A Death in Wichita

by Stephen Singular

  “I just want you to understand,” she said, “that I’m a card-carrying, pro-choice, Obama Democrat.”

  No response.

  “And a member of the Feminist Majority Foundation.”

  Still nothing.

  “And I don’t believe in anything you’ve done, Scott. I think it’s totally wrong.”

  The line remained silent.

  “And that’s who I am.”

  Very quietly, and to her surprise, he said, “I know.”

  This had to be a lie—he didn’t know who she was or what she believed or how she felt about his assassination of Dr. Tiller, or so many other things, because he’d never bothered to ask, but had labeled her ignorant. He hadn’t just terrorized doctors or women seeking abortions, but her own family.

  “If you ever need anything from me,” he said, “just let me know.”

  “I don’t need anything from you, ever again.”

  She hung up, with a growing sense of relief. Walking around the house that evening, reliving their discussion and thinking about his silence on the phone, she’d never felt so powerful or so free.

  LII

  On December 22, Judge Wilbert scheduled arguments on the defense’s change-of-venue motion and several other matters, as the courtroom battle Roeder had been waiting for was about to commence. Half a continent away, a different kind of struggle was unfolding in the nation’s capital.

  Shortly after one a.m. on Monday, December 21, following an interminable debate and with Washington snowbound from a weekend blizzard, Senate Democrats held a procedural vote on the 2,700-page health care reform bill. The Senate voted strictly along party lines, and by a count of 60–40 the majority party ended Republican filibustering efforts, seeming to lock in the margin needed to overhaul the nation’s health care system and cover 30 million Americans previously without such care. Costing an estimated $871 billion over the next decade, the bill was expected to reshape one-sixth of the national economy. Democrats hailed the vote as a step closer to completing a reform process that had begun with President Truman nearly six decades earlier. Republicans bitterly denounced it, declaring that the bill had been fashioned in secret and rammed through the Senate in a snowstorm in the middle of the night in the days leading up to Christmas, when Congress was normally out of town. The Republican senator Lamar Alexander of Tennessee called it “a historic mistake,” while others labeled it a historic compromise.

  The last Democratic senator to vote for the bill was the abortion opponent Ben Nelson of Nebraska. He accepted the legislation only after the Democratic leadership agreed to permit individual states to prohibit abortion coverage in the insurance markets where most new health plans would be sold. Subscribers to these plans would have to make two separate monthly premium payments: one for all insurance coverage except abortion, the other for abortion coverage. Planned Parenthood, NOW, Pro-Choice America, and the National Women’s Law Center instantly denounced the compromise. It was just as aggressively decried, for exactly the opposite reasons, by the United States Conference of Catholic Bishops and the National Right to Life Committee. The president, however, was pleased.

  “The United States Senate…” he said, “scored a big victory for the American people.”

  Nelson’s deciding vote had come with a significant—some said corrupt—price tag. While the Senate bill imposed tough new restrictions on referrals of Medicare patients by doctors to hospitals in which the physicians had financial interests, the bill provided an exemption to a few such hospitals, including the Bellevue Medical Center in Bellevue, Nebraska. According to the Congressional Budget Office, the cost of this provision benefiting Massachusetts, Vermont, and Nebraska was “approximately $1.2 billion over the 2010–2019 period.” And in Nebraska, the federal government would indefinitely pay the full cost of covering low-income people added to Medicaid rolls. The Republicans called this the “Cornhusker kickback.” The outgoing California governor, Arnold Schwarzenegger, went further, urging his state’s national representatives to vote against the health care reform legislation—unless California could wrangle the same benefits Senator Nelson had just won for Nebraska.

  Schwarzenegger called the bill a “trough of bribes, deals and loopholes…While I enthusiastically supported health care reform, it is not reform to push more costs onto states that are already struggling while other states are getting sweetheart deals. California’s congressional delegation should either vote against this bill that is a disaster for California or get in there and fight for the same sweetheart deal that Senator Nelson of Nebraska got for the Cornhusker State.”

  Nebraska, the governor said, “got the corn and we got the husk.”

  The American Medical Association quickly endorsed the bill, and unexpectedly the Catholic Health Association (CHA) and an umbrella group for nuns, the Leadership Conference of Women Religious (LCWR), also backed the legislation. The CHA represented hundreds of Catholic hospitals across the country, which stood to gain financially by reducing their number of uninsured patients. The LCWR said that it was “increasingly confident” that the new bill “can achieve the objective of no federal funding for abortion,” while the U.S. Conference of Catholic Bishops called the bill “morally unacceptable” and Catholic scholars said the bishops had reached this conclusion by applying the Church’s teaching against “cooperation with evil.”

  The Republican U.S. representative Todd Tiahrt, whose congressional district included Wichita, endorsed a move by local lawmakers to exempt Kansas from national health care. Tiahrt believed it was unconstitutional for the federal government to tax citizens or threaten to send them to jail for not buying health insurance. In Topeka, a group of state legislators began their latest and strongest push to tighten restrictions on late-term abortion procedures, the same legislation that Governor Sebelius had vetoed the year before. The group wanted doctors carrying out late-term procedures to be forced to report more information to the medical authorities—and to face the possibilities of more lawsuits—even though no physicians were left in Kansas to perform these kinds of abortions.

  On December 22, Judge Wilbert rejected a change of venue for Roeder’s trial and jury selection remained on schedule for January 11. That same day Steve Osburn and Mark Rudy fought for the necessity defense and told the judge that under certain conditions the taking of human life could be justified. They wanted Judge Wilbert to allow them to present this argument to the jury.

  “This is certainly not a position I want to be in,” Wilbert told the attorneys, “because I am not God.”

  The judge, after due consideration, ruled against the necessity defense, since neither Roeder nor anyone else had been in “imminent danger” when he’d killed Dr. Tiller. Using this rationalization for murder, the judge added, would be to “sanction anarchy.”

  Some defense lawyers responded to this by wondering if Roeder would have had a much better legal argument if he’d shot Tiller not at his church, but on his way into his clinic to perform an abortion. The defense might have then been able to say that an unborn baby’s life was, in fact, in imminent danger.

  “I recognize,” Judge Wilbert said on the twenty-second, “that we all have our own individual personal views, religious views, moral and ethical views. But the United States Supreme Court has come down many, many years ago in Roe v. Wade that an abortion is a legal and constitutionally protected decision by the mother and…the health care providers.”

  The matter was not yet settled. Surprisingly—and shockingly to abortion rights supporters and DA Nola Foulston—Wilbert decided to “leave the door open” for the defense to present evidence that Roeder had shot Dr. Tiller because of his conviction that the murder was justified to stop a greater evil. If this was not the necessity defense per se, it was a close relative. The judge’s decision created the possibility that Roeder’s lawyers could ask the jury to convict him not of first-degree murder but of voluntary manslaughter, defined under Kansas law as the “unreasonable but honest belief that
circumstances existed that justified deadly force.” A voluntary-manslaughter conviction carried a four-to-six-year sentence. Roeder could be back on the street by 2015.

  The DA’s office, led by Foulston, was apoplectic. She and her two assistant DAs quickly launched a counterargument against this so-called “imperfect self-defense.” It could not apply in this case because Tiller had been gunned down at his church, where he was a threat to no one. The only question the jury had to answer, prosecutors said, was if the shooting was premeditated, and they felt confident they could prove this at trial. These issues, the judge now made clear, wouldn’t be fully resolved until the jury and His Honor had heard all the testimony, but before the lawyers presented their closing statements. The DA wasn’t mollified.

  Following the December 22 hearing, Mark Rudy sharply criticized the judge, saying that Wilbert was trying to muzzle the defense—an obvious attempt to influence potential jurors before the trial got started. By early January, three hundred Sedgwick County citizens had been mailed summonses to appear at the courthouse on the eleventh of the month. An initial pool of forty-two women and men would be selected and the lawyers would whittle them down to the final fourteen: twelve jurors and two alternates. People could not be eliminated from serving because of their feelings about abortion. The judge took the unusual step of closing the jury selection process to the press, so those being questioned would, he hoped, be more candid (after media lawyers appealed this decision to the Kansas Supreme Court, Wilbert relented and made the final part of jury selection public).

  “Potential jurors,” he said about this process, “were asked very personal and sensitive questions regarding their religious beliefs…their knowledge of George Tiller and any pretrial publicity regarding the defendant, Scott Roeder.”

  One example of the jury inquiry was question number 86: “What are your personal opinions on abortion?”

  For Wilbert and the fourteen jurors ultimately selected, the case would not unfold in a vacuum, but against the backdrop of their own experience in Wichita and thirty-five years of anti-abortion demonstrations in the city. Jurors would be expected to ignore the 1986 bombing at Tiller’s clinic and Shelley Shannon’s wounding of the physician at WHCS seven years later. They were supposed to set aside their views of the mass arrests and chaos that had filled the streets during the Summer of Mercy in 1991; to dismiss the 1,846 straight days abortion foes had gathered at the clinic leading up to the murder; to disregard the trial and acquittal of the doctor in March 2009; and to forget about the closing of his office after he was killed. The jury’s job, according to the prosecution, was simply to focus on the testimony of the ushers in Tiller’s church last May 31 and on the state’s other evidence. The DA had a witness list holding 230 names, including Lindsey and Nick Roeder, while the defense had subpoenaed, among others, Phill Kline.

  Wichita law enforcement was on heightened alert and courthouse security was about to get beefed up by bomb-sniffing dogs provided by the Bureau of Alcohol, Tobacco, Firearms and Explosives. They were preparing for the worst.

  LIII

  Awaiting trial, Roeder had deepened his relationship with the anti-abortionist Dave Leach of Des Moines, Iowa. If Randall Terry had for decades represented the flamboyant, media-grabbing wing of the pro-life movement, the aging Leach was less intrusive and more scholarly, but every bit as committed to stopping abortion. With his wife, he ran a music store in Des Moines and instructed children on various instruments, but nowadays he needed Social Security to keep up with his bills. He was curious and a good listener, but his extremism regarding abortion wasn’t far below the surface. Once Tiller was dead, Leach had begun studying how to use the killing as a vehicle to bring the necessity defense into the courtroom in a serious way, during a high-profile case, in order to get crucial issues in front of a judge, a jury, and the national press. He wanted the Roeder trial to become a publicized legal forum on abortion. While not an attorney himself, he was a dedicated student of the law and had finished his 104-page motion, written on behalf of Roeder and submitted to Judge Wilbert in the weeks preceding jury selection.

  Like others in his movement, Leach drew parallels between the fight to stop abortion at the start of the twenty-first century and the battle to end slavery in the years leading up to the start of the Civil War in 1861. The anti-abortionists liked to cite the infamous 1857 Dred Scott U.S. Supreme Court decision, which ruled that people of African descent imported into the United States and held as slaves—and their descendants—were not protected by the Constitution and could never become American citizens. Further, Congress could not prohibit slavery in federal territories, slaves could not sue in court, and they could not be removed from their owners without due process. The failure of the legal system to remedy slavery had fed the momentum that created the War Between the States. When abortion opponents brought up the Dred Scott decision, one implication was that because the U.S. Supreme Court had made abortion legal under Roe v. Wade, the only option left to prevent the killing of the unborn was violence against abortion providers.

  With Roeder having sacrificed his freedom in order to make this point, Leach saw his chance to have an impact on the trial and possibly on setting legal precedents. He’d taken the writing of his motion very solemnly, citing case law and quoting the Bible, but then presented the document as if Roeder had penned it himself.

  “Every defendant,” the motion began, “has the right to present his theory of his defense…”

  While Roeder appreciated the efforts of his attorneys, Steve Os-burn and Mark Rudy, the letter said, “they have publicly given mixed signals about their willingness to represent me on the central theory of my defense, which is the only reason I maintain my innocence and demand a trial by jury, and is the only reason I took the action which got me here…American justice embodies the vision of the freedom of defendants to at least raise their defense high enough to be shot down in a public forum after all sides are heard…The facts and arguments motivating defendant are not the exclusive fabrications of wild-eyed fringe kook radical fanatics, but are established by American leaders who include Congressmen, presidents, and Supreme Court justices…”

  As the document unfolded under the guise of the defendant, Leach delivered his own subtle warnings and threats:

  “Courts simply have failed to squarely address questions about the legality of abortion to the satisfaction of even a majority of Americans. This case presents the court an opportunity to resolve these lingering disputes and heal America, which will end the violence. It is America Herself which will suffer, if Courts gloss over these unanswered questions one more time. Conscience’s cry for justice will continue to press for satisfaction outside legal channels, as long as legitimate questions cannot be addressed through legal channels…

  “Defendant desires the violence to stop. On both sides. Defendant offers the rest of his life for the lives of the unborn whose murders he prevented…Kansas law will not help a hero who saves thousands of lives if the cruel and unusual slaying of these human souls is legal…what really made me despair [was] the law could not or would not touch him [Dr. Tiller].”

  To support his argument, Leach mentioned another famous American criminal trial: hadn’t the deceased unborn Connor Peterson been legally regarded as a person and a homicide victim, along with his mother, Laci, in the notorious 2005 Scott Peterson double murder case? Therefore, shouldn’t all unborn fetuses be viewed the same way in the courtroom? Since 2005, Leach wrote, the “entire legality of abortion has been reversed,” even though this may not yet appear to be true because of current inconsistencies in case law.

  “The only mechanism for resolving this is a case that requires those inconsistencies to be resolved. This is that case.”

  Leach ended with a flourish, evoking the cultural war that had pervaded the United States since the 1960s. Woven into his words was the same impassioned rhetoric about a changed and changing America used by the men in the Order a quarter century earlier. They�
�d hated what their country had become and saw no alternative but to blame others for the massiveness and complexity of that change.

  “I pray,” Leach wrote, “along with God’s spiritual army that the terrible natural consequences prophesied for crimes so great as America’s need not fall any harder than they already have. I pray America will turn from kicking the roses barefooted (Acts 9:5) to cradling the bruised but still fragrant roses, allowing the bloodshed to stop on all sides. What suffering has been the natural consequences of hearts hard enough to slay 50 million of our own offspring! Unfaithfulness. Divorce. Domestic violence. Child abuse. Crime. An economic black hole at hand, created by political corruption added to a depleted work force from abortion and the turning away of immigrant labor. Are we bloody enough yet to stop kicking?

  “It is not my vision that America’s judiciary will walk still in the dark footsteps of Dred Scott until reversed by a civil war, carrying this scar until America ceases as a nation, but that this time courts will reverse the evil which they initiated and lead our nation in righteousness. Scott Roeder.”

  The motion claimed that the trial would be a “charade” unless the defendant could argue that his actions were needed to save unborn children.

  “This is not,” Judge Wilbert had said, “going to become a trial over the abortion issue. It will be limited to his [Roeder’s] beliefs and how he came to form those beliefs…”

  After the judge had received the 104 pages, he cracked open still more legal doors on January 8, saying that he could imagine “the very real possibility evidence could come from the defendant alone that would give me a duty to instruct the jury on voluntary manslaughter.” And that one instruction could change the entire course of the trial, and its verdict.