Following the closing of the clinic, Jeanne had taken Tiller’s staff to dinner and had the doctor’s armored vehicle broken down and sold for scrap parts. She’d collected ten thousand medical files from his office, including some of those Phill Kline had tried so hard to gain access to when he was attorney general, and had them shipped off to storage in a 650-foot-deep salt mine in Hutchinson, Kansas. The location would help preserve them intact for decades, maybe centuries. The moving of the files had brought a piece of closure to her husband’s life and death, but nothing would really be resolved until and unless Roeder was found guilty.
Whenever there was a recess, four or five policemen jumped up and formed a wall between the Tiller family and the anti-abortion spectators just to their left. The Tillers were always allowed to depart the courtroom first, and on her way out, Jeanne repeatedly shot nasty looks at those who supported the killing, but no one made any sounds or gestures toward her or her children. The family then hurried away, using a rear exit that was off-limits to others. Because of all the police officers on the premises displaying multiple guns and wearing body armor, the pro-and anti-abortion sides were forced to be polite to each other in the courthouse hallways. You couldn’t go anywhere in the building without running into a cop and being given a once-over to determine if you looked at risk of becoming violent. Security outside the courthouse was just as tight. Each morning, officers used a mirror to inspect the underside of the van bringing in the jurors to see if a bomb had been planted there. The civility that hadn’t existed over most of the past thirty-seven years of the abortion struggle was forced into existence at the trial.
On the final day the state presented its case, Sedgwick County’s chief medical examiner, Dr. Jaime Oeberst, took the stand, and without warning the prosecution showed a close-up of Tiller taken during the autopsy. It was shocking to the point of having one’s entire body flinch. Reading about mass murder is one thing, but seeing the damage done by a single round fired into a man’s forehead, the gun barrel placed against the skin as the trigger was pulled, is an entirely different matter. How the Tillers endured watching this was unfathomable. The doctor’s face was contorted by the impact, which had left bullet fragments embedded in the back of his skull. Blood was everywhere and he no longer looked human.
As the state prepared to rest on Wednesday afternoon, January 27, and with the jurors out of the courtroom, the polite and pleasant-looking Mark Rudy tried to persuade the judge that both Barry Disney and Phill Kline should be allowed to testify for the defense. They should be able to tell the jury about the AG’s office bringing a case against Dr. Tiller in March 2009, and about Kline’s conviction that when performing late-term abortions at his clinic, the physician was in violation of the law. Kline’s actions against Tiller, Rudy argued, went to the essence of what had motivated Roeder to kill. If the head legal official in Kansas was convinced that Tiller was breaking the law, wasn’t it reasonable for a Kansas citizen like Roeder to draw the same conclusion? And if the state’s top law enforcement official could not halt Tiller’s illegal operations through legal means, by successfully prosecuting him, then how could he be stopped? Having Phill Kline state his beliefs about Tiller in front of the jury might very well add credibility to Roeder’s case.
The Inquisition, or at least its residue, was still alive in Wichita, and the DA was not pleased.
Until now, Foulston hadn’t publicly given in to her contempt for the defense’s strategies throughout the past few months. It was bad enough for Roeder to have shot Dr. Tiller in cold blood inside his church; even worse, she felt, for his legal team to say that he’d done this because the physician had represented an “imminent threat” to the defendant or anyone else. If Foulston and her two assistant DAs needed any more motivation for seeing Roeder found guilty of first-degree murder, they’d gotten it during the past four days by being several feet away from the Tiller family and listening to them cry during the testimony. Now that they’d made their case with ironclad forensic and DNA evidence, Rudy was, in her estimation, trying to drag Disney and Kline into the proceedings just to muddy the legal issues.
With the jury out of earshot, Foulston let fly a tirade against the public defenders, calling their logic “psychotically circuitous.” Rudy, his normally reddish skin growing more inflamed as he spoke, fought back in the best tradition of defense lawyers everywhere, even though his client had told the world that he was a killer. Rudy paced and argued, seeming to grope for the words to support his position, which Foluston did not have to do; she’d been waiting patiently to tell the court exactly what she thought of Roeder’s defense. The two attorneys went head to head in front of the judge and the gallery, and for those who enjoyed heated, high-stakes lawyering, it was a moment to savor.
More than once, Rudy’s voice rose so high that it broke. Scott Roeder, he contended, had formed his deepest feelings about abortion based upon watching the ex–attorney general go after the Wichita doctor. Because of this, it was imperative that the jury hear about Kline and Disney’s “good faith” prosecution of Tiller.
But the defendant, the judge countered, “can’t corroborate his own beliefs by bringing in Barry Disney or Phill Kline. You could call a member of his Bible study group to corroborate his beliefs…”
Judge Wilbert then emphasized once again what he’d been saying to the lawyers for weeks: “We are not going to make this a referendum on abortion.”
Foulston stood to address the court.
“The state,” she said, “does not believe any of this mishmash. These allegations are totally outrageous…and this is not the direction this trial should be going in.”
After Rudy had passionately restated his arguments, Foulston did the same.
“This is outrageous,” she repeated, “and the state continues to ask this court to make a clear ruling about presenting evidence.”
Judge Wilbert, who had a twang reminiscent of President Clinton’s, had to hustle to keep the peace in his courtroom. Throughout the debate, Rudy’s friendly persona had remained intact, but the DA was ready to blow. She hadn’t waited eight months since the murder to see her case derailed by the very same Phill Kline who in late December 2006 had filed charges against Dr. Tiller through Don “the Dingo” McKinney on Kline’s way out the door as AG. She hadn’t devoted the past four days to painstakingly showing how Roeder had killed the physician so that the defense could now turn the trial into the issue of why he’d done it. The law wasn’t about why, she argued, but about due process, forensic evidence, and sworn testimony. She talked so fast that her throat dried out and she grabbed a bottle of water from the prosecutors’ table and took a swig, before launching another salvo.
The judge, who looked more and more uncomfortable as the arguments grew more intense, reminded the DA that none of the conflict at the heart of the trial was his fault. In 1992 the Kansas legislature had enacted a new law declaring that a defendant could have an “honest but unreasonable belief” when committing a crime. This law might leave a judge no choice in a case like the present one but to offer a jury the option of a voluntary-manslaughter conviction. Wilbert’s concern was clearly with the appeals court above him.
“If I don’t allow the defendant to present his defense,” he told the DA, “this verdict will be overturned in a minute.”
“This,” Foulston shot back, “is irrelevant and immaterial, Judge.”
As the three parties plunged deeper into the legalities, Jeanne Tiller held her head in her hands and stared at the floor, her children massaging her back and shoulders. Two rows of abortion protesters looked on, silently urging the judge to let Kline testify. After an hour of nonstop debate, Judge Wilbert reached a decision.
He would follow the same middle ground that he had during most of the case. He’d keep Disney out of the courtroom, but allow Kline to take the stand—with conditions. The former AG could offer his opinions about Tiller and his work at WHCS, but not in front of the jury. Kline’s testimony would become
part of the judicial record but not, in effect, part of the actual trial. If Roeder chose to testify, the judge said, he promised to give the defendant “fairly wide latitude” to tell the jury what he believed and why he’d taken this course of action, but not permit him to talk about the details of late-term abortion or other things beyond his expertise. When court was adjourned for the day, Rudy smiled at his opposition, but Foulston looked ready to go a few more rounds.
A major overnight storm was rolling into Wichita, and if the snow got deep enough, it could stop the trial and postpone it indefinitely. Nobody wanted a delay and everyone was relieved on Thursday after only four inches of snow and ice had landed on the city, instead of the predicted eight to twelve. That morning the jurors were able to make it to the courthouse by nine, and Kline entered the courtroom shortly thereafter, looking as confident as ever, although he’d brought two lawyers with him as backup. He was sworn in, laid out his credentials, and began his testimony, unleashing echoes of the Inquisition, the 2,600 pages of documents his investigation had left behind at the Kansas Supreme Court, and Bill O’Reilly. He told the judge, the lawyers, the media, and the gallery, but not the jury, that in his view 75 percent of the women coming to Kansas to see Dr. Tiller were having abortions on viable fetuses (a contention that Assistant DA Ann Swegle immediately took issue with, saying that Kline’s presentation was filled with “historical and factual inaccuracies”).
Kline said that criminal charges were filed against Tiller on December 21, 2006, once a judge had found probable cause to support this complaint.
“After we filed the complaint,” he said, “I got an e-mail from the DA…It said that I did not have jurisdiction to file this case and it was dismissed. The case never moved forward.”
The unnamed DA was Nola Foulston.
Kline wound up his testimony by stating that although he’d come to the conclusion that Tiller “was performing unlawful abortions,” killing the doctor was not justified or reasonable.
“Withering” is too soft a term to describe Jeanne Tiller’s expression as the witness left the stand and prepared to return to his teaching position at Jerry Falwell’s Liberty University.
Her day wasn’t going to get any easier.
LVI
The defense began its case with Steve Osburn delivering a modest opening statement, and then Mark Rudy called Roeder to the stand. The defendant, his face pasty after nearly eight months in prison, was remarkably composed under oath. This was his chance to explain himself to the jury and the world, via live television coverage, and he seemed to have been readying himself for this moment not just since the previous May 31, but for years prior to that. With unshakable calm and in a tone that was alarming because it was so matter-of-fact, he told the jury what he’d been telling reporters and other visitors to the jail since last June—how he’d thought about killing Tiller for as long as a decade and then carefully planned and carried out the execution. His clarity and absolute certainty about the rightness of what he’d done never wavered. If the DA didn’t want to hear about the why behind the homicide, or to give the defendant a nationwide audience and a legal platform from which to denounce abortion, she’d lost that battle.
“Did protests stop Dr. Tiller?” Rudy asked his client.
“No.”
“Did Shelley Shannon stop him?”
“No.”
“Did the 1986 bombing?”
“No.”
“Did you think the law would stop Dr. Tiller?”
“Yes…I followed this as close as I could and he—”
Foulston was out of her chair and in front of the judge.
“These answers are being fed to the witness,” she said.
Wilbert told Rudy to take another tack and he did, with Roeder now repeating many of the same points Kline had just made about unlawful abortions in Kansas. He remained on the stand throughout the morning, giving a step-by-step account of the crime, gaining momentum as he spoke and obviously proud of what he’d done. Of all the things revealed at the trial, one of the most unsettling for Lindsey and Nick, as they watched the proceedings in Kansas City, was a detail about the weekend leading up to the shooting. His first choice for his last Friday night of freedom was not to spend it with his son at dinner and a movie. Instead, he’d hoped to be at his brother’s home outside Topeka on May 29, taking target practice with his new gun, but this hadn’t worked out, because David Roeder had been busy. Seeing Nick that night was his back-up plan, but the young man and his mother hadn’t known that until now. Despite all they’d learned about their father and ex-husband, both Nick and Lindsey were further hurt and angered by this revelation.
Nick’s reaction to the piece of information, Lindsey wrote in an e-mail, “can be shared with anyone—I want people to know Scott was an uncaring &%%*$(#.”
During breaks in Roeder’s testimony, the anti-abortion group clustered together in one corner of the ninth-floor hallways or in the main-floor lobby or in the basement cafeteria, while the pro-choice forces gathered near the Feminist Majority Foundation’s Kathy Spillar and talked among themselves. The media drifted from one side to the other, looking for quotes on the unfolding trial. The two factions never spoke to one another.
The war that had divided Wichita and America for nearly four decades was alive inside the courthouse—in every chance encounter between enemies during an elevator ride and every trip to the small restrooms. It was on the faces and in the furtive eyes of those who could not quite bring themselves to look at their opponents. It was in the sorrow embedded in Jeanne Tiller’s face, in the silent glee that some in the courtroom took from her husband’s death, and in the haunting feeling that the doctor’s career should have ended some other way. An ineffable pain had filtered into the halls and the courtroom, getting stronger as the trial unwound.
Randall Terry let no opportunity pass to call an impromptu press conference and surround himself with journalists, telling them and passersby that Roeder could not get a fair trial and that George Tiller had been a mass murderer. Terry was a natural-born entertainer who loved the spotlight, as outgoing and boisterous as Dave Leach was quiet, polite, and meek. Usually accompanied by two gray-haired women, Leach liked to hang back from the crowd, lean against a wall, and let others come to him. One of the women usually carried a copy of Sarah Palin’s book Going Rogue.
Asked during a break in Roeder’s testimony whether the shooting of Tiller was justified, he said “Yes,” without hesitation.
Were the lives of the people who’d died in Vietnam or Iraq as sacred as the lives of the unborn? Did he ever protest the violence of war as he did abortion? He shook his head and gave a patronizing smile, his eyes twinkling, saying that those two things had nothing to do with each other.
“If we hadn’t invaded Vietnam,” he added, “many more lives would have been lost.”
When the trial resumed, Roeder told the jurors why he’d gone into Reformation Lutheran Church last May 31 with a loaded .22 handgun.
“There was nothing being done,” he said, “and the legal process had been exhausted and these babies were dying every day. If someone didn’t do something, he was going to continue aborting children and I needed to act for these children…The lives of these children were in imminent danger if someone did not stop him.”
“Do you regret this?” Rudy asked.
“No, I don’t.”
The defense attorney nodded at his client and sat down.
For her cross-examination, Foulston walked to a lectern positioned near the jury, faced the witness, and began peppering him with one clipped question after another, revealing more of her contempt.
If the defendant had never wanted to hurt anyone except Dr. Tiller, why hadn’t he told law enforcement right after his arrest that he’d left a loaded handgun in a dirt pile in a parking lot in Burlington, Kansas?
Unfazed, Roeder replied that because he’d hid it in a remote, safe location it wasn’t a danger to anyone.
What ha
d happened in the foyer the morning of the shooting?
Tiller had never seen him coming, Roeder said, so he’d been able to get very close. After he’d fired the gun, the doctor seemed to have stood in front of him for quite some time without moving, perhaps for several seconds, before toppling over onto the floor.
Was he nervous pulling the trigger?
“I was a little nervous. I wasn’t overly excited.”
How did he feel afterward?
“I got gas and pizza. I was hungry.”
The DA appeared disgusted.
Unable to look at the defendant as he testified, Jeanne Tiller had dropped her forehead all the way down to her knees, her fingers gripping a Kleenex, her shoulders heaving.
“If he was gonna be stopped,” Roeder told Foulston, “someone had to do it.”
“Do you feel,” the DA asked, “that you’ve successfully completed your mission?”
“He’s been stopped.”
Foulston glanced at the jury, took her seat, and the defense rested. The jurors left the courtroom, the gallery emptied out, and now that the testimony was finished the judge was left alone to decide the most important question of the trial—whether or not to give the jury the option of convicting Roeder of voluntary manslaughter. For the next several hours, the issue remained unresolved as Judge Wilbert gave the matter due diligence and other legal duties were being pursued elsewhere.
That morning, for the first time ever, Mark Rudy had told the DA and the WPD what had become of the gun Roeder had used. Two Wichita police officers immediately took off for Burlington in the hope of retrieving the firearm where it had been buried. They questioned the town’s police department and the local newspaper, but the lot had long since been paved over and the dirt hauled away.
A Death in Wichita Page 31