Des Moines Anti-Choicer Hopes to Free Alleged Tiller Assassin

Jason Hancock

A Des Moines anti-abortion activist has had repeated contact with the man accused of killing Kansas doctor George Tiller in May, and is even working on a legal strategy for him that he believes will result in acquittal.

This article is part of a partnership between Rewire and the Center for Independent Media and also appeared on the Iowa Independent.

A Des Moines anti-abortion activist has had repeated contact with the
man accused of killing Kansas doctor George Tiller in May, and is even
working on a legal strategy for him that he believes will result in
acquittal.

Dave Leach publishes a newsletter called “Prayer & Action News,”
which advocates the doctrine of justifiable homicide in the case of
abortion doctors. The man accused of murdering Tiller, Scott Roeder, was a contributor to the publication.

In an interview, Leach said he has spoken
with Roeder several times since his arrest, including twice on Thursday
to discuss legal strategy. Despite the fact that Leach is not an
attorney, he has prepared a legal brief he believes will get Roeder acquitted, and “Scott is willing to go along,” he said.

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Leach sent a copy of the brief to Roeder’s attorney but has not gotten a response.

Leach has proposed that Roeder stipulate that the facts alleged in
the criminal complaint against him are true in order to focus the case
on the so-called “necessity defense.” Roeder is accused of shooting
Tiller in the foyer of his Wichita church on May 31 in order to stop
him from performing abortions.

The hope is that refusing to contest the facts of the case will
leave no other option to the judge but to let the jury hear argument
regarding whether Roeder was forced to commit murder in order to stop
an “unlawful harm,” meaning abortion.

“In probably all previous cases, the dog-and-pony show proceeded,
the prosecutor bringing in his witnesses to prove what nobody seriously
contests,” Leach said. “That way there is an appearance of a right to
trial by jury. The jury gets to weigh the facts, which the defendant
does not contest. But I have proposed to Scott that he stipulate to the
alleged facts, making the dog-and-pony show irrelevant to any
additional information the jury needs to make its determination, and
dramatically isolating the necessity defense as the sole contested
issue of the case.”

In the past, judges have thrown out “necessity defense” arguments
regarding crimes committed to stop abortion because abortion is legal,
and therefore protected by the law.

“Legally protecting a harm does not render it harmless,” Leach said.
“The necessity defense requires reasonable people to judge whether a
harm is in fact harmless, regardless of how courts or lawmakers feel
about it.”

If the decision is given over to a jury, Roeder will go free, he said.

Margaret Raymond, a law professor at the University of Iowa who
previously practiced as a criminal defense attorney, has not read
Leach’s legal brief but said the likelihood that a judge will allow a
jury to hear an argument of “necessity defense” in a case like this is
quite small.

“Typically, you don’t get to use that defense in murder cases,” she
said. “The problem with a necessity defense in this case is that it is
hard to say that something that the law permits is an act that must be
prohibited at the cost of death.”

Juries are only permitted to hear claims that fit within legal
parameters. If the law permits the claim, the facts surrounding the
claim would go to the jury to decide.

“The jury doesn’t get to hear a claim that isn’t legally plausible,”
Raymond said. “If there is no legal basis for the claim, then it cannot
go to the jury. Juries are not supposed to decide things outside of the
law. They get to decide fact within the law.”

The necessity defense, in general terms, says that it is OK to
commit a crime in order to avoid a much greater harm, she said. For
instance, a person with a suspended drivers license could drive a
person to the hospital if it meant saving their life.

“The question would be whether the necessity defense would permit
somebody to claim that something that is legally protected created a
necessity to justify homicide,” Raymond said, adding: “My guess is that
this is not going to be a strong defense. The irony is that the first
thing he is asking him to do in order to use a necessity defense is
admit he committed the crime. That is not necessarily something a
criminal defendant wants some third party going around announcing.”

Even if the judge allows this defense to go forward, Roeder may
still go to prison, Leach said. But he believes it would set a legal
precedent allowing those who block the entrances of abortion clinics
and “perhaps even building burners” to use that defense in the future,
Leach said.

“I, personally, would prefer a bloodless way to stop bloody
abortion. But it isn’t up to me,” he said, adding: “So I suppose the
correct answer would be, yes, lovers of abortion have great reason to
fear that they will suffer the same violence they have voted to inflict
upon 50 million American unborn. But not from me.”

Leach is not the only anti-abortion activist to contact Roeder in
prison. The Wichita Eagle reports that he has been visited by “a who’s who of anti-abortion militants,” a fact that has worried abortion-rights advocates.

Fear of a possible conspiracy to commit more acts of violence
against abortion providers has led to a federal investigation, and the
FBI has questioned several of Roeder’s visitors. Leach said the FBI has
not contacted him.

He has been in contact with other anti-abortion activists around the
country to share his legal brief, Leach said. So far, only Regina
Dinwiddie, a Kansas City anti-abortion activist who made headlines in
1995 when she was ordered by a federal judge to stop using a bullhorn
within 500 feet of any abortion clinic, has given him feedback.

This is not Leach’s first brush with the spotlight. Following Tiller’s assassination, Leach was prominently featured by national news media due to his previous ties with Roeder.

In the mid-1990s, Leach’s association with the accused killer of a
Florida abortion doctor helped persuade U.S. marshals to guard the
Planned Parenthood clinic in Des Moines.

In the January 1996 issue, Leach published the Army of God manual,
which advocates the killing of the providers of abortion and contains
bomb-making instructions. Because of this, he was fired from his job as
a writer for an Ankeny newspaper.

In 2002, he tried to air videotape of patients entering a local
Planned Parenthood clinic on public-access cable TV. Mediacom
Communications Corp. decided it would not allow him to air the footage.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.