WICHITA, Kan. (AP) — The man convicted of killing abortion provider George Tiller in 2009 may have more leeway at his yet-to-be-set resentencing to argue before a new jury that he was acting in defense of others, a judge said Wednesday.
Scott Roeder's life sentence with no chance of parole for 50 years was among many vacated after the U.S. Supreme Court ruled in 2013 that juries, not judges, must decide whether aggravating circumstances existed to warrant increasing the punishment for a crime above its mandatory minimum sentence. The Kansas Legislature changed state law to reflect that ruling, which means a new jury must decide whether Roeder's crimes warrant a second so-called Hard 50 sentence.
Sedgwick County District Court Judge Warren Wilbert said that while the "necessity defense or imperfect defense of others" did not constitute a defense to absolve Roeder of murder, he could have a constitutional right to present such evidence before a jury at a new sentencing.
But, Wilbert added, he could not make a final decision until he sees what evidence the defense plans to present: "A lot of this stuff we are going to present to a new jury is to educate them on the murder of Dr. Tiller. They can't pick this up in a vacuum."
Roeder, 58, was convicted of first-degree murder for shooting Tiller inside Reformation Lutheran Church on May 31, 2009 in Wichita. He testified at his trial that he did it because other attempts to stop the doctor from performing abortions had failed.
Roeder also was convicted of two counts of aggravated assault for threatening to shoot two other men in the church.
The question for the court and jury during Roeder's resentencing is whether he must serve at least 25 or 50 years in prison before he is eligible for a parole hearing.
Victims of other crimes can sometimes put that offense behind them and move on, the judge said, adding "murder is final" and "Dr. Tiller did not live to see another day." That statement prompted a courtroom outburst from Roeder, who said, "Neither did his baby that he murdered."
If the court limits what factors the jury can weigh, the case may be sent back again on appeal, defense attorney Jason Smartt said.
Deputy District Attorney Kim Parker acknowledged after the hearing that it's possible that some form of the necessity defense, which would essentially argue that Roeder felt justified in killing Tiller to save the lives of unborn babies, could come in at Roeder's resentencing.
The defense has until April 29 to give the judge a list of mitigating factors. No date for Roeder's resentencing has yet been set.