'Tiller the Killer' abortion case goes to Supremes

The special prosecutor in Kansas assigned by Attorney General Phill Kline to evaluate 30 criminal counts against late-term abortionist George Tiller of Wichita has gone to the state Supreme Court for help.

"I filed a lawsuit in the Supreme Court of Kansas against Sedgwick County District Attorney Nola Foulston and District Judge Paul Clark, on the grounds that they unlawfully usurped the authority of the chief law enforcement officer of the state, the Kansas Attorney General, and the authority of the Kansas Legislature, by improperly terminating a case lawfully filed by the attorney general," special prosecutor Don McKinney told WND.

He said the laws of the state specifically allow the attorney general to file charges as a result of cases that are generated by a state investigative procedure known as an "inquisition."

Phil Kline

Kline, after an investigation of more than two years, had filed 30 criminal counts against Tiller, who is known world-wide for his late-term abortions, alleging he failed to follow Kansas law and performed abortions on babies that were beyond the age cutoff in state law. The charges also alleged he didn't have the proper medical diagnosis in the cases to legally allow the late-term abortions.

But within hours of Kline's filing the case in Sedgwick County District Court, the local prosecutor, Nola Foulston, stepped in and worked with a local judge to dismiss the charges. She alleged she is the only person allowed under Kansas law to file cases in her district.

McKinney told WND that wasn't correct.

"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.

"This case is the result of an official inquisition, and, to date, two judges have found probable cause to proceed, and the Kansas Supreme Court has authorized this investigation to proceed," he said.

The system to prosecute crimes and protect the innocent would disintegrate if the procedures aren't followed, he noted.

"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."

McKinney's petition for Writ of Mandamus noted that the "Kansas Legislature specifically designated the office of state attorney general as a proper party to obtain copies of the reports required under K.S.A. 65-6703, and specifically authorized the attorney general to use such documents for the purpose of a … criminal proceeding."

The state "inquisition" held earlier "led to a finding of probable cause … and, among other areas of investigation, developed evidence against a Wichita doctor who specializes in providing late term abortions, George Tiller, which, in turn, led to preparation of charges against Tiller by the attorney general pursuant to the statutory mandates of K.S.A. 22-3101, 22-3103, and 54-445."

The charges were filed on Dec. 21 "after a finding of probable cause of Sedgwick County District Judge Eric Yost," it continued. "Before filing charges, the attorney general had met with respondent Foulston, district attorney of Sedgwick County, as a courtesy visit to discuss the case. The attorney general, along with Chief Deputy Eric Rucker and Assistant Attorney General Steve Maxwell, signed into respondent Foulston's office at approximately 3:30 pm. The attorney general consulted with the district attorney for approximately one hour. During the meeting, rRespondent Foulston made no objection to the filing of charges… and indicated that she would not obstruct the filing of charges."

"Thus, respondent Foulston initially acquiesced to the initiation of the case," the filing said. A summons was served on Tiller that evening. But the next day, "Respondent Foulston, unilaterally, and without consultation or notice to the attorney general, met ex parte with respondent Clark, and procured the dismissal, by Clark, of the prosecution."

The lawsuit said the judge held a hearing to reconsider the filing of charges, but again ruled against the attorney general. "Judge Clark's ruling did not consider the legislative mandate given the attorney general under the aforesaid abortion reporting statutes and the inquisition laws," the lawsuit said. "At the time of his ruling, he had not read the complaint or the supporting affidavits."

The lawsuit also said Foulston remained adamant that she controlled any prosecution against Tiller. "That is the law," she said, according to the lawsuit. And her assistant stated, "The case doesn't exist. It has been dismissed. There is no way you can appeal from a case that's been dismissed."

"Petitioner specifically requests … an order directing District Judge Paul Clark and District Attorney Nola Foulston to permit the attorney general or any authorized assistant or deputy attorney general to prosecute the case of State v. Tiller, Case No. 06CR2961," the lawsuit said.

It also seeks a ruling that since the case was lawfully initiated, the attorney general has the right to control the prosecution and "Foulston has no jurisdiction to proceed in these matters."

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 a group calling itself peration 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.

The Wichita-based organization is not identical to the group by that name founded by Randall Terry and run by Flip Benham.

Kline was defeated in his bid for re-election in November and Democrat challenger Paul Morrison will take over the attorney general's office Monday. He has indicated that if there is a special prosecutor, it will not be McKinney. He's also suggested there is no need to investigate abortion clinics in Kansas, even though state statistics indicate 78 abortions on underage girls in 2003 alone, without a single report of assault on a child.

Kline will be moving out of the state office into the office of district attorney for Johnson County, where the Planned Parenthood clinic stands, and still will have jurisdiction there. But his personal involvement in any case that may be brought against Tiller most likely will end when he leaves the state office.

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.

The abortions prompting Kline's allegations included babies ranging up to 31 weeks old, while the state law limits abortions to those under the age of 22 weeks, and on girls as young as 10, according to records that Kline subpoenaed from Tiller and Planned Parenthood's abortion business in Kansas.

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Previous stories:

Special prosecutor evaluating case against Tiller

Judge will review charges against Wichita abortionist

Kansas AG: Judge had approved Tiller charges

Kansas abortionist charged
but judge dismisses counts

Prosecutor investigating Planned Parenthood defeated

Kansas attorney general says records show crimes