Scott Roeder's lawyer said Wednesday that the law prohibits holding his client without bail in the killing of Wichita abortion provider George Tiller.
Steve Osburn, head of the regional public defender's office, has filed a motion citing a state law that says courts must set bond for defendants charged with non-capital crimes.
Roeder was ordered held without bond Tuesday after his first court appearance.
The Kansas Constitution and an 89-year-old opinion from the Kansas Supreme Court appear to prevent holding defendants without bail except in cases that could bring the death penalty.
Roeder is charged with first-degree murder, a non-capital offense, in Sunday's shooting of Tiller in the foyer of Reformation Lutheran Church in Wichita.
Osburn's motion could be heard as early as Friday, although no hearing has yet been scheduled.
Sedgwick County District Judge Ben Burgess, who assigns criminal cases, said Wednesday afternoon that he would likely assign the hearing to Judge Warren Wilbert.
Burgess said that he ordered no bail for Roeder as "a discretionary decision taking public safety into account."
Since 1920, the Kansas Supreme Court has held that judges couldn't withhold bail except in capital cases with the strongest evidence.
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