How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications

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.[1]  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.[2]  Roeder was his only witness in his defense,[3] 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.[4]

            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.[5]  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.”[6]  (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.)[7]  Kansas[8], like many other states, has not adopted the necessity defense in any respect.[9]   

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.”[10]  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.”[11]  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”).[12]  Judge Wilbert stated that he needed more evidence to rule on the matter.[13]  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.[14]   

            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.”[15]  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.”[16]  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.    

Continue reading “How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications”

Citizens United v. Federal Election Commission: Preservation of First Amendment Freedoms, or an Invitation to Corporations to Bankroll the United States Election Process?

Melissa Ann Dizon, Government Law Review Member

The Supreme Court, in a 5-4 decision, recently held that corporate funding of political broadcasts in candidate elections cannot be limited because to do so would run afoul of the First Amendment.[1]  This ruling stemmed from the non-profit corporation Citizens United’s case before the court regarding its documentary Hilary: The Movie.[2]  The group wanted to air the documentary during the 2008 presidential primary season through a cable television video-on-demand service and to advertise for it on television.[3]  However, the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold Act (hereinafter “MFA”) prohibits certain corporate-funded television broadcasts, such as this documentary, in the sixty days before a general election (or the thirty days before a primary).[4]  The law also requires disclosure by the funders of election-related broadcast advertising, such as these ads.[5]  Citizens United argued against the prohibitions on corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or speech that expressly advocates the election or defeat of a candidate.[6] 

 In so holding, the Supreme Court overturned its prior decision in Austin v. Michigan Chamber of Commerce,[7] as well as part of the ruling in McConnell v. Federal Election Commission.[8]  The Court rejected the very idea that the government can decide who gets to speak and that the government can actually ban some from speaking at all, particularly those doing their speaking through associations of members who share their beliefs.  Austin was a case in which the Supreme Court held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments.[9]  The Court upheld the restriction on corporate speech based on the notion that “[c]orporate wealth can unfairly influence elections,” and also rationalized that the Michigan Act still allowed the corporation to make contributions from a “segregated fund.”[10]  Over a decade later, the Supreme Court in McConnell upheld the key provisions of the MFA: (1) the aforementioned “electioneering communication” provisions; and (2) the “soft money” ban, which prohibits federal parties, candidates, and officeholders from raising or spending funds not in compliance with contribution restrictions, and prohibited state parties from using such “soft money” in connection with federal elections.[11]  For almost twenty years, the Supreme Court has erred on the side of fairness with respect to our democratic election process, by upholding these restrictions on corporate expenditures.  The intent of these pieces of legislation has not been to block free speech; rather, it has been to block the use of large amounts of money as a means of unevenly influencing the political process.

 And now?  Bring on the corporations.

Continue reading “Citizens United v. Federal Election Commission: Preservation of First Amendment Freedoms, or an Invitation to Corporations to Bankroll the United States Election Process?”

Will Disability Advocates Force a “Fundamental Alteration” to States’ Treatment of the Mentally Ill?

Edward J. Rao, Topics Chair, Staff Writer           

         On September 8, a federal judge for the Eastern District of New York ruled that New York State violated Title II of the Americans with Disabilities Act (“ADA”) as well as Section 504 of the Rehabilitation Act by failing to provide housing and services “in the most integrated setting” to nearly 4,300 individuals currently living in “Adult Homes” under the supervision of the state.[1]  The 210-page opinion, authored by United States District Judge Nicholas G. Garaufis, stated that the “integration mandate” of both the Americans With Disabilities Act and the Rehabilitation Act was violated when individuals who could otherwise be thriving in supported housing, offering them most all of the amenities of their nondisabled peers, languished in Adult Homes, which the Court likened to “de facto institutions and satellite mental institutions.”[2]

            As reported by the New York Times on September 8, the ruling appears “likely to affect similar cases in other states.”[3]  The suit was filed by Disability Advocates, Inc., an organization aimed at protecting the rights of people with disabilities.[4]  The named defendants included New York Governor David Paterson, as well as the commissioners of the New York Department of Heath and the New York Department of Mental Health, respectively.  At the core of plaintiff’s argument was the notion that by not enabling residents to “interact[] to the fullest extent possible with nondisabled persons[,]” New York’s services ran afoul of the United States Supreme Court’s mandate in the landmark disability rights case Olmstead v. L.C. By Zimring.[5]  The Court agreed, holding that:

          Supported housing is an integrated, community-based setting that enables interaction with nondisabled persons to the fullest extent possible. People who live in supported housing have the autonomy to live and participate in their communities in essentially the same ways as people without disabilities. Simply put, residents of supported housing are not defined by the setting in which they receive services. Residents of supported housing have far greater opportunities to interact with nondisabled persons and be integrated into the larger community.[6]

Continue reading “Will Disability Advocates Force a “Fundamental Alteration” to States’ Treatment of the Mentally Ill?”

Civil Commitment Report Card–Its Failings Being Overcome by Judicial Action

Ben Loefke, Staff Writer

Instead of committing three time sex-offender Daniel Gierszewski of Buffalo to civil confinement, New York State Supreme Court Judge, Richard C. Kloch Sr. decided that stringent parole conditions would suffice for the recently released convict.1 Each of Gierszewski’s convictions has involved sexual misconduct with young girls, aged sixteen, fifteen, thirteen, and ten.2 After serving his most recent sentence—a fourteen year stint for fondling a ten year old girl—Gierszewski, has been in an upstate psychiatric center pursuant to a New York law that allows for the commitment of recidivist sex offenders to be civilly committed if they are shown to have “mental abnormality” that prevents them from controlling their predatory urges.3

In 2007, at the prodding of then Governor Elliot Spitzer, the New York state legislature passed into law the bill that became section ten of the Mental Hygiene law.4 It was fourteen years coming, but finally the state decided to follow the example set by nearly twenty other states and adopt legislation that would enable civil confinement of sex offenders with mental problems that made it likely they would recidivate.5 The statute allows for civil confinement of detained sex offenders who can be proven by the attorney general to suffer from “mental abnormality.”6 The law’s stated purpose is “to protect the public, reduce recidivism, and ensure offenders have access to proper treatment.”7 The general idea behind the civil confinement is that mentally ill sex offenders should not be permitted to rejoin society when it is likely that they will victimize someone again because they lack control over their own conduct. Continue reading “Civil Commitment Report Card–Its Failings Being Overcome by Judicial Action”