TOPEKA, Kan. -- The man convicted of shooting a Wichita abortion provider to death in 2009 has asked the Kansas Supreme Court for a new trial.
Scott Roeder was convicted of first-degree murder and sentenced to life in prison without the possibility for 50 years for shooting and killing Dr. George Tiller inside Reformation Lutheran Church.
Roeder's attorney, Rachel Pickering, told the Supreme Court Wednesday that Roeder should have been able to mount a necessity defense because he believed killing Tiller was required to prevent what Roeder believed was the imminent killing of unborn babies.
Pickering argued the jury in Roeder's case should have been able to consider an alternate charge of voluntary manslaughter. State statute, Pickering said, defines voluntary manslaughter as killing somebody under the unreasonable, but honest belief that circumstances constitute deadly force.
"Mr. Roeder has this unreasonable, but honest belief that this doctor is performing illegal abortions," PIckering told the court.
The justices asked Pickering several questions about whether anything Roeder perceived as harmful was truly imminent since Tiller was not performing abortions at the church.
Roeder, Pickering argued, was acting to prevent abortions he believed were scheduled the following day.
"A jury can find that 22 hours is imminent," Pickering said.
Arguing for the state, Assistant Sedgwick County District Attorney Boyd Isherwood said Roeder had no way to be certain Tiller would be performing abortions the next day.
"All we have is the possibility that something will happen in the next 22 hours," Isherwood said.
Roeder's appeal also seeks to have his Hard 50 sentence commuted. The sentence is imposed in murder cases in which the killing happened in an especially cruel or heinous manner.
Supreme Court Justices asked Isherwood why the state sought a Hard 50 sentence when that sentence is not usually applied in shooting deaths unless the murder involved aggravating circumstances such as terrorizing the victim.
"The location and the event were meant to stop others form seeking a procedure protected under the Constitution," Isherwood said. "This was terrorism, not of Dr. Tiller, but of others."
On rebuttal, Pickering argued the district court judge did not cite terrorist threat as an aggravating factor for sentencing Roeder to the Hard 50.
The Supreme Court will study the appeal arguments before issuing its ruling.