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View Diary: Roeder Trial: Witness for the Defense Under Investigation for Ethics Violations (102 comments)

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  •  Please read the article I linked to (1+ / 0-)
    Recommended by:
    JC from IA

    in the post below.  I think that this judge is doing the right thing.  He's going to allow a criminal defendant to put on whatever evidence he has, and if it's not enough for volunatary manslaughter, the judge will make that decision (after seeing what evidence the defendant has) and decide whether or not to instruct the jury on volunatary manslaughter.

    To make that kind of decision BEFORE the judge sees what evidence the defendant has, well, that just give the defendant a huge issue for appeal.  

    •  I promise I will read it. (0+ / 0-)

      I truly do appreciate the different links and interpretations.  What I haven't seen (maybe it's in the article) is any mention that the judge will review any of this evidence in camera before allowing the jury to hear it.  I think that would be more than appropriate, given the highly inflammatory nature of the so-called evidence.  Let's face it -- giving instructions to the jury after they've heard the evidence is a little bit like closing the gate after the horse has gotten out.  Just how far will the judge let this go?  

      Go read this week's SheKos. Right now.

      by Kaili Joy Gray on Fri Jan 22, 2010 at 11:48:46 AM PST

      [ Parent ]

    •  Calm, down everyone. Just a bit. (1+ / 0-)
      Recommended by:
      JC from IA

      The Witchita newspaper article coffeetalk linked had a two minute video of a part of the judge's comments from the bench, which referred to a case called State v. Bobby Bruce White (2007) here. This is the second of two Bobby Bruce White cases, the prior one being in 2005 to the same effect as to the issue of voluntary manslaughter and the appropriateness of the charge being presented to the jury as an alternative or lesser offense. It is referred to in the Defense response to the Prosecutor's motion of last Friday which is linked below.  

      In his statement, the Court pointed out that his understanding of the law under the old Ordway court was shaped by the subsequent White decision linked above.

      What I understand the judge to have said is that the point of White II was that one still had to have in Kansas an imminent risk, not quite as sharp as an immediate risk, of harm to another, and that sufficient proof of this imminence was essential as an element of the voluntary manslaughter charge. In White I and II, the defendant allegedly feared that if he did not do something, his grandson BAW would be at risk of future molestation from the decedent, so he drove three hours from his home to the workplace of the decedent, did not find him there the first day, went home, drove three hours the second day, found the decedent and shot him at his workplace in a Walmart. There was no sign of the presence of the grandson at that Walmart on that day. In both the 2005 and 2007 cases, the appellate court said that general future harm to the one to be protected was insufficient to prove the imminence required to invoke the unreasonable belief provision of the voluntary manslaughter statute, because the absence of the child at the Walmart made it not imminent enough.

      The judge also said in the video that he expected what was going to have to happen in the Roeder case was that the Defense was going to have to offer evidence of such imminence, possibly in the form of a proffer, that is, a presentation to the judge of what the evidence would be and what it was intended to prove, and that the proffer would be ruled upon. That is, the Defense has to have its evidence ready but has to demonstrate to the judge in a legal conversation in which the Prosecutor is also a part, that the evidence is relevant to prove the applicability of the voluntary manslaughter charge, before the jury hears it. The judge indicated in the taped statement that the framework for these proffers would be not only the Ordway case but White II, linked above, and that any proffer accepted had to fit withing the White II framework, which would be a daunting task. If it doesn't fit, it doesn't go to the jury because it is irrelevant. And in order to bring a voluntary manslaughter option to the jury, there must be substantial evidence to demonstrate that the crime of voluntary manslaughter per White II has in fact been committed. Because the Defense is contending that they are entitled to the charge of voluntary manslaughter as a lesser included offense, it will be the Defense duty to prove imminence of risk posed by a man standing in church, specifically. Unless the Defense can show that under White II, voluntary manslaughter can be proven, it cannot get the voluntary manslaughter charge included in the charge to the jury at all.

      It does appear to me that the former AG described in the diary will probably have his evidence 'proffered' but that the provision of White II that imminence must be shown, it may well be excluded as not relevant to prove the required imminence, because it is all retrospective, and the general notion that prospectively at an unidentified date in the future at a place other than the unfortunate church, abortions may be performed is also not relevant under the doctrine that general future fears do not meet the test of imminence. That is, Dr. Tiller would have had to be doing whatever it was that the Defense contends demonstrates imminent risk of death etc. in the church on that morning. This AG may be an unethical whatever, but it does not seem likely he will be a witness before the jury.

      As to those who comment here that a fetus is not a person, my understanding is that Kansas and some other states have passed statutes defining a person as beginning at the moment of conception, but it may well be that this will be irrelevant to the actual outcome here.

      The Defense memo responsive to the Prosecutors' of last week is  here.

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