Judge’s background under scrutiny in trial of man accused of murdering Kan. abortion doctor

By Roxana Hegeman, AP
Friday, January 15, 2010

Kansas judge in abortion case comes under scrutiny

WICHITA, Kan. — The judge overseeing the trial of the man accused of gunning down a Kansas abortion doctor is a practicing Roman Catholic who once courted the endorsement of an anti-abortion group — but who has insisted the case won’t be about abortion.

State District Judge Warren Wilbert galvanized both sides of the nation’s abortion debate this week when he refused on the eve of Scott Roeder’s murder trial to block the defense from trying to build a voluntary-manslaughter case by arguing that Roeder believed the killing of Dr. George Tiller was necessary to save unborn children.

Legal experts said the judge’s decision was a proper attempt to protect the defendant’s rights. But the move has put Wilbert and his background under the microscope heading into one of the nation’s most sensational abortion-related cases.

“All high-profile trials put a lot of pressure on judges because even though our courtrooms are open, generally speaking, the public doesn’t have an eye on judges unless election time comes around,” said Michael Kaye, director of Washburn University’s Center for Excellence in Advocacy in Topeka. “So a judge in this position, any judge knowing this, is going to try to do his best to appear judicious and to rule in a way that will not get him reversed.”

Wilbert, 57, is considered by many in the local legal community to be a fair judge. No one can seem to point to an instance in which he injected his religious beliefs into a case.

He is a rather ho-hum figure on the bench. He runs a tight courtroom, isn’t given to colorful exchanges and has little tolerance for distraction. The Roeder trial — which began with jury selection Wednesday — is easily the biggest case to come before him.

Tiller, one of the nation’s few late-term abortion providers, was shot to death inside his Lutheran church in Wichita last May.

In televised hearings, Wilbert has been scrupulous about keeping private his own beliefs on abortion, exhaustively citing case law when making any rulings. He angered news outlets when he closed jury selection to the media, saying the presence of reporters could inhibit prospective jurors from speaking frankly about abortion.

He has insisted the trial will not turn into a debate over abortion, warning Roeder’s lawyers that he intends to keep the case as a “criminal, first-degree murder trial.”

Wilbert, a Republican who earned his bachelor’s and law degrees from Washburn University in Topeka, was appointed to the bench in 1995 and faced no opposition the first three times he stood election. The most recent race was a different story: Wilbert won re-election in 2008 by a mere 471 votes out of nearly 166,000 cast.

Kansans for Life’s political action committee endorsed Wilbert in that race, though it did not contribute to his campaign directly. The mainstream anti-abortion group does not espouse violence, and its political arm focuses on lobbying the state Legislature.

Finance records show that Wilbert paid the group $75 in September 2008 to have his name listed in an ad in its quarterly newsletter, a 6-by-11-inch booklet of 24 pages that included articles such as “Update on Tiller charges” and “Planned Parenthood — a Snake in the Grass!” The judge also spent more than $16,000 on radio spots on seven stations.

The ad in the newsletter took up most of the bottom of page 16. It said: “The Kansans for Life PAC urges you to vote for, work for and pray for the following pro-life candidates.”

David Gittrich, the organization’s state development director, said the group endorsed Wilbert because it believed he was no judicial activist and would not try to make new law from the bench. “The No. 1 thing is, is this a good judge?” Gittrich said.

In an election guide published by The Wichita Eagle, Wilbert described himself as a member of Wichita’s St. Thomas Aquinas Church, where the married father of two was a lay minister and former president of the school board. Among Catholicism’s core doctrines is a strict stand against abortion.

Beyond the ad, campaign-watchers said they could not recall anything he might have said about his position on abortion during his re-election bid.

In an e-mail to The Associated Press, Wilbert turned down an interview request for this story, saying he could not comment because of the trial.

The judge has dealt with cases involving abortion before. Court records show a 2005 case in which he dismissed a public records lawsuit filed by Cheryl Sullenger, the senior policy adviser for anti-abortion group Operation Rescue, after she was denied copies of 911 tapes for ambulance runs from Tiller’s clinic. Though the judge ruled against her, Sullenger said she believes Wilbert will “do his job” in the latest case.

“Most everybody in the world is looking at him — he is not going to pull monkey business,” Sullenger said. “I don’t think he wants to be known as the judge who blew the biggest case he’s ever had.”

Though he advertised with Kansas for Life, campaign finance records show that Wilbert also received a $500 contribution in June 2008 from Dan Monnat, one of Tiller’s lawyers. Two months before his slaying, Tiller was acquitted of misdemeanor charges he failed to get an independent second opinion for some late-term abortions.

Wilbert and Monnat had worked together before, when Wilbert faced his own legal problems. A judicial commission reprimanded him in 2006 for a personal relationship with a subordinate employee — conduct Wilbert later explained to the Wichita Bar Association consisted of riding motorcycles with courthouse employees after work.

“I donated to his campaign because I thought he was a good judge and would continue to be a good judge,” Monnat said.

Kaye dismissed as “hyperbole” warnings that allowing Roeder to build a manslaughter case will lead to open season on abortion doctors. Kaye said he doubts Roeder’s lawyers will actually be able pull together such a defense.

“Lawyers when they try a case are concerned first and foremost with defending somebody — no matter how unattractive and controversial — within the bounds of the law,” Kaye said, “and they expect the judge to recognize that, and he has.”

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