Defense lawyers rested Thursday in the trial of one of the nation’s few providers of late-term abortions, and jurors were told to return Friday.
Dr. George Tiller is on trial in Sedgwick County District Court on 19 misdemeanor charges stemming from abortions he performed at his Wichita clinic in 2003. He is accused of breaking a state law requiring that two Kansas physicians without legal or financial ties sign off on any late-term procedure.
After the defense rested Thursday, jurors were sent home while attorneys hashed out jury instructions and other issues. Jurors were told to return Friday for closing arguments.
On Wednesday, testified that he relied on advice from his lawyers and a Kansas official before getting second opinions that prosecutors say were illegal.
Tiller recalled a June 1999 conversation with Larry Buening, who was then the executive director of the Kansas Board of Healing Arts, which regulates doctors. Tiller testified that Buening suggested he use Dr. Ann Kristin Neuhaus for second opinions with the caveat he could not be quoted saying it.
Tiller testified Buening implied Neuhaus could “come down” to his clinic to meet with his patients.
“He said, ‘Why don’t you use Kris Neuhaus and that will take care of all of your problems?'” Tiller testified.
Under cross examination, Tiller said he relied on what Buening told him but acknowledged he later sought legal advice from his attorneys. When pressed, he said he ultimately relied on his attorneys’ advice.
That distinction is important to the prosecution because the judge told both sides before the trial began that relying on the advice of an attorney cannot be used as a legal defense to criminal charges.
The attorney whom Tiller consulted, Rachael Pirner, testified Wednesday that she advised Tiller on what he needed to do to avoid a legal and financial affiliation with Neuhaus.
“We relied on the representation of Larry Buening in giving our advice to our client,” Pirner said.
Prosecutor Barry Disney has described Neuhaus as essentially a Tiller employee whose only income in 2003 came from patients she saw at Tiller’s clinic. Disney rested his case Tuesday after calling Neuhaus as his sole witness.
When Disney questioned Tiller on Wednesday about the conversation with Buening, Tiller replied: “When she was working for me – correction, when she was providing consultations for the patient …”
Kansas law allows abortions after a fetus can survive outside the womb only if two independent doctors agree that it is necessary to save a women’s life or prevent “substantial and irreversible” harm to “a major bodily function,” a phrase that’s been interpreted to include mental health.
Tiller, 67, said Neuhaus had no financial or legal interest in his clinic and that consultations were done there for the convenience and safety of the patients and physicians.
The defense entered into evidence Tiller’s daily planner, which included notes of the conversation with Buening.
“He said I couldn’t quote him,” Tiller testified. “I made notes of it.”
Based on Buening’s assurances, Tiller said, he decided not to file a federal lawsuit challenging the constitutionality of the statute requiring two Kansas physicians to sign off on late-term abortions.
Disney questioned Tiller about whether it was reasonable for him to rely on something that a person has said he would not back up. Tiller insisted it was.
“It might be embarrassing for it to be public knowledge,” Tiller said.
The prosecution also pressed Pirner on the stand Thursday over whether Tiller told her at the time that Buening would not publicly acknowledge that conversation. She said she did not remember that, and her notes did not indicate it.
But she said she would still have advised her client to rely on Buening’s assurances had she known because the Buening and Tiller had “a relationship that goes back for quite a ways.” Pirner said she felt Buening had the authority to tell a physician what he was doing legal.
Tiller testified that he and Neuhaus agreed in 1999 that she would charge patients $250 for consultations and come to his clinic one day a week. He wrote in his planner that day: “Kris glad to do this. Needed the money.”
He said that in about five cases each year, Neuhaus would disagree with him about the necessity of a late-term abortion. When she declined to concur, the abortion was not done, Tiller testified.
Tiller estimated that he performed 250 to 300 late-term abortions in 2003, each costing an average of $6,000.
Tiller said he is one of three doctors in the U.S. who currently perform late-term abortions. The others are in Boulder, Colo., and Los Angeles, he said.
He also told jurors that he and his family have suffered years of harassment and threats from anti-abortion protesters. His clinic was the site of the 1991 “Summer of Mercy” protests marked by mass demonstrations and arrests. His clinic was bombed in 1985, and an abortion opponent shot him in both arms in 1993.
He said federal marshals protected him during the 1991 abortion protests and from 1994 to 1998, after another abortion provider was assassinated and federal authorities reported finding his name on an assassination list.
Case is State v. Tiller, No. 07CR2112 in Sedgwick County.
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By ROXANA HEGEMAN