A hearing was set for Tuesday afternoon to give the defense an opportunity to respond to prosecutors' court filing. Jury selection was expected to begin Wednesday in Scott Roeder's trial.
Roeder, 51, of Kansas City, Mo., faces a premeditated, first-degree murder charge in the May 31 shooting of Dr. George Tiller, who was gunned down while serving as an usher at his Wichita church. Roeder also is charged with two counts of aggravated assault for allegedly pointing a gun at two ushers who tried to stop him after the shooting.
Roeder has admitted to reporters and in a court filing that he killed Tiller to save "unborn children."
The judge in the case allowed defense attorneys on Friday to try building a case for the lesser charge of voluntary manslaughter by presenting evidence that Roeder sincerely believed the slaying was necessary to save unborn babies.
Prosecutors argued in their filing that such a defense, known as an imperfect self-defense, is not appropriately considered with premeditated first-degree murder when there is no evidence of an imminent attack at the time of the killing.
"The State encourages this Court to not be the first to enable a defendant to justify premeditated murder because of an emotionally charged political belief," the prosecution wrote. "Such a ruling has far reaching consequences and would be contrary to Kansas law."
By the time Roeder shows up at the Sedgwick County courthouse for the start of his trial, the court would have summoned 300 prospective panelists. A first group of 61 had been expected Monday.
The lawyers will winnow the pool to 12 jurors and two alternates who will hear an expected two weeks of testimony.
Jury selection will likely consume much of the first week as lawyers sort out the impact of pretrial publicity and jurors' medical histories and attitudes over abortion and health care.
More than 100 journalists have received credentials to cover the trial, and satellite news trucks will converge on a community that for decades has been at the fulcrum of the issue.
But how much of the process will be seen by the public is uncertain. Judge Warren Wilbert has banned reporters from witnessing jury selection, saying through a court spokesman that he's concerned about the potential "chilling effect this might have on juror candor in the case." News outlets, including The Associated Press, are asking the state's highest court to overturn the ban.
In the coming days, lawyers must qualify 42 jurors for legal cause, meaning those persons with the ability and fitness to perform jury duty. Each side may then strike 14 more jurors.
Mainstream anti-abortion groups such as Operation Rescue and Kansans For Life have distanced themselves from Roeder, but the issue will still hang over the proceedings.
Philip Anthony, the chief executive officer for DecisionQuest, a Los-Angeles based jury consulting firm not involved in the case, said the problem with an abortion-related trial is that most prospective jurors don't recognize that they are biased on some level.
"That is sort of the No. 1 issue this case deals with - where virtually everybody has an opinion of one sort or another, even if they haven't stopped to think about it in their lives," Anthony said. "At the end of the day, they probably have an opinion and that makes it very difficult in jury selection."
Potential jurors who are adamantly opposed to abortion or who favor abortion rights - and who acknowledge they look at this case with a bias from the start - will likely be eliminated by the court without either side having to waste a strike, Anthony said. But it's the unstated biases of the rest that pose the biggest challenge to both sides.
Anthony said defense attorneys will be looking for the juror who during deliberations might say something like: "'You know this case isn't as simple as just convicting somebody for a murder; we have to think about social implications. ... We have to think about what in the system caused this person to have to come in and do this."'
Tiller championed abortion rights even after being shot in both arms by an activist in 1993. His clinic, heavily fortified after a bombing in 1986, was the target of both peaceful and violent protests.
In more recent years, anti-abortion activists tried using the legal system to go after Tiller. Thousands of abortion opponents signed petitions forcing Sedgwick County to convene grand juries in 2006 and 2008 to investigate him, but both refused to indict him.
Two state attorneys general also tried in vain to prosecute him. Just two months before his death, a jury acquitted Tiller of misdemeanor charges accusing him of failing to get an independent second opinion for late abortions.
