Monnat & Spurrier | Monnat & Spurrier Attorneys at Law

Nov 12, 2008
The Wichita Eagle
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by Ron Sylvester

Phill Kline will face questioning next week by lawyers representing the Wichita abortion doctor he pursued for years as the state’s top prosecutor.

Kline, the former Kansas attorney general and current Johnson County district attorney, is on the witness list to be called by lawyers for George Tiller in a motion to dismiss misdemeanor charges related to how Tiller performed late-term abortions.

Both Kline and his successor, Paul Morrison, are scheduled to be called in a hearing expected to last most of next week before Sedgwick County District Judge Clark Owens.

Tiller is one of the few doctors in the nation who perform late-term abortions. His lawyers say Kline abused his power while investigating Tiller’s Wichita Women’s Health Care Services clinic.

Kline began investigating Tiller’s clinic and a Planned Parenthood facility in Johnson County in 2003, launching a legal battle over the privacy of medical records and abortion rights before the Kansas Supreme Court and in district courtrooms in Topeka and Wichita.

“They’re going to subpoena me to try and make this about me,” Kline said in an interview with The Eagle in September, after Tiller’s lawyers filed their motion to dismiss the case.

Tiller’s lawyers said that Kline continued to wield his influence over the case, even after leaving office, by pressuring his successor, Morrison.

Lawyer Dan Monnat has said in a pleading that Kline pressured Morrison through knowledge of an extramarital affair that later led to Morrison’s resignation.

State law requires independent medical assessments for abortions where a fetus may be able to survive outside the womb.

Stephen Six, the current attorney general, is arguing that while he doesn’t endorse Kline’s tactics, that shouldn’t negate the current charges against Tiller.

Kline said Six’s willingness to pursue the case confirms he was right.

“Every single record shows criminal conduct,” Kline said in the September interview. “Every one. We were right.”

Also on the witness list next week:

• Shawnee County District Judge Richard Anderson, who presided over secret hearings by Kline, which led to the subpoena of abortion records from the Wichita and Johnson County clinics. Anderson is attempting to quash the subpoena and has requested a protective order to limit his public testimony.

• Special investigator Thomas Williams, who worked for Kline when he served as attorney general.

• Assistant attorneys general Eric Rucker and Steve Maxwell, who led Kline’s investigation of the abortion clinics.

• Assistant Attorney General Jared Reed, who had been assigned by Six to pursue the charges against Tiller.

Six has now assigned Assistant Attorney General Barry Disney, a former Sedgwick County assistant district attorney, to assume responsibilities as lead prosecutor on the case.

By RON SYLVESTER
The Wichita Eagle

Oct 17, 2008
Associated Press
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by Roxana Hegeman

Kansas Attorney General Steve Six defended the prosecution of Wichita abortion provider George Tiller on Thursday, arguing in court papers that alleged misconduct earlier in the investigation doesn’t merit dismissing the case.

Tiller is charged in state court with 19 misdemeanor counts of breaking a 1998 state law requiring that a second, independent Kansas physician sign off on most late-term abortions. Prosecutors allege there was a financial relationship between Tiller and Ann Kristin Neuhaus, the Nortonville physician on whom he relied for independent opinions.

The prosecution originated with an investigation by then-Attorney General Phill Kline and Eric Rucker, an attorney in Kline’s office, and continued after Democrat Paul Morrison defeated Kline in the 2006 election.

Tiller’s lawyers filed a motion last month asking Sedgwick County District Judge Clark Owens to either suppress evidence or dismiss the charges, claiming outrageous conduct by the “obsessed” prosecutor who initially conducted the inquisition on which the case is based.

Six and members of his staff responded in documents filed Thursday that the allegation of “outrageous” conduct was based on speculation and misinterpretation.

In a separate statement provided to the Associated Press, Six said, “I certainly don’t approve of Phill Kline and Eric Rucker’s handling of this investigation, however, it should not result in the dismissal of the charges filed by Attorney General Morrison.”

“This is not about the propriety of the Kline administration’s action, it is about whether the whole case should be thrown out,” Six said. “Even assuming there was some sort of misconduct, the defendant cannot meet the burden required to dismiss these charges.”

Defense attorney Dan Monnat said in a statement he was confident Six will eventually see that rather than waste taxpayer money, the only proper disposition of the “political prosecution” is dismissal.

“We await the Attorney General’s recognition that his office cannot prosecute Dr. Tiller without relying on the tainted products of Kline’s illegal investigation,” Monnat said.

Kline, in an interview Thursday, defended his investigation of Tiller, saying every judge who has seen the evidence has found probable cause that a crime was committed. Kline said Six is only pursuing the case because it had already been filed when Six took office.

Owens set aside the week of Nov. 17 to hear evidence before making a decision on the defense’s dismissal request.

By ROXANA HEGEMAN
Associated Press

Oct 03, 2008
The Wichita Eagle
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by Ron Sylvester

A judge ruled Thursday that prosecutors for Kansas Attorney General Stephen Six should answer nearly 500 allegations of misconduct by his predecessors.

The allegations were leveled by lawyers for Wichita abortion provider George Tiller.

Sedgwick County District Judge Clark Owens denied a request by Six’s office to wait until after a November hearing to respond to a motion to dismiss 19 misdemeanor charges against Tiller.

Tiller faces charges stemming from the way he sought second medical opinions on fetus viability before performing late-term abortions. Tiller is one of the few doctors in the nation who perform such procedures.

Lawyers for Tiller say the charges should be dismissed because they resulted from an illegal investigation and improper conduct involving former attorneys general Phill Kline and Paul Morrison.

Owens added that he’d allow both sides to file further arguments following testimony at a weeklong hearing set for Nov. 17.

Dan Monnat, who represents Tiller, called the request to leave the allegations unanswered “zany” during Thursday’s hearing, drawing an objection from assistant attorney general Barry Disney.

“After the defense has shown its hand, the state wants to renege on its agreement, play by a different set of rules and hide its hand,” Monnat said.

“We are not playing a game,” Disney responded.

Last month, Monnat and colleague Lee Thompson filed a 156-page brief outlining 496 allegations of perceived prosecutorial misconduct, mostly by Kline, when, as attorney general, he investigated Tiller and an abortion clinic in Overland Park.

Monnat further has claimed that after leaving the attorney general’s office and taking over as Johnson County district attorney, Kline continued to exert pressure on his successor, Paul Morrison.

Morrison resigned after reportedly having an affair with an employee of the Johnson County office. Monnat has said Kline used those allegations to push Morrison into filing charges.

In an interview with The Eagle, Kline repeatedly denied he did anything wrong.

By RON SYLVESTER
The Wichita Eagle

Sep 16, 2008
The Wichita Eagle
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by Ron Sylvester

Phill Kline was so obsessed with fighting abortion that he lied to judges and overstepped his authority while serving as Kansas attorney general, lawyers for George Tiller claimed in court papers filed Monday.

Kline also tried to orchestrate a raid by law enforcement on Tiller’s Wichita clinic to seize the medical records of women who sought abortions there, attorneys Dan Monnat and Lee Thompson said in their pleadings.

Now the Johnson County District Attorney, Kline said he didn’t put patient privacy at risk, and he said the allegations are further proof that Tiller thinks he’s above the law.

The lawyers are asking a Sedgwick County district judge to dismiss a misdemeanor case against Tiller because of what they call Kline’s “outrageous misconduct” as the state’s highest ranking law enforcement officer.

A hearing is set for November before Judge Clark Owens.

Kline declined a request for an interview but issued this statement Monday through his office: “Every judge who has viewed the evidence has found probable cause to believe that Mr. Tiller has committed crimes and all this demonstrates is that Mr. Tiller and his attorneys continue to believe that he is above the law.”

Those judges found probable cause, Tiller’s lawyers said, because Kline lied to them and his agents gave false information in affidavits.

Quoting internal memos from Kline’s office when he served as attorney general and sworn statements from associates, the 154-page motion filed Monday claimed:

• Kline and his prosecutors illegally initiated a secret criminal investigation into Tiller’s Women’s Health Care Services clinic and another abortion provider run by Planned Parenthood in Overland Park. They passed memos talking about a “legal obstacle… due to the absence of a definitive complainant or allegation.”

• Kline’s office staff continued the investigation by lying to a Shawnee County judge and including false information in sworn affidavits, claiming to have evidence to suspect crimes when they didn’t. “The prosecution is the product of an obsessed former-AG’s lies, half-truths and material omissions,” Tiller’s lawyers wrote.

• Kline’s office planned to send armed police into the abortion clinics to seize women’s medical records. But Shawnee County Chief District Judge Richard Anderson told Kline’s agents that if they expected resistance to the search warrants, they should try to get the records by a court order.

• After receiving abortion records through subpoena, but losing his re-election bid, Kline gave copies to a doctor and mailed files to his new office in Johnson County and to the Shawnee County district attorney. Kline also had his prosecutors store abortion files in a garage and take some of them to be copied at Kinko’s, in apparent defiance of a court order meant to protect the privacy of the medical information.

• Kline claimed to be investigating Tiller and the Planned Parenthood clinic for not reporting abortion given to underage girls as evidence of sexual abuse. But Kline ignored evidence that showed law enforcement and other health care providers around the state were not reporting live births of the same underage girls he had vowed to protect.

“Patient privacy has never been at risk and the women have never been under investigation,” Kline said in his statement.

Tiller’s lawyers say Kline, after being voted out of office, continued to put pressure on his successor, Paul Morrison, through a woman who was having an extramarital affair with Morrison.

That woman, Linda Carter, worked for Morrison when he was Johnson County district attorney. She remained in the Johnson County office when Kline took office. Morrison charged Tiller in the current case but resigned after the affair became public.

Morrison filed 19 misdemeanor charges related to Tiller’s business relationship with a doctor who provided second opinions on whether the health of the mother was a reason to give them late-term abortions. State law requires such independent medical assessments in cases of abortions where a fetuses may be able to survive outside the womb.

Stephen Six, the current attorney general, said through a spokeswoman that his office “will continue forward with the case.”

Kline’s pursuit of Tiller as attorney general garnered national attention, partly because of the example it provided of the divide over legalized abortion in this country. Kline was profiled in national magazines and appeared on network talk shows as a leader of the anti-abortion movement.

Tiller’s clinic is one of only two in the country that will perform abortions on women after their fetuses have been determined to be viable outside the womb, his lawyers said.

One of Kline’s agents at the Attorney General’s Office, Jared Reed, testified in a case between Planned Parenthood and Kline that the pursuit of Tiller might have gone too far.

“They’re willing to do whatever is necessary to get charges filed or to get abortions stopped,” Reed testified, “whatever is necessary up to and including going above the law.”

By RON SYLVESTER
The Wichita Eagle

Jul 29, 2008
by Ron Sylvester

George Tiller will learn today when he’ll be scheduled for trial, after a judge ruled Monday that prosecutors can proceed with 19 misdemeanor charges against the Wichita abortion provider.

Sedgwick County District Judge Clark Owens denied a motion by Tiller’s lawyers to dismiss the charges, brought more than a year ago by the Kansas Attorney General’s Office. Owens will meet with lawyers today to decide scheduling.

Dan Monnat, one of the lawyers who represents Tiller, said he expects arguments to continue over the abortion records from Tiller’s Women’s Health Care Services clinic, which led to the charges.

Tiller has denied that he had an inappropriate professional relationship with a doctor who gave second opinions.

A 1998 Kansas law requires women seeking certain late-term abortions to get an independent medical opinion. Before a woman can terminate a pregnancy on a potentially viable fetus, the law requires two doctors to agree that the abortion is necessary to preserve the life and health of the mother. Courts have determined this includes mental health.

Prosecutors say Tiller had a financial relationship with Ann Kristin Neuhaus, a Nortonville doctor who provided second opinions on Wichita abortions in 2003.

Owens ruled that the state’s requirement for a second opinion doesn’t put an “undue burden” on a woman’s constitutional right to seek an abortion.

“A second physician requirement arguably ensures that a woman receives more information about her decision from another physician who does not stand to benefit financially from the abortion,” Owens wrote in a 35-page opinion that also outlined 35 years of abortion law in the United States.

Owens pointed out that the U.S. Supreme Court’s original 1973 ruling that upheld a woman’s constitutional right to receive an abortion said that states have an increased interest in limiting abortions the closer a woman gets to the end of her pregnancy.

Monnat said he expects the debate to continue over the abortion records from which the attorney general’s office based its charges.

“We are still going to have to look closer at about how it was determined that the attorney general was justified in going after women’s abortion records,” Monnat said.

The records were obtained by then-attorney general Phill Kline in 2006, after a lengthy legal battle that reached the Kansas Supreme Court.

Kline had been pursuing the records of 90 women and girls who had abortions at the clinic since 2003 — the first year he took office.

He got the records in October 2006, just before his defeat for re-election by Paul Morrison. Morrison’s office reviewed the records then filed the current charges on June 28, 2007.

Seven months later, Morrison resigned after a sex scandal. Stephen Six, Morrison’s appointed successor, inherited the case.

Assistant Attorney General Veronica Dersch continued the prosecution.

Abortion opponents had reason to celebrate with Owens’ ruling. The groups last year petitioned to empanel a grand jury to further investigate Tiller. But that grand jury disbanded July 2 with no indictment.

Kansans for Life says it still doesn’t trust Six, a Democrat, with the prosecution.

“The assistant AG’s in court have been a disappointment,” said Mary Kay Culp, the group’s state director, “and given the current AG’s penchant for laying down for Tiller, we’re not sure where they will end up at trial.”

By RON SYLVESTER

Jul 28, 2008
by Ron Sylvester

A trial date for George Tiller will likely be set Tuesday, his lawyers said today, after a judge refused to dismiss 19 misdemeanor charges against the Wichita abortion provider.

But lawyer Dan Monnat said this afternoon that any trial would follow hearings over the legality of how the Kansas Attorney General’s Office obtained the women’s abortion records from Tiller’s clinic that led to the charges against him.

Sedgwick County District Judge Clark Owens ruled earlier this afternoon that the case against Tiller should proceed, after he found the Kansas abortion statute is constitutional.

Owen’s ruling came more than a year after the Kansas Attorney General’s Office filed the charges, accusing Tiller of breaking a 1998 state law requiring that a second, independent Kansas physician sign off on most late-term abortions.

Prosecutors say Tiller relied on Dr. Ann Kristin Neuhaus, of Nortonville, for his second opinion for abortions in 2003, and she had a financial relationship with him that is against the law.

By RON SYLVESTER

Jul 05, 2008
by Roxana Hegeman

With time running out, the grand jury investigating abortion provider George Tiller has yet to see any medical records subpoenaed directly from the doctor, the judge overseeing the panel said.

District Judge Paul Buchanan told the Associated Press that independent experts reviewing the records have gotten fewer than 20 redacted medical files so far in the first installment from Tiller. Jurors have not yet received them.

The two experts, a doctor and a lawyer, will review the material before it goes the grand jury. Buchanan said he expects to eventually receive a sampling of between 160 and 170 redacted files dating from Jan. 1, 2004 to the present.

The grand jury’s term expires July 8, and under Kansas law cannot be extended again, said Judge Michael Corrigan, the county’s chief judge.

“They have a lot to do by July 8 and it is questionable how quick it will take to get something done,” Corrigan said.

Buchanan, who is overseeing the grand jury, said Tuesday that he anticipates jurors will have some medical files before their term runs out. But when pressed about whether they will have enough time to make a decision before the clock runs out, he replied: “I have no idea what is in these records or what evidence they have received otherwise.”

In Kansas, judges do not supervise the day-to-day investigation of a grand jury.

Dan Monnat, one of the attorneys representing Tiller, said redacting the medical records is a “time-consuming process” for the law offices and the clinic.

“We are not trying to run out the clock,” Monnat said. “We are trying to timely comply with the court’s order while at the same time guaranteeing the privacy of the patients to the degree permitted by the court’s orders.”

Meanwhile, a separate criminal case against Tiller also appears stalled one year after then-Attorney General Paul Morrison filed 19 criminal charges against him.

His predecessor, former Attorney General Phill Kline, had filed 30 misdemeanor charges against Tiller in Sedgwick County in December 2006, only to see a judge dismiss them the next day for jurisdictional reasons.

Morrison, who defeated Kline in the 2006 election, charged Tiller in June 2007 on allegations of failing to get an independent second opinion on some late-term abortions in 2003.

Prosecutors do not anticipate the trial on that case to go forward on June 16 as scheduled, said Ashley Anstaett, spokeswoman for Attorney General Stephen Six.

Sedgwick County District Judge Clark Owens has yet to rule on defense motions asking him to dismiss the case and to expand the number of jurors, she said.

In addition, prosecutors are still waiting for copies of transcripts and other documents so they can provide them to the defense, Anstaett said.

By ROXANA HEGEMAN

Jul 03, 2008
by Ron Sylvester

The grand jury investigating Wichita abortion provider George Tiller adjourned Wednesday afternoon without a criminal indictment.

Retired Sedgwick County District Judge Paul Buchanan, assigned to preside over the grand jury, said the panel returned a finding of “no true bill,” meaning criminal charges would not be filed.

The grand jury was convened in January through a petition drive by anti-abortion groups seeking an investigation into whether Tiller violated state abortion laws.

In a statement released by the Sedgwick County District Attorney’s Office, the grand jury said:

“After six months of conducting an investigation that included hearing extensive witness testimony, reviewing volumes of documents and medical records of patients of Women’s Health Care Services (Tiller’s clinic), this Grand Jury has not found sufficient evidence to bring an indictment on any crime related to the abortion laws.”

Lee Thompson, a lawyer for Tiller, said the Wichita grand jury had received 160 records from the clinic — the result of a lengthy legal battle that found its way to the Kansas Supreme Court.

The state’s highest court limited the number of records the grand jury could subpoena and still protect the privacy of women who had abortions after 22 weeks of pregnancy.

The grand jury indicated in its statement that it struggled with a complex Kansas law regulating late-term abortions.

The law says that after 22 weeks of pregnancy, doctors must first determine if a fetus can survive outside the womb. If a fetus is determined viable, then an abortion can be performed only if two independent doctors determine that carrying the pregnancy to term would cause “substantial and irreversible impairment of a major bodily function.”

The Kansas Supreme Court and the U.S. Supreme Court have interpreted that to include the mental health of the woman.

The grand jury said it found “questionable late-term abortions” but said Kansas law needs to be clearer before any investigation is likely to yield criminal charges against Tiller’s clinic.

“As the current law is written and interpreted by the Kansas Supreme Court, late-term abortions will continue for many circumstances that would seem, as a matter of common interpretation, not to meet the definition of ‘substantial and irreversible impairment of a major bodily function,’ ” the grand jury said in its statement.

Tiller is one of only a handful of doctors in the country who perform late-term abortions.

The law allows doctors to make medical decisions, Tiller’s lawyers said.

“To a lay person, it could be indigestion,” Tiller’s lawyer, Laura Shaneyfelt, said, “but to a trained medical professional it could be a heart attack.”

Thompson commended the grand jury for not “substituting a common interpretation or personal feelings” for the law.

A spokeswoman for Kansas Attorney General Stephen Six said the grand jury’s statement validated his office’s decision to pursue only 19 misdemeanor charges against Tiller.

In a case filed last year, Tiller stands accused of not getting a second opinion from an independent physician, but rather one tied to him financially. Tiller has denied any wrongdoing in those cases.

Those charges await a ruling by Sedgwick County District Judge Clark Owens before continuing to trial.

Following Wednesday’s decision, an anti-abortion group said the government isn’t aggressive enough in limiting Tiller’s practice.

Kansans for Life, which led the petition drive for the grand jury, blamed Sedgwick County District Attorney Nola Foulston for not giving the grand jury proper legal guidance.

Mary Kay Culp, Kansans for Life’s executive director, said her organization would work to help re-elect Phill Kline, an anti-abortion advocate, as district attorney in Johnson County and to defeat Foulston, who is up for re-election here.

“The law doesn’t need to be changed. The enforcers of the law need to be changed,” Culp said.

A Johnson County grand jury under Kline’s guidance returned a similar finding in March. Kline blamed the judge presiding over the grand jury for its finding that no criminal charges were appropriate against an abortion clinic run by Planned Parenthood.

Dan Monnat, a lawyer on Tiller’s legal team, said the repeated attempts against Tiller ultimately cost the public.

“It’s unfortunate for the taxpayers of the state of Kansas who again and again have to endure the expense of these investigations over someone else’s political agenda,” he said.

By RON SYLVESTER

May 07, 2008
by Ron Sylvester

The Kansas Supreme Court unanimously ruled Tuesday that while a citizen-petitioned grand jury is constitutional, a group investigating a Wichita abortion clinic can’t form a grand jury to go on a “fishing expedition” for patient records.

Abortion rights supporters and opponents both applauded the ruling, which allowed a grand jury to continue investigating George Tiller’s Women’s Health Care Services clinic, but required oversight from a trial judge.

Abortion opponents have used citizen grand juries to launch investigations against clinics in Wichita and Johnson County.

The court’s order provided Sedgwick County District Court detailed instructions for how to review a subpoena for thousands of patient records from Tiller’s clinic.

Troy Newman of Operation Rescue West, one of three abortion opponents who helped collect more than 7,000 signatures to impanel the Wichita grand jury, said he was pleased the court upheld the process.

“Tiller will eventually be brought to justice,” he said. “I believe that if he were truly innocent, he’d be doing everything he could to prove that. But he’s doing what guilty men do — throwing up road blocks and red herrings.”

Lawyers for Tiller and his patients expressed satisfaction with the limits put on a grand jury seeking nearly 2,000 of their medical records.

“The Kansas Supreme Court today put the brakes on runaway grand juries,” said Dan Monnat, a Wichita lawyer representing Tiller.

Kansas is one of only a handful of states that allows residents to petition for a grand jury investigation into criminal matters.

In January, the Tiller grand jury demanded records of every woman at least 22 weeks pregnant who had received or sought an abortion at the clinic for the past five years.

But Sedgwick County Senior District Judge Paul Buchanan did not provide detailed enough findings when he granted the subpoena, the court ruled.

“Judge Buchanan’s rulings from the bench were rather cryptic,” said the opinion written by Justice Lee Johnson of Caldwell.

Johnson’s opinion drew distinctions between federal and Kansas grand juries. A federal prosecutor, the court said, is “a licensed attorney subject to professional and ethical obligations” to make sure a grand jury follows the law. Kansas does not provide for that.

A judge, then, must oversee state grand juries to make sure they don’t overstep their bounds.

“The court should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition,” the ruling said.

The state Supreme Court, for example, questioned why grand jurors would investigate Tiller’s procedures for granting late-term abortions, when he already faces similar charges in a case brought by the Attorney General’s office. That case awaits a decision by another Sedgwick County district judge, Clark Owens.

“The court even asked, why would you need records of every woman who did not have an abortion?” said Bonnie Scott Jones, a lawyer from the Center for Reproductive Rights in New York, who represents Tiller’s patients.

Lawyers for the clinic have said it would take 5,000 working hours, at a cost of some $250,000, to remove unnecessary information. Buchanan must determine if that provides an “undue burden” for producing the records.

If the judge makes that finding, then he has to take steps to ensure the protection of patient privacy.

Buchanan has to appoint an independent lawyer and doctor to review the records to further remove any information not relevant to the grand jury’s investigation.

The judge must also fashion an order to ensure that patient information going into the grand jury room doesn’t come out. That excludes any records a prosecutor would need to file criminal charges.

The Johnson County grand jury did not find any illegal activities at a clinic run by Planned Parenthood earlier this year.

The Wichita grand jury has been waiting on Tuesday’s ruling to proceed.

By RON SYLVESTER

Mar 07, 2008
by Ron Sylvester

A Johnson County grand jury refused to indict an abortion clinic in Overland Park this week and called for the state to reconsider a law that allows citizens to call for such investigations.

That grand jury was empaneled in the same manner as one investigating abortion provider George Tiller in Wichita – through a petition of registered voters.

Grand juries are a part of the justice system few people understand. It’s even more complicated in Kansas, because of a 120-year-old law that allows citizens to call grand juries through petitions.

Grand juries meet behind closed doors and act like police. They investigate crimes and decide if charges should be filed.

But Kansas is one of only six states that allow citizens to call for grand juries, as they did in Johnson County and Wichita through petition drives led by anti-abortion groups.

Nebraska, North Dakota, Oklahoma, New Mexico and Nevada have similar laws.

Tiller’s lawyers say it should be illegal here, as it is in most other states.

They’ve asked the Kansas Supreme Court to strike down an 1887 law that anti-abortion groups used to order the empaneling of a grand jury by petition.

Such petitioning for grand juries, the lawyers argue, interferes with the duties given to prosecutors and law enforcement, who operate under the executive branch of government. It disrupts the balance of powers provided the government in the U.S. Constitution, they say.

On Feb. 15, Attorney General Stephen Six asked the state Supreme Court to review a subpoena for abortion records to his office from the Wichita grand jury investigating Tiller.

On Feb. 25, two Sedgwick County judges defended the grand jury process.

This week, the Johnson County panel said in a statement: “It is the feeling of this grand jury that the current statute that addresses the formation of a grand jury be evaluated as to evidence required to call the grand jury.”

The Kansas Supreme Court scheduled oral arguments for April 8.

The grand jury’s role

Grand juries usually aren’t so controversial.

They were written into the Fifth Amendment of the U.S. Constitution and are required to indict people on federal charges for serious crimes.

All grand juries are picked from the same pool as those for criminal and civil trials, summoned from driver’s license and voter registration records and sworn in by a judge.

Federal grand juries are run by prosecutors working for the U.S. government.

“Grand juries, whatever they were conceived of originally, they’ve very much become an investigative tool of the prosecutors, especially in the federal system,” said Steve McAllister, professor of law at the University of Kansas.

Some argue prosecutors too often influence grand jurors.

The chief judge of New York state in 1985 suggested grand juries be abolished, claiming in a now-infamous quote that a skilled prosecutor could convince a grand jury to “indict a ham sandwich.”

But in Kansas, citizen grand juries are in charge, although they have a prosecutor available as a legal adviser.

Kansans for Life reported that it spent $20,000 in copying, mailing and other costs to collect about 7,000 signatures needed to convene the current grand jury in Wichita.

“Here, it’s citizens who want to do something, and the local prosecutor may not want this at all,” McAllister said. “So it’s convened and it sort of takes on a life of its own.”

The law in Kansas doesn’t specify that a prosecutor has to pick up an indictment by a citizen grand jury. It simply says that the indictment must be filed with the court.

“At the end of the day, it’s not clear who is accountable to the grand jury,” McAllister said.

Past and present meet

The law empowering citizen grand juries has its roots in frontier justice, says an expert on Kansas history.

It was designed to give the public a voice in government decisions during the Populist movement of the 1880s, said Craig Minor, a professor of history at Wichita State University.

“They thought there were too many checks on the popular will of the people,” Minor said.

Some 120 years later, social conservatives say citizens need that kind of control again because the government has ignored their cries to enforce Kansas’ late-term abortion laws.

“There are serious improprieties and appearances of improprieties, and we’re looking for the grand jury to take an independent look at these laws,” said Troy Newman, leader of Operation Rescue.

Operation Rescue and other anti-abortion rights groups don’t like that Sedgwick County District Attorney Nola Foulston blocked efforts in 2006 by then-Attorney General Phill Kline to file criminal charges against Tiller.

Foulston said Kline had no jurisdiction in her district. A judge agreed.

Dan Monnat, a Wichita lawyer representing Tiller, said the Wichita grand jury went too far in January when it subpoenaed five years’ worth of clinic records for 2,000 women who had sought abortions after their 21st week of pregnancy.

Calling the subpoena an invasion of privacy, Tiller’s attorneys asked a judge to stop the proceedings. Retired Judge Paul Buchanan ordered the records produced. Tiller’s lawyers appealed to the Kansas Supreme Court, which has halted the subpoena while it reviews the case.

That includes asking the state’s highest court to review the constitutional nature of citizen grand juries.

But Sedgwick County Chief Judge Michael Corrigan and Buchanan argued in papers filed last month with the Supreme Court that grand juries aren’t required to return an indictment.

That is among the strengths of the grand jury system, the judges say. It removes the grand jury from influence by the special interests that may have petitioned for it.

That’s what the Johnson County grand jury did with the Planned Parenthood case this month.

The Sedgwick County judges also noted that one function of a grand jury is to exonerate the innocent.

They point out that the grand jury asked for records from Tiller’s Women’s Health Care Services clinic, where some of the women did not ultimately obtain abortions.

“In other words, the subpoena sought records which would reveal that…Tiller and WHCS complied with the law,” wrote David Cooper, a Topeka attorney representing the judges.

Six says he wants the Supreme Court to decide if the subpoena interferes with patients’ right to privacy.

Chief Justice Kay McFarland put the attorney general’s subpoena on hold–as she had with the order for Tiller–until the justices can sort out the case.

By RON SYLVESTER

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