-defence claim but rather a freedom of conscience claim under appropriate statutes and state Constitutions. So I am not sure of its relevance.
If we look at cases of open trespass done in protest (I have been present at a number of such instances), it is rare to even see charges filed. The harm done is usually minor if any (aside from extra security costs), and there is rarely any argument about ill intent.
The same would probably go for petty vandalism as well.
However, suppose someone goes around and robs banks, and donates the money to charity. I seriously doubt that a freedom of conscience defence would be allowed. The damage is hardly minimal, and allowing a freedom of conscience defence against malum in se felonies would defeat the whole purpose. Otherwise, I am sure, it would be impossible to prosecute individuals who assassinate political figures.
January 13, 2010, 2:12 pmChris Travers says:
A much better question would be whether mailing ionization-type smoke detectors to Congress without hazardous material stickers in protest of vague laws might be subject to a freedom of conscience defence ;-)
January 13, 2010, 2:20 pmChris Travers says:
What if the executioner publicly states that while he believes the man to be likely innocent, that he is required to follow the orders of the court? Is the murder then justified?
Agreed on that point
January 13, 2010, 2:23 pmChris Travers says:
G. R. Mead:
Suppose someone had assassinated George W. Bush on the eve of the Iraq war and then claimed it was in the defence of innocent Iraqis. Do you think such a defence should have been allowed?
January 13, 2010, 4:22 pmG.R. Mead says:
War is another animal altogether, and that would have been a crime of high treason and a whole different moral, legal and prudential calculus applies … Put the shoe on the other foot though — should we determine something similar as to, say, a member of the German-American Bund taking out FDR on the eve of December 10, 1941 ? Chamberlain on the eve of September 3, 1939 ?
January 13, 2010, 4:55 pmG.R. Mead says:
Isn’t that the Nuremberg defense? If a man doubts the guilt of a convict he should not undertake the act — period — and is morally guilty, whether legally so or not.
Indeed, one of the problems I find with the more mechanized forms of capital punishment is that it insulates individuals from just this moral calculus attending more direct acts of killing — which should be in play, frankly — even though I do not oppose capital punishment as such. In a perfect world, if no one is willing to kill the man then — he ought not die … But my theory of justification is not the majority theory and so has little relevance.
January 13, 2010, 5:02 pmChris Travers says:
Do we decide this based on whether they are on our side or against us?
January 13, 2010, 5:23 pmK says:
Can someone parse the reasonableness requirement, which is awkwardly drafted? 21-3403(b) encompasses unreasonable belief, but 21-3211 requires reasonable belief, & it’s not clear to me how the two work together. It can’t possibly be that the person unreasonably believes that he reasonably believes that deadly force is necessary. Presumably this is resolved in case law.
January 14, 2010, 6:07 pmChris Travers says:
I think the idea here is that an unreasonable belief in necessity makes the issue a negligent but honest mistake, and therefore subject to a lesser penalty than cold-blooded murder.
January 15, 2010, 2:49 pmModest Health Care Proposals, and for other purposes…. « Random Musings of a Deranged Mind says:
[...] Voluntary manslaughter & the Tiller case. “It’s only murder when innocent people die.” [...]
January 15, 2010, 6:53 pmThe Volokh Conspiracy » Blog Archive » No Manslaughter Defense in Abortion Doctor Murder Case says:
[...] I have previously argued that the trial judge presiding over the murder trial of Scott Roeder for killing abortion doctor [...]
January 29, 2010, 9:49 amGreg Tippmann says:
excellent trial article on the merits and difficulties of trying to uphold a self defense argument. I think however that in this matter it becomes hard to really say, since in my own mind self defense is more about that, self defense.
June 23, 2010, 3:04 pm