A document filed by Attorney General Phill Kline says 12 girls who received abortions from George Tiller were ages 10 to 16 — raising the question of whether possible sex crimes related to the pregnancies are being investigated.

Still, the issue of whether the pregnancies resulted from sex crimes has received little attention over the past week. Instead, it was dominated by the legal battle over whether Kline had authority to file charges against Tiller over abortions Tiller performed.

Neither Kline nor his staff have responded to questions The Eagle posed about possible sex crimes related to the pregnancies.

District Attorney Nola Foulston said Friday she will be looking into whether any of the pregnancies involved in the abortions stemmed from sex crimes in Sedgwick County. So far, Foulston said, Kline hasn’t notified her office of any such crimes.

Foulston said she expects Kline’s successor, Paul Morrison, to inspect files from Kline’s investigation of abortions performed by Tiller and forward any evidence to her that deals with possible sex crimes in Sedgwick County.

Morrison, a longtime Johnson County district attorney who defeated Kline in the November election, takes office Jan. 8.

“I know Paul,” Foulston said. “He’s going to go through it with a fine-tooth comb.”

If the abortions involved sex crimes that happened outside Sedgwick County or in another state, she said, she would expect Morrison to contact authorities in those jurisdictions.

Morrison spokeswoman Ashley Anstaett said she couldn’t comment on the specifics of Kline’s investigation of Tiller. Repeating a previous statement, she said Morrison will evaluate the case when he takes office “and make a decision based on the evidence, the law and his proven judgment as a criminal prosecutor.”

Foulston and Kline have battled publicly during the past week over whether he had authority to file misdemeanor charges accusing Tiller of conducting 15 illegal late-term abortions in 2003 and failing to report a proper basis for the procedures.

Sedgwick County District Judge Paul Clark found Thursday that Foulston had legal authority to dismiss the charges Kline filed.

Tiller’s attorney, Dan Monnat, said Tiller is “an innocent man unfairly maligned by Kline.”

Youngest patient was 10

Kline’s document accusing Tiller, filed in Sedgwick County District Court on Dec. 21, does not give names of the 15 patients or divulge where they became pregnant, or the circumstances, but provides their ages at the time of the abortions.

The youngest abortion patient was 10. One was 13, two were 14, seven were 15 and one was 16. The other three were 18, 19 and 22.

The patients were 25 to 31 weeks pregnant, so it’s not clear how old they were at the time they became pregnant.

Whether patients were sex-crime victims would depend on their age and the circumstances of how they became pregnant.

Kansas law holds that a child under the age of 16 legally can’t have sex, even if it is voluntary, said Kim Parker, the chief deputy district attorney.

It would be rape, for example, if the intercourse occurred when the child was under 14, Foulston said. It would be aggravated indecent liberties if a child was under 16.

Other sex offenses, such as incest or sexual exploitation of a child, could apply if the person was under 18.

Factors in prosecution

Prosecutors are more likely to file charges in cases where the male and female are of significantly different ages or where there is evidence of coercion, force or other related crimes.

Underage pregnancies are supposed to be reported by a list of people including teachers, school administrators, therapists, doctors, nurses and social workers. Their role is important because families sometimes choose not to report those pregnancies.

“We want to be informed of any suspected crimes as quickly as possible to prevent additional victimization,” Foulston said.

A law regulating abortions says that any physician who performs an abortion on a girl younger than 14 must preserve fetal tissue so it can be submitted to a laboratory designated by the Kansas Bureau of Investigation.

DNA from a tissue sample can be key to a prosecution.

“I have had cases where an out-of-state child came for an abortion, DNA was taken, and it was the father who raped the child,” Foulston said.

Tiller defended

Monnat, one of Tiller’s attorneys, said in a statement Friday: “Dr. Tiller has spent at least the last two years fighting to protect women’s privacy in these and other health care records.”

He said Tiller has “complied with the letter of the laws governing his medical practice…has operated his practice under a microscope of scrutiny from the public and regulatory authorities, reported what the law requires him to report and voluntarily cooperated with proper law enforcement authorities.”

Past cases referred

During his time in office, Kline has repeatedly voiced a commitment to protecting children from abuse, especially sex crimes.

In a statement Wednesday, he said: “My office has now referred over 25 cases of child rape to local authorities from abortion records for further investigation and/or prosecution.”

The statement didn’t say when those referrals occurred or where they were directed. Neither Kline nor his staff could be reached for comment.

Foulston said the attorney general is required by law to refer the cases. “We have received his referrals, and we have followed up on each of the cases brought to our attention” in the past, she said.

“The majority of the cases he referred to our jurisdiction had already been investigated, and most had already been through the court system by the time we received the AG’s list.”

Reach Tim Potter at 316-268-6684 or tpotter@wichitaeagle.com.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By TIM POTTER
The Wichita Eagle

TOPEKA, Kan. – A special prosecutor who’s supposed to pursue criminal charges against the state’s most visible abortion provider sees the fuss surrounding his appointment by outgoing Attorney General Phill Kline as “political posturing.”

Gov. Kathleen Sebelius, an abortion rights Democrat, has jumped into the debate, chiding Kline, a Republican and strong abortion opponent, for his actions.

Her comments Thursday came the same day that Attorney General-elect Paul Morrison, another abortion rights Democrat who unseated Kline in the November general election, said he wouldn’t retain Wichita attorney Don McKinney as a special prosecutor to handle the case against Dr. George Tiller, also from Wichita.

McKinney said in a statement that he wouldn’t respond: “I don’t have time for political posturing. I have work to do.”

Kline alleges Tiller performed 15 illegal late-term abortions in 2003, for patients aged 10 to 22, and failed to properly report details about them to state health officials. Tiller’s attorneys call those allegations groundless.

Tiller has received national attention because he is among a few doctors in the United States to perform late-term abortions. His clinic has been the site of large protests, and it was bombed in 1985. A protester shot the doctor in both arms in 1993.

Kline filed 30 misdemeanor charges against the doctor last week in Sedgwick County District Court, only to see a district judge dismiss them over a jurisdiction issue, then refuse to reinstate them Wednesday.

McKinney was leader of a Democrats for Kline group, and he’s viewed as a strong abortion opponent.

Morrison said he’s not inclined to have a special prosecutor handle any investigation of Tiller, but if he decides to do so, “It certainly won’t be Mr. McKinney.”

“He is extraordinarily political and, in my opinion, would absolutely not present any kind of independent perspective,” Morrison said in a telephone interview.

Kline didn’t respond to Morrison’s comments.

Sebelius told reporters that Kline’s long-running investigation of Tiller now verges on the bizarre. Before Morrison takes office on Jan. 8, she said, “How messy can it get?”

“The story just continues to get stranger and stranger,” Sebelius said.

Mary Kay Culp, executive director of Kansas for Life, the state’s largest anti-abortion group, said she was shocked by how quickly Morrison declared that he wouldn’t retain McKinney.

“I’ve been disappointed by him a lot, but it’s especially disappointing that he would claim a fellow Democrat is unqualified because he happens to be pro-life,” Culp said. “Being pro-life should never disqualify you as an elected official from bringing charges that happen to deal with this issue. It can’t influence the credibility of the evidence. Evidence is evidence.”

And McKinney said in his statement that Kansas have enacted laws “to protect babies that are about to be born.”

“Those laws restrict the abortion of late-term babies to very specific medical circumstances,” he said. “Those laws need to be enforced and not winked at.”

But Tiller’s attorneys argue that Kline isn’t capable of fairly evaluating evidence involving Tiller, given his anti-abortion politics. One of them, Dan Monnat, of Wichita, called McKinney “a former Kline campaigner and anti-abortion activist.”

During the campaign, McKinney publicly criticized a newspaper when he thought it wasn’t being aggressive enough in pursuing 15-year-old, unproven allegations of sexual harassment against Morrison from a former employee. McKinney later said the allegations reflected on Morrison’s character, though two federal lawsuits filed by his accuser were dismissed and she received no money.

Campaign finance records show that funds from Tiller, passed through an abortion rights political action committee, helped finance at least $248,000 worth of mailings and radio ads aimed specifically at defeating Kline in 2002 and 2006. That has led abortion opponents to question whether Morrison will aggressively pursue evidence of wrongdoing by Tiller.

“I definitely question whether he can look at the evidence independently,” Culp said of Morrison.

There’s also a question of how much power McKinney would have, even if Morrison were to retain him, thanks to judicial decisions in Sedgwick County that have so far blocked Kline’s attempt to prosecute Tiller.

On Wednesday, for the second time in six days, District Judge Paul W. Clark ruled that Kline didn’t have the authority to file charges because Kansas law requires him to obtain the consent of District Attorney Nola Foulston, and Kline didn’t.

“It is not appropriate, to me, to have an attorney general who isn’t following Kansas law,” Sebelius said.

Abortion opponents accused Foulston, a Democrat, of trying to protect Tiller, but she said she was only protecting her right to decide what cases are prosecuted in Sedgwick County. In court, she objected to Kline appointing a special prosecutor and said that prosecutor wouldn’t be allowed to file charges, either.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By JOHN HANNA
Associated Press

A special prosecutor appointed by outgoing Attorney General Phill Kline to pursue criminal charges against the state’s most visible abortion provider isn’t likely to last long in that job.

Attorney General-elect Paul Morrison said in a telephone interview today that he’s not inclined to have a special prosecutor handle any investigation into Dr. George Tiller, who operates a Wichita clinic and is one of the few doctors in the nation to perform late-term abortions.

Kline, a vocal abortion opponent, contends Tiller has performed illegal late-term abortions and filed charges against the doctor last week only to see them dismissed the next day by a district judge. On Wednesday, the judge refused to reinstate those charges, citing a jurisdiction issue.

While Morrison, who supports abortion rights, would not completely rule out having a special prosecutor, he added, “It certainly won’t be Mr. McKinney.”

Kline announced Wednesday that he had named Wichita attorney Don McKinney as special prosecutor, saying the appointment would remove Tiller’s case “from a highly charged political process.” Kline, a Republican, noted that McKinney, like Morrison, is a Democrat.

But McKinney was the leader of a Democrats for Kline group during Kline’s unsuccessful re-election campaign and is viewed as a strong anti-abortion activist.

Morrison said of McKinney: “He is extraordinarily political and, in my opinion, would absolutely not present any kind of independent perspective.”

Morrison takes office Jan. 8, having received 59 percent of the vote in the November general election against Kline, who was seeking a second term.

The attorney general-elect and his aides repeatedly have said Morrison will assess the evidence about Tiller before deciding whether to prosecute.

“I believe I was elected attorney general to use my judgment,” Morrison said Thursday. “I’m not in anybody’s camp on this deal, and I never have been.”

Kline alleges Tiller performed 15 illegal late-term abortions in 2003 on patients aged 10 to 22, improperly using their mental health concerns to justify the procedures. Kline also contends Tiller failed to properly report details of the abortions to the state Department of Health and Environment.

Tiller’s attorneys say the allegations are groundless.

In dismissing the 30 misdemeanor charges against Tiller and refusing to reinstate them, District Judge Paul W. Clark acted at the request of Sedgwick County District Attorney Nola Foulston, a Democrat. She argued successfully that Kline didn’t have the legal authority to file the charges because she has jurisdiction over prosecutions in the county, and Kline didn’t obtain her consent.

Kline said he would leave decisions about the case to McKinney. The special prosecutor wasn’t available for comment Thursday and didn’t immediately return a telephone message left at his office.

Cheryl Sullinger, a spokeswoman for the anti-abortion group Operation Rescue, told The Wichita Eagle she has seen McKinney within the past year outside Tiller’s clinic “praying for the babies.”

“You don’t have to be neutral to do your job,” she told the newspaper.

He is the brother of House Minority Leader Dennis McKinney, D-Greensburg, and Kline told reporters Wednesday that he hired Don McKinney because he is widely respected as an attorney.

But Dan Monnat, a Wichita attorney representing Tiller, said Thursday that the special prosecutor’s background shows Kline isn’t conducting a fair inquiry.

“I would say no effort was made to find an independent prosecutor,” Monnat said.

Tiller is among the few doctors in the nation who perform late-term abortions. His clinic was bombed in 1985, and a protester shot him in both arms eight years later.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

Associated Press

Turf issues over Tiller case collide in district court.

In a turf battle between two of the state’s most prominent prosecutors, a judge found Wednesday that District Attorney Nola Foulston trumps Attorney General Phill Kline in her decision to dismiss charges he brought against abortion provider George Tiller.

District Judge Paul Clark said it would be up to a higher court to consider any appeal by the attorney general.

Earlier Wednesday, Kline announced that he had appointed Wichita lawyer Don McKinney as an “independent special prosecutor” to carry the case forward and that it would be up to McKinney whether to appeal.

He appointed McKinney for the duration of the case, not a specified amount of time, Kline said. McKinney will make all future decisions about the handling of the case, he said.

Following the hearing, McKinney declined to answer most questions regarding his appointment, saying, “My job has just begun.”

It wasn’t clear Wednesday whether McKinney could legally continue to press the case, or whether Attorney General-elect Paul Morrison would review the charges.

Morrison spokeswoman Ashley Anstaett said in a statement: “After he takes office, Attorney General Morrison will evaluate all cases and appointments and make the appropriate decisions based on the evidence, the law and his proven judgment. Kansans expect more from their attorney general than grandstanding and political stunts — that’s why they voted for change.”

Foulston said no case exists because the charges have been dismissed and therefore there is nothing to appeal.

She said McKinney has no standing as a special prosecutor. “Who is this person?” she asked in the courtroom.

“If anyone reviews this case, it is this office that will review it,” Foulston said.

Appointing a special prosecutor is not “horribly unusual,” said Joyce McCray-Pearson, director of the law library at the University of Kansas School of Law.

“They are done in very special cases,” she said. “I think that Phill Kline is making such a huge deal out of this. I think it’s an embarrassment to Kansas, in fact.”

Reviewing the files 

Although Foulston argued that she, not Kline, had the prime authority to prosecute cases in Sedgwick County, she said she still wanted to review the evidence Kline’s staff had compiled to see if charges are warranted against Tiller. She said she has asked Kline to forward the files to her “on more than one occasion…. He’s never responded.”

But Troy Newman, president of the anti-abortion group Operation Rescue, dismissed Foulston’s saying that she would review the files as “meaningless platitudes.”

“A district attorney should be more interested in pursuing truth and justice, rather than getting into a power play with the attorney general,” Newman said. “This is Queen Nola trying to run Sedgwick County like it’s her own little kingdom.

“Let’s get Kline out of this. Let’s get Nola out of this. Let’s see a judge and a jury handle this. If I was George Tiller, I’d want my day in court. There’s a lot of accusations out there.”

In court, Foulston said the statute of limitations on the cases had expired, but Senior Assistant Attorney General Stephen Maxwell disagreed. Later, Foulston said, “the issue of the statute of limitations is still open.”

Dan Monnat, one of Tiller’s lawyers, said he wasn’t troubled by any further review of files involving Tiller. “We have every confidence that Dr. Tiller is innocent,” Monnat said.

One of Tiller’s other lawyers, Lee Thompson, said that the statute of limitations had expired on some of the cases. Monnat said Tiller’s lawyers are analyzing the charges to see how the statute of limitations applies.

Judge’s focus is one thing 

Clark told the packed courtroom, including reporters from across the state and several members of anti-abortion groups, that he was focusing on the question of whether he had power to overrule Foulston’s decision to dismiss the charges last week.

In his ruling, he declined to reinstate the charges, finding he had no power to do so. And he said that the key part of his decision was that Foulston, the county’s chief prosecutor, didn’t agree to Kline’s filing charges.

Kline has contended that when he met with Foulston Dec. 21, she did not object to his filing the charges. The allegations accused Tiller of performing 15 illegal late-term abortions in 2003 and failing to report the basis for the abortions.

Kline, who has been criticized for the timing of the charges — about two weeks before he leaves office — said in the statement that records supporting the charges didn’t become available to his office until Oct. 24.

After the hearing, Kline said: “The district attorney continues to provide what I believe are defenses that are not supported by law to a criminal defendant.”

Two other courts in the past three years had found probable cause that crimes had been committed, he said. “Typically, such cases are prosecuted.”

Kline said Wednesday’s ruling flew in the face of precedent, but he added, “This is not unexpected.”

During one tense moment in the roughly hourlong hearing, Clark ordered a woman to leave the courtroom. It came while Foulston was making her arguments.

When Foulston said, “I’m controlling the prosecution of cases in this jurisdiction,” the woman blurted out, “That’s the problem.”

Kline wouldn’t say why he didn’t enter the courtroom. During the hearing, he remained in a law library near the judge’s chambers while Maxwell represented him in the arguments.

Case law 

Both Maxwell and Foulston cited case law that they contended supported their differing positions on who had authority to bring the charges.

Maxwell said the charges were filed only after a thorough investigation of evidence that included medical records.

He argued that after the attorney general’s office filed the charges Dec. 21, Foulston didn’t have authority to dismiss them.

When Maxwell said Foulston didn’t object to the charges when Kline met with her, she interrupted, saying, “This individual was not even present at the time.”

Foulston told Clark: “This district attorney is being usurped by some out-of-towner on his way out.”

Kline, whose office is in Topeka, was defeated in the November election by Morrison, the current Johnson County district attorney. Kline will move into the Johnson County district attorney’s job after being chosen by Republican precinct committee members.

Contributing: Stan Finger, Joe Rodriguez and Deb Gruver of The Eagle
Reach Tim Potter at 316-268-6684 or
tpotter@wichitaeagle.com.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

BY TIM POTTER
The Wichita Eagle

The Wichita lawyer who Attorney General Phill Kline named as a special prosecutor in the George Tiller case is a longtime abortion opponent who supported Kline’s failed re-election bid.

Donald McKinney was admitted to the Kansas Bar Association in 1987. He is active and listed in good standing.

Kline called McKinney, a Democrat and brother of House Minority Leader Dennis McKinney, D-Greensburg, a highly respected attorney.

McKinney could not be reached for comment late Wednesday.

“This appointment of an independent special prosecutor will remove this investigation from a highly charged political process,” Kline said during a news conference Wednesday.

But Wichita lawyer Dan Monnat, one of Tiller’s lawyers, said of McKinney, “We’ve known him to protest outside Tiller’s clinic.”

Cheryl Sullenger, spokeswoman for the anti-abortion group Operation Rescue, said that within the last year she’s seen McKinney outside Tiller’s clinic “praying for the babies,” walking up and down the sidewalk. “He has a constitutional right to do that.”

His opposition to abortion shouldn’t disqualify him, she said. “I think you can have personal views on things and still conduct yourself professionally, and I think Mr. McKinney would do that.”

As for him being outside the clinic, she said: “I think it gives him a unique perspective when it comes to prosecuting this man. You don’t have to be neutral to do your job.”

Steve Joseph, a longtime Wichita lawyer, said that “in terms of the legal community, Don is politically and socially on the far-right fringe.”

During this fall’s attorney general’s race, McKinney was a leader of a group called Democrats for Kline, along with state Sen. Mark Gilstrap of Kansas City, Kan., and former state Rep. Charles Laird of Tecumseh.

In October, McKinney criticized The Eagle in front of its offices for not investigating 15-year-old, unproven allegations of sexual harassment against challenger Paul Morrison, and for an editorial criticizing statements Kline made at campaign events.

McKinney said the old charges raised serious questions about Morrison’s character, though two lawsuits filed by a former employee were dismissed and she received no damages.

In July 2001, McKinney represented local members of the group Operation Save America who took the city of Wichita to federal court after it blocked an anti-abortion parade outside Tiller’s clinic. A federal judge overturned the city’s action.

In May 1992, a year after the so-called “Summer of Mercy” anti-abortion protests in Wichita, McKinney urged City Council members to prohibit off-duty police officers from working as security guards at medical clinics. He also accused city leaders of spending thousands of dollars guarding clinics where abortions are performed.

A month later, he said a list of one council member’s campaign contributions showed “how the blood money of the abortionist has crept into the political process.” That council member is no longer in office.

Bill Townsley, president-elect of the Wichita Bar Association, said that he could not offer an official association comment but said McKinney is a member in good standing and participates in committees.

The disciplinary administrator’s office, an arm of the Kansas Supreme Court, has no record of disciplinary action or complaints against McKinney.

Contributing: Tim Potter of The Eagle; Associated Press
Reach Deb Gruver at 316-268-6400 or dgruver@wichitaeagle.com

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By DEB GRUVER
The Wichita Eagle

Kline Abortion Inquiry

A legal battle over whether Attorney General Phill Kline has authority to pursue charges against a Wichita abortion provider will play out today in Sedgwick County District Court.

Kline seeks reinstatement of 30 misdemeanor charges against physician George Tiller that were dismissed Friday at the request of Sedgwick County District Attorney Nola Foulston. In a request for “emergency reconsideration,” Kline’s office contends that Foulston wrongly interfered and that she did not object to Kline’s filing the charges when he met with her in Wichita last Thursday.

Attached to the court document filed by Kline’s office is an e-mail Foulston sent to Kline on Friday.

In it, she wrote: “Nothing in our conversation yesterday should be construed as having acquiesced in the filing of these charges by your office . . . .”

She wrote that after researching the issue, “I have determined that you clearly have no authority to pursue criminal charges in this jurisdiction without my consent.”

In bold type, she asked Kline to forward to her the investigative file that led to the allegations against Tiller so her office could determine whether prosecution is warranted.

The district attorney’s office was acting only on the question of whether Kline had authority to bring the charges, not on the merits of his case, said district attorney’s spokeswoman Georgia Cole. Cole declined to comment further.

District Judge Paul Clark signed the order to dismiss the charges Friday. He will preside over the hearing at 2 p.m. today.

In a brief statement, he said the hearing would focus on whether the court has “power to limit the authority of a district attorney to dismiss” the charges.

The charges included allegations that Tiller carried out 15 illegal late-term abortions and didn’t properly report the procedures to state health officials. The charges said the violations occurred in 2003. His lawyer says he is innocent.

One of Tiller’s lawyers, Dan Monnat, said Tuesday: “We have confidence in the decision made last week by Judge Clark and District Attorney Foulston. We believe that will stand.”

Monnat said he knows of no other similar charges filed in Sedgwick County since the Roe v. Wade decision in 1973 that declared a basic right to abortion.

“These charges related to his (Kline’s) personal disagreement” with courts, including the U.S. Supreme Court, “that a woman’s mental health factors into her decision to terminate a pregnancy,” Monnat said.

A spokesman for Kline’s office didn’t return phone calls today, and Kline declined to comment.

Kline, a Republican who lost in November to Democrat Paul Morrison and will leave office in two weeks, requested the “emergency reconsideration” late last week.

The court document says the charges stemmed from “years of on-going investigation” by the attorney general’s office, “involving hundreds of man-hours, the review of thousands of pages of documents, pleadings, and exhibits, and interviews with witnesses.”

After reviewing the evidence, Sedgwick County District Judge Eric Yost found probable cause to believe that Tiller committed the crimes, the document said.

“District Attorney Foulston has sought to bring an immediate and summary end to this criminal case, without allowing a jury to decide the charges on the evidence . . . ” the document said.

Reach Tim Potter at 316-268-6684 or tpotter@wichitaeagle.com. 

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By TIM POTTER
THE WICHITA EAGLE

Kansas Attorney General Phill Kline overstepped his authority by filing criminal charges against Wichita abortion provider George Tiller, a Sedgwick County district judge ruled Friday.

Judge Paul Clark granted District Attorney Nola Foulston’s request to drop 30 misdemeanor charges against Tiller, after she argued that Kline did not have jurisdiction in the case.

Kline’s complaint, filed Thursday afternoon and signed by Judge Eric Yost, accused Tiller of performing 15 illegal late-term abortions and not properly reporting those procedures to state health officials.

Kline said Friday afternoon that he intended to file an “emergency motion for reconsideration” of the dismissal. It was unclear whether he succeeded by the time the Sedgwick County Courthouse closed for the Christmas holiday weekend.

The case created a news roller coaster on Friday.

Kline had filed the charges under seal at 4:37 p.m. Thursday. But Tiller didn’t receive the notice until Friday morning — when he found a court summons on the front door of his house, his lawyers said.

Tiller’s lawyers called a news conference before noon, saying they expected the case to be dismissed next week and sharply criticizing Kline’s actions. Kline has less than three weeks left in office; voters denied him re-election.

“The filing of criminal charges by Phill Kline is the last gasp of a defeated and discredited politician,” said Lee Thompson, who represents Tiller. “Rather than exercising his duty as a prosecutor to see that justice is done, he has chosen to engage in a malicious and spiteful prosecution on the eve of Christmas.”

Thompson didn’t know Foulston was already preparing to have the charges dropped on the basis of jurisdiction.

The attorney general is the chief law enforcement officer in the state, but under Kansas law he cannot pursue a case without the consent of the local prosecutor.

“The district attorney has not invited or requested, consented or acquiesced, or failed to object to the filing of the complaint,” Foulston told the judge in a court filing. “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.”

She did not address the allegations made in the criminal complaint.

By 12:50 p.m., Clark had signed the order to dismiss the charges.

At 1:20 p.m., Foulston’s office e-mailed copies of her filing to local news reporters.

During his own news conference at 3 p.m. Friday in Topeka, Kline said that he had met with Foulston before filing charges, and that she had not questioned his decision.

The charges included allegations that Tiller performed abortions at 25 to 31 weeks of gestation, misdiagnosed a variety of mental illnesses and disorders in those cases and did not properly report them to the Kansas Department of Health and Environment.

A few weeks ago — after a two-year legal battle — Kline obtained the records of 90 patients from Tiller’s clinic and from a clinic in Overland Park operated by Planned Parenthood of Kansas and Mid-Missouri.

The U.S. Supreme Court has said abortions after 22 weeks of gestation must be intended to reduce a health risk to the mother. The Kansas Supreme Court has ruled that such risks include the mental health of the woman.

Kline said what he saw in the medical records did not constitute “a finding of substantial and irreversible damage to a major bodily function of the mother” as the law requires for a late-term abortion.

“Kansas law only allows a post-viability abortion if the mother’s life is in jeopardy,” Kline said, “which has happened in zero instances in Kansas according to reports over the past numerous years.”

Dan Monnat, a criminal defense lawyer who represents Tiller, told The Eagle: “You can see each primary count is Phill Kline’s disagreement with the notion that a woman’s mental health can be considered in a abortion determination. And each secondary count is some hypertechnical bizarre view of the state’s reporting requirement.”

Monnat said he and Thompson, a former federal prosecutor, had contemplated the legality of Kline’s dealings with the Sedgwick County District Court but had not discussed the matter with Foulston.

“Really, there were multiple legal grounds on which to get this dismissed,” Monnat said. “Factually, Dr. Tiller is innocent of any wrongdoing, so a motion to dismiss should be granted on that basis. Nola has now found the legal flaw in the attorney general’s parting action, which resulted in an expeditious dismissal.”

Paul Morrison, the Johnson County district attorney who switched parties to take on Kline as a Democrat and who assumes office Jan. 8, questioned the way Kline handled the case without consulting him.

“I just don’t think it was a very professional way to do it,” Morrison said. “I would never file a very involved and controversial case and leave it for somebody else to have to deal with.”

If charges against Tiller are reinstated, as Kline hopes, Morrison said he will evaluate the charges before deciding how to proceed.

“We’ll look at them and evaluate them and make a decision about what to do,” he said. “It’s hard for me to talk about the merits of the case because I haven’t seen it.”

Said Thompson: “Attorney General Morrison is an experienced prosecutor. With him, I expect we can deal with him as we would with any other experienced, credible professional prosecutor.”

Kline is nationally known as an anti-abortion advocate, and it proved a touchstone issue in his campaign. A committee of Republicans recently chose Kline to replace Morrison as Johnson County district attorney.

When asked at his news conference if he had “work on this to do in Johnson County,” Kline answered:

“No comment. I will mention that the investigation is ongoing.”

Reach Ron Sylvester at 316-268-6514 or rsylvester@wichitaeagle.com.
Contributing: Fred Mann and Hurst Laviana of The Eagle; Steve Vockrodt of the Olathe News reporting from Topeka.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By RON SYLVESTER
The Wichita Eagle

A Sedgwick County judge dropped misdemeanor charges today against Wichita-based abortion provider George Tiller at the request of the district attorney, who said that Kansas’ top law enforcement official overstepped his authority.

Judge Paul Clark granted District Attorney Nola Foulston’s request to drop 30 charges filed Thursday by Attorney General Phill Kline, a vocal abortion opponent.

Kline added to the legal jousting by announcing this afternoon that he’ll file an emergency motion for the judge to reconsider “what we believe is a flawed decision.”

Although the attorney general is the chief law enforcement officer in the state, Foulston said that Kline cannot pursue charges in a particular county without being invited by the local prosecutor to do so, or without authority from the governor.

“The statutes and case law are clear,” Foulston said in a statement released by her office this afternoon.

“The district attorney has not invited or requested, consented or acquiesced, or failed to object to the filing of the complaint,” Foulston’s office added. “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 said she’d received no word from Gov. Kathleen Sebelius allowing Kline to file charges in Sedgwick County District Court.

That’s because Sebelius didn’t.

“I can tell you with absolute certainty the governor did not” consent to the charges, said Nicole Corcoran, the governor’s spokeswoman. “This is a basic rule governing the office of the attorney general, and it’s rather surprising he doesn’t know that.”

During a news conference this afternoon, Kline said he had met with Foulston, told her of his intentions and she had not questioned his decision.

Kline was trying to fend off a day of criticism.

It began with Tiller finding a summons to appear in court stuck in the door of his home overnight.

Kline had apparently filed the charges under seal at 4:37 p.m. Thursday. But Tiller didn’t find the summons until the next morning.

Tiller’s lawyers called a press conference before noon, saying they expected the case to be dismissed and sharply criticizing Kline’s actions with three weeks left of his office, after voters denied him re-election last month.

“The filing of criminal charges by Phill Kline is the last gasp of a defeated and discredited politician,” Lee Thompson said from his law office in Wichita. “Rather than exercising his duty as a prosecutor to see that justice is done, he has chosen to engage in a malicious and spiteful prosecution on the eve of Christmas.”

The charges include allegations that Tiller performed late-term abortions anywhere from 25 to 31 weeks of gestation.

To perform abortions after 22 weeks of gestation, the provider must show a health risk to the pregnant woman, under case law from the U.S. Supreme Court. The Kansas Supreme Court has ruled that such risks include the mental health of the woman.

The charges include claims that Tiller misdiagnosed a variety of mental illnesses and disorders in those late-term abortions and did not properly report them to the Kansas Department of Health and Environment.

“You can see each primary count is Phill Kline’s disagreement with the notion that a woman’s mental health can be considered in a abortion determination,” Dan Monnat, a criminal defense lawyer who represents Tiller, told The Eagle after the complaint had been unsealed. “And each secondary count is some hypertechnical bizarre view of the state’s reporting requirement.”

By 12:50 p.m. today, Clark had signed the order.

Monnat said he and Thompson, a former U.S. attorney, had contemplated the legality of Kline’s dealings with the Sedgwick County court but had not discussed the matter with Foulston.

“We were pleasantly surprised by the courageous actions of the district attorney,” Monnat said. “Really, there were multiple legal grounds on which to get this dismissed. Factually, Dr. Tiller is innocent of any wrongdoing, so a motion to dismiss should be granted on that basis. Nola has now found the legal flaw in the attorney general’s parting action, which resulted in an expeditious dismissal.”

Voters overwhelmingly rejected Kline in the Nov. 7 general election. Paul Morrison, the Johnson County district attorney who switched parties to take him on as a Democrat, assumes office Jan. 8.

Abortion proved one of the biggest issue in Kline’s campaign. Republicans recently chose Kline to replace Morrison as Johnson County district attorney.

Over the years, Kline has investigated whether Tiller and other abortion providers have performed illegal late-term abortions and have failed to report suspected child abuse as required by law.

Tiller’s clinic is the site of daily protests. He has also be the target of violence: His clinic was bombed in 1985 and he was shot by a protester in 1993.

A few weeks ago — after a two-year legal battle — Kline obtained the medical records of 90 patients from Tiller’s clinic and from a clinic in Overland Park operated by Planned Parenthood of Kansas and Mid-Missouri.

Reach Ron Sylvester at 316-268-6514 or rsylvester@wichitaeagle.com.
Contributing: Fred Mann and Hurst Laviana of The Eagle; Steve Vockrodt of the Olathe News reporting from Topeka.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By RON SYLVESTER
The Wichita Eagle