Paul Morrison, the new attorney general in Kansas who was elected with strong support from the abortion lobby, is hunting for a way out of a state contract with a special prosecutor appointed to handle a case involving abortionist George Tiller.
Morrison, who was sworn into office this week, believes a special prosecutor appointed by his predecessor isn’t independent and won’t be retained, but a spokeswoman told WND it’s still unclear how he will proceed.
Former attorney general Phill Kline, now taking over as the district attorney in Johnson County, spent more than two years trying to get records of several abortion businesses that he believed may contain evidence of crimes. Those records were forwarded to his office just weeks ago, and in the days before Christmas he filed 30 criminal counts against Tiller, whose business is in Wichita.
However, the local Wichita prosecutor, Nola Foulston, alleged only she had the right to file counts in her district and had a judge dismiss the counts. Judge Paul Clark in a later ruling then affirmed his dismissal of the counts.
While that was happening, Kline appointed Wichita lawyer Don McKinney as a special prosecutor, and on Friday McKinney took the dispute to the state Supreme Court, asking for an order that the counts originally filed by Kline be allowed to move forward without interference from Foulston or Clark.
A pro-life activist group also said it agreed with McKinney’s arguments that once the case goes to a special prosecutor, he’s the guy who gets to make the decisions.
Ashley Amstaett, a spokewoman for Morrison, said he “has said publicly” that McKinney will not be retained. “He doesn’t believe he is independent and wouldn’t be an independent look at the case,” she told WND.
But she said officials still are “trying to get our arms around” the situation and are “evaluating” the special prosecutor’s contract to find an out. Then, she said, the case will be evaluated “on the evidence.”
“An independent special prosecutor is supposed to be just that – independent,” said Troy Newman, the president of Operation Rescue, a pro-life group that has lobbied for investigations of Tiller’s business.
“They are endowed with full authority to take the prosecution of a matter to its conclusion without interference from anyone,” Newman said. “They are usually appointed to remove a case from the hindrance of politics and corruption. That is exactly what happened in this case.”
When Kline announced the special prosecutor’s appointment, he said it was to take the decision-making process away from the politics of the abortion issue.
“We believe Morrison does not have the legal authority to fire the independent special prosecutor, who was lawfully appointed before Morrison’s term began. To take such action against the special prosecutor would be an overt … political act aimed at thwarting the prosecution of Tiller, with whom Morrison has political ties. This is clearly illegal under Kansas law,” Newman said.
Newman said the complaint that McKinney brought to the state Supreme Court against the prosecutor and judge is more appropriate.
“Operation Rescue also believes that Foulston’s motion that dismissed the charges against Tiller on jurisdictional issues, in clear contradiction to K.S.A. 22-3103, also illegally aided Tiller from having to face prosecution,” Newman said.
He said state law, K.S.A. 22-2607, states: “A person who knowingly harbors, conceals or aids another person who has committed or has been charged with a crime with the intent that such other person shall avoid or escape from arrest, trial, conviction or punishment for such crime, may be prosecuted in any county where any of such acts were performed or in the county where the principal crime was committed.”
“It is our opinion that Morrison and Foulston are knowingly misusing their authority and political positions to help Tiller avoid trial, conviction, and punishment for charges brought in compliance with the laws regulating criminal inquisitions,” Newman said.
Georgia Cole, a spokeswoman in Foulston’s office, told WND there were no personal or political issues involved in the decision by Foulston to have the charges dismissed.
“The case was dismissed based strictly on the facts that the AG did not have the authority to come into this jurisdiction and file charges without the DA inviting or requesting or allowing,” Cole told WND.
McKinney’s arguments to the Supreme Court, however, note that the state’s law regarding an investigative tool called an “inquisition,” allows the attorney general to file charges wherever needed if they result from that process, which was used in the case against Tiller.
The actual allegations against Tiller claim he performed late-term abortions on babies older than the state law allows, and also did not have the proper medical diagnoses that state law requires in the cases of late-term abortion.
According to records Kline had subpoenaed in 2004, and got in late 2006, abortions were done on babies up to 31 weeks old, and on girls as young as 10 years old. Before he left office, Kline also said he’d forwarded information for several dozen cases involving alleged sexual assaults on children to local prosecutors to review.
He had raised the issue about the number of abortions performed on underage girls, during a time when there had been no reports of sexual assault on a child.
McKinney told WND he filed the lawsuit against Foulston and Clark on the grounds “they unlawfully usurped the authority of the chief law enforcement officer of the state.”
“Under laws enacted to protect late term viable babies from routine abortions, the legislature delegated authority to the attorney general to obtain reports concerning such abortions and use them in criminal proceedings. K.S.A. 445. The legislature also authorized the attorney general to prosecute ‘within the county’ in cases of special investigations called ‘inquisitions.’ K.S.A. 22-3101,” McKinney told WND.
McKinney also noted that two district court judges have found probable cause to continue to Tiller case, and the state Supreme Court itself had authorized the investigation to continue.
“The judicial system of this state cannot function properly if loose cannon local prosecutors can hijack a case from the attorney general and then dismiss the charges to protect their friends or political allies,” McKinney told WND. “Such extraordinary conduct destroys equal justice, interferes with the attorney general’s ranking position, and snubs the authority of the legislature to mandate prosecutions by the attorney general.”
Pro-life activists have been watching the proceedings intently. “The evidence against Tiller is building and the day is rapidly approaching when even his most loyal media and political flunkeys will be unable to cover his tracks,” Mark Crutcher, chief of Life Dynamics, told WND earlier.
His organization is the one that several years ago staged telephone calls to hundreds of abortion businesses across the U.S. They purported to be from a 13-year-old girl pregnant by her 22-year-old boyfriend, wanting an abortion and to avoid her parents’ finding out. The calls in Kansas went to clinics in Shawnee Mission, Wichita, Hays and Overland Park, and on many of the recordings, clinic workers are heard telling the girl how to get an abortion without notifying her parents, how to keep her boyfriend out of trouble and how to get birth control pills.
But in Kansas, if a 22-year-old adult has sex with a 13-year-old juvenile, it’s considered statutory rape.
Leaders of Operation Rescue also have been lobbying for charges against Tiller, an abortionist they labeled “Tiller the Killer” after their monitoring revealed ambulances periodically being summoned to his business.
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