Monnat & Spurrier | Monnat & Spurrier Attorneys at Law

Jun 28, 2007
The Wichita Eagle
-
by Ron Sylvester and Dion Lefler

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

By RON SYLVESTER AND DION LEFLER
The Wichita Eagle

Jun 27, 2007
Kansas City Star
-
by Diane Carroll and David Klepper

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.”

By DIANE CARROLL AND DAVID KLEPPER
Kansas City Star

Jun 11, 2007
The Wichita Eagle
-
by Dion Lefler

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.

By DION LEFLER

The Wichita Eagle

May 13, 2007
The Wichita Eagle
-
by Tim Potter and Jerry Siebenmark

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.”

The Wichita Eagle – By Tim Potter and Jerry Siebenmark

Apr 09, 2007
The Wichita Eagle
-
by Hurst Laviana

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.”

The Wichita Eagle – By Hurst Laviana

Mar 30, 2007
The Wichita Eagle
-
by Ron Sylvester

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.”

The Wichita Eagle – By Ron Sylvester

Mar 24, 2007
The Wichita Eagle
-
by Christina M. Woods

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].

By CHRISTINA M. WOODS
The Wichita Eagle

Jan 11, 2007
Associated Press
-
by Ron Sylvester

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

By RON SYLVESTER
Associated Press

Jan 06, 2007
Wichita Eagle
-
by Suzanne Perez Tobias

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

By SUZANNE PEREZ TOBIAS
WICHITA EAGLE

Dec 31, 2006
The Wichita Eagle
-
by Tim Potter

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].

By TIM POTTER
The Wichita Eagle

Author Archives: «Monnat & Spurrier»

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.