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Kansas AG: Judge had approved Tiller charges
Posted By Bob Unruh On 12/23/2006 @ 1:00 am In Front Page | Comments Disabled
Lee Thompson and Dan Monnat, two lawyers representing abortionist George Tiller, as a news conference about criminal counts against Tiller (Operation Rescue photo)
The Kansas attorney general has filed a motion seeking a review of the abrupt dismissal of a case he’s spent several years assembling and that accused late-term abortion specialist George Tiller of 30 criminal violations of the state’s abortion restrictions.
It took the district attorney for Sedgwick County, Nola Foulston, only hours yesterday to move that the case be dismissed because she did not approve of the prosecution, and a judge agreed.
Within nine minutes of being notified of that action, Kline told WND, he was trying to reach the Wichita judge to submit his motion for a reconsideration, but he was told the judge already had left the courthouse for the Christmas holiday.
The motion, then, will be waiting on Tuesday when court reopens, said Kline, who clearly was distressed by the dismissal after he had consulted with the local DA, and had had a local judge review and approve the case before it was filed.
“I consulted with her prior (to the filing) and she stated she would not object, and I filed the charges,” Kline said.
Foulston could not be reached for a comment late yesterday.
The case accused Tiller of 30 criminal counts of providing abortions to females ranging from 10-22 years of age, whose unborn babies were ages 25-31 weeks. It is against Kansas law to do an abortion on a baby older than 22 weeks unless special medical conditions exist, and the charges explained that those conditions weren’t there.
Two lawyers representing Tiller, Lee Thompson and Dan Monnat, held a news conference to confirm the charges, describing them as “technical” violations of Kansas reporting laws. Thompson would not confirm the number of counts, answering only that the case involved a “number of misdemeanors involving a number of patients.”
The lawyers also said a summons had been issued to Tiller by a copy being placed in Tiller’s door overnight. They said there was no evidence of crimes and promised to hold Kline “personally responsible” for the prosecution.
A short time later, what Kline’s office would only describe as a “threat” reached Kline, and, “what we can say is that security has been heightened,” a spokesman in his office said.
Kline told WND he consulted with Foulston before the filing, but afterwards, this is what she submitted to the court.
“This District Attorney has not invited or requested, consented or acquiesced, or failed to object to the filing of the Complaint. The District Attorney does in fact object to any such filing by the Attorney General as he lacks the legal authority to file such complaint in this jurisdiction,” Foulston wrote.
Kline said he even has an e-mail from Foulston acknowledging their discussion about the case.”
Kline also had had a judge in Wichita review the case, as required, before it was filed. But Foulston’s motion went to a different judge, Paul Clark, and he, without any review that Kline knew of, decided to dismiss it, Kline said.
He also debunked Foulston’s claim that the attorney general can only file cases at the direction of the Legislature, governor or after permission from a local district attorney.
Kansas state law allows that, “If the testimony at an inquisition discloses probable cause to believe a crime has been committed, the attorney general may file such testimony together with his complaint against the person or persons alleged to have committed the crime,” he said.
The counts cite a number of abortions, such as the July 22, 2003, abortion on a 14-year-old child, patient “072203LM,” where Tiller “wrongfully relied on a diagnosis of Anxiety Disorder … or Adjustment Disorder with mixed anxiety and depressed mood to determine that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman when such diagnoses do not establish that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman, in violation of [Kansas law.]” the complaint said.
Before the dismissal was announced, Tiller had been scheduled to appear in Sedgwick County District Court Wednesday.
Officials with Operation Rescue were horrified to see the developments:
“Foulston has come under criticism by pro-life supporters for refusing to prosecute accusations against Tiller because of her personal friendship with him. It is alleged that she adopted her only son through Tiller, who has stated publicly that he has arranged adoptions in return for political favors,” a statement on the Operation Rescue website said.
“This is a classic example of why justice cannot be done in this state because so many officials have ties to George Tiller,” said OR President Troy Newman. “Money buys a lot of favors here. This miscarriage of justice must not be allowed to stand. ”
The case was dismissed “without prejudice,” which means that until the statute of limitations expires on the allegations, the counts, which cost more than two years of investigative work for Kline and his office, could be refiled.
Newman said pro-life groups had been working to see the counts filed for years. “We have repeatedly reported on our website and through press releases that we believed that Tiller was breaking the law, injuring women and killing innocent late-term babies that should have had the protection of the law.”
He also called on the state Board of Healing Arts “to suspend Tiller’s license and close his abortion clinic to insure that further crimes are not committed. We won’t rest until Tiller is convicted and behind bars and his abortion mill is permanently closed.”
Kline said the females involved are not under investigation, will not be charged and, in fact, haven’t even been identified.
“The complaint speaks for itself, the identity of the patients will not be sought or revealed by my office. These are accusations and Mr. Tiller is presumed innocent unless proven guilty in a court of law. The investigation is ongoing,” Kline said in a prepared statement.
The Kline summary of the case, however, noted the law restricts post viability abortion “unless two doctors find either: a) the mother’s life is in jeopardy if the abortion is not performed; or b) ‘a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman…’”
Those are the requirements that were not met, the complaint alleged.
“Violating any of the provisions of this act is a Class A misdemeanor, punishable by up to one year in jail, a $2,500 fine or both,” the summary said.
“Although the late-term abortion statute states that ‘upon a second or subsequent offense’ for violation of this statute that the person ‘is guilty of a severity level 10, non-person felony,’ Kansas Supreme Court case law has interpreted such provisions to require a previous conviction before (someone) can be charged with a felony,” the summary said.
Kline’s summary said in nine of the cases, the pregnant “woman or child” was diagnosed as having “Major Depressive Disorder, Single Episode,” and in four more cases the “pregnant woman or child” was diagnosed with “Acute Stress Disorder.”
“In three cases, it is alleged that the clinic reported to KDHE that the fetus was not viable when the defendant’s medical records indicate that the fetus was viable,” the summary continued.
There might have been other charges, too, but the statute of limitations had expired on some of the case being reviewed, Kline’s summary said.
The subpoenas for the records were issued in September 2004, but the documents were provided to Kline’s investigators only on Oct. 24, 2006, more than two years later.
“By the time the investigators for the Attorney General’s office obtained the files …. 28 of the files subpoenaed by the Court in September 2004 relating to this defendant had expired…,” the summary said.
Kline has been investigating whether Tiller and other abortionists were violating the state’s abortion laws nearly since he took office. But he will be replaced in three weeks by Democrat Paul Morrison, who during the November election campaign cited no need for investigating the abortionists.
Operation Rescue officials said Kline’s investigation of abortion clinics for “the concealment of child rape and illegal late-term abortions” was the key to Kline’s election defeat in a state with a governor and industry strongly supportive of abortion.
“Kansas has opted to continue the practice of looking the other way when innocent young girls are taken to abortion clinics by their rapists, who are looking to destroy the evidence of their crimes,” said Newman after the election. “It has also voted to ignore violations of Kansas law that bans post viability abortions.”
Kline also had raised the issue of state statistics from 2003, when there were 78 abortions on girls under the age of 15. In a state where the legal age of consent is 16, how could 78 girls become pregnant and obtain abortions without a single report of sexual assault, or rape, on a child, he wondered.
Kline earlier had confirmed, in an interview with Fox News’ Bill O’Reilly, that the medical records indicate late-term abortions that were done for reasons that Kansas law doesn’t allow.
But Morrison said during his campaign he would start a domestic violence unit, without any additional expense to the state. “Some of the money that’s been used on misplaced priorities could easily fund” the plans, he had told the Lawrence Journal-World.
He cited Kline’s investigation of the abortion businesses run by Tiller in Wichita and Planned Parenthood as an example of those “misplaced priorities.”
Morrison also got a huge boost in his campaign when a non-profit organization that the newspaper linked to Tiller mailed hundreds of thousands of dollars worth of mailings critical of Kline.
The mailings called Kline “Snoop Dog” and were mailed by Kansans for Consumer Privacy Protection, said the newspaper, which noted that group had the same office address as ProKanDo, a political action committee Tiller started and is funding to elect pro-abortion candidates.
A district court judge who ordered the records given to Kline had noted he couldn’t realistically be expected to investigate allegations of crime without access to the records that could prove it.
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