Abortion

When Life Imitates (Bad) “Art” Imitating Delusion: Roeder’s Lawyer Says “No Such Thing” As “Necessity Defense”

Jodi Jacobson

Roeder's lawyer says so-called necessity defense is a fiction of the imagination of extremist anti-choice groups.

A couple of weeks back, a much-criticized episode of Law and Order portrayed a “fictional” situation in which a man murders an abortion provider and then claims a “necessity defense,” his “need” to kill a doctor providing completely legal medical services to protect “unborn children.”

In real life, however, no such defense exists.

Instead, it is a fiction of the imagination of extremist anti-choice terrorists who believe that their self-justified ends also justify whatever means they use to achieve them.

Law and Order adopted its premise from extremist anti-abortion groups–thereby giving them legitimacy–seeking to use this defense for Scott Roeder, the man who murdered Kansas Dr. George Tiller last May
Well thankfully, reality has now intruded.  The Wichita Eagle reports this morning that Roeder’s own lawyer says no such defense exists.

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“There’s no such thing as the necessity defense,” said Steve Osburn,
head of the Sedgwick County Public Defender’s Office and Roeder’s lead
counsel. “This is a fictional defense made up by these people.”

It’s not a legal defense, either, Osburn said.

“There is nothing in the law of Kansas, or anywhere else, that allows this kind of defense,” Osburn said.

 

The
defense that Roeder had hoped for, says the Eagle, “isn’t recognized by law, but it is
included on numerous Web sites, mostly by anti-abortion activists. That
includes ScottRoeder.org, sponsored by a group calling itself the
“radical fringe,” registered to an address in Wisconsin.”

Even some anti-choice extremists realize the ridiculous nature of this “defense.”

“My
first reaction was, ‘Hey, Roeder, this isn’t ‘Law and Order.’ Or
Hollywood,” said Troy Newman, president of Operation Rescue in Wichita.
“No
matter what his defense is, it is not representative of the pro-life
movement, and I wish he’d stop trying to identify with people who abhor
people who use violence to justify their religious beliefs.”

The Eagle article goes on to describe the issues around jury selection and legal process in the forthcoming trial for Roeder.

Analysis Law and Policy

Dear Incompetency Ruling Is the Latest Dangerous Signal From Courts on Anti-Abortion Violence

Jessica Mason Pieklo

Two different courts in as many weeks handed down rulings potentially sending some terrifying cues to the anti-choice movement.

On Wednesday, Colorado District Court Judge Gilbert Martinez ruled that Robert Lewis Dear Jr., the admitted Colorado Springs Planned Parenthood shooter, will not immediately stand trial for the November 27, 2015 siege that killed three people. Dear faces 179 counts, including murder and attempted murder, from the attack.

Martinez’s ruling, which came after two competency exams and hours of contested courtroom testimony, was that Dear was not legally competent to stand trial. Dear spoke out during the court proceedings against him again and again, despite court warning. Dear also has some fringe political beliefs that could fairly be described as delusional—he believes the FBI has been tracking him, that President Obama is the Antichrist, and that the federal government has been systematically targeting Christians since the 1993 siege on the Branch Davidians in Waco, Texas.

Based on the evidence disclosed so far, however, it is hard not to second-guess Martinez’s ruling here. Being behaviorally unpredictable or existing on the political fringe is not the same thing as being legally incompetent to stand trial. It’s dangerous for the court to decide otherwise.

Under Colorado law, a defendant is considered “incompetent to proceed” if, as the result of a mental or developmental disability, they do not have the sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding in order to assist in the defense, or if they do not have a “rational and factual understanding of the criminal proceedings.”

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I’ve put the emphasis on a couple of key points, because they are important for understanding the difference between whatever psychiatric diagnosis Dear got and the legal standard for whether or not he is competent to stand trial.

First: Sufficient present ability. That means does Dear, at this moment in time, have the ability to talk to his lawyer? Not “does he want to,” but “can he?”

Second: With a reasonable degree of rational understanding. Now there’s some legalese for you. But broadly speaking, it means: Can Dear reasonably and rationally understand the proceedings against him? For example, does he understand his charges? Can he participate in the court hearings as his case proceeds? Again, not “does he want to,” but “can he?”

And here’s what we know so far from court testimony and the few documents Martinez has allowed to be unsealed: Dear crafted a homemade bulletproof vest prior to November 27, which he said he wore on him when he took siege at the clinic. We also know through court testimony and documents that prior to the siege, Dear collected propane tanks and ammunition, which he brought and set up around the clinic first. He said he shot at those tanks. He missed. But he told investigators his goal was to create as much carnage as possible.

We even know that Dear stopped at a crisis pregnancy center about a mile down the road to confirm whether or not it was the Planned Parenthood clinic in question.

We know a lot more about what happened once Dear surrendered to law enforcement, how he cooperated with investigators up until his defense team was appointed, who then suggested an insanity defense. We know Dear didn’t want to plead insanity and instead wants to argue the siege was justified—that, as with Paul Hill, Michael Bray, and Scott Roeder, violence is necessary in the name of preventing what he sees as the “greater evil” of legal abortion.

Dear himself has stated both to the media and the court that he knew exactly what he was doing on November 27 before he was arrested in that Colorado Springs Planned Parenthood. He surrendered. He wants a trial.

He may never get one, though. All the evidence of Dear’s planning, of his specific targeting of Planned Parenthood, of Dear’s insistence he have a platform in the form of a criminal trial—by ruling Dear incompetent to stand trial because of his “political delusions,” Judge Martinez overlooks Dear’s very real but sincerely held religious belief that abortion is a moral wrong that has no legal justification.

The good news is that Wednesday’s decision is temporary. Competency, as the law defines it, is a fluid state. Which means a defendant like Dear can come in and out of legal competency, even if he’s never fully “cured” of the diagnosis that got him declared incompetent in the first place.

The immediate effect of Martinez’s ruling is to send Dear to the Colorado Mental Health Institute in Pueblo. That’s where Dear will be treated for what forensic psychologists diagnosed as his delusional disorder. Under Colorado law, “mental disability,” like that delusional disorder, means a “substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability,” which would significantly interfere with Dear’s ability to adapt to society.

In other words, the question is whether a defendant like Dear can keep himself integrated to a reasonable degree in society. The law states that Dear can be held no longer than his possible sentence—in his case, life in prison or possibly the death penalty—in efforts to rehabilitate him to legal competency. If the state psychologists and the court decide Dear will never become legally competent, they could begin the process of civilly committing Dear to a mental health facility for the rest of his life. They could also release him on bond with conditions that he must meet in order to remain out of state custody, such as remaining on medications or regularly meeting with psychiatrists.

Dear’s diagnosis centers on what the psychologists describe as Dear’s conspiratorial beliefs the federal government is targeting Christians and that the FBI has been watching him for decades. I’m curious as to how those beliefs are going to be “rehabilitated,” given that right-wing politicians and personalities use rhetoric similar, if not identical, to Dear’s. Even one of the psychologists herself admitted this fact during court testimony.

Really troubling, though, was the conclusion that Dear’s beliefs on abortion, the target of whatever fringe political beliefs he may espouse, do not fall into that delusional diagnosis. Those, psychologists testified during the first day of Dear’s competency hearing, are simply Dear’s deeply and sincerely held religious beliefs as to the moral wrong of abortion. 

Let me be clear. I am very uncomfortable with the government making conclusions as to which political beliefs are delusional and which are not. But I am even more uncomfortable with this idea that obstruction against reproductive health care can be explained away, and thus legally insulated, by religious beliefs. Political fringe beliefs, apparently, are enough to warrant a diagnosis of a disorder; anti-choice rhetoric, according to these courts, is a religious belief irrelevant to the matter at hand.

Should Dear ever be found legally competent, that would effectively continue the criminal case against him, months, maybe years later. The soonest prosecutors can request Dear be reevaluated to be declared competent to stand trial is three months from Wednesday’s ruling. But I’m guessing it’s going to take more time than those three months. Call it a hunch.

In the meantime, it’s good to remember that as we saw with Angel Dillard’s case last week in Wichita, Kansas, a trial is no guarantee of any justice or vindication of abortion rights. And like Wichita, Colorado Springs has a deeply ingrained anti-choice movement. Who’s to say a jury wouldn’t excuse Dear’s actions based on those religious beliefs, in much the same way one did in Dillard’s case?

Dear’s case raises troubling questions, then, for reproductive rights advocates: Do we really want him to stand trial? What about the risk of a jury embracing the idea that targeted violence against abortion providers and their patients just comes with the territory for someone who believes in delivering full-spectrum health care, including reproductive services?

What about the fact that anti-choice violence is so normalized in our culture that the courts, in two different cases in as many weeks, will go out of their way to excuse it? Given the increasingly violent anti-choice rhetoric and political climate, do we really have any choice but to fight back in every venue we can, including the courts?

I don’t have a good answer to any of those questions.

I know that these cases, when read together, potentially send some terrifying cues to the radical anti-abortion movement. Dear is now another “lone wolf” delusional person who was arrested for just happening to act out his violent delusions at a Planned Parenthood. Kind of like that young man in Wichita who walked into an abortion clinic to apply for a job. With a homemade bomb in his backpack. Dillard is just another fire-and-brimstone prison minister acting on her sincere religious beliefs that God called her to write a letter to Dr. Mila Means warning her about future car bombs. Not to incite any violence towards Means. Just to save her.

I had a law professor try to explain to me once that the law is often slow to catch up with popular opinion. Just look, for example, at marriage equality: Large swathes of the country had already accepted that discriminating against same-sex couples is wrong before the Supreme Court got around to agreeing with them.

So, then, what does that say right now about anti-abortion violence, if the courts in these cases too are slow to catch up with popular opinion? I think it means that we’ve got a long ways to go before abortion providers and patients can feel like their interests are being heard by the justice system. At all.

Analysis Violence

Spiritual Salvation: The New Excuse for Violence and Threats Against Abortion Providers

Jessica Mason Pieklo

"Anything I can do to help protect people who are trying to provide services to women I was willing to do,” said Dr. Mila Means in an interview with Rewire, after the close of Angel Dillard's trial for writing her a threatening letter in 2011. “And I just had no idea it would turn into this.”

In 2009, Scott Roeder murdered Dr. George Tiller, leaving Wichita, Kansas, without an abortion provider. A full year would pass before local physician Dr. Mila Means considered stepping in to start offering abortions. She began training to offer the procedure as part of her Wichita practice—largely because nobody else was doing so.

“That was a big issue. Patients in need of services and not able to get them,” said Means in an interview with Rewire last week.

“I had someone who sought me out, who I only met once …. She had two children and was early on [in her pregnancy] and wanted a medical abortion,” said Means. “And I said ‘Well, I can’t do that here,’ and tried to refer her to Kansas City. But there was no way she could get away from her husband or anything to be able to get care,” Means continued.

“And that was really a big part of my thought: ‘Well, somebody’s got to do something in this city.'”

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Means has been tied up in litigation for the last five years because of a letter she received in January 2011 from a woman named Angel Dillard, who warned Means that should she go through with her plans, thousands of people across the country would be looking into her background to learn her habits and routines, and that Means would be checking under her car every day for explosives. That letter attracted the attention of the Department of Justice (DOJ), which sued Dillard under the Freedom of Access to Clinic Entrances (FACE) Act. Last Friday, Wichita jurors sent a very dangerous message to the anti-choice movement where Dillard’s case was concerned: Present your threat to abortion providers as an attempt at spiritual salvation, and the law will look the other way.

The eight-person Sedgwick County jury concluded that Dillard’s January 15, 2011 letter, which also referenced Tiller speaking to Means from hell, constituted a “true threat.” In other words, that letter was a threat and not automatically protected free speech, as Dillard and her attorneys had argued.

But the jury also found that while it was reasonable for Means to feel threatened given the reference to Tiller’s murder, the car bomb mention, and so on, those threats were not enough to warrant any of the civil damages the DOJ had asked for on Means’ behalf, or the protective order the agency had asked for keeping Dillard away from Means.

See, Dillard’s evangelical Christianity included an angry God, a vengeful God, explained her attorney Craig Shultz to jurors in his closing argument. Dillard is a strong woman with strong beliefs who uses strong words to persuade others like Means, to change their ways, he said—in other words, her letter was just an example of those strong words.

“The letter was intimidating, but it was a more spiritual threat, a more emotional threat,” presiding juror and Wichita native Adam Cox, 37, told Rewire in an interview following the verdict. “It was not a threat of physical violence … and therefore it did not violate the law.”

This distinction—between spiritual violence and physical violence—is exactly the cover the radical anti-choice movement has sought from the law for decades. And that’s exactly what the Dillard jury gave them when they found Dillard not liable for threatening Means out of providing abortions in Wichita. Although the circumstances of the cases are obviously different, the idea that being spiritually compelled toward the threat of violence should be enough to excuse that threat in the court of law echoes the reasoning used by other anti-choice extremists.

It’s a mutation of the legal theory of justifiable homicide, the idea that an act like murder is legally excusable in some circumstances because it’s preventing a greater evil—in this case, legal abortion. That’s what Paul Hill used to try to justify his murder of abortion provider Dr. John Britton and Britton’s bodyguard in 1994.

Like Dillard, Paul Hill considered himself a minister.

It’s the same argument Roeder used during his trial for killing Dr. Tiller. It’s the same position advocated by Roeder associate and self-proclaimed minister Michael Bray, convicted in 1985 for possessing explosives and conspiring to blow up abortion clinics.

While Roeder, Hill, and Bray were convicted for their crimes, each, like Dillard, attempted to cloak their conduct in the guise of being called by God to act.

And this is the same line of thinking self-proclaimed Colorado Springs Planned Parenthood shooter Robert Lewis Dear Jr. has said he will use to defend himself should he be determined competent to stand trial.

When Dear was initially detained by law enforcement following the shooting, and throughout his legal proceedings so far, he has consistently made anti-choice statements. He’s repeated the idea that Planned Parenthood is “selling baby parts,” the same argument made by the anti-choice Center for Medical Progress and its founders David Daleiden and Operation Rescue’s Troy Newman, spread by heavily edited videos, and repeated ad nauseam by conservative lawmakers looking to stir up their base in a particularly ugly election cycle.

Dear faces a total of 179 counts, including murder and attempted murder, from the five-hour standoff. The hearing to determine his competency to stand trial continues May 10. In the first phase of that hearing last month, prosecutors portrayed Dear as a man with deeply held religious and political convictions, which they said motivated Dear to hold siege at the reproductive health-care facility and eventually kill three. It is those very same sincerely held religious beliefs and a paranoia that the federal government is persecuting Christians that, Dear’s defense team argues, rise to the level of a diagnosable delusional disorder, rendering him incompetent to stand trial. According to the detective on Dear’s case, Dear wants to raise a “defense of others” argument—in other words, again, the legal argument that a crime is justified to prevent a greater evil.

Dillard’s attorneys argued she was simply preaching the path to redemption for Means, and not sending out a larger call to action against her.

But the truth of the matter is that Dillard’s statements were enough to give seasoned domestic terrorism law enforcement officers a reason to visit Dillard—twice, as one investigator testified at Dillard’s trial. They looked Dillard up in their internal network to find they already had a flag on her for links to abortion extremist Roeder.

In other words, in 2011 and at the moment the FBI was sent in to investigate, as best as the evidence showed, Means was to be the next big target of anti-choice violence. And the only reason she wasn’t was because the portion of FACE that is designed to prevent acts of violence from happening actually worked. The DOJ responded, potentially preventing an act of abortion terrorism that would have caused physical harm. It really doesn’t matter that they declined to pursue a criminal case against Dillard, a point her attorneys tried to emphasize during trial. The DOJ still brought a civil case. And civil cases are expensive to bring, which means lawyers must also consider how much money the case is worth. It sounds crass, but it’s true; it’s not profit, it’s penalties and damages. In Dr. Mila Means’ case, those were valued at approximately $20,000. For civil cases, that’s rarely, if ever, enough for an agency to justify spending five years of resources. And still, the DOJ went in hard. That alone suggests this case means more than any $20,000 verdict for Means. This case, in terms of anti-choice violence, was and remains significant.

Means never ended up developing an abortion practice, a fact she ascribes to the impossibly anti-choice political and cultural climate of Kansas. “What happened was two-pronged,” explained Means in an interview after the close of the trial but before the verdict. One issue, she said, stemmed from when the Kansas legislature “passed the TRAP laws.”

In 2011, Gov. Sam Brownback (R) signed a series of anti-choice restrictions, including ones similar to those passed in Texas that are currently under review by the U.S. Supreme Court. Those regulations, like hospital admitting privileges requirements and strict architectural requirements, have since been blocked by a federal court.

“I felt like, as an individual trying to fund getting started … there was no way I could have an ambulatory surgical center, and there’s still no guarantee that the doctors in this town will get [admitting] privileges,” Means said.

And then there was the other “prong”: Word had gotten out to the local anti-choice community that Means was training to expand her practice to provide abortions for patients who needed them. In addition to the added anticipated costs related to Kansas’ TRAP laws, Means had to consider security costs.

“As things progressed, I became much more aware of how expensive security was going to be,” said Means. For example, early in the process of attempting to expand her practice to include abortion services, Means attended a meeting with area providers. According to Means, security for that approximately two-hour meeting cost about $800.

Kansas needs abortion doctors. But Means is hesitant to recommend people come in and try and take up the work. “Only if they are prepared for it to be their whole life,” she said.

“The person that I trained with, he was in his 70s,” said Means. “I’m thinking that potentially our future providers are going to be physicians who have raised their kids, done their other kind of work, that still want to give, and are willing to crawl into a hole.”

That’s because, Means noted, violence against abortion providers is increasingly normalized. “The threats work,” said Means.

Means was pessimistic about the outcome of her case and concerned about the ripple effect such a decision could have for inspiring other threats of violence against abortion providers. “If we can’t even get people to look at [Dillard’s communication to Means] and say there’s something different here, how can we get proactive legislation [to protect providers]?” she wondered.

“Anything I can do to help protect people who are trying to provide services to women I was willing to do,” said Means. “And I just had no idea it would turn into this.”

The next day, the jury decision came down.

The jury found Dillard to be a threat. They just weren’t convinced she was enough of threat. That’s because the letter was sold as part of Dillard’s fire-and-brimstone spiritual redemption, the kind she could have been learning from Scott Roeder and Michael Bray.

Thankfully, Dillard’s case doesn’t hold much broad legal precedent, because it’s limited to the battle between Dillard, Means, and the DOJ. The DOJ could try and appeal the verdict, but it is a steep hill to climb. There are limited legal grounds to appeal in any case. Even with the problematic evidentiary rulings regarding Dillard’s purported prison ministry to Roeder and the inherent conflict between the jury finding Dillard’s letter to be a true threat but not enough of one, the DOJ has a lot of cases. The agency has to evaluate if, after five years of effort dedicated to pursing the case against Dillard, it is worth continuing. It’s a sobering reality for abortion rights advocates.

In the meantime, what that verdict shows is not just how ingrained radical Christian anti-choice sentiment is in places like Wichita, but how it is metastasizing into the law: Dillard wasn’t threatening Means’ physical well-being. She was just preaching. This was not about death to Means. It was about salvation.

The jury bought it.

The First Amendment protects the ugliest of speech. But it also demands accountability from speakers. That accountability is never about manners, or as Dillard’s attorneys claimed during her trial, shutting down abortion-related speech with which the government disagrees. It is always about whether that speech puts the safety of others in jeopardy.

Except when it’s not. When it’s speech outside abortion clinics directed at patients, abortion doctors, and clinic staff. Or when it’s women facing online death threats by former partners. Or when they are “spiritual threats” to car bomb abortion providers. Then that accountability and safety balance gets all out of whack. Inevitably, women’s lives are put in the cross-hairs.

“All of these people continue to embolden each other,” Means said.

She is exactly right. It is no coincidence that Dear shouted about “no more baby parts” at his arrest in Colorado, months after Daleiden and Newman began releasing videos purporting to show Planned Parenthood was selling fetal tissue. Make no mistake about it: Abortion doctors are and will continue to be the main targets of the violent anti-choice right. But as the attack on Colorado Springs Planned Parenthood proved, if you go to a reproductive health-care facility, you are a potential target.

All of these people embolden each other. And a jury in Wichita just gave them another push.