Des Moines Anti-Choicer Hopes to Free Alleged Tiller Assassin

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
about it.”

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
quite small.

“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,
Leach said.

“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.

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  • jgbeam

    If he is willing to stipulate to the facts, he should just do so and accept his conviction and sentence. Thank you for not assigning Leach’s argument to the pro-life community-at-large. He is a murderer, i.e., anti-life.

    Jim Grant, Pro-lifer

  • kayleelucas

    Justifiable homicide? What is that? Killing another for whatever reason is unacceptable. What is the meaning of pro-life when you pro carrying a baby to full term and then pro killing another human? Shouldn’t pro-life be universal and applies to all human, be it in the foetus or out of the womb?

  • mary-alice

    The evidence just continues to show that this a terrorist network and that law enforecemtn must treat it as such.

  • jgbeam

    Where in this article do you see evidence of a terrorist network?

    Jim Grant, Pro-lifer

  • hatmaker510

    Probably this statement:  "Leach is not the only anti-abortion activist to contact Roeder in
    prison…he has been visited by “a who’s who of anti-abortion militants."

    I think "terrorist network" is quite apt.  

  • hatmaker510

    I just read the linked article about Roeder’s visitors (& other contacts who call/write). Some people with direct contact with him actually scoffed at the idea of a possible conspiracy.  Scoffers who were directly involved in or linked to advocating such assassinations. Their efforts include distribution of lists, writing books and pamphlets, even a how-to manual for clinic violence. And that’s just what’s out in the open – who knows about their other activities & affiliations.  Considering all that, it’s hardly a stretch for the feds to investigate possible conspiracies.  Quite the opposite – they would be remiss if they hadn’t.  

    I won’t touch the ridiculous idea of a necessity defense.


    Thanks very much, Jason, for bringing all this together in one article.

  • colleen

    I was stunned by this attitude from a convicted felon:

    “I told them that they better have a dang good reason if they come ask me any questions, and that I had every intention of going to visit him and talk to him,” said McCoy, who also attended Roeder’s preliminary hearing on July 28.”

    I feel strongly that we need to establish a domestic terrorist watch list and treat the men and women who have been convicted of acts of domestic terrorism in much the same way that we treat sex offenders.

    The only difference between the American anti-abortion movement and the Taliban is about 8,000 miles.

    Dr Warren Hern, MD

  • acknowledgehimn2010

    If the lawyer commenting on my brief ever gets around to reading it, I would love to know what she thinks of it then. Meanwhile, I would consider it a risk to my reputation to comment publicly on a brief I hadn’t read! I would love to know even what Jason told her about my brief, upon which she based her comments.

    Pro 18:13 He that answereth a matter before he heareth it, it is folly and shame unto him.

    The comments she made are the same expectations I would have had, before this brief came together in my mind. I would love to know what Jason told her about it, as a basis for the reaction that she had. It surprises me that if she understood the strategy of stipulating to the alleged facts in order to isolate the sole contested issue, that she would still so cavalierly dismiss any hope of the judge being forced to give the jury SOMETHING to weigh. Just because it has been denied 100,000 times before doesn’t necessarily predict what will happen this time, since in no previous case that I know of, and certainly not in the few cases so high profile that strong arguments could not be swept under the rug, have prolife defendants stipulated to the facts in order to isolate the contested issue.
    It should not seem a radical position to ask that a jury of reasonable people, judging by reasonable standards, hear the only seriously contested issue of a case, so that a man may have a right to trial BY JURY. In 100,000 abortion-interrupting cases, there was no serious dispute over the facts. Sure, the prolifer sat in front of the stupid door. The dispute wasn’t over what the prolifer did, but over what the abortionist did which the prolifer prevented. When a judge orders the defendant not to say a word about the only defense he has, can you say “right to trial by jury”?

    Had the law professor actually read my brief, she would have seen several legal reasons why, as a matter of law, the jury should be informed of the defense. Like, how’s this: Roe v. Wade literally declared that not one single American judge is qualified to determine “when life begins”, which is part of what must be done to determine whether abortion is a “harm” whose prevention is justified.

    But juries, called by every judge “the triers of the facts”, are qualified.

    Americans support abortion because they think it is “legal”. Nothing can be more illegal than what courts have done all these years to keep abortion “legal”.

    Dave Leach  http://www.Saltshaker.US

  • crowepps

    Certainly the exact same argument could be used as a defense in the killing of a protestor outside an abortion clinic — since in the past abortion protestors have killed a number of people, shooting one of them is justifiable as defense against their possible future actions. This could be extended into all kinds of areas – any one previously convicted or even accused of rape or child abuse or any other crime could be shot preemptively in case they might get the urge again someday. Heck, people could shoot people who look like they MIGHT someday in the future do something.

  • acknowledgehimn2010

    At the risk of telling you what you already know but were just being facetious, the way it works in court is that the jury considers what “a reasonable person”, looking at the evidence available, would conclude was an “imminent” serious harm. Kansas law in particular, but I think the laws of every state, specify that the harm must be “imminent”. “Imminent” hasn’t been defined very well, in my opinion; it is often taken as the nearness in seconds of the anticipated harm to its prevention. That would of course rule out Scott Roeder’s action, which was a full day before the next round of killing. My proposed brief argues that if saving lives is anyone’s concern, it ought to be defined in a way that permits lives to be saved. Its criteria ought to be nearness in time to the window of opportunity to prevent the harm, combined with certainty that the harm would happen if not prevented.
    Dave Leach  http://www.Saltshaker.US

  • crowepps

    My proposed brief argues that if saving lives is anyone’s concern, it ought to be defined in a way that permits lives to be saved.

    Precisely why I feel your novel legal theory could justify the immediate shooting of any man known to have ever struck a woman — obviously having revealed his base and faulty character and disregard for civilized interaction he must be eliminated BEFORE he has a chance to graduate to murderer by any person who feels he might in future be a threat to someone. I don’t know why you feel this is a facetious comment — I could easily use almost any day’s newspaper to compile a short list although I’m not sure whether I’d have time to get one day’s jobs accomplished before the next day’s issue.