I have previously argued that the trial judge presiding over the murder trial of Scott Roeder for killing abortion doctor George Tiller should not give the jury a manslaughter instruction. Yesterday the trial judge reached the same conclusion, declining to give such an instruction. The judge’s ruling will force the jury to essentially choose between the two options of guilty of murder or not guilty of anything. I trust that the jury will do the only thing that evidence supports: return a guilty verdict.
liamascorcaigh says:
It is to the eternal shame of American jurisprudence that a jury was not able to return a similar verdict against Dr. Tiller many years ago.
January 29, 2010, 9:53 amEric Rasmusen says:
I was just looking round for how to email Roeder’s lawyers to alert him to a more viable version of that defense. I see from the article that he seemed to try what I thinking of earlier, and the judge turned him down:
A proper defense, if true, is that Roeder thought that Tiller was committing not only legal abortions (irrelevant) but illegal abortions. It was reasonable to believe that the police and prosecutors let this go by because of perfectly legal (if debatable) prosecutorial discretion. Thus, people would die because of illegal actions unless Roeder intervened.
The analogy is to someone who regularly murders half-witted beggars lured into his home by free meals, but who has bodyguards and who has such good connections with the county prosecutor that he’s safe from prosecution.
To appeal on this defense, does Roeder have to have testified at trial that he thought illegal (under current law) acts were being committed by Tiller?
January 29, 2010, 10:09 amArthurKirkland says:
The argument is that Dr. Tiller was the beneficiary of prosecutorial discretion while Phill Kline was attorney general or district attorney?
Is that an attempt to establish ineffective assistance of counsel?
January 29, 2010, 10:15 amEric Rasmusen says:
Postscript: Sorry– I just looked at your earlier post and the prosecution brief it links to (thanks for the link– how about the other side’s brief too, if I could press more more?). I see that your main emphasis was on the “imminent danger” part, and that Kansas law made at the appellate if not SC level supports that requirement. I didn’t address that above.
That is a hurdle to overcome, but I think existing precedent can be qualified reasonably. Take my well-connected murderer of beggars who has a bodyguard and is safe from prosecution. We believe, reasonably, he is going to unlawfully kill another beggar sometime within a month. How do I stop him? I can’t cut off his hands, or kidnap him, because he has bodyguards. I’ve tried telling the police, but they say they’re too busy to look into it. I tried standing outside his house to warn the beggars, but they didn’t listen. I tried physically restraining the beggars from coming in, but not only the bodyguards but the police stopped me, and in fact arrested me. I don’t see what I can do to stop the unlawful killing I know will happen (is “imminent”) without using a gun, bomb, or poison.
January 29, 2010, 10:20 amruuffles says:
Think Mumia Abu-Jamal or Troy Davis. What’s to stop one of their supporters from pulling the same stunt?
They “believe” Abu-Jamal or Davis is innocent or not culpable the same way Roeder “believes” the abortions are illegal or immoral.
January 29, 2010, 10:23 amEric Rasmusen says:
And, sorry— one more–delete if I’m talking too much– by “illegal abortion” I mean a very late-term abortion, of a viable infant, when the mother’s medical condition is not at all threatened. As I understand it, currently “mother’s medical” is a justification in law, but in fact doctors like Tiller routinely violate that condition by signing off on it without good evidence, e.g., saying that the mother’s psychological well-being would be harmed by waiting a month and bearing the child. Right? I don’t know.
January 29, 2010, 10:23 amShelbyC says:
Dunno. Even in your FIFY version, the execution is unlawful. Why couldn’t somebody act to stop the imminent unlawful execution of Mumia Abu-Jamal or Troy Davis?
January 29, 2010, 10:35 amruuffles says:
I’ll add an easier constraint. Suppose the lower court decides Davis is innocent, but the Supremes decline to block the execution, based on lack of a constitutional bar to executing a person showed innocent after a proper trial with any defects. This is actually not an unlikely scenario given Scalia and Thomas’s position.
January 29, 2010, 10:41 amSteve says:
As I understand it, currently “mother’s medical” is a justification in law, but in fact doctors like Tiller routinely violate that condition by signing off on it without good evidence, e.g., saying that the mother’s psychological well-being would be harmed by waiting a month and bearing the child.
It is far from established, to put it mildly, that Dr. Tiller was in the business of butchering perfectly healthy eight-month fetuses just because mom was in a bad mood and decided to get rid of it. There are certainly people who believe that, and the repetition of tales like that surely had an effect on people like his killer, but the evidence is rather lacking. It’s just the sort of thing some people want to believe about doctors who perform late-term abortions.
January 29, 2010, 10:46 amzuch says:
Prof. Cassell:
Seeing as Roeder has admitted in court to doing everything as described by the prosecution, and said he doesn’t feel guilty about it, this is a five minute deliberation, four of which are to collect the paper slips.
Cheers,
January 29, 2010, 10:48 amCMH says:
I don’t think knowing that something is going to happen equates to the happening of that thing as “imminent.” Imminent connotes a temporal proximity, as in “likely to happen at any moment,” “impending,” “near,” or “at hand.” [All from dictionary.com]
It’s just before 11 a.m. on Friday where I am. I know the sun is going to set today. But since it’s not gong to happen for seven hours, the sun setting isn’t imminent
January 29, 2010, 10:51 amzuch says:
Phil Kline? You mean disgraced former attorney general Phil Kline?
Kline did everything he could to try and get at Tiller … whether legal or not. If there’s frustration to be had, it has to be frustration at the law, not Kline. That’s not a defence. I may be frustrated that there’s laws that prohibit bank robbery, but….
Cheers,
January 29, 2010, 10:53 amzuch says:
The answer is civil commitment. Not murder.
Cheers,
January 29, 2010, 10:55 amConnie says:
Well, you understand it poorly. At least one grand jury investigated this, at the behest of Phil Kline, and found that Tiller did not violate that condition.
January 29, 2010, 11:06 amShelbyC says:
Well, in your scenario doesn’t the difference hinge of whether or not the execution is lawful? Just because the supremes decline to intervene doesn’t make the execution lawful. And in Roeder’s case, I’d imagine the issue would turn on an interpretaion of Kansas’s self defense law, and whether or not Roeder had a resonable belief that unlawful activity was iminent.
January 29, 2010, 11:08 amOwen H. says:
And if I have the belief that your efforts to spread this defense tactic will lead to the illegal killing of another doctor?
January 29, 2010, 11:12 amVehical Driver says:
Wow. So when some person decides to stop the “genocide in Afghanistan” by premeditated murder of U.S. servicemen, I am sure you will all support the guy getting off with manslaughter?
Or when an anti-Vaxer commits premeditated murder of pediatricians, in order to prevent him from “killing children with poison vaccines”, you agree it is only manslaughter?
Or when someone decides to assassinate the police chief, the next time the police accidentally shoot a child during a drug raid, well of course that is manslaughter?
Do the people who are supporting some sort of manslaughter defense have any concept of unintended consequence? In virtually all political violence, someone can argue it is to “save the children”.
January 29, 2010, 11:18 amTHESMOPHORON says:
I don’t think knowing that something is going to happen equates to the happening of that thing as “imminent.” Imminent connotes a temporal proximity, as in “likely to happen at any moment,” “impending,” “near,” or “at hand.” [All from dictionary.com]. It’s just before 11 a.m. on Friday where I am. I know the sun is going to set today. But since it’s not gong to happen for seven hours, the sun setting isn’t imminent
Are you not a native English-speaker? That’s not at all what ‘imminent’ means. ‘Imminent’ means ‘too close at hand to reasonably expect you can stop it.’ If Iran had agents inside the United States who were going to detonate a nuclear device in NYC, Chicago, LA, or DC at sundown, such an act of war would in fact be imminent. There is a connotation of temporal proximity in the word, certainly; but that proximity is in no way fixed, nor is it at the core of what the word denotes.
January 29, 2010, 11:21 ambyomtov says:
Thesmophoron,
So sunset on Dec. 12, 2045 is imminent? There’s no way to stop it, after all.
January 29, 2010, 11:31 amPatHMV says:
A person not wishing to be a vigilante, taking the law into their own hands, would have sought an injunction against the alleged law breaking. This murderer did not.
It is fine to say that one must obey a higher power, and to act accordingly. But when your beliefs regarding the higher power’s instructions conflict with the laws of the land, then you must make a choice, and be prepared to suffer the consequences of that choice. That is what this murderer did. Dr. Tiller has already been judged; Roeder caused that to happen sooner than it otherwise would have. But Roeder, in choosing to follow his view of God’s law, must now accept the consequences of having ignored man’s law.
I have zero sympathy for anybody in this country who would use violence because they disagree with our laws. Strive mightily to change those laws, by all means. But appoint yourself as judge, jury, and executioner? Then rot in jail. Otherwise, we will have utter chaos, and none of us will be safe.
January 29, 2010, 11:39 amOren says:
That’s only because you don’t know about the secret Iranian project to destroy the sun.
January 29, 2010, 11:42 amTHESMOPHORON says:
I fail to see how that’s responsive to my comment. The ostensible unstoppability of a sunset 36 years away, through whatever means, is not related to its temporal proximity. Contrast that with the case under discussion: the reasonable method by which you would address the perceived failing of the law, through the political and perhaps judicial processes, would take too long. If there were a moratorium on late-term abortions for 35 years while America decided how to approach the issue, I also would find the ‘imminent’ prong of Roeder’s argument to be a non-starter. In reality, though, I have to disagree.
January 29, 2010, 11:49 amjccamp says:
PatHMV –
Well spoken.
January 29, 2010, 11:54 amruuffles says:
Or Jupiter. /Colbert
January 29, 2010, 12:04 pmzuch says:
Well, that took a millisecond or so….
Cheers,
January 29, 2010, 12:05 pmCCTrojan says:
Predictable and correct result. I don’t care how you feel about abortion, you can’t go around gunning people down in churches. I still haven’t figured out why this story is newsworthy.
January 29, 2010, 12:15 pmOren says:
Indeed, someone should have shot Scott Roeder in the face months ago.
January 29, 2010, 12:15 pmsardonic_sob says:
It is rather a damning piece of evidence against Mr. Roeder that immediately upon firing the weapon, he fled, and concealed it so well it has yet to be located. If he believed he was acting lawfully, he would have had no reason to flee nor to destroy or conceal evidence.
January 29, 2010, 12:24 pmDangerMouse says:
Seeing as Roeder has admitted in court to doing everything as described by the prosecution, and said he doesn’t feel guilty about it, this is a five minute deliberation, four of which are to collect the paper slips.
Yeah, the defense was idiotic, and it’s no surprise that they convicted him.
January 29, 2010, 12:37 pmTammy Cravit says:
I’m a bit perplexed by the argument of some on this thread that Mr. Roeder’s religious/moral convictions about abortion somehow argue toward justification for his actions. Could not the same argument be made about the 9/11 hijackers, Khalid Sheik Mohammad (or however you spell his name), the shoe bomber guy, the Aum Shinrikyo people who unleashed a Sarin gas attack on the Tokyo subway, etc.? In each case, those people’s religious or moral convictions lead them to commit an act of violence against people whom they perceived to be violating the laws of the God/Gods of their understanding. Should we let KSM off with a voluntary manslaughter charge? If not, how is what he did any different (except in scale) from what Mr. Roeder did?
Whatever one’s personal feelings about abortion, it seems to me that we as a society cannot countenance deliberate disregard for the rule of law in the name of moral/religious belief. If you allow those with whom you agree — politically, religiously, morally or otherwise — to disregard the law in the service of those beliefs, then you cannot complain when those with whom you disagree claim the same justification for their own acts. That is a path that we, as a society governed by the rule of law, simply cannot go down.
January 29, 2010, 12:39 pmCMH says:
I cited the dictionary definitions of the meaning of the word “imminent,” in consideration of the canon of statutory construction that words are to be given their plain and ordinary meaning. Here’s some more:
Merriam-Webster: “Ready to take place, especially, hanging threateningly over one’s head
The Free Online Dictionary: “About to occur; impending”
MSN Encarta: “About to happen, or threatening to happen”
Dictionary.net: “Threatening to occur immediately; near at hand; impending”
Webster’s Unabridged: “Likely to occur at any moment; Impending”
Note that none of which condition imminence on one’s inability to stop the action.
So that’s my support. What’s yours?
January 29, 2010, 12:40 pmsardonic_sob says:
Um, no, it doesn’t. The “reasonable expectation of being able to stop it” has nothing to do with it.
In this context the key element of “imminence” is that unless something interferes, a particular event has a high probability of happening in the near future and therefore immediate action is justified. (The test of an event being “certain, immediate, and impending” is often used in law school discussions.)
Imminence is a question of fact, and the scale of the harm and/or the difficulty of successful interference might be considered by a reasonable person in deciding whether something was imminent. The fact that, say, a terrorist has to type in a code to set the bomb off at sundown (and it is now 8AM in Chicago, with sundown more than nine hours away) does not mean it might not be imminent if a reasonable person would believe that they plan to do so and have the means and opportunity. Jack Bauer might be justified in shooting the terrorist if he is about to make good his escape into a crowd of people, but if he is in a secure detention facility, he probably would not be.
That all being said, a judge could find that no reasonable finder of fact could find that something was imminent and bar a defense requiring the element of imminence from being raised. In this case, the alleged act which Mr. Roeder was trying to prevent was neither certain (in that no particular specific person could be identified as the potential victim, nor could any particular time be identified as the probable time of the harm) nor immediate (in that he was standing in his church, and if the allegedly impending action were unlawful, there was plenty of time to notify the authorities with a reasonable expectation of action on their part.)
This is quite apart from the requirement that the harm the accused was trying to prevent be unlawful in the first place: I cannot shoot a defensive tackle on the football field because I suspect he is about to sack the quarterback. Even though there is a reasonable probability of injury, and if the same action were to take place on the street it would constitute battery, it’s not unlawful to sack quarterbacks on the football field. Nor is it unlawful to perform legal medical procedures.
January 29, 2010, 12:45 pmphilip snyder says:
How, in heavens name can we justify murder? Any murder? It’ beyond belief when I read responses to Mr. Cassel’s comment which find ways to excuse Mr. Roeders, lets be blunt, assanation. Murder is murder. There is no justifcation. Especially PREMEDITATED MURDER. Reading some of the negative reponses to the trial judges decision to maintain the charge of murder instead of manslaughter, even when the defendant admits he planned the execution of the doctor is mind boggling. Add to that that this is a blog devoted to “The Law”is staggering,beyond any rationality. We are a nation of laws and we solve our disputes within the law and not by the gun.
January 29, 2010, 12:45 pmfirst history says:
Seeing as Roeder has admitted in court to doing everything as described by the prosecution, and said he doesn’t feel guilty about it, this is a five minute deliberation, four of which are to collect the paper slips.
It took about ten times longer, he was convicted after 40 minutes of “deliberation.”
January 29, 2010, 12:45 pmFantasiaWHT says:
If I were a juror I would use my nullification power to find him innocent. If I were the judge, I would sentence him to time served. If I were a governor, I would pardon him.
January 29, 2010, 12:56 pmFantasiaWHT says:
You know what I find most appalling? The abortionist attended church, and that the church would have him.
January 29, 2010, 12:59 pmjstar says:
Eric Rasmusen –
January 29, 2010, 1:07 pmI think the proper response in your beggar-killing scenario is to offer better free meals across the street from the killer.
Steve says:
On some level I was hoping that he would be found not guilty. Such a result would expose other abortion providers to added danger, of course, which is a real concern. But they’re obviously in plenty of danger as it is. And on the flip side, the backlash against a not guilty verdict by the vast majority of decent people, both pro-life and pro-choice, would be of great benefit to the abortion rights movement, which I support.
But I was confident that it never would happen. There are crazies, and there are normal Americans, and I know how normal Americans feel about a crime like this. The guilty verdict was a certainty.
January 29, 2010, 1:08 pmMartha says:
And yet you appear to be none of these things. The Lord works in mysterious ways.
January 29, 2010, 1:09 pmShelbyC says:
I believe Eric’s question was what the proper defense was, no? Does anybody criticizing Eric have a better defense?
January 29, 2010, 1:11 pmPatHMV says:
So, Fantasia, you think “he needed killing” is a legitimate defense? If somebody decides that you or one of your loved ones has or is likely to do harm to somebody in the future, it’s ok for them to ignore the law and shoot you?
I don’t like Roe, either. It’s an abominable decision, both morally and legally. But it is for now the law of the land, and to refuse to obey it, without accepting the legal consequences of such refusal, is to refuse to accept the law itself. In effect, you are supporting the violent overthrow of our government. Do you really think that wise?
January 29, 2010, 1:12 pmOwen H. says:
I think it quite reasonable to assume that Fantasia might commit violence or even murder.
January 29, 2010, 1:25 pmPatHMV says:
Shelby, there is no defense to such activity. None.
Let us take Eric’s hypothetical, in which Roeder believed that Tiller was performing illegal late-term abortions. Even presuming that the justifiable homicide statute could be applicable in such circumstance (and I don’t believe it could), it wouldn’t protect Roeder. Kansas statute 21-3211 provides:
Was deadly force “necessary” to stop Dr. Tiller? Did Roeder make any attempt at less-than-deadly force? No. He walked up and shot him, murdering him in cold blood. He did not try to make a “citizens arrest” or to detain him until officers of the law could arrive, and he could present his evidence to a judge. Even if we assume an entirely different set of facts, with Roeder entering the abortion facility moments before Tiller was to commit an illegal late-term abortion, unless Tiller did not respond to non-deadly force and tried to manhandle his way past Roeder to complete the abortion, then it’s STILL not justifiable homicide, and that’s looking at it in the most favorable possible light for some Roeder-type person.
Roeder is a murderer, plain and simple. There’s nothing honorable about what he did, no matter how despicable Tiller was.
January 29, 2010, 1:28 pmzuch says:
There is something to be said for civil disobedience (as a matter of conscience) as a valid tactic.
That said, it’s interesting to compare Scott Roeder’s defence with that of Mahatma Gandhi. When tried, Gandhi (a lawyer himself) declared that, yes, indeed he was guilty of the crimes charged, and that furthermore he insisted that he should be penalized to the maximum extent the law allowed. He said that if the prosecution believed in their law, and in the justness of such, they must prosecute him and punish him to the maximum extent possible, as he was a willful and public law breaker, and in order to uphold the laws and justice and civil society itself, such could not be permitted.
[I should add that Gandhi hadn't committed a murder, albeit the maximum sentence for the crime he was accused of was severe]
Roeder, on the other hand, says he’s not guilty.
Cheers,
January 29, 2010, 1:35 pmBart DePalma says:
An unborn child from conception to birth is a legal person under Kansas law and a defendant can be charged with murder, manslaughter, vehicular homicide or battery for killing or harming a such a person. Kan. Stat. Ann. § 21-3452 “Alexa’s Law.” Abortion is basically a decriminalized form of homicide in Kansas.
The Court’s ruling that the affirmative defense of defense of others is not available to the killer of an abortionist because abortion is legal begs the question of whether the affirmative defense of self defense or defense of others relies upon the state criminalizing the killing of the person you seek to defend. This would appear to be intuitively wrong. For example, if Kansas decriminalized the killing of all males would I then lose the affirmative defense of self defense of myself or would my wife lose the affirmative defense of defense of others for protecting me? I would think not.
Why then does this killer not enjoy the defense of defense of others simply because Kansas decriminalized abortion?
I realize the abortionist’s threat to kill unborn persons may not be imminent and thus the affirmative defense of defense of others is not apparrent. However, imminence is a fact question for the jury. The defense of others instruction should be given and the jury allowed to make the decision of whether the abortionist’s threat was imminent.
January 29, 2010, 1:40 pmAnonAnon says:
Bart-
January 29, 2010, 1:43 pmIt doesn’t “beg” the question.
byomtov says:
Thesmophoron,
I fail to see how that’s responsive to my comment. The ostensible unstoppability of a sunset 36 years away, through whatever means, is not related to its temporal proximity.
So “imminent” means, “something that is unpreventable, but could be prevented if only there were more time?” Like others here, I disagree, and my dictionaries do not support your definition.
Does it make sense to talk of “preventing an imminent attack?” I think most people would say that it does, but not you, since an imminent attack, by your definition, is unpreventable.
January 29, 2010, 1:55 pmOren says:
Yeah, it’s not Jesus ever advocating ministering to sinners or anything like that.
January 29, 2010, 1:55 pmOren says:
You would think wrong, since the self-defense statute covers only defense against unlawful force. If killing males is lawful then the statute by its plain terms does not apply.
January 29, 2010, 2:00 pmphilip snyder says:
So Bart Di Palma, if you can’t stop them legally you can kill ‘em. Wonderful legal logic!
January 29, 2010, 2:02 pmTully says:
GUILTY GUILTY GUILTY.
It took the jury 37 minutes to return the verdicts, which is just about as long as it took a previous jury to return the Not Guilty verdicts in the state’s earlier persecution of Dr. Tiller.
January 29, 2010, 2:04 pmArtemus says:
Most states allow the use of deadly force in the defense Deadly Force in defense of self or others from what he or she reasonably believes to be the use or imminent use of physical force, don’t they?
January 29, 2010, 2:12 pmCMH says:
Because the Kansas legislature has decreed that the permissible use of deadly force in the defense of third persons is conditioned on the target’s “imminent use of unlawful force.” (PatHMV has quoted the statute above). I am certainly no expert in criminal law, but my understanding is that Kansas is pretty mainstream on the requirement that the force to be protected against must be unlawful. There’s nothing intuitively wrong about this at all. The alternative is that we permit the murder of people who are engaged in legally permissible conduct that may harm another.
It’s a fact question, but there has to be evidence to support that fact in order to give the jury the instruction. A defendant isn’t entitled to an instruction simply because he asks for it; he doesn’t have to prove the defense first, but he does have to demonstrate some basis upon which a jury could find the defense applicable. Roeder didn’t do it here and under these circumstances, I don’t see how anyone ever could.
January 29, 2010, 2:15 pmMichael says:
I think it needs to be pointed out to the righteously indignant faction that no serious person is justifying the murder. No serious person here has argued that religious considerations should play a role in any defense. What has been argued is that the defense of others may have been viable, at least to the point where it could have gone to the jury an that denying that jury instruction for possible mitigation of murder to manslaughter could be (probably/hopefully not) reversible error on appeal.
The fatal flaw in arguing for the admissability of such a jury instruction is the imminence requirement. But many people have taken issue with the other requirement, i.e., that the act sought to be prevented be illegal. Those who give examples of killing death row executioners are clearly missing the point. Executing a death row inmate is not illegal. Many people believe it should be. The same is true for abortions. But the critical distinction is that evidence may have existed that tended to show that what Dr. Tiller was doing actually was illegal. If that were true, and imminence could be established (either by finding some obscure precedent or otherwise), the judge should have allowed the testimony of Klein and the jury instruction.
I am in no way arguing that Roeder should be acquitted or even that I would find manslaughter the more appropriate conviction. But I think it would be a real shame if he were to walk because a couple appellete judges thought this judge abused his discretion.
January 29, 2010, 2:20 pmPintler says:
For an analogous situation, from time to time a battered wife kills her husband, not in self defense at the instant he is attacking her, but to prevent future attacks. The reasoning is usually something like ‘I knew he would attack me again, and maybe kill be this time. Leaving him wouldn’t work – I believe he would hunt me down. I had called the police over and over and it never helped’.
ISTM that this is a much stronger defense than the one presented in the case at hand: beating your wife is illegal while performing abortions is legal (whatever the defendant’s personal opinion on what the law should be). The facts of prior abuse are usually not in dispute, while the notion that Dr. Tiller was performing illegal abortions is. The usual timing is that she shoots him as he arrives home drunk, which usually shortly precedes a beating, as opposed to shooting hubby at church. Beating your wife is repugnant to 99.7% of society, while abortion is repugnant to a much smaller fraction, and so on. In all these ways, our hypothetical wife’s offense is less serious than in this case.
If you think Tiller’s killer should get some kind of pass, doesn’t that argue the wife should get even more of a break?
I just don’t see that widespread (successful) use of the ‘he needed killin’ defense is going to be a good thing. I for one don’t want to be looking over my shoulder for PETA hit men while shopping for steaks at the supermarket.
January 29, 2010, 2:22 pmEric Rasmusen says:
Most of the comments are unresponsive to my point. First, please address my hypothetical of the friend-of-beggars. Are you willing to put him away for life because he pre-empts the work of a corrupt prosecutor? He is a vigilante, to be sure, but that label doesn’t answer the question of whether you really want to punish someone for stopping a murderer.
Some comments were indeed responsive.
The Friend could offer better free meals than the well-connected killer. But not if he was not allowed to talk to the beggars and tell them about them.
The Friend could maybe go to court himself and get an injunction straight from a judge to tell the killer to refrain from murder. Would he have standing, though? I would think not. Would the judge have authority to issue such an injunction? That seems dubious too. Otherwise, couldn’t a judge issue injunctions to everyone to not commit crimes, and use contempt powers and his court bailiffs to replace the executive branch?
Citizen’s arrest won’t work, will it? I don’t think it’s more legal to seize somebody’s person (kidnapping) than to shoot them. If it is, what happens if I arrest them and their bodyguard slugs me and they get away?
As to the slippery slope arguments, they are hard to address because they are vague. But I’ll try. If you think someone is going to be executed unlawfully, my argument would give you the right to forcibly stop it, to be sure. But if a court has authorized the execution, that’s not unlawful. We’re not talking about natural law here—that’s why the simple abortion-is-murder approach fails— we’re talking about legality under current human law. That eliminates any realistic death penalty case, leaving only cases where the prison is going to execute somebody without authorization from any court.
Finally, some comments noted that the defense I suggest needs evidnce to support it. Quite true, and I don’t know whether it can be found or not. Crucially: is there evidence to support a reasonable belief that Dr. Tiller was going to do unlawful abortions? I don’t know what AG Klein did, but if, for example, he tried to investigate Tiller and was stopped because a state AG lacks jurisditcion over county crimes, that would help Roeder, not hurt him, on this point.
January 29, 2010, 2:30 pmzuch says:
You’re assuming that Bart’s a lawyer. Kind of like the difference between murder and “murder”.
Cheers,
January 29, 2010, 2:32 pmDangerMouse says:
For an analogous situation, from time to time a battered wife kills her husband, not in self defense at the instant he is attacking her, but to prevent future attacks. The reasoning is usually something like ‘I knew he would attack me again, and maybe kill be this time. Leaving him wouldn’t work — I believe he would hunt me down. I had called the police over and over and it never helped’.
Yeah, but it’s a travesty when those women are acquited of premeditated murder. Of course the Feminazis and other libs like it when that happens, because cognitive disjunction is part of their being. But the rest of us know that it’s B.S. when a battered wife blows away her hubby while he sleeps.
January 29, 2010, 2:35 pmAnthony says:
It would have to be evidence in the actual possession of Roeder, and there’s no reason to think that Roeder had such evidence, and even if he had such evidence, no plausible way for imminence to apply.
January 29, 2010, 2:35 pmzuch says:
You end up with a black eye and no legal recourse. ;-)
Cheers,
January 29, 2010, 2:36 pmEric Rasmusen says:
An Imminence hypothetical:
Smith has discovered that Jones has frequently kidnapped young women, taken them home, and shot them after a week. He knows Jones has just kidnapped another young woman. He sees Jones come out of the gun store, a three-hour drive from Jones’s home, with a package of ammunition, and Jones says,”I’m going to bag another girl today.” As Jones goes to his car, Smith must decide whether to shoot Jones or not— there is no other way to stop him. Smith does shoot Jones.
Question: Should Smith be sent to prison for life because the prospective girl-killing by Jones is “not imminent”?
January 29, 2010, 2:37 pmjames says:
Yeah, why can’t we force desperate women to go to filthy hacks like they used to do?
January 29, 2010, 2:39 pmSteve says:
Question: Should Smith be sent to prison for life because the prospective girl-killing by Jones is “not imminent”?
Of course it’s imminent. He said he was going to shoot her today.
January 29, 2010, 2:49 pmPintler says:
I think the book solution is to dial 911 and say ‘I’m Smith, I have evidence that Jones has kidnapped a girl and plans to kill her. He just left Mayville, headed for Oakton on Rt. 22, driving a pink El Camino with tag #123-456′. Then let the police and courts deal with the whole guilt/innocence/appropriate penalty thing.
If someone is charging you, machete raised there is no time to call the cops, so it’s OK to shoot. If you think someone has committed/will commit a crime, and there is time to call the authorities, do so. If you don’t think the authorities will agree about the person’s guilt, too bad.
January 29, 2010, 2:50 pmAaron Denney says:
Clearly, we need to introduce private prosecution in this country, so that even a corrupt prosecutor won’t stall justice.
January 29, 2010, 2:55 pmOwen H. says:
A Red Herring, like the other “hypotheticals” here. Jones explicitly stated he intended to violate the law. This is also a False Dichotomy, declaring there is no other way to stop him except to shoot him right now.
January 29, 2010, 3:17 pmElfwreck says:
And that’s where the analogy breaks down.
*IF* imminence could be proven, death-of-Tiller is not the only way to prevent the hypothetical illegal harm he was going to inflict. Maiming his hands would destroy his ability to perform abortions without killing him. Several other ways to remove his ability–legal or physical–to perform abortions are also possible. Killing him was not the only way to accomplish that goal, even if it were legal.
January 29, 2010, 3:17 pmPatHMV says:
Roeder believes that abortion is murder. The law of the United States of America does not agree. Roeder’s own personal beliefs in the validity of that law are immaterial to any legal defense. He doesn’t get to decide for himself which laws to obey and which not to. Dr. Tiller was not committing murder under the laws of the United States of America.
As to unsupported allegations that he was committing illegal late-term abortions for flimsy or no medical excuses, there is no evidence that Roeder tried any force short of deadly force to stop him. In addition to the requirement that to be justified, there must be a risk of imminent use of unlawful force, deadly force must be necessary to prevent the unlawful killing or harm. If a threat would stop him, if simply standing between Tiller and the table would stop him, then deadly force is not necessary.
You can try to defend him any way you like, but the bottom line is that Roeder is a murderer, plain and simple, no matter what Tiller himself was.
January 29, 2010, 4:07 pmJK says:
A more interesting question might be why the police (presumably) Mirandized him before fully interrogating him regarding information he might have about other anti-abortion terrorists?
January 29, 2010, 4:16 pmsardonic_sob says:
And if your uncle had been plumbed a bit differently, he’d have been your aunt.
While I can’t speak to your uncle’s wishes on the matter, as far as other three possibilities, an uncaring universe has chosen to deny them. Go uncaring universe!
January 29, 2010, 4:20 pmOren says:
NO, the allow self defense against the use or imminent use of unlawful force.
January 29, 2010, 4:35 pmSandy MacHoots says:
This summarizes things nicely. The justice of Roeder’s cause is irrelevant. Roeder had no more legal right to kill Tiller than John Brown had to seize Harper’s Ferry and foment a slave rebellion. True, both men opposed a monstrous evil. Brown inspired millions, and Roeder probably saved the lives of at least few children. But neither has a legal defense and both are guilty of capital crimes.
Any mitigation of their crimes will come from a much higher court.
January 29, 2010, 4:37 pmsardonic_sob says:
And you would think wrong. You, I can’t speak to: you haven’t said whether or not males still have the right to defend themselves. But she would. The person she killed (assuming she killed them) was not in the process of performing an unlawful act. In this particular case it would be worse if the attacker were trying to shoot your dog, as killing somebody’s dog is unlawful. (Of course if you meant “all males” and not “male humans” it would have to be a female dog.) She still might not be off the hook but the defense that Roeder tried would work for her since she might very well reasonably believe that she was entitled to use deadly force to protect her dog.
January 29, 2010, 4:37 pmsardonic_sob says:
Smith has three hours, at the least, to intervene. The police have radios, telephones, and helicopters. The murder of the girl is not imminent. If Smith merely walked up to Jones and shot him, on the facts given, Smith has almost certainly committed an unlawful homicide. (The degree of the homicide is debatable and depends on the law of the jurisdiction.)
However, a much better question is whether Smith would be justified in performing a citizen’s arrest of Jones and using deadly force to detain him if Jones resists. That would depend on the law of the jurisdiction but is entirely possible.
January 29, 2010, 4:50 pmEric Rasmusen says:
Let’s change my imminence hypothetical slightly, then. I’ve called the police already about Jones, and they don’t believe me. (Otherwise, you might ask, why is Jones not already in prison for the previous murders?) It will be clear, however, that Jones was committing these murders, once the police go to his home and look around, as they will, I hope, when I ask for that as defense discovery during my own trial for murder (or, if you like, once Jones’s shocked heirs look inside his house).
January 29, 2010, 5:17 pmEric Rasmusen says:
By the way, this comment threat reminds me of the movie, The Incredibles, where lawsuits against superheroes because of what they do in the course of capturing archvillains stops the superhero business entirely. The case of the person who stumbles upon crime and must use “self-help” to catch teh criminal is common in movies and TV. Do you commentors really always root for the bad guys?
More generally, since I know libertarians frequent this blog, don’t any of you believe in privatizing the criminal justice business even a little? Or is it important that the government protect its monopoly on force even when private force is used to prevent acknowledgely bad crimes?
January 29, 2010, 5:22 pmArthurKirkland says:
Scott Roeder, murderer and terrorist, getting leniency in or a pass to heaven? I place that alongside the “40 virgins” (or is it 72? . . . I haven’t devoted much attention to fairy tales since second or third grade) hogwash.
January 29, 2010, 5:30 pmdr says:
Speaking only for myself, not for “we commenters,” but no, I generally don’t root for the bad guy, at least not in real life, which is why I’m glad the jury today ruled the way they ruled, and did so so quickly.
But you’re right, it’s possible that prosecutions like this one will make doctor-killers think twice before doctor-killing. I think that’s *probably* a good thing.
January 29, 2010, 5:36 pmPatHMV says:
In the first place, Eric, by no means are all (or, I daresay, even most) of the commenters here libertarian.
In the second place, the nice clean hypotheticals you’re constructing, where all sorts of facts are known with absolute certainty, simply exist not at all, or only with exceeding rarity, in the real world. One of the reasons we’ve created a very elaborate system of judicial procedure is out of a recognition that discovering the actual truth is much harder than it seems, often times. The “government monopoly on force” is one of the things that helps keep us from turning into a backward, revenge-oriented culture where killing begets killing in order to satisfy “honor” or otherwise to avenge private ideas about right and wrong.
In the third place, you’ve gotten very far afield from anything that even remotely approaches what happened when Roeder murdered Dr. Tiller.
January 29, 2010, 5:41 pmMichael says:
In fairness, nobody other than FantasiaWHT is actually defending Roeder or what he did.
Some of the people who have been commenting display such unbelievable ignorance (and here I’m not referring to PatHMV, because I don’t believe that’s what s/he really means) when they admonish others for “defending” Roeder.
For my part, when I was defending the idea that there might have been grounds for allowing Klein’s testimony and giving the jury instruction for the lesser offense of manslaughter, it was because I worry about Roeder getting off on appeal. I hazard to guess that if the jury had been given that option, they still would have convicted on murder.
January 29, 2010, 5:42 pmsardonic_sob says:
Although if you keep changing your hypothetical until you get an answer you like, you really haven’t put up much of an argument, the answer to your new situation is that if Smith believes that if Jones gets in his car, the girl’s murder is assured since the authorities will not act in time, the girl’s murder may now reasonably be defined as “imminent.” However, since the murder of kidnapped girls is unlawful, the analogy still does not apply to Roeder’s case except in a reciprocal hypothetical where Dr. Tiller was standing over a pregnant woman, ready to perform an abortion that was clearly unlawful, and Roeder had no way to stop him but to open fire.
January 29, 2010, 5:49 pmPatHMV says:
I disagree, Michael. Allowing that instruction would be the equivalent of saying that the law DOES recognize that a personal, subjective disagreement with the law can form the basis for at least some leniency when it comes to murder. The law does not and should not allow that. Roeder’s actions were based on a unwillingness to accept the law in this country, that abortion is legal. Thus, a belief that unlawful death or great bodily harm to a human being was imminent cannot, as a matter of law, be “honest.” It was entirely proper for the judge not to give such an instruction. To do would be to acknowledge that there are some circumstances in which a cold-blooded murderer could kill an abortionist, based solely on a belief that the abortionist would continue his practice, and get a reduced charge of manslaughter. I don’t believe there are any such circumstances, for the many reasons set forth above.
January 29, 2010, 5:55 pmPintler says:
True story: my inlaws had a neighbor for many years who was a bit … eccentric. For example, she thought their Purple Martin house was some kind of antenna that allowed space aliens to spy on her. After twenty odd years of this kind of stuff she said something that seemed threatening, as opposed to merely eccentric. They went down to the police station for a chat, and when they explained the reason for their visit, the desk sergeant (small town) burst out laughing and said he was glad to finally meet them, because the neighbor had been coming down every couple of weeks for years to make various charges.
If your neighbor had been complaining about your kidney stealing, mind ray transmitting, and xray vision for years, and the police always ignored her, do you really want her to start ‘doing the police’s job for them’?
Seriously – look how often the courts get it wrong, even with all the machinery of due process, ample time, and the benefit of decision making by disinterested parties. Just for a minute forget about you visiting justice on someone you think is guilty, and imagine someone who thinks you are guilty visiting (what they percieve as) justice on you. Does a DIY justice system still seem like a good idea?
January 29, 2010, 5:57 pmOren says:
Or you gather more evidence, campaign to be elected Sheriff or make a more persuasive case. Even more likely, you take the opportunity to reassess why you are so convinced that Jones is a murderer when he has not killed anyone yet and likely will not kill anyone soon.
Eventually, you do what we all did around the age of 14 or so and resign yourself to the fact that you are not God and thus are powerless to stop every injustice in the world.
I believe strongly in the right to self defense and even the defense of others. What I don’t believe is in preemptive self-defense — engaging in preventative violence before the crime you seek to prevent has even started.
Finally, I believe you are entitled to act however you please, provided you submit to the judgment of 12 of your peers.
January 29, 2010, 5:58 pmShelbyC says:
I personally don’t have a position on the abortion issue, but it’s amazing what happens when the courts remove from the political process an activity that a significant percentage of folks believe is murder.
January 29, 2010, 6:25 pmlgm says:
From the NYTimes article:
People argue against public trials of (accused) terrorists on the grounds that the defendants will use the proceedings as platforms promote terrorism. Here we see how wrong that is. The this jury repudiated it in 37 minutes.
January 29, 2010, 6:29 pmOren says:
Actually, I was a bit hasty about Smith. If Smith:
(1) has reason to believe that Jones is, as of the moment, committing the continuing crime of unlawful imprisonment. I’m not talking about innuendo, and weakly-supported inferences — actual evidence suggesting that this is the case.
(2) calls the police and they do not respond despite have shown them this convincing evidence.
Then he may break down the door to Jones’ house to free the captive. There is a crime ongoing and he may prevent it from continuing to happen.
January 29, 2010, 6:31 pmSandy MacHoots says:
No need to state the obvious. You’ve never said anything that suggests that you actually know anything at all about either religion, except that you’re immeasurably superior to any of their followers. Be sure to give yourself a big hug tonight.
As to whether Roeder or Tillman (or you or I) passes the Pearly Gates, that (as I said) is for a higher court. Christians will obviously pray for both men — they both need God’s mercy — just as they prayed for both John Brown and for the men who hanged him.
January 29, 2010, 7:03 pmArthurKirkland says:
Are you as open to the virgins story as you are to the idea that a just God will look kindly on Mr. Roeder? If so, I credit the consistency. If not, the Pearly Gates story is that much more difficult to take seriously.
January 29, 2010, 8:23 pmMichael says:
With all due respect, this shows that you’re still missing the point. The instruction itself would make it clear that a “personal, subjective disagreement with the law” is NOT the basis for ANY defense. Self defense and defense of others is only a defense at all when there was actually an unlawful act to warrant a defensive use of force. In Roeder’s case, if any such instruction were to be given, it would have been an instruction on an imperfect defense of others. And “imperfect” refers to the defendant’s mistaken but honest beliefs about the circumstances (i.e., imminence of the perceived threat & amount of force necessary to defend against the perceived threat), not the legality of Dr. Tiller’s abortions. If Roeder reasonably but mistakenly believed that abortions were illegal, that is mistake of law, which is never a defense. But if the type of abortions Dr. Tiller was performing were actually illegal, and Roeder reasonably but mistakenly believed that it was necessary to use deadly force in a church to avert the perceived threat, that is a mistake of fact. Mistakes of fact, not law, are able to mitigate murder to manslaughter.
But still, we’re just talking about a jury instruction. I still believe that, even if that instruction had been given, the result would have been the same. We’ll just have to see what kind of success Roeder has with the Kansas Court of Appeals. I hope, for the sake of keeping a guilty man in prison, that they find no reversible error in the judge’s denial of the jury instruction, among other things.
January 29, 2010, 8:44 pmJohn Moore says:
PatHMV says:
An aside, but… PatHMV seems to think that murder jurisdiction has been federalized. What counts is whether the Dr. was committing murder under Kansas laws. There is no factual reason to believe that he was.
January 29, 2010, 9:24 pmsardonic_sob says:
I know. Things have just gone to Hell in a handbasket since they banned lynching.
Or is that not what you were referring to?
January 29, 2010, 9:26 pmOperationCounterstrike says:
The guilty verdict is nice but it is NOT justice.
Justice will be when right-to-lifers have to live as Dr. Tiller lived: behind guarded gates and bullet-proof glass.
Justice will be when right-to-lifers die as Dr. Tiller died: in their churches, by gunshot.
January 29, 2010, 10:16 pmBart DePalma says:
That answers that question. I was on the road and did not have the opportunity to check the version of the affirmative defense used in Kansas.
Thanks.
January 29, 2010, 10:25 pmEric Rasmusen says:
I could’t find the trial transcript, but I found a news story. It says that the Roeder defense DID try the theory I suggested here: that Roeder thought Tiller was committing illegal acts (not just legal abortions). Moreover, the former Attorney-General of Kansas and, separately, a county prosecutor, agreed (but about different kinds of acts— misdemeanors, in the case of the county prosecutor— and the AG was blocked jurisdictionally from prosecuting) .
http://www.kansas.com/news/breaking/story/1156713.html
FIRST EPISODE:
SECOND EPISODE:
THIRD EPISODE
January 29, 2010, 11:19 pmRicardo says:
And a jury acquitted Tiller on the misdemeanor charges. The fact that some prosecutor somewhere thinks someone may be breaking the law cannot be used as the basis for a good-faith belief that the person is guilty. To do so would turn due process on its head.
January 30, 2010, 12:18 amSoronel Haetir says:
And even with the cases where abuse is well documented, plenty of juries reject this theory of defense.
January 30, 2010, 1:57 amSoronel Haetir says:
No, but I root for the carnivores in nature documentaries.
Go Sharks!
January 30, 2010, 2:05 amsardonic_sob says:
I always root for the bull at bullfights. And few things make me feel all sunny inside the way one of those reality show clips of a bull getting into the stands at a bullfight and tossing people about does.
“Ah, Señor, sometimes the bull wins.”
January 30, 2010, 9:02 amOwen H. says:
Let’s change it to something a little closer to what happened. You’ve observed Jones picking women up in bars and taking them home, but you’ve never seen them come out again. You’ve called the cops several times and when they investigated each time they discovered nothing wrong and that the women went home after you stopped watching his house. You are still convinced he is doing wrong however, and the next time he says he’s going out to pick someone up, you kill him.
January 30, 2010, 9:13 amEric Rasmusen says:
(1) Acquittal of a crime does not equate to proof of innocence. The misdemeanor trial of Tiller only shows that the county prosecutor claimed publicly that he was guilty. It is quite possible (again, a fact question), that the jurors all thought by preponderance of evidence that Tiller was guilty, but one of them thought it didn’t mount to beyond a reasonable doubt. For Roeder’s defense, all he needs (I would think) is to show that he himself believed by a preponderance of evidence that Tiller had committed the unlawful act.
(2) On the picking-up-women hypothetical: I kill Jones to prevent him murdering women at my own risk. In your hypothetical, my belief that he is murdering them is unreasonable, so my defense fails. Sincerity is not important. In your hypothetical, maybe I think Jones *is* a murderer, despite lack of evidence, and I gamble on finding bodies in his house later. If we find them, I’m acquitted. If we don’t, I’m convicted. My risk.
January 30, 2010, 9:24 amPatHMV says:
John Moore… not at all. Kansas law is, however, subject to the Constitution (supremacy clause and all that), and the Supreme Court has clearly held that state statutes prohibiting abortion is unconstitutional. Thus, abortion is lawful in Kansas. Now, if the state of Kansas were to rewrite the justifiable force homicide to allow force in response to “force which is unlawful or in violation of a law of Kansas which has been held unconstitutional by the U.S. Supreme Court,” then perhaps a different issue would be raised.
I’ve separately addressed the issue of what happens if Roeder had a belief that illegal late-term abortions were going on.
January 30, 2010, 9:52 amepluribus says:
Eric Rasmusen:
January 30, 2010, 10:24 amAcquittal of a crime does not equate to proof of innocence.It leaves the presumption of innocence in place.
Baseballhead says:
You may say that it’s “your risk”, but if you start justifying that type of action then you open wide the door to all sorts of horror: “I thought that kid was going to rob the store because he’s black and there was a lump on the side of his Raiders jacket. So I shot him.” Hero fantasies are fun to watch and entertain, and the law may be some unwieldy obstacle for Batman to circumvent. Just keep reminding yourself that you’re not Batman, and that you live in a real-world nation where laws matter.
January 30, 2010, 11:49 amJohn Moore says:
OperationCounterstrike says:
There are many tens of millions of right-to-lifers. How many are killing abortion doctors?
The implied slander of right-to-libers above is typical of the distortions by the pro-death camp.
January 30, 2010, 12:20 pmTim Bayly says:
Eric’s argument is unassailable, but there are many who are blind because they refuse to see. It’s a defect of the will and heart–not the eyes.
And many refuse to see because they have blood on their own hands–often that of their own children. Over a million a year adds up to a lot of women and men engaged in self-justification.
Thank you, Eric, for standing up to “this comment threat.”
January 30, 2010, 1:22 pmArthurKirkland says:
Gotta watch out for those defects originating in the brain, too. Especially when dealing with legal issues.
January 30, 2010, 2:24 pmOren says:
Dismayed, sure. But how that can lead to a reasonable belief that Tiller was violating the law (leave aside the fact that it should diminish the reasonableness of such a belief) is beyond me.
Ah yes, but in bizarro-land, a jury acquittal is evidence of his guilt!
Agreed. Most of the pro-lifers I’ve known were reasonably respectful people with a different opinion than my own. After FACE, there’s very little criminality left in the pro-life movement.
I don’t know about unassailable, but it’s not very sound as a matter of Kansas law.
January 30, 2010, 2:33 pmTim Bayly says:
“An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant. …A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.”
Legal tissues, indeed.
January 30, 2010, 2:49 pmLN says:
Presumably the pro-lifers believe that Tiller was a murderer no matter what his precise status in the eyes of the law was, so this is a kind of a weird technical digression.
January 30, 2010, 4:48 pmAnatid says:
There are tens of millions of pro-choicers. How many, like OperationCounterstrike, are disrespectful of pro-lifers?
The implied slander of pro-choicers above is typical of the distortions by … John Moore.
See, when n=1, it does some nasty things to effect size. But aren’t broad, sweeping generalizations fun? Nothing like throwing self-righteous gasoline on the fire to keep the misrepresentations flowing back and forth. But they don’t contribute to good debate or discussion. Next time someone says something clearly out of line, respond to that specific poster, not proclaim them as An Example Of All Those Horrible Guys On The Left. Or better yet, be a better person than I am by posting this, and ignore them.
January 30, 2010, 5:55 pmLN says:
Yes, how dare the “pro-death camp” slander me! I could teach them a lot about civility.
January 30, 2010, 6:05 pmSandy MacHoots says:
You can’t be as ignorant as you seem, can you? If one is a Christian, one does not believe those portions of Islam which are inconsistent with Christianity. See the point?
You know, I’m not sure why atheists seem to be so full of hate. Christians are about forgiveness and mercy, but you seem to be HOPING that God will condemn Roeder to hell. It must really be unpleasant to be that full of hate. Pax vobiscum, and I hope you’ll try to develop some empathy for other fallen human beings.
January 30, 2010, 11:46 pmSarcastro says:
Guy kills abortion doctor. Why are Atheists so full of hate?
January 31, 2010, 1:07 amLN says:
Yes, let’s all love our fellow murderers. Kumbaya!
January 31, 2010, 1:08 amGuy says:
So a Christian is on a blog, talking to a Muslim who says whether the 9/11 terrorists get their virgins is for Allah to decide, the Christian says they won’t either because they were evil or it is a fairytale.
Is this proof that Christians “seem to be so full of hate”? Maybe it’s not Christ-like levels of humility and forgiveness, but hardly an unlikely thing for a Christian to say, if we’re avoiding the No True Scotsman fallacy, and hardly shows that that person is “full of hate”. Furthermore, it’s hardly an indication of any larger groups beliefs, just of that one person. I could just as easily say “You know, I don’t know why Christians seem to be so driven to generalize negatively about others to convince themselves that their creed is morally superior”. Or I could talk about other Christians who seem to be full of hate, such as Pat Robertson, the late Jerry Falwell, and, well, Scott Roeder.
I did not that’s slander.
January 31, 2010, 1:51 amSarcastro says:
I spoke nothing!
January 31, 2010, 2:29 amRicardo says:
It was you who argued that two separate investigations of Tiller by prosecutors (one resulting in the trial on misdemeanor charges) lend weight to the theory that Tiller was breaking the law. I simply pointed out that since Tiller was acquitted in that trial after a very short deliberation, it simply doesn’t make sense to use the investigation that led to that trial as evidence of his guilt. Twelve neutral observers who were able to consider the strongest arguments and evidence from both sides apparently felt there was very little case against Tiller.
As for the actual evidence of Tiller’s lawbreaking, we’re still waiting on that. It’s also not clear to me that your understanding of Kansas law is accurate regarding burdens of proof for this kind of defense.
January 31, 2010, 4:50 amliamascorcaigh says:
FantasiaWHT says:
If I were a juror I would use my nullification power to find him innocent. If I were the judge, I would sentence him to time served. If I were a governor, I would pardon him.
So jurors, judges and governors are appointed in a “mysterious way” by “the Lord”? What a relief!
January 31, 2010, 8:15 amTweets that mention The Volokh Conspiracy » Blog Archive » No Manslaughter Defense in Abortion Doctor Murder Case -- Topsy.com says:
[...] This post was mentioned on Twitter by Bruce S Preble and Eugene Volokh, Noah David Simon. Noah David Simon said: Liked "No Manslaughter Defense in Abortion Doctor Murder Case" http://ff.im/-f5C3i [...]
January 31, 2010, 2:18 pmSandy MacHoots says:
I don’t really know. I think that the dogmatism and self-absorption necessary to be a really good atheist tends to restrict empathy with others. But that’s just a guess.
January 31, 2010, 3:49 pmSandy MacHoots says:
I’m not sure what you’re asking. You’ve got to be pretty hateful to hope that anyone is condemned to eternal damnation. That’s the comment I was responding to. I don’t see why it’s hateful to tell a Muslim that his religion is erroneous, especially if done in a respectful and reasoned tone. It is not hateful to try to correct someone’s error.
I can’t figure out your No True Scotsman reference. If I say “No true Christian believes that Jesus is not divine,” and you tell me that the Archbishop of Canterbury believes that Jesus is not divine, it doesn’t refute my point. Unlike “true Scotsman,” there is an objective test for “true Christian,” which is acceptance of certain fundamental dogmas. If you don’t accept the dogmas, you’re not a Christian, whatever you choose to call yourself. Am I missing your point?
Sure you could. Atheists do it all the time. Christians obviously believe that our creed is morally superior, but that doesn’t mean that we believe that we are morally superior. I believe, for example, that American democracy is morally far superior to Somali warlordism, but I don’t believe that I’m morally superior to a Somali.
But I’m curious exactly what you count as “hate” on the part of Robertson and Falwell. I’ve never heard them wishing eternal damnation on anyone.
January 31, 2010, 4:09 pmGuy says:
Well, if the standard for proving “hate” is that only specifically wishing/hoping for eternal damnation of someone counts, I don’t know that I can find specific examples, though they’ve said many things that I would consider hateful, but can you honestly tell me that no Christian ever does so, that no Christian has ever taken comfort in the idea that evil people like the 9/11 hijackers might suffer eternally in Hell? Unconditional love is a fine goal to strive for (and Christians do not hold a monopoly on that goal), but human nature says (and my personal experience also says) that some Christians do occasionally hold such thoughts.
I don’t think a person can be disqualified from being considered Christian on the grounds that they are hateful. The test is honest self-identification, maybe together with specific doctrinal standards like whether they believe Jesus Christ was Divine.
There are lots of atheists and agnostics in the world, I think it’s quite a jump to generalized conclusions based on one person who says that a murderer wouldn’t seem to have too good a chance of getting into heaven, assuming it exists. Confirmation bias is something to watch out for here.
You win this round, Sarcastro, you win this round.
February 1, 2010, 4:34 amEric Rasmusen says:
(1) Sardonic_Bob, if you’re listening, let me say that I forgot to mention your good on-point reply to the Imminence argument. I’m willing to grant that maybe Tiller’s potential future crimes were not solid and close enough to justify action now. But that looks like a question of fact, not law, something for the jury, not hte judge.
(2) I came across another defense that the judge turned down: “Necessity”. Roeder’s lawyers wouldn’t buy it either, so he went pro se, and lost. See
http://www.saltshaker.us/Scott-Roeder-Resources/Motion2Reconsider.pdf
I’d welcome commentary on use of that defense in general. It looks a lot like the manslaughter theory, but asks for acquittal instead. (So I know all the people who reject the manslaughter theory would reject this one too— but is this one really any MORE wrong, from your point of view?)
February 1, 2010, 10:07 am