I’m not an expert on criminal procedure. Maybe the judge trying the killer of Dr. George Tiller is legally right to say that the defense must be allowed to try to make out a case that the defendant had an “unreasonable but honest belief” that the killing was justified, thus making him guilty of voluntary manslaughter, a much less serious charge than premeditated murder.
To amateur eyes, the claim looks too far-fetched to even bring up. Even in cases where the killer was in fear for his own life, this “imperfect self-defense” argument has been rejected because the fear was not of imminent violence. The fact that I think – even reasonably – that you might try to kill me tomorrow does not license me to kill you today.
Even if the doctor had been killed scalpel in hand, surely the killer knew that abortion is legal, much as he hates that fact. Legally, deadly force can never be justified to prevent something that is neither a crime nor an accident. The killer’s belief that abortion ought to have been illegal, and that he was therefore entitled to kill someone to prevent that person from performing an abortion, isn’t the sort of dumb but honest mistake that the voluntary manslaughter law was designed to cover. And of course if someone had killed Dick Cheney to prevent the invasion of Iraq or the (grossly unlawful) torture of Jose Padilla and hundreds or thousands of others, any attempt to offer such a defense would have been laughed out of court.
It’s hard to see how the judge’s decision doesn’t open the door to turning a murder trial into a forum for anti-abortion theatrics. If that decision is really good law, then maybe the law needs to be changed.
Update Eugene Volokh, who actually knows, picks up on the same two issues I thought I’d spotted – imminence and unlawfulness – and concludes that the judge’s ruling is probably not good law.