Friends University has recently dealt with what could be any organization’s nightmare: An employee in a top position gets charged with a serious crime.

The situation raises questions of whether an employer can or should fire an accused worker before the courts have decided whether the person is innocent or guilty. Friends University fired Wayne R. Morgan Jr., who had been associate vice president for academic affairs, on May 2. The action came two days after Johnson County authorities charged him in an Internet sex sting, alleging he went to Olathe intending to have sex with someone he thought was a 15-year-old girl.

Friends didn’t wait to see whether Morgan would be convicted of the felony charge, electronic solicitation of a child under 16.

The university most likely has plenty of legal standing and latitude for firing Morgan, say some lawyers and other professionals who deal with employment issues.

“The fact that he’s presumed innocent in the criminal courts has nothing to do with his employment,” said Wichita employment lawyer Doug Mackay, who has worked as a Sedgwick County and Johnson County public defender.

“The university has to act to protect its reputation,” said Mackay, now with the firm of Kutak Rock LLP.

The ‘at-will’ factor 

One key factor is that Kansas is an “at-will” employment state, meaning employees can be fired for any reason, or no reason at all, as long as the firing isn’t discriminatory under state or federal law, Mackay said.

The “at-will” situation applies unless a person has an employment contract or comes under civil service due-process regulations or collective-bargaining agreements that provide protection against firing.

Someone in an executive position would probably have a job contract spelling out what would qualify as a reason for termination, Mackay said.

But considering “the nature of the charge and the circumstances of the arrest,” Mackay said, he can’t envision any contract that wouldn’t allow for Morgan being fired promptly, before his case goes to trial.

Most employment contracts allow for firing someone in a situation like Morgan’s, where an employee being charged with a serious crime could affect the organization’s reputation because it draws negative attention, Mackay said.

A Friends spokeswoman told The Eagle that the school fired Morgan, who had been at the university for less than a year, because he violated its Internet use policy. Gisele McMinimy said the violation was related to the charge.

A decision that Morgan had violated the university’s Internet policy “would be just one more reason to sever the relationship,” Mackay said.

Because it is a personnel matter and involves a criminal investigation, McMinimy said, she wouldn’t discuss specifics of the violation or say whether Morgan had an employment contract.

Morgan, who previously worked at Sterling College and Hutchinson Community College, has not responded to messages seeking comment.

On May 1, investigators seized a computer from Morgan’s office at Friends, McMinimy said.

On April 30, hours after Morgan’s arrest in Olathe, investigators took two computers from his home in Haven, in Reno County.

Because Morgan worked for a private school, not a state college, it would be less likely there would be grievance hearings that could delay a firing, Mackay said.

Internet stings typically involve overwhelming evidence against defendants, Mackay said, noting that authorities said Morgan was arrested at an undercover house.

Even if Morgan or someone in a similar position had a contract saying that a firing could occur only upon a conviction, many organizations would be willing to face the possibility of a breach-of-contract action later to quickly distance themselves from an accused employee and protect their reputation, Mackay said.

What employers can do

Attorneys and human resources professionals said an employer is generally protected by state law when firing employees if they are charged with a crime.

“An employer or employee can terminate a relationship at any time, with or without cause,” said Kyelene Flaming, a human resources and training consultant for the Arnold Group and president of the Wichita chapter of the Society for Human Resource Management. “That’s global for Kansas employers.”

Flaming said most companies have policies that address the consequences for employees charged with crimes. Whether they immediately terminate or suspend the employee differs by company, she said.

Alex Mitchell, who practices employment law at Klenda Mitchell Austerman & Zuercher LLC, said despite the protection afforded employers, there are a couple of situations where employees can’t be promptly fired because of a criminal charge.

If the employee is a union member working under a collective bargaining agreement, it typically addresses whether they can be fired immediately or are entitled to an arbitration hearing, depending on the crime with which they are charged. The same is true for some government employees, Mitchell said.

The issue of whether to terminate can get more cloudy when considering the employee’s value to the company, Mitchell said.

“Do you back your employees and uphold the presumption of innocence until they are convicted?” Mitchell said.

Some local employers, such as Intrust Bank, have specific policies on employee conduct related to the company’s standing.

“Any conduct that discredits the bank, disrupts operations or is offensive, may be grounds for disciplinary action, including dismissal,” Intrust spokeswoman Diane Iseman said.

Other employers said they wouldn’t be quick to fire an employee charged with a crime.

“I think we all too often tend to barbecue people” before we know all the facts, said Mark Hutton, president and owner of Hutton Construction.

“As an employer, I would be very cautious to make sure I wouldn’t convict an employee before the court does.

“You owe them that. They need to have a fair shot.”

Dan Monnat, a defense lawyer with the Wichita firm of Monnat & Spurrier, said it seems unfair for Morgan to be fired while he is presumed innocent in a criminal court. The loss of his job makes it more difficult for him to defend himself, Monnat said.

Protecting your brand

Closely related to the issue of firing in a situation like Morgan’s are public relations considerations.

“You’re in the brand-protection business, and Friends has a brand that they’ve been forming and burnishing for decades,” said Al Higdon, retired chairman and chief executive of Sullivan Higdon & Sink advertising agency.

“When something like this crops up, you need to get the bad news behind as quickly as possible and move on,” he said.

“And you do that by coming out early and forthrightly announcing what your decision is, and stand by it and look to the future. Your job is to protect your students and protect the image of the university.”

All content © 2007 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Tim Potter and Jerry Siebenmark

In a typical murder trial, a jury reads the autopsy report, studies crime-scene photographs and listens to a pathologist discuss in detail the cause of the victim’s death.

But in what lawyers refer to as “bodyless” murder cases — cases in which a victim’s body is never found — prosecutors don’t have the option of bringing those key pieces of evidence into the courtroom.

Sedgwick County prosecutors last week filed their own bodyless case against Buddy A. Jones, who is suspected in the disappearance of Michelle Rawls from her south Wichita home in July. Wichita police have said little about the case other than that the two did not know each other, and that a rug is missing from her home.

Murder cases in which no body was found are set to go to trial this summer in Butler and Stanton counties.

A review of murder cases in Kansas in which no body was found shows that prosecutors who have taken a risk and filed such a case have generally fared well. Prosecutors know going in that if they lose before a jury, the case can’t be retried if the body turns up after the trial.

“As a prosecutor, it’s not something that your prefer and not something you take lightly,” said Butler County Attorney Jan Satterfield, who is preparing for a June trial in the case of a Rose Hill man who has been missing since 1997.

“It’s important, when the case is in the right posture, to proceed even if you don’t have a body,” she said. “You know a murder has occurred, and you can’t let a murderer get away with it because there’s no body.”

At least four Kansas inmates are serving life sentences in bodyless murder cases. A fifth was paroled in January after serving more than two decades in prison.

Over the years, the Kansas Supreme Court has issued rulings in several bodyless murder appeals, but the court does not track the number of such cases that are filed, said Supreme Court spokesman Ron Keefover.

“It’s rare, but it’s certainly not unheard of,” he said.

Wichita lawyer Jack Focht was appointed special prosecutor in a Kiowa County case that the Kansas Supreme Court said was the first in Kansas to result in a murder conviction when not even a part of the victim’s body was found.

Focht said the defendant in the case was the grandson of a wealthy 78-year-old woman who disappeared at about the same time her house burned down. Focht said he had to prove not only that the woman’s remains were not in the ashes, but that she was killed by the grandson so he could inherit her estate.

“She lived in a town of eight people,” Focht said. “They said they all saw her all the time. Then all of a sudden, she just wasn’t anywhere.”

Focht said he did not take the filing of charges in the case lightly.

“When you have that kind of case, the potential for error is just great,” he said. “You could be wrong as hell.”

The defendant in that case, Michael Duane Pyle, has spent the past 35 years in prison serving a life term for first-degree murder.

Wichita lawyer Dan Monnat, who will be a defense attorney in the upcoming Stanton County case, agreed that courts should be extremely cautious when dealing with bodyless cases.

“Such cases are classical circumstantial-evidence cases — and with all circumstantial cases, there is a great risk that an innocent person will be convicted,” he said.

“There is no eyewitness. There is no direct evidence that the accused person did it. There is not even direct evidence that a death occurred.”

Perhaps the most notorious of the state’s bodyless cases involved serial killer Richard Grissom, who was convicted in 1990 of murdering three Johnson County women whose bodies were never found.

Joan Marie Butler, 24, disappeared on June 18, 1989. Christine Rusch and Theresa Brown, both 22, were last seen eight days later. Grissom also was the only suspect in the death of Terri Maness, 25, who was strangled and mutilated in her southeast Wichita apartment on June 6 or 7, 1989.

Kansas Attorney General Paul Morrison prosecuted the case when he was Johnson County district attorney. He said it wasn’t a difficult call to file charges against Grissom when investigators realized he could be an active serial killer.

“We had plotted his activities, and in our opinion he was on a killing spree at the time,” Morrison said. “We thought he was killing women about once a week. There was clearly some urgency for us to act.”

When the case went to trial, Morrison said, the lifestyles of the victims helped convince the jury that they were all dead.

“We had three women who had just dropped off the face of Earth,” he said. “They were all very stable. They all had jobs. They all had families, and they all had no history of disappearing.”

He said the trial was anything but routine.

“In most murder cases, you find a body and you start working backward,” Morrison said. “Bodyless murder cases are different. What you do is work in reverse. You start with the last time they were seen, then work forward. I think it’s an extra challenge, but it’s not insurmountable.”

The Butler County case involved the disappearance of Franklin “Pinky” Harrod, a former custodian for the Andover school district who was last seen on July 29, 1997.

Investigators said he was shot to death in a plot hatched by his wife, Kelly Bishop. She was sentenced to 32 months in prison last year after pleading guilty to solicitation of attempted first-degree murder. Prosecutors said Bishop persuaded Jerry and Tammy Trussell to kill Harrod.

Tammy Trussell, the person authorities say shot Harrod, was sentenced to 136 months, or just over 11 years, after pleading guilty to second-degree murder.

Jerry Trussell is scheduled to stand trial in June for conspiracy to commit first-degree murder and aiding and abetting. Investigators think Harrod’s body was buried near the Walnut River and was probably washed away in a 1998 flood.

Satterfield said she ultimately decided she had to file charges without a body.

“It’s not the preferred course, but when you have exhausted everything and you’re confident the person was murdered, you try the case with what you have,” she said. “The murderer can’t go free just because the body can’t be located.”

All content © 2007 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Hurst Laviana

A Wichita man arrested last May in connection with two rapes, then released when a DNA test proved his innocence, is suing the Police Department for an apology. Joshua Fontes filed the lawsuit Thursday afternoon in Sedgwick County District Court.

“This is not a case where we’re seeking a large amount of money,” said Dan Monnat, one of Fontes’ lawyers. “He just wants an apology.” City Attorney Gary Rebenstorf declined to immediately comment on the lawsuit, after being sent a copy by The Eagle.

The story of the arrest was reported on Wichita news broadcasts and on Kansas.com. At least two television stations, KAKE, Channel 10, and KSNW, Channel 3, named Fontes at the time of his arrest.

According to the lawsuit:

Police arrested Fontes on May 9, suspecting him of two rapes. He was booked into the Sedgwick County Jail and held for 48 hours with no arrest affidavit of probable cause signed by a judge. Police said they were awaiting DNA test results, the lawsuit claims.

“The delay in gathering additional evidence to justify the arrest was unreasonable,” the suit contends. DNA test results exonerated Fontes, and he was released. The lawsuit says that if Fontes doesn’t receive an apology from the city, he will seek “damages, attorney fees and other such and further relief as the Court deems just and proper.” 

All content © 2007 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Ron Sylvester

Kansas House leaders called on Attorney General Paul Morrison on Friday to reinstate misdemeanor charges sought by his predecessor against Wichita abortion provider George Tiller.

“Members of the Kansas Legislature have been inundated with telephone calls, petitions, letters and e-mails from Kansans across the state, asking that we direct the attorney general to proceed with the criminal case against Dr. Tiller,” said Speaker Pro Tem Don Dahl, R-Hillsboro. He added he was “very disappointed in the lack of action by the state’s chief law enforcement officer.”

Speaker Melvin Neufeld, R-Ingalls, and Majority Leader Ray Merrick, R-Stilwell, also signed a March 19 letter asking that Morrison allow a jury to hear the charges. It was released to the public Friday.

Morrison responded Friday with a letter that said his office continues to investigate Tiller, with an assistant attorney general assigned to the case full time.

He said he was committed to enforcing the law based on fact. He noted that “criminal convictions require proof beyond a reasonable doubt,” and added, “I can assure you that if I find evidence that a crime has been committed, I will file new charges against Dr. Tiller.”

He said an announcement on the case should be made soon.

Before he left office in December, former Attorney General Phill Kline alleged that Tiller performed 15 late-term abortions on patients ages 10 to 22 and failed to properly report the details to state health officials.

Kline filed 30 misdemeanor charges in Sedgwick County, but District Attorney Nola Foulston contended he did not have jurisdiction. Sedgwick County Judge Paul Clark agreed, and the charges were dismissed.

In January, a special prosecutor appointed by Kline asked the Kansas Supreme Court to reinstate the charges. In February, at Morrison’s urging, the court dismissed the request.

State Sen. Tim Huelskamp, R-Fowler, earlier this week signed an ethics complaint against Clark for dismissing the charges.

Both Clark and Foulston did not return a call for comment Friday.

One of Tiller’s lawyers, Dan Monnat, said of the legislators’ letter: “Dr. Tiller is innocent of any wrongdoing. We always said that Dr. Tiller would cooperate with professional prosecutors who don’t have some skewed political agenda, and he has done and will do that. On the other hand, it’s important that the different branches of government maintain their independence and that the Legislature not try to coerce a political prosecution.”

Also Friday, about 35 people prayed in front of the Sedgwick County Courthouse, seeking reinstatement of the charges.

“We’re looking for the man to be tried and found guilty or not guilty of committing illegal third-trimester abortions,” said the Rev. Rob Rotola, pastor of Word of Life church. “These are egregious offenses.”

Contributing: Tim Potter and Ron Sylvester of The Eagle
Reach Christina M. Woods at 316-269-6791 or [email protected].

All content © 2007 THE WICHITA EAGLE and may not be republished without permission.

By CHRISTINA M. WOODS
The Wichita Eagle

George Tiller complied with the law in reporting underage girls who entered his Wichita clinic for abortions, the Sedgwick County district attorney said Wednesday.

“What our concern was if someone was watching out for the welfare of these children,” said District Attorney Nola Foulston, noting that the law mandates reporting of possible sexual abuse against children.

“And we found that they were,” she said.

But former state Attorney General Phill Kline, who fought a two-year battle to subpoena the records Foulston based her findings on, dismissed her investigation as “superfluous and meaningless.”

Foulston said she did not address Kline’s allegations that Tiller performed illegal late abortions.

Kline had sought misdemeanor charges against Tiller in Sedgwick County late last month, before he left office. Those charges were dismissed when Foulston said Kline had no authority to file them. She said she wanted to review the records and decide on any charges.

Wednesday, Foulston determined that Tiller properly reported the cases of his clinic involving girls under 16 — the age of legal consent in Kansas.

In at least one case, she said, Tiller gave law enforcement forensic evidence that led to the conviction of an adult who raped a 10-year-old girl in another state.

However, Kline questioned the thoroughness of Foulston’s investigation, noting that he presented no evidence that Tiller had failed to report suspected child sex abuse because he didn’t accuse the doctor of it.

Instead, his complaint focused on how Tiller used patients’ mental-health concerns to justify the late abortions, alleging the reasons Tiller gave didn’t meet exceptions to restrictions on such procedures.

“The district attorney’s investigation is like looking at the moon and proclaiming that she doesn’t see any evidence that it is the sun,” Kline said. “Her investigation is nonsensical and serves no law enforcement purpose.”

Foulston said she was simply completing what Kline set out to do. Kline had said he had sought records of two Kansas abortion clinics because he wanted to protect children from sex predators, who he said might be using medical privacy laws to shield their crimes.

Kansans for Life and Operation Rescue, a Wichita anti-abortion group whose members often protest outside Tiller’s clinic, released a statement accusing Foulston of bias toward Tiller.

Most of the statements agreed with those of Don McKinney, a Wichita lawyer and abortion protester named by Kline as a special prosecutor, then fired by new Attorney General Paul Morrison this week.

“The superficial, so-called investigation by Foulston was a publicity stunt to protect Tiller,” McKinney said in a statement. “She did not investigate the charges filed against Tiller, she went off and investigated something else.”

Foulston said during her news conference that Morrison’s office would continue to look into the allegations Kline left on late abortions.

A spokeswoman for Morrison said his office was still trying to gather up the abortion records, which she said apparently had been sent to various parties across the state. Morrison has vowed to review the records and determine whether any laws were broken.

Tiller’s lawyers Dan Monnat and Lee Thompson said Wednesday that Foulston’s investigation helps show what they’ve said all along: The doctor has not broken any laws.

“Ms. Foulston’s thorough investigation,” Monnat said, “has now made it clear that, in fact, child rapists are behind bars because of Dr. Tiller’s strict compliance with the letter of the reporting laws and his cooperation with law enforcement authorities in several states.”

Reach Ron Sylvester at 316-268-6514 or [email protected]

Contributing: Associated Press

All content © 2007 THE WICHITA EAGLE and may not be republished without permission.

By RON SYLVESTER
Associated Press

TOPEKA – Only a few days before he loses his job, outgoing Attorney General Phill Kline’s special prosecutor asked the Kansas Supreme Court on Friday to reinstate criminal charges against the state’s most visible abortion doctor.

The special prosecutor, Wichita attorney Donald McKinney, was appointed by Kline to handle the prosecution of George Tiller. Tiller operates a Wichita clinic and is among the few doctors in the nation to perform late-term abortions.

Kline, an abortion opponent, leaves office Monday after losing the November general election to Johnson County District Attorney Paul Morrison, an abortion rights supporter who switched to the Democratic Party to run against Kline.

Asked why he would file his petition days before being fired, McKinney said: “It’s like a relay. You get handed the baton, and you do your best until you hand it off. I haven’t handed it off.”

Kline alleges that Tiller performed 15 illegal late-term abortions in 2003 on patients aged 10 to 22 and failed to properly report the details about the procedures to state health officials. Tiller’s attorneys have said the charges are unfounded.

Sedgwick County District Judge Paul Clark dismissed Kline’s 30 misdemeanor charges against Tiller two weeks ago, then refused to reinstate them last week, over a jurisdictional issue.

McKinney named Clark and Sedgwick County District Attorney Nola Foulston in the motion he filed.

Foulston had sought to have the charges against Tiller dismissed, arguing successfully that Kline had no authority to file them because he did not obtain her permission first. Kline contends Foulston’s permission isn’t necessary.

“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 said Friday.

Abortion opponents have accused Foulston, a Democrat, of intervening to protect Tiller. She has said she is only trying to protect her authority as an elected official to determine what’s prosecuted in Sedgwick County — and has asked Kline to forward the evidence he has against Tiller so she can review it.

But McKinney called her actions “extraordinary conduct” that “destroys equal justice.”

In a memo he filed with the Supreme Court, McKinney wrote, “Foulston had no lawful authority to interfere with the action of the attorney general.”

While Morrison has said he will examine the evidence involving Tiller, he also has said he won’t retain McKinney, who led a Democrats for Kline group during the campaign and has protested outside Tiller’s clinic.

Foulston spokeswoman Georgia Cole said the district attorney had not seen McKinney’s filing. Nor had Dan Monnat, a Wichita attorney representing Tiller.

“We’re not surprised that the publicity stunts of the AG and his so-called independent, so-called special prosecutor continue up to the very last minute of the attorney general’s tenure,” Monnat said. “From a legal standpoint, these recent stunts are nothing more than legal floundering on their point.”

Reach Suzanne Perez Tobias at 316-268-6514 or [email protected]

Contributing: Associated Press

All content © 2007 THE WICHITA EAGLE and may not be republished without permission.

By SUZANNE PEREZ TOBIAS
WICHITA EAGLE

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 [email protected].

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
[email protected].

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

BY TIM POTTER
The Wichita Eagle