Kansas Attorney General Paul Morrison said Wednesday that his predecessor, Phill Kline, improperly handled an investigation of a Wichita abortion provider.

Morrison concluded that Kline’s case against George Tiller included improperly copied and incomplete evidence, and he determined that at least half of 30 misdemeanor charges filed just before Christmas were “completely without merit.”

Findings on the other 15 charges, which involved late-term abortions, will be released by week’s end, Morrison’s office said.

Kline denied any wrongdoing.

“His depiction of this is false, and it sounds like the law firm of Tiller, Monnat and Morrison has been working overtime,” Kline said.

“It sounds like they spent more time investigating me than anybody else.”

The case has gained national attention, with opponents calling Morrison’s decision politically motivated. The investigation was the biggest issue in last November’s attorney general race.

Tiller has acknowledged performing late-term abortions, and his Women’s Health Care Services on East Kellogg often finds itself at the center of the abortion debate.

Kline stirred controversy when he subpoenaed records from Tiller’s clinic and a clinic affiliated with Planned Parenthood of Kansas and Mid-Missouri in Overland Park.

Before leaving office, Kline filed the 30 misdemeanor charges against Tiller. A Sedgwick County judge dismissed the case the next day, ruling that Kline did not have jurisdiction to prosecute without the consent of the Sedgwick County district attorney.

Morrison said Wednesday that there were problems with evidence Kline submitted to Sedgwick County Judge Eric Yost, who signed off on the complaint against Tiller.

Anti-abortion groups worry that Morrison’s announcement is a prelude to clearing Tiller.

“The more serious counts are the ones that really matter,” said Mary Kay Culp, director of Kansans for Life. “No matter what clerical errors Morrison is alleging, and even if they’re true, it’s not going to excuse him for whitewashing the more serious charges.”

Morrison’s report 

Morrison said he found four copying errors.

“Kline claimed that in reporting these late-term abortions, Dr. Tiller lied by reporting a fetus as ‘not viable,’ when in fact, it was viable,” Morrison’s report read.

But Morrison found the documents used to support those allegations didn’t match the original two-sided forms. The second page, which listed the fetus as not viable, came from different cases than those represented on the face page, Morrison said. On the originals, Tiller listed the fetuses as “viable.”

“It is hard to imagine a competent attorney making that same mistake four times,” said Ashley Anstaett, spokeswoman for Morrison’s office.

Morrison said that Kline also withheld information from Yost that would have shown that Tiller properly filed the paperwork as required by the Kansas Department of Health and Environment.

Evidence that might dispute the allegations are what lawyers call exculpatory evidence.

“It is unethical to omit exculpatory evidence from an affidavit being considered by a judge,” Anstaett said.

Since 1982, the Kansas Supreme Court has said that prosecutors can’t exclude information from the affidavit that is likely to persuade a judge that there’s no probable cause to proceed with charges.

Morrison’s office said Kline did not include in his affidavit statements from Loren Phillips, a doctor with the KDHE, who said Tiller properly made his reports.

The KDHE has trained doctors, including Tiller, on how to properly fill out the forms and has accepted them the way Tiller completed them for at least 10 years, Morrison’s investigation found.

But that information wasn’t provided to Yost, Morrison said.

Cheryl Sullenger, policy adviser for Operation Rescue, said that if Tiller complied with KDHE’s instructions, “what I say is KDHE is not in compliance with the law.”

Morrison’s office, meanwhile, said he would continue to support changing the law to make probable-cause affidavits — such as the one filed by Kline — open to the public.

Kansas is the only state that keeps them closed to public inspection.

Kline’s response 

Kline said he did not withhold from Yost any information provided by Phillips. Kline said he attached a full transcript of Phillips’ deposition testimony to his affidavit.

What he alleged in the charges, Kline said, was that Tiller didn’t provide the detail of information the law requires. He said his interpretation is that the law clearly requires abortion providers not only to certify that denying an abortion would harm the mother, but also to provide a specific diagnosis and explanation.

Kline said that interpretation was consistent with a similar opinion by his predecessor, Carla Stovall.

In essence, Morrison is saying “we have to take Tiller’s word for it,” Kline said. “I differ on that.”

“Morrison is raising one of Tiller’s defenses, which is somewhat unusual,” he said.

That’s because the evidence supports Tiller, said the doctor’s lawyer, Dan Monnat of Wichita.

“We’ve said all along that when the investigation is concluded we’re confident that Dr. Tiller will be shown to be innocent,” Monnat said.

Contributing: Kansas City Star
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The Wichita Eagle

Kansas Attorney General Paul Morrison cleared Overland Park’s Planned Parenthood of criminal wrongdoing Tuesday, but predecessor Phill Kline’s scrutiny of the clinic may not be over.

Yet to come is Morrison’s decision on whether to file charges against Wichita abortion provider George Tiller, who also was investigated by Kline, formerly the attorney general and now Johnson County district attorney.

An announcement regarding Tiller is expected by the end of the week.

As attorney general, Kline began an investigation of the two clinics in 2004. He sought their medical records, saying he wanted to determine whether the clinics had performed abortions on underage girls and failed to report suspicions of child rape to police.

He also alleged that Tiller’s clinic, which performs late-term abortions, used bogus mental health diagnoses to justify otherwise illegal late-term abortions.

In a letter released by Planned Parenthood of Kansas and Mid-Missouri, Morrison told the clinic’s attorney that his investigation is over and that he will return the medical records subpoenaed from the clinic.

“We have interviewed witnesses, and we have analyzed all of the evidence of the applicable Kansas criminal laws,” Morrison wrote.”… we will not be filing any charges against your client.”

Peter Brownlie, president and chief executive of Planned Parenthood of Kansas and Mid-Missouri, said he was pleased.

“From the beginning, we’ve also said that Mr. Kline’s investigation of Planned Parenthood was nothing more and nothing less than a fishing expedition, conducted for a political agenda,” Brownlie said.

Mary Kay Culp, director of Kansas for Life, accused Morrison of shielding abortion clinics for political reasons.

“Another satisfied customer,” she said.

The announcement might signify a “pre-emptive strike” by Morrison to interfere with Kline’s own investigation of Planned Parenthood, she said.

Kline had sought 90 medical records of women who received abortions, including 29 from Planned Parenthood. After a lengthy legal battle, the files were handed over and all identifying information was ordered redacted.

Kline filed 30 charges against Tiller last year shortly before leaving office, but a Sedgwick County judge dismissed them for jurisdictional reasons. Kline did not charge Planned Parenthood.

In his letter to Planned Parenthood attorney Pedro Irigonegaray, Morrison said that he would ask the court to return the original medical files that were subpoenaed by Kline, and that his office would return the redacted medical records.

But Morrison’s letter said that Kline still has a copy. On Jan. 5, just before leaving state office, Kline referred the records to the Johnson County district attorney’s office, Morrison’s letter said.

Reached by phone during a trip to Washington, Kline wouldn’t say whether he is investigating Planned Parenthood in Johnson County or whether he still possesses medical records or other evidence from Planned Parenthood.

“I don’t comment on the existence or non-existence of a criminal investigation,” he said.

Kline also said he was not surprised by Morrison’s decision.

“Paul’s actions were predicted months ago and fully anticipated,” he said. “For years as district attorney, he demonstrated an unwillingness to look at this kind of evidence.”

He would not elaborate.

Morrison spokeswoman Ashley Anstaett could not say whether Morrison would ask Kline to return the files.

Brownlie said he and his attorneys believe Kline has no right to the records. The clinic has pursued “all legal remedies” to get them back, he said, but so far has been unsuccessful. Knowing that Kline has the records is “a very big concern,” he said.

Tiller’s attorney, Dan Monnat, said the letter to Planned Parenthood shows “Morrison is conducting an objective, separate and professional investigation” of the two clinics, rather than a single investigation.

Monnat said Tiller follows all laws regarding late-term abortions.

“Our position is the same yesterday, today and tomorrow,” he said. “Our client is innocent.”

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Kansas City Star

Women’s Mental Health Complaints Weren’t Enough To Warrant Abortions Performed At A Wichita Clinic, Says A Psychiatrist Hired By Former Attorney General Phill Kline.

A psychiatrist who reviewed abortion files for former Attorney General Phill Kline said Monday that records of late-term abortions at a Wichita clinic did not meet state legal standards for allowing the procedures.

The records showed the abortion patients were distressed for a variety of reasons, but the files did not establish the “substantial and irreversible” harm required by Kansas law to abort a viable fetus, said Paul McHugh, a professor and former department head at Johns Hopkins University.

Lawyers representing physician George Tiller, who runs the clinic, immediately issued a statement calling the psychiatrist a “hired gun witness” and strongly criticizing him for publicly discussing the contents of the records.

The 44 files at issue are probably the most-discussed medical records in state history.

Kline’s efforts to obtain the files — and subsequent complaints by his opponents that he was invading medical privacy — were at the heart of the campaign in which Democrat Paul Morrison defeated Republican Kline in November.

Although the records have been talked about at length, McHugh’s statements Monday were the first detailed public revelation of what the records actually contain.

He said the diagnoses included 31 cases of major depression, 10 cases of acute stress, one case of post-traumatic stress, one case of acute anxiety and one file which contained no diagnosis.

“They (the patients) were very distressed,” he said. But, he added, “that’s a psychological state… not a psychological disorder.”

Some of the reasons patients cited for their mental distress were serious, such as “I feel guilty, I feel ashamed, I don’t want to put my parents through this,” he said.

In other cases, he said the reasons were “trivial,” such as being unable to participate in a game or go to a concert.

Overall, he said, the reasons given primarily raised social, not psychological, issues.

Those could have been dealt with through adoption or social services, he said.

Kline, an abortion opponent, had cited the records in filing 30 misdemeanor criminal charges against Tiller in December.

The charges, alleged illegal abortions and inadequate record-keeping, were dismissed on jurisdictional issues.

Morrison spokeswoman Ashley Anstaett said the attorney general’s office has reviewed the medical records and additional information and expects to wrap up its investigation of the case by the end of the month.

Of McHugh’s disclosure, she said, “It’s unfortunate that some parties to the case and some previous parties are not respecting the ongoing investigation.”

Tiller’s lawyers blasted McHugh in their statement.

“Reports that a hired gun witness retained by Phill Kline is discussing the contents of subpoenaed abortion-patient records is highly disturbing,” said the statement by lawyers Lee Thompson and Dan Monnat.

“This blatant political use of private medical records validates every conceivable concern Dr. Tiller and the (Kansas) Supreme Court have expressed about the subpoena issued by Phill Kline,” the statement said.

McHugh said the files he reviewed had been stripped by court order of any patient-identifying information, so he does not think privacy is an issue.

The psychiatrist was brought to Kansas this week to discuss the records by Jennifer Giroux, mother of nine children and the head of a socially conservative group called Women Influencing the Nation.

The group operates the Web site www.chargetiller.com and has lobbied the state Legislature for a resolution directing Morrison to reinstate Kline’s charges.

McHugh is scheduled to participate in a panel discussion today in Overland Park with a group of state legislators who oppose abortion, Giroux said.

Reach Dion Lefler at 316-268-6527.

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