Why Roeder's manslaughter defense will probably fizzle

Newsweek has a good explanation of why Scott Roeder's attempt to plead voluntary manslaughter in the murder of Dr. George Tiller is unlikely to prevail.

First off, Roeder's admitted actions don't meet the legal criteria:

This means Roeder has to demonstrate not one, but four things. First, that there was a threat to a third person. Second, that the threat was imminent. Third, that imminent threat was the result of an unlawful act. And, fourth, that he honestly believed all of this. If Roeder fails to prove just one, his defense falls apart. Roeder will have to convince the jury that he believed the fetus counts as a "third party"; so far, no state has ever declared a fetus a person. Proving Tiller to have been an imminent threat also poses a challenge, given that he was shot at church, not at his abortion clinic. Even if Roeder could prove that he honestly believed the fetus to be a third party, and that Tiller was indeed an imminent threat, he would still have to convince the jury that he honestly believed Tiller was committing an "unlawful act." Such a belief, however, would have absolutely no basis: despite numerous attempts by former Kansas Attorney General Phil Kline, Tiller was never convicted of performing an "unlawful" abortion. [Newsweek]

The judge has the option of telling the jury to disregard the defense's argument.

However, it's misleading to say that no state has ever declared a fetus a person. Thirty-seven states, including Kansas, have some kind of fetal homicide law, according to the National Council of State Legislators. Generally speaking, these laws treat fetuses as people if they are harmed by a violent crime. That's not the same as full-fledged legal personhood, but it's a troubling step in that direction. Presumably, in Roeder's case the jury would have to decide whether a fetus is a person for the purposes of a voluntary manslaughter defense.

Comments

[dr2chase]

I have no problem with presuming the fetus to be a person if they are harmed by a violent crime, if the mother-to-be is not available for her opinion. Assume, just for the sake of argument, that we leave the personhood of the fetus up to the mom-to-be; if she chooses abortion, obviously she is not regarding it as a person, and that is her choice, and the abortion is ok. If she chooses otherwise, then it's a person (at least for this purpose, if not for carpooling and tax deductions). And if she and the child are killed while she is pregnant, then we presume that she regarded the fetus as a person (because she was, after all, carrying it), and charge the crime accordingly. (This does get sticky in those cases where a pregnant woman carries a child to term while abusing drugs, but I think those cases are inherently sticky.)

This is probably not the logic that conservative proponents of these laws would use.

[Lindsay Beyerstein]

Kansas doesn't define a fetus as a person in general, just in the specific context of hurting fetuses in the course of a crime. In most contexts, the fetus is not counted as a person. I doubt a pregnant woman qualifies for the car pool lane all by herself in Kansas, for example. Obviously, abortion is still legal in Kansas--which implies that fetuses are not generally people under the law.

Tiller provided legal medical care to women, so no fetuses were hurt or killed in the course of a crime. Also, since he was gunned down in church, there was no imminent threat of harm to any fetuses, let alone to some particular fetus. The law says you have to be protecting a person in imminent danger.

[Lindsay Beyerstein]

Criminalizing drug addiction is ridiculous. Addiction is a disease, a relapsing one at that. This kind of law probably results in more abortions. Pregnancy can be a catalyst for kicking addiction. But drug using women have been charged with manslaughter after still births and miscarriages. Addicts have relapses, it's part of recovery. A recovering addict who wants to have her baby is risking life in prison. Is that pro-life?

Ironically, most illegal drugs of abuse are less harmful to developing fetuses than various other legal lifestyle choices/medical conditions. (The so-called "crack baby" epidemic turned out to be a figment of overheated media imaginations.)

Are we going to start locking up anorexic or bulimic women if their symptoms come back during pregnancy? It's not uncommon for pregnancy to trigger eating disorder relapses, and starvation and purging are linked to miscarriage.

What about pregnant farm workers who have to work with defect-inducing pesticides?

It's totally unacceptable to make the criminal justice system the arbiter of pregnant women's lifestyle choices. To give you some sense of how far this pendulum has swung beyond common sense: There's an ongoing legal battle over whether a woman can legally be
forced to stay on bed rest because she's at high risk of a miscarriage.

[RepubAnon]

He's trying for jury nullification or maybe a negotiated verdict to a lesser offense. The judge is playing to the voters rather than to the law - which is pretty clear that the jury shouldn't hear all this prejudicial evidence, because they'll use it in their decision-making.

Meanwhile, kiss any Obama Supreme Court nominees goodbye unless he nominates Scalia's relatives.

[Mike Crichton]

What about pregnant farm workers who have to work with defect-inducing pesticides?

In that case, I'd have no problem with teh employers being charged.