IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CRIMINAL COURT DEPARTMENT. No. 14CR853 Div. 17 STATE S MOTION IN LIMINE REGARDING NECESSITY DEFENSE

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1 IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CRIMINAL COURT DEPARTMENT STATE OF KANSAS, Plaintiff, VS. FRAZIER GLENN CROSS, JR., Defendant. No. 14CR853 Div. 17 STATE S MOTION IN LIMINE REGARDING NECESSITY DEFENSE COMES NOW the State of Kansas, by and through its attorneys, Christopher L. McMullin, Chief Deputy District Attorney, and Stephen Howe, District Attorney, and presents for this Court s consideration its Motion in Limine. FACTUAL AND PROCEDURAL BACKGROUND On April 13, 2014, the defendant, armed with four firearms and a supply of ammunition, went to two locations in Overland Park, Kansas: the White Theatre at the Jewish Community Center, and the Village Shalom retirement home complex. The defendant s publicly-expressed reason for these visits was for the specific purpose of killing Jews. (Thomas, Every Jew in the world knows my name now, article in the Kansas City Star published November 16, 2014.) At the White Theatre, he killed two people, attempted to kill three others, and shot numerous rifle rounds into the building. He drove away from the parking lot in a white Suzuki sedan. Minutes later, he killed another person at Village Shalom, and threatened 1

2 another person with a firearm. He was arrested shortly thereafter. The defendant was charged with capital murder and other crimes. The State is seeking the death penalty. Jury trial commences August 17, The defendant is exercising his right to self-representation. His former courtappointed attorneys are now his standby counsel. He is running his own defense. ISSUES In a variety of pleadings, the defendant has announced that he is pursuing a defense which he calls compelling necessity. This is best described in a document filed by the defendant entitled Motion for Acquittal of All Charges. It was homicide by necessity. I was compelled by necessity to do what I did on 13 April Necessity overrules and overcomes the law. Necessity makes lawful that which is not lawful. Necessity defends and justifies what it compels. I am therefore, excused for my actions which were done through unavoidable force and compulsion. I was compelled by necessity to strike at what I perceived to be an intolerable public threat to my people, knowing what I know about the jews. This Motion in Limine seeks to limit the defendant s use of the necessity defense during the guilt phase of this trial. DISCUSSION This discussion is focused on the defendant s theory of defense to the charges: the guilt phase. Should the defendant be convicted of capital murder, there will be a penalty phase. Kansas law puts virtually no limits on what a convicted capital defendant can claim is a mitigating circumstance. If the defendant wished to forward his world view in an attempt to avoid the death penalty, the law would appear to 2

3 permit him to do so. That is a discussion for a different day. Kansas law does, however, place limits on what a defendant can claim as a legal defense. Recently, the Kansas Supreme Court addressed the necessity defense in State v. Roeder, 300 Kan. 901, 336 P. 3d 831 (2014). Roeder is virtually on point with State v. Cross, so it will be discussed at length. On May 31, 2009, Scott Roeder went to a Lutheran church in Wichita, Kansas and shot George Tiller to death. He was caught, and charged with first-degree premeditated murder. At trial, evidence was presented of Roeder s years-long plan to stop Tiller, a physician, from continuing to perform late-term abortions at his clinic in Wichita. Roeder testified that he killed Dr. Tiller because if someone did not stop Dr. Tiller, he was going to continue [performing abortions] as he had done for 36 years. More specifically, Roeder believed that if he did not kill Dr. Tiller, unborn children were going to die 22 hours later because Dr. Tiller had abortions scheduled at his clinic the next day. State v. Roeder, 300 Kan. 901, 907, 336 P.3d 831, 839 (2014) cert. denied, 135 S. Ct (2015) Prior to trial the State of Kansas sought a ruling that Kansas does not acknowledge the necessity defense. Id., at 914, 843. The trial court ruled in the State s favor. Roeder argued on appeal that the disallowance of the necessity defense violated his due process right to present evidence in support of his theory of defense. Id. 3

4 Generally, a criminal defendant is entitled to present their theory of defense. However, it is not error for the trial court to exclude evidence that is not relevant to a legally sufficient theory of defense. Id. For instance, a defendant is not constitutionally entitled to present evidence that he or she did not know that his or her actions were unlawful because ignorance of the law is not a legally sufficient theory of defense. See State v. Young, 228 Kan. 355, 360, 614 P.2d 441 (1980) (all persons presumed to know general public laws of state where they reside, as well as legal effects of their actions). Accordingly, Roeder's constitutional challenge hinges upon whether necessity can be a legally recognized theory of defense under the facts of his case. State v. Roeder, 300 Kan. 901, 915, 336 P.3d 831, (2014) cert. denied, 135 S. Ct (2015) Roeder affirmed the district court s refusal to allow the defense under the facts of the case. Of note is City of Wichita v. Tilson, 53 Kan. 285, 855 P. 2d 911 (1993). In that case, the district court acquitted abortion-clinic protesters based on the necessity defense. The Supreme Court, on a State s appeal, found that the necessity defense did not apply to the facts of the case. Tilson was cited by the Roeder court at length. Both the Tilson and Roeder courts would not go as far to say that necessity does not exist in Kansas, but that if it did exist, it did not apply to either fact pattern. Necessity is a common-law defense recognized in some jurisdictions, while in others it has been adopted by statute. Several states which have no statute on the defense have not determined whether the common-law defense will be recognized. It has been referred to by various terms, including justification, choice of evils, or competing harms. Depending upon the jurisdiction, various elements must be proven in order for a defendant to establish the defense. 253 Kan. at 288, 855 P.2d

5 State v. Roeder, 300 Kan. 901, 915, 336 P.3d 831, 844 (2014) cert. denied, 135 S. Ct (2015) Further, The Tilson court then opined that [r]egardless of what name is attached to the defense... one thing is clear: The harm or evil which a defendant, who asserts the necessity defense, seeks to prevent must be a legal harm or evil as opposed to a moral or ethical belief of the individual defendant. 253 Kan. at , 855 P.2d 911. In that vein, the court noted that [e]very appellate court to date which has considered the issue has held that abortion clinic protesters, or rescuers' as they prefer to be called, are precluded, as a matter of law, from raising a necessity defense when charged with trespass. [Citations omitted.] 253 Kan. at 292, 855 P.2d 911. The rationale utilized by [t]he majority of courts... [was] that because abortion is a lawful, constitutionally protected act, it is not a legally recognized harm which can justify illegal conduct. 253 Kan. at 293, 855 P.2d 911; see also Hill v. State, 688 So.2d 901, 906 (Fla.1996) (rejecting the necessity defense to charges of first-degree murder for killing an abortion clinic physician and a volunteer and stating that harm component of its inquiry cannot be met by legal abortions as a matter of law), cert. denied 522 U.S. 907, 118 S.Ct. 265, 139 L.Ed.2d 191 (1997). 253 Kan. at 296, 855 P.2d 911. [Id.] The necessity defense, except as codified in statutes such as those relating to self-defense and compulsion, has not been adopted or recognized in Kansas. Id. The Tilson court noted that to allow the personal, ethical or moral beliefs of a person to justify criminal activity aimed at preventing someone from engaging in lawful activity would not only lead to chaos but would be tantamount to sanctioning anarchy. State v. Roeder, 300 Kan. 901, 916, 336 P.3d 831, 844 (2014) cert. denied, 135 S. Ct (2015). Roeder also took note of an unpublished Kansas Court of Appeals case, City of Wichita v. Holick, No. 95,430, Kan. App. 2d, 2007 WL (2007). The 5

6 twist in Holick was the claim that the necessity defense applied because the protester was trying to prevent illegal abortions. The Court of Appeals rejected this argument. The Holick panel used a Tenth Circuit Court of Appeals formulation of the necessity defense, which required a defendant to show: 1. The defendant was faced with a choice of evils and chose the lesser evil; 2. The defendant acted to prevent imminent harm; 3. The defendant reasonably anticipated a direct causal relationship between his conduct and the harm to be averted; and 4. The defendant had no legal alternatives to violating the law. The Kansas Supreme Court applied this test to Roeder s case, and found that the facts of this case unequivocally preclude the application of the necessity defense 300 Kan. 901, 918, 336 P.3d 831,846 (2014). The Court declined to definitively state whether the necessity defense has any life in this state under other circumstances. Id. Thus, it appears that a district court should apply the Holick factors when deciding if the defendant has proven that the necessity defense applies. The State suggests the following findings: Choice of evils The defendant committed three premeditated murders in the span of a few minutes, along with attempted murder and aggravated assault. This is unarguably an evil act. This was done to prevent some sort of worldwide threat, set forth in the 6

7 defendant s pleadings. None of the victims had anything at all to do with whatever public threat the defendant perceived to exist from a religious group. They were all innocent bystanders who had the misfortune of being in the wrong place at the wrong time. The defendant will be unable to prove that murdering William Corporan, Reat Underwood and Teresa Lamanno was a lesser evil. Prevention of imminent harm The three murders and the other shootings prevented no one from harming anyone. None of the victims was going to harm anyone in the near or distant future. The harm alleged by the defendant was likewise not imminent. The necessity defense, as contemplated by Roeder and Tilson does not allow a defendant to murder innocent people in order to send a message, which is exactly what the defendant was attempting to do in this case. Additionally, the defendant has stated that he committed his crimes at this moment in time because his health was declining and he wanted to do something while he could. This flies in the face of an imminence claim. Direct causal relationship Murdering these three people, attempting to murder three others, shooting at the White Theatre and pointing a gun at Margaret Hunker did not avert the harm alleged by the defendant. There is no relationship whatsoever between these victims and the worldwide conspiracy alleged in the defendant s pleadings. The Roeder case stated that Scott Roeder had arguable proved this factor because Dr. Tiller was 7

8 performing abortions, and abortion was the evil that Roeder felt compelled to stop. There is no legal or logical causal connection between these crimes and the harm alleged. No legal alternatives The defendant must show that there are no legal alternatives to murdering innocent people. He must articulate the harm alleged and the proof of that harm. It is inconceivable that murdering innocent people was the only option. CONCLUSION The Kansas Supreme Court has so far refused to approve or disapprove of necessity as a legal defense per se. They have, however, articulated a framework for deciding if the defense applies to a specific fact pattern. The defendant bears the burden that it applies in this case. Using the test approved by the Roeder court, the necessity defense is not available in this case. WHEREFORE the State asks the Court to preclude the defendant from using his version of the necessity defense, and decline to instruct the jury as to the same. Submitted By: /s/christopher L. McMullin Christopher L. McMullin #14967 Chief Deputy District Attorney Stephen Howe, District Attorney P.O. Box 728 Olathe, KS (913) chris.mcmullin@jocogov.org 8

9 CERTIFICATE OF MAILING I hereby certify that on this 14th day of July, 2015, a copy of the above and foregoing Motion was hand delivered to Frazier Glenn Cross via the Johnson County Sheriff s Office and to stand by counsel for the defendant via attachment. /s/christopher L. McMullin Christopher L. McMullin 9