A judge has agreed to review a list of 30 criminal counts against a Wichita, Kan., doctor who provides late-term abortions, but has been accused by the state’s attorney general of violating state laws regulating that procedure.
Attorney General Phill Kline had filed the counts last week, but within hours they were dismissed by Judge Paul W. Clark at the request of Sedgwick County District Attorney Nola Foulston, who has been described by the pro-life organization Operation Rescue as a friend of the defendant, George Tiller.
Kline immediately sought a hearing on his motion for reconsideration, but the judge already had departed for the Christmas holiday, so that motion was waiting when the courts in Wichita opened today.
Clark’s decision on that motion was to schedule another hearing tomorrow, when Kline will be allowed to argue on behalf of the counts, which resulted from an investigation that took more than two years because Tiller and another abortion provider in Kansas, Planned Parenthood, battled unsuccessfully all the way through the state Supreme Court against providing any medical documentation to the state’s chief law enforcement officer.
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.]”
A spokeswoman in the court’s administrative offices told WND today the case had been marked “confidential” so she couldn’t release any information about it.
Kline, who lost his re-election bid on the strength of strong pro-abortion support for his opponent, Democrat Paul Morrison, will be moving into a post as a district attorney in Kansas after he leaves office, and still will have the authority to continue investigating some allegations of abortion business misconduct.
In comments at a news conference and to WND after the counts were thrown out, Kline said it appeared to him the dismissal was “flawed.”
Foulston’s motion to dismiss the counts had noted that Kline didn’t consult with her, as required by state law, before filing the counts. But Kline said state law actually allows him to file the counts, along with his evidence, and he only did so after he discussed the situation with Foulston and she told him she would not oppose the case.
“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.
The charges all deal with claims that Tiller provided abortions to the mothers after the statutory age limit of 22 weeks for the unborn babies. There also are allegations that the “medical reasons” listed in the abortion businesses’ documents for the abortions were insufficient.
Kline hadn’t even been notified that Foulston apparently changed her position and opposed the case until after the charges had been dismissed.
“If Foulston, in fact, lied to a judge, that could be considered obstruction of justice,” said Operation Rescue President Troy Newman, “and would be further evidence of the massive corruption that has covered up for Tiller’s wrong-doing for years.”
“We have every confidence that Kline will prevail once his side of the matter can be heard,” Newman said.
“These charges are very serious, and it would be a travesty of justice not to have them heard in a court of law,” he said. “We are talking about illegally taking the innocent lives of viable babies who should have had the protection of law.”
As he was preparing the motion for reconsideration, Kline said the 30 counts relate to 15 different abortions, provided to mothers ranging in age from 10-22, with the babies aged 25-31 weeks. They allege that Tiller “induced or performed an illegal late term abortion contrary to Kansas statute 30-6537-03” and that he “failed to report the reason and basis for performing that abortion on a viable child as required by that statute.”
The charges were generated after Kline’s multi-year investigation that involved “the review of literally thousands of documents, expert testimony, affidavits, witness depositions and other evidence.”
While he sought the medical records, and a judge agreed he should have them for his investigation, in 2004, it wasn’t until October, 2006, when he received them, he noted. He said then another judge approved the case in Sedgwick County before it was filed.
“For the investigation to continue, it was necessary and it was found by the district court judge that probable cause had been demonstrated to believe that crimes have been committed and that evidence of the crimes was on file,” Kline explained. “Before criminal charges could be filed, a judge had to find that the evidence presented through the court providing probable cause that crimes had been committed and that those crimes were committed by Dr. Tiller.”
“Prior to filing the charges, I consulted and discussed the case with the Sedgwick County district attorney. … We met in her office, her chief deputy for the criminal division was present for part of the conversation. … During that conversation, I informed the district attorney of the charges we were considering filing. I discussed them with her. She questioned whether I would have jurisdiction as Johnson County district attorney to pursue those charges once I left this office. I told her I would not. But she did not question the authority of the office of the Attorney General in filing the charges. And she specifically stated in response to my query that she would not object to the filing of those charges.”
Then she went to a different judge and filed her motion for dismissal “based on flawed facts and flawed legal reasoning,” Kline said.
The local prosecutor’s filing cited two state laws “which require the Attorney General to initiate actions in certain circumstances,” Kline said. However, they “do not contain a prohibition from filing actions.”
“The office of Attorney General has broad authority under case law and common law to initiate such actions,” Kline said, and in fact, he’s given specific authority to file “testimony together with his complaint or information against the person or persons alleged to have committed the crime.”
Operation Rescue officials were horrified to see the dismissal:
“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 organization’s 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 Newman. “Money buys a lot of favors here. This miscarriage of justice must not be allowed to stand. ”
Lee Thompson and Dan Monnat, two lawyers representing abortionist George Tiller (Operation Rescue photo)
Two lawyers representing Tiller, Lee Thompson and Dan Monnat, had held a news conference to confirm the misdemeanor charges, describing them as “technical” violations of Kansas reporting laws.
Kline had said the women and girls involved are not under investigation, will not be charged and, in fact, haven’t even been identified.
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.
“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.
During the election campaign, Morrison cited no need for investigating the abortionists.
He had promised to begin 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.
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.
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.
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