Valerie Lubanko, Government Law Review member
On Friday, January 29, 2010, it took jurors only thirty-seven minutes to convict Scott Roeder of first-degree murder for the death of George Tiller, a doctor who performed late term abortions. Roeder, a vehement pro-life abortion opponent, admitted during trial to planning the murder of Dr. Tiller for several years, and that he had brought a gun to the church Dr. Tiller attended on Sundays until he finally succeeded in shooting the Doctor in the head on May 31, 2009. Roeder was his only witness in his defense, so it would seem that this was an open-in-shut case for the jurors to decide whether Roeder’s premeditated shooting met the elements of the crime. However, this case has not only fueled the debate in the political and religious worlds between pro-life and pro-choice supporters, but it has also raised eyebrows in the legal world as well. This is because Roeder tried to invoke the necessity defense to have the charges mitigated from first-degree murder down to voluntary manslaughter.
Under the Model Penal Code, the necessity defense is categorized as a “Choice of Evils” justification, in which the defendant commits a crime in order to avoid a “harm or evil” that is greater than the one being committed. Many states follow the Model Penal Code in its treatment of the necessity defense, while other states, such as New York, do not recognize the offense if the defendant is “in any way at fault for ‘occasion[ing]’ or ‘develop[ing]’ the necessity.” (The Model Penal Code presents a lower bar for the defendant, as it only denies the defense if the defendant was “reckless” or “negligent” in creating the situation that requires the defense.) Kansas, like many other states, has not adopted the necessity defense in any respect.
Regardless of this, Roeder still invoked the defense, stating that the he shot Dr. Tiller “[b]ecause of the fact preborn children’s lives were in imminent danger.” Sedgwick County Judge Warren Wilbert, who was the presiding judge in this case, ruled that Roeder’s necessity defense could not be used because “the harm the defendant claims to be avoiding through his . . . actions is a constitutional and legal activity, and the defendant broke the law.” However, Judge Wilbert did “leave the door open” regarding Roeder’s self-defense argument, in which claimed he was justified in his actions because he shot Dr. Tiller in defense of another (the “preborn children”). Judge Wilbert stated that he needed more evidence to rule on the matter. As it played out, the only evidence that was presented was Roeder’s own testimony that he planned and shot Dr. Tiller. Because of this, Judge Wilber shut the evidentiary door he opened by denying Roeder’s request to give the jury an instruction to take into account Roeder’s motives in shooting Dr. Tiller, and only instructed them on the elements of first-degree murder.
Even though Judge Wilbert eventually ruled against Roeder’s justification defense, the door he allowed open may have invited a host of arguments that will distort and pervert the law of justification as a mitigating doctrine. In fact, Harvard Law Professor Alan Dershowitz states that Roeder’s defense is “an absurd approach to the law that would open the door to the most dangerous extension of the defense of imperfect necessity.” More generally, it has been written that “[n]ecessity inherently privileges any legal violation that provides an individual or social benefit without imposing corresponding harm on another person.” If this is the case, it would seem that our legal system should not offer such an option as a defense, as the Scott Roeder’s of the world may continue to try and abuse it.
Judge Wilbert’s denial of Roeder’s necessity defense rested on the argument that Roeder was trying to prevent a constitutional and legal activity by committing a criminal act. It is well known that many people, including politicians and Supreme Court Justices, do not agree that abortions should be a constitutionally protected right that falls within the right to privacy. Roe v. Wade is constantly under attack, and there is legitimate fear that a Supreme Court that is increasingly becoming more conservative may overrule the case’s doctrine (the Supreme Court has reviewed the issue of abortion two dozen times since Roe was decided). What happens then when a judge or a state legislature decides that abortion is against the law, and that abortion does impose a great evil on society?
This reason allows too great a risk that individuals will allow their religious and moral beliefs to cloud their judgment when deciding which evil to society is greater. Randall Terry, founder of Operation Rescue, stated that the trial was a “scam” because he believed that Roeder should have been allowed to argue his necessity and self-defense justification arguments. A judge may have views similar to Randall Terry, especially when they are elected officials and preside in a jurisdiction that is predominantly conservative and pro-life. So far, the pro-life supporters that invoked the necessity defense or other justification when charged with crimes relating to their anti-abortion agenda have failed. However, this does not mean that another judge may open another door to let them come stampeding through. If the necessity defense and other justifications are allowed to be utilized the way Roeder attempted to do so in front of a jury of his peers, then it may take more than thirty-seven minutes to return a verdict. In a criminal case, all it takes is for one juror to side with the defendant to have a hung jury, which would allow for the foreshadowed “dangerous extension” of the necessity defense.
Edited by Sara Mase & Stephen Dushko.
 Monica Davey, Arbotion Foe Found Guilty in Doctor’s Killing, N.Y. Times, Jan. 29, 2010, at A12, available at http://www.nytimes.com/2010/01/30/us/30roeder.html?scp=2&sq=scott%20roeder&st=cse.
 Id.; Anti-Abortion Activist Can’t use ‘Necessity Defense’ in Slaying, CNN, Dec. 22, 2009, http://www.cnn.com/2009/CRIME/12/22/kansas.doctor.killed/index.html?iref=allsearch.
 MPC § 3.02(1)(a) (2009).
 Marc O. DeGirolami, Culpability in Creating the Choice of Evils, 60 Ala. L. Rev. 597, 609 (2009) (citing N.Y. Penal § 35.05(2) (McKinney’s 2004)).
 MPC § 3.02(2).
 The state where the crime occurred.
 DeGirolami, supra note 6, at 609 n. 61.
 Anti-Abortion Activist Can’t Use ‘Necessity Defense’ in Slaying, CNN, Dec. 22, 2009, http://www.cnn.com/2009/CRIME/12/22/kansas.doctor.killed/index.html?iref=allsearch.
 Davey, supra note 1, at A12.
 DeGirolami, supra note 6, at 622.
 410 U.S. 113 (1973).
 Alex Markels, Supreme Court’s Evolving Rulings on Abortion, NPR, Nov. 30, 2005, http://www.npr.org/templates/story/story.php?storyId=5029934.
 An anti-abortion group based in Kansas.
 Davey, supra note 1, at A12.
 Bazelon, supra note 15.