A Death in Wichita (30 page)

Nola Foulston had a feisty personality, not a bad thing when prosecuting people such as BTK and other noted Sedgwick County killers. She was outspoken in the courtroom, fierce in her legal arguments, tightly controlled in what she said to the press, quick to let people know that she was in charge and they needed to stand back. If one heard grumblings about her managerial style and penchant for drama, one also heard a lot of praise and respect thrown her way. She relished prosecuting the biggest cases and taking on the defendants accused of the most heinous offenses. She’d gone after the self-confessed sexual predator Leroy Hendricks, who became the first person confined under Kansas’s 1994 Sexually Violent Predator Act—not because of a specific crime of which he’d been found guilty but because he had mental problems that predisposed him “to commit sexually violent offenses.” The case went to the U.S. Supreme Court and Foulston won a precedent-setting victory. In 2003, she was selected the state’s “Prosecutor of the Year.”

When describing the roots of her professional tenacity, she liked telling people, “I’m an Italian from New York.”

Her father, Dominick “Teddy” Tedesco, was one of seven children of immigrant parents from southern Italy. Born in America, Teddy left New York’s Manhattan College in the 1930s to enroll at Fort Hays State College in Hays, Kansas, and a couple of his friends followed him out west. One was an aspiring young writer named Mickey Spillane, who gained international fame through his legendary fictional character, Mike Hammer. After returning to New York, marrying a dance artist, and having children, Teddy regaled his offspring with stories about Midwestern values and virtues. Nola Foulston graduated from Fort Hays State and Topeka’s Washburn University School of Law. In 1976, she was hired as an assistant district attorney in Sedgwick County and by 1989 she’d become the DA, with a special interest in reducing crimes against women and children. That year she was diagnosed with multiple sclerosis, which had no effect on her ability to function as district attorney or her fire for the job.

In special cases, and there was no doubt in Wichita that the murder of George Tiller was special to the DA’s office—given Foulston’s involvement in the doctor’s prior legal scuffles—she was going to run the show. On the day the trial opened, she arrived in court wearing a black sweater, a long black velvet skirt, and black boots with tassels, a gold chain dangling around her neck—drama indeed. A well-coiffed, dark-haired, attractive middle-aged woman, she had a presence that was larger than her size. For a defendant facing a first-degree murder charge, she might have conjured up Darth Vader or the Grim Reaper herself. In the minutes just before Judge Wilbert called the proceeding to order, and in what could be seen as a display of cooperation among the many law enforcement agencies at the trial, Nola was down on the courtroom floor rubbing the belly of the ATF’s bomb-sniffing dog.

With the Tiller family shoulder-to-shoulder and the pro-choice and anti-abortion forces mingled together in the gallery, the DA laid out the state’s case, emphasizing something that the prosecution would raise again and again: Roeder had used the openness of Reformation Lutheran Church and the friendliness of its worshippers to gain access to the doctor in an unguarded moment and kill him in front of his congregation. Men, women, and children who’d come there to pray had all been exposed to the aftermath of the homicide. Throughout the four days that the state presented testimony, photos of Tiller lying dead on the carpet of the church foyer, blood pooling around his head and his frail-looking glasses knocked off to one side, would be shown again and again on a large video screen. The first time this occurred, an abortion opponent made an approving sound and the judge delivered a fearsome admonition—if anyone did anything like that throughout the remainder of the trial, the offender would be permanently removed from the courtroom. It never happened again.

Whenever the image was introduced into evidence, the Tiller children, along with one of the pastors from Reformation Lutheran, leaned in closer to Jeanne and held her hand or rubbed her back. The picture was never put up without at least one of the Tillers giving in to tears. It likely did not escape the jurors that the dead man’s son, Maury, looked a lot like a younger version of the victim. Nor could one avoid the fact that three forceful women—Foulston, Ann Swegle, and Kim Parker—were taking turns prosecuting Roeder and in effect standing up for Tiller’s right to have performed abortions for female patients under the laws of Kansas and the United States. The three men sitting at the opposite table were trying just as diligently to show that the defendant’s actions against the doctor were justified.

“Tragic” is the only word for the impact the shooting had left on Jeanne Tiller’s lean, lined face. She was determined to attend the trial and sit through the graphic testimony, but her features had become a mask, at times almost a death mask, that no outsider could penetrate. She had short, frosted hair, a down-turned mouth, and wary damp eyes, and came to court each day elegantly dressed in long gray or blue outfits, accompanied by strings of pearls. They did not conceal her grief. Watching her brought back the memory of ten months earlier, when she and her life partner had celebrated their victory in this courthouse on a snowy late March afternoon, hoping that their legal ordeals were finally at an end. Now she and her children were staring at the back of the head of the man who’d killed their husband and father.

Following the closing of the clinic, Jeanne had taken Tiller’s staff to dinner and had the doctor’s armored vehicle broken down and sold for scrap parts. She’d collected ten thousand medical files from his office, including some of those Phill Kline had tried so hard to gain access to when he was attorney general, and had them shipped off to storage in a 650-foot-deep salt mine in Hutchinson, Kansas. The location would help preserve them intact for decades, maybe centuries. The moving of the files had brought a piece of closure to her husband’s life and death, but nothing would really be resolved until and unless Roeder was found guilty.

Whenever there was a recess, four or five policemen jumped up and formed a wall between the Tiller family and the anti-abortion spectators just to their left. The Tillers were always allowed to depart the courtroom first, and on her way out, Jeanne repeatedly shot nasty looks at those who supported the killing, but no one made any sounds or gestures toward her or her children. The family then hurried away, using a rear exit that was off-limits to others. Because of all the police officers on the premises displaying multiple guns and wearing body armor, the pro- and anti-abortion sides were forced to be polite to each other in the courthouse hallways. You couldn’t go anywhere in the building without running into a cop and being given a once-over to determine if you looked at risk of becoming violent. Security outside the courthouse was just as tight. Each morning, officers used a mirror to inspect the underside of the van bringing in the jurors to see if a bomb had been planted there. The civility that hadn’t existed over most of the past thirty-seven years of the abortion struggle was forced into existence at the trial.

On the final day the state presented its case, Sedgwick County’s chief medical examiner, Dr. Jaime Oeberst, took the stand, and without warning the prosecution showed a close-up of Tiller taken during the autopsy. It was shocking to the point of having one’s entire body flinch. Reading about mass murder is one thing, but seeing the damage done by a single round fired into a man’s forehead, the gun barrel placed against the skin as the trigger was pulled, is an entirely different matter. How the Tillers endured watching this was unfathomable. The doctor’s face was contorted by the impact, which had left bullet fragments embedded in the back of his skull. Blood was everywhere and he no longer looked human.

As the state prepared to rest on Wednesday afternoon, January 27, and with the jurors out of the courtroom, the polite and pleasant-looking Mark Rudy tried to persuade the judge that both Barry Disney and Phill Kline should be allowed to testify for the defense. They should be able to tell the jury about the AG’s office bringing a case against Dr. Tiller in March 2009, and about Kline’s conviction that when performing late-term abortions at his clinic, the physician was in violation of the law. Kline’s actions against Tiller, Rudy argued, went to the essence of what had motivated Roeder to kill. If the head legal official in Kansas was convinced that Tiller was breaking the law, wasn’t it reasonable for a Kansas citizen like Roeder to draw the same conclusion? And if the state’s top law enforcement official could not halt Tiller’s illegal operations through legal means, by successfully prosecuting him, then how could he be stopped? Having Phill Kline state his beliefs about Tiller in front of the jury might very well add credibility to Roeder’s case.

The Inquisition, or at least its residue, was still alive in Wichita, and the DA was not pleased.

Until now, Foulston hadn’t publicly given in to her contempt for the defense’s strategies throughout the past few months. It was bad enough for Roeder to have shot Dr. Tiller in cold blood inside his church; even worse, she felt, for his legal team to say that he’d done this because the physician had represented an “imminent threat” to the defendant or anyone else. If Foulston and her two assistant DAs needed any more motivation for seeing Roeder found guilty of first-degree murder, they’d gotten it during the past four days by being several feet away from the Tiller family and listening to them cry during the testimony. Now that they’d made their case with ironclad forensic and DNA evidence, Rudy was, in her estimation, trying to drag Disney and Kline into the proceedings just to muddy the legal issues.

With the jury out of earshot, Foulston let fly a tirade against the public defenders, calling their logic “psychotically circuitous.” Rudy, his normally reddish skin growing more inflamed as he spoke, fought back in the best tradition of defense lawyers everywhere, even though his client had told the world that he was a killer. Rudy paced and argued, seeming to grope for the words to support his position, which Foluston did not have to do; she’d been waiting patiently to tell the court exactly what she thought of Roeder’s defense. The two attorneys went head to head in front of the judge and the gallery, and for those who enjoyed heated, high-stakes lawyering, it was a moment to savor.

More than once, Rudy’s voice rose so high that it broke. Scott Roeder, he contended, had formed his deepest feelings about abortion based upon watching the ex–attorney general go after the Wichita doctor. Because of this, it was imperative that the jury hear about Kline and Disney’s “good faith” prosecution of Tiller.

But the defendant, the judge countered, “can’t corroborate his own beliefs by bringing in Barry Disney or Phill Kline. You could call a member of his Bible study group to corroborate his beliefs…”

Judge Wilbert then emphasized once again what he’d been saying to the lawyers for weeks: “We are not going to make this a referendum on abortion.”

Foulston stood to address the court.

“The state,” she said, “does not believe any of this mishmash. These allegations are totally outrageous…and this is not the direction this trial should be going in.”

After Rudy had passionately restated his arguments, Foulston did the same.

“This is outrageous,” she repeated, “and the state continues to ask this court to make a clear ruling about presenting evidence.”

Judge Wilbert, who had a twang reminiscent of President Clinton’s, had to hustle to keep the peace in his courtroom. Throughout the debate, Rudy’s friendly persona had remained intact, but the DA was ready to blow. She hadn’t waited eight months since the murder to see her case derailed by the very same Phill Kline who in late December 2006 had filed charges against Dr. Tiller through Don “the Dingo” McKinney on Kline’s way out the door as AG. She hadn’t devoted the past four days to painstakingly showing
how
Roeder had killed the physician so that the defense could now turn the trial into the issue of
why
he’d done it. The law wasn’t about why, she argued, but about due process, forensic evidence, and sworn testimony. She talked so fast that her throat dried out and she grabbed a bottle of water from the prosecutors’ table and took a swig, before launching another salvo.

The judge, who looked more and more uncomfortable as the arguments grew more intense, reminded the DA that none of the conflict at the heart of the trial was his fault. In 1992 the Kansas legislature had enacted a new law declaring that a defendant could have an “honest but unreasonable belief” when committing a crime. This law might leave a judge no choice in a case like the present one but to offer a jury the option of a voluntary-manslaughter conviction. Wilbert’s concern was clearly with the appeals court above him.

“If I don’t allow the defendant to present his defense,” he told the DA, “this verdict will be overturned in a minute.”

“This,” Foulston shot back, “is irrelevant and immaterial, Judge.”

As the three parties plunged deeper into the legalities, Jeanne Tiller held her head in her hands and stared at the floor, her children massaging her back and shoulders. Two rows of abortion protesters looked on, silently urging the judge to let Kline testify. After an hour of nonstop debate, Judge Wilbert reached a decision.

He would follow the same middle ground that he had during most of the case. He’d keep Disney out of the courtroom, but allow Kline to take the stand—with conditions. The former AG could offer his opinions about Tiller and his work at WHCS, but not in front of the jury. Kline’s testimony would become part of the judicial record but not, in effect, part of the actual trial. If Roeder chose to testify, the judge said, he promised to give the defendant “fairly wide latitude” to tell the jury what he believed and why he’d taken this course of action, but not permit him to talk about the details of late-term abortion or other things beyond his expertise. When court was adjourned for the day, Rudy smiled at his opposition, but Foulston looked ready to go a few more rounds.