This article is part of a partnership between RH Reality Check 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
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.
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
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
“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,
“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.