HUTCHINSON -- It is unfortunate that Sedgwick County District Judge Warren Wilbert decided to deny Scott Roeder his right to a trial by a jury that was independent of government control.

Roeder had admitted to the crime of Voluntary Manslaughter [the “honest but unreasonable belief” that the use of force was necessary in defense of another] in the killing of Dr. George Tiller, but the prosecution decided it wanted him convicted instead of the much broader crime of 1st Degree Murder.

Instead of giving the jury the choice between the two crimes, Judge Wilbert sided with the prosecution and told the jury that it could only find Roeder guilty of 1st degree murder …or not guilty of any crime. Jurors went into the jury room, did what the judge told them to do and found Roeder guilty of 1st degree murder 37 minutes later.

The framers of the Constitution knew that the British court system had been used in the past to punish those who opposed the crown. They made the judiciary independent to keep the executive from coercing the courts into serving the government's needs. Juries selected from the citizenry provided a means of dealing with a situation in which judges might become too close to the executive branch.

A jury cannot perform its constitutional function if a judge denies it the opportunity to decide the major controversies in a trial. Juries under U.S. law have broad authority to make their own decisions and in precedents that predate the establishment of the Constitution may choose to ignore laws like judges sometimes do.

The first example of jury nullification occurred in the case of journalist John Peter Zenger who was acquitted by a jury for publishing defamatory comments about New York Governor William Cosby in 1735 … because the statements were true.

At the time the law allowed prosecution for negative comments about government officials even if the comments were true. Jury nullification provides an added check on the legislative power by allowing citizens to in effect invalidate what citizens believe are unreasonable restrictions on their freedom.

In the Roeder trial the controversy wasn't whether Roeder committed a crime when he killed Dr. Tiller, but the nature of that crime.

Judge Wilbert decided that he was some type of infallible god instead of a human being who is capable of making mistakes in spite of the fact he had been reprimanded by the state in 2006 in response to a sexual harassment complaint by a court employee.

Wilbert is educated in the law, but so are the defense attorneys who had a different opinion about the meaning of the law defining voluntary manslaughter.

It is not the judge's role in a jury trial to side either with the opinion of the prosecution or the opinion of the defense about how to interpret the law or the facts of the case. A judge usually knows more about the law than jury members, but then so do the attorneys for the
prosecution and the defense.

In modern society, judges may have more power to decide legal cases, but the most knowledgeable attorneys are usually not judges.

As far as I know Roeder's defense attorneys Mark Rudy and Steve Osburn sincerely believed that Roeder was only guilty of voluntary manslaughter.

Also as far as I know ,Sedgwick County District Attorney Nola Foulston sincerely believed that Murder One was the appropriate charge. As far as I know she did not choose the more severe charge just to punish Roeder for being an opponent of abortion.

American courts are supposed to be biased in favor of the defendant rather than the government. The defendant doesn't have to prove his innocence. If a defendant says he didn't take the action for which he is accused the government must prove him guilty of the action beyond a reasonable doubt.

Scott Roeder admitted in court that he had killed Tiller to prevent Tiller from performing any more late term abortions and thus he was guilty of the crime of voluntary
manslaughter.

Judge Wilbert should have instructed the jury it should find Roeder guilty of voluntary manslaughter unless it felt that the prosecution had proved beyond a reasonable doubt that the crime was not voluntary manslaughter, but 1st degree murder. The jury should not have considered a verdict of "not guilty.".

The claim that abortion is legal is a spurious argument in considering whether or not Roeder's action could be considered voluntary manslaughter. Late-term abortions are only legal in Kansas under certain circumstances and Tiller had been accused of performing abortions that didn't comply with Kansas law.

Shortly before the killing, Tiller had been on trial for illegally performing late-term abortions. There was sufficient evidence against him for an attorney general who supported abortion to charge Tiller with violating the law, but not enough to convince a jury of his guilt beyond a reasonable doubt.

Roeder might easily have been convinced himself that Tiller was getting away with murder and decided to impose the type of vigilante justice shown in old westerns and occasional cop shows.

To Scott Roeder, George Tiller was a serial killer who had escaped punishment because he had a more effective attorney than the state had.

Obviously Scott Roeder violated the law when he killed Tiller. The question is, which law he should have been convicted under.

The right to a jury trial should always allow an independent jury to choose a lesser charge than that desired by the prosecution regardless of the wishes of judges who want to limit the right to trial by jury by controlling what the jury can do.