If Tiller's assassin can plead "imperfect self-defense" why not the Fort Hood shooter?

Yesterday, a judge allowed lawyers for the man who admittedly gunned down abortion provider George Tiller to argue that their client is only guilty of voluntary manslaughter because he "sincerely and unreasonably" believed that he was protecting unborn children.

I'm sure the Nidal Hasan believed he was protecting innocent lives when he murdered 13 soldiers at Fort Hood. Yet, I doubt that the Army will be as indulgent of Hasan's crazy religious beliefs as Judge Warren Wilbert has been of Roeder's.

[Addendum: Hasan's former imam said Hasan was a hero for killing American soldiers before they could kill Muslims: "The fact that fighting against the U.S. army is an Islamic duty today cannot be disputed. Nidal has killed soldiers who were about to be deployed to Iraq and Afghanistan in order to kill Muslims."]

Prosecutors urged the judge to nix the imperfect self-defense strategy. They pointed out that the defense only applies when the killer feared an imminent attack, whether reasonably or not. Roeder killed Tiller while the doctor was handing out programs in church on Sunday, not as he was poised to perform an abortion.

The judge said he thought it was inappropriate to rule out that defense before hearing the evidence.

[Correction: The judge hasn't decided yet whether to tell the jury that it has the option of convicting Roeder on the manslaughter charge.]

The prosecution argued that the mere fact that the murder was premeditated should rule out the qualified self-defense argument. This was no crime of passion. Roeder was a career anti-choice terrorist who stalked Tiller before killing him.

Of course, just because the defense is allowed to present a ridiculous line of argument doesn't mean the jury will buy it. The prosecution should be able to destroy the legal basis for a voluntary manslaughter conviction without breaking a sweat. Nobody's going to believe that Roeder thought Tiller was about to kill a fetus in church.

I'm curious to see whether Kansas's laws about fetal personhood will affect this case. Presumably, the imperfect self defense argument only applies to people who kill to protect other people. You probably don't qualify if you kill to protect a dog or a slime mold. If fetuses aren't legally people, you presumably can't claim imperfect self defense if you kill to protect them.

According to Americans United for Life, "The [Kansas Supreme] Court held that a fetus, even a viable one, is not a human being for the purposes of criminal liability, neither is the fetus a “person” according to the state’s wrongful death statute." However, Kansas does recognize fetuses and even embryos as people when they are harmed by violent crime.

Regrettably, allowing Roeder to plead voluntary manslaughter has turned an open-and-shut murder trial into a soapbox for his anti-choice views.

Comments

[parse]

I'm sure the Nidal Hasan believed he was protecting innocent lives when he murdered 12 soldiers at Fort Hood.

What makes you believe that? Has Hasan made such a claim?

[Lindsay Beyerstein]

Hasan's former imam wrote that Hasan was a hero because he killed American soldiers who were on their way to kill Muslims: "The fact that fighting against the U.S. army is an Islamic duty today cannot be disputed. Nidal has killed soldiers who were about to be deployed to Iraq and Afghanistan in order to kill Muslims." That's exactly the same logic as killing Dr. Tiller because he was going to abort more late-term pregnancies.

[Dabodius]

Indeed why couldn't someone who (G-d forbid) gunned down Roeder argue that she "sincerely and unreasonably" believed that she was protecting doctors?

[parse]

This is a reminder of the power judges have to slant a case in favor of the defense of the prosecution. Normally, such powerful intervention on behalf of a criminal defendant would have "law and order" types fuming. I don't think we'll be hearing from them this time.

I wonder if someone who understands better can explain generally why it is that only certain types of defense can be legally argued, rather than allowing defendants to provide whatever defense they pleased and trusting juries to decide whether it meets the legal requirements for acquittal?

[Lindsay Beyerstein]

Parse, I was wondering the same thing. On what basis is a judge supposed to decide whether to allow a particular defense?

[soullite]

I'm really uncomfortable with the idea that the government can decide what sort of defense you can use. It's creepy, and it really underlines the degree to which we have a truly terrible, vicious, and evil justice system. A free people would trust a jury to make decisions like this. Forcing people to use only a certain defense is basically rigging a trial.

[minstrel hussain boy]

soullite:

it isn't government that is at work here in the strict, bullshit, asshole libertarian terms you're talking about.

it's the law. jerk.

now, maybe our justice system is terrible and vicious. on many levels, like capital punishment, i tend to agree. but, i come from a family of lawyers, i turned out different, but i've seen the love of the law that my relatives have. i trust the people, and i trust the system.

i have a sincere, probably not unreasonable, belief that you're an asshole. if you think that it's OK to gun down a doctor, in cold blood, in church, because that doctor chooses to practice a form of medicine which you object to, then, i suggest that you exercise rights to free speech and public assembly, within the boundries of the law. don't shoot anybody else.

fucking please.

[Sherkat]

Wonderful post! Perfect analogy! Indeed, there is considerable debate as to whether Tiller killed any humans, whereas the soldiers at Fort Hood were certainly participating in the process of killing thousands of real live-born humans....

[Daniel]

>>if you think that it's OK to gun down a doctor, in cold blood, in church, because that doctor chooses to practice a form of medicine which you object to, then, i suggest that you exercise rights to free speech and public assembly, within the boundries of the law. don't shoot anybody else.

Well minstrel boy, I think that you are an asshole for making the presumption (and you are making it) that soullite thinks it is OK to gun down a doctor or anyone else simply because he/she has reservations about giving the prosecution the absolute right to determine the parameters of the defendant's defense strategy.

[Alon Levy]

A free people would trust a jury to make decisions like this.

Um, most of the free world does not have juries. I don't think the Dutch, Indians, Japanese, Germans, Swiss, and Swedes are seriously deprived of the jury system.

[Randy Pewtress]

What's the difference? A premeditated, legal abortion? Or a premeditated murder? Oh, murder is against the law. Roeder should have used the legal system, not become the "judge,jury and self appointed executioner". If abortion in the womb is murder Roeder, so is abortion after the womb murder. Guilty of murder. Not manslaughter you whimp. You did it.Face the executioner.

[Ismone]

As far as presenting defenses goes--

1) Usually, if you are pro se, you have all kinds of latitude, and can get away with arguing whatever the fuck.

2) If you are repped by a lawyer, though, the other side can files motions in limine (which probably just means limiting motions, I don't really speak latin) trying to say that you can't bring in certain evidence because it is more prejudicial than probative. There are actually special rules having to do with sexual assault victims' prior sexual conduct (generally not relevant) and those with prior charged or uncharged sexual assaults (generally relevant) although on the whole, the probative value of the testimony/evidence/argument has to "substantially outweigh" the prejudicial effect in order for the evidence to be admitted. (That's the federal rule, most if not all states have a similar rule, although where they set the balance can be different.)

3) Yeah, I think it is kind of disturbing. If you are on trial, and they have to prove you guilty beyond a reasonable doubt, maybe you should get to say/show/prove whatever the hell you want. Although, I'm not wholly on that side either, because that is what leads to gay panic defenses, which are bullshit, IMO.

[parse]

Although, I'm not wholly on that side either, because that is what leads to gay panic defenses, which are bullshit, IMO.

Bullshit in your opinion, but not necessarily bullshit in one of the twelve jurors chosen in a given case, which I guess is the problem that limiting certain types of defenses is supposed to address.

Your post is explicitly about the admission of certain types of evidence, but there seems to be some difference between limiting a particular piece or type of evidence and the prohibition of an entire line of argument from the defense. Can you shed any light on that?

[Thomas]

Since we are getting into the legal details of this defense, it needs to be noted that Maj Hassan is a member of the armed services and he committed a crime against other members of said services while on post. He is thus not subject to the same rules of jurisprudence nor even to the same laws as the man that killed Dr. Killer. I'm not entirely certain that he's entitled to trial by jury.

Is there anyone reading that is familiar with the intricacies of military law and how it would apply in this case?

[Autumnal Harvest]

I wonder if someone who understands better can explain generally why it is that only certain types of defense can be legally argued, rather than allowing defendants to provide whatever defense they pleased and trusting juries to decide whether it meets the legal requirements for acquittal?

Because we don't trust juries to apply the law 100% fairly and impartially, as if they were lean, mean, reasoning robots. Obviously, we trust the jury to a significant degree (or else, why have them), but that doesn't mean that we trust them 100%, and there's no sense tempting them with logic that's surely legally incorrect, but that might appeal to their prejudices. For example, the defense might like to bring up the sexual history of a rape victim, or it might be advantageous in a religious community to point out that the murder victim was an atheist, but giving the jury that information is probably going to be unhelful, rather than helpful, for proper application of the law. And yes, of course, in saying that I'm imposing my beliefs over those of the jurors - but there are lots of reasonable gradations between "I don't trust juries at all" and "I trust juries to process all information perfectly."

[Ismone]

parse,

That's right. I don't think that just because an argument is something that 12 jurors would buy means that it is a legitimate argument. Since we have laws that murder is unlawful, and that only certain actions make a killing not a murder, there is a tension between making murder whatever 12 people say it is and making murder something limited by principals, such as the killing isn't unjustified because it was in self-defense. Sometimes, a judge may see a fact as being not relevant to self-defense because it is getting at the prejudices of the jury, i.e., the victim was gay or a hooker or mean to his family. So you have to draw the line between saying, wait, the alleged murderer saw the victim savagely abuse his family, and therefore knew that he was dangerous, and letting in evidence that the victim was dangerous that the killer was unaware of and therefore could not have acted on.

Therefore, it is a minefield. I gave the gay panic example because I don't think you get to kill someone for making a pass at you. As I explained to some eminent criminal law professor once, who took the stance that even non-violent gay passes should be permitted as evidence in mitigation in homicide trials, if women were to kill even one of every ten strangers who groped us out in public, the bodies would be stacking up like cordwood.

So there's a messy interaction between letting people speak for themselves and not letting people off the hook for crimes on a case-by-case basis with no rules and no law. It's a balancing act, and where you personally fall on the spectrum depends on your values.

I got into mine somewhat. You're free to reply.

[Ismone]

(WRT evidence/argument line, you aren't allowed to make arguments that aren't supported by the evidence. Those can be stricken. So if you want to argue something in mitigation, you have to get the evidence in first. Then you make the argument. And then, perhaps, the judge will agree and will give a legal instruction on some defense you sought to elucidate with your evidence and argument.)

[giri]

Judges rule on matters of law as opposed to matters of fact, which are generally relegated to the jury, if there is one. The question of whether there is sufficient basis to an argument to let it go before a jury is considered a matter of law and therefore decided by the judge. All he is saying is that there is enough substance to the argument to let the jury take it on. It says nothing at all about his stance on the argument itself.

[RepubAnon]

So, essentially, it may not be murder in Kansas to shoot someone whose politics aren't popular because you had the unreasonable belief that it would "save lives."

In essence, these folks are saying it wasn't murder for Dan White to shoot Harvey Milk and Mayor Moscone. One wonders what the result would be if Harvey Milk had shot Oral Roberts to save the lives of gay people. Would the defense of "unreasonable belief" still be allowed?

[Autumnal Harvest]

Lindsay, I just read the article, and the article does not say "The judge said the jury would be told it had the option of convicting Roeder of voluntary manslaughter instead of premeditated murder." In fact, it says the opposite:

[The judge] said he'd received a barrage of e-mails and public comments and had heard misstatements in news reports that he had definitively ruled he would instruct the jury on voluntary manslaughter.

According to the article, all the judge has done is allow the defense, at this early stage of the trial (before jury selection has even started), to pursue that defense. If he deems that defense sufficiently crappy (and I suspect he will), he may not allow the jury to consider it.

[Thom]

Giri has it right.

The idea is that legal decisions require some familiarity with the law, and so we leave them to judges. On the other hand, questions about whether someone is telling the truth, or questions about the reasonableness of someone's judgment under the circumstances are the kind of everyday judgments anyone is qualified to make. Since reasonable people may disagree about those everyday judgments, we have several people confer about them to ensure the everyday judgment is reliable.

Often, a defendant may want to put forward some factual claim that, even if true, would have no bearing on the trial. (i.e. claiming that a sexual assault victim was promiscuous). That won't ever get to the jury because there's no need for them to consider it at all, and consideration of it may actually cloud the jury's judgment.

Not all of the judge's calls are as easy as that, but that's the gist of the set up in the U.S. system. By putting legal decisions (such as admissibility) in the hands of the judge and factual judgments in the hands of the jury, we hope to end up with trials that are both speedier and fairer than we would have otherwise (though bench trials are an option in most cases).