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].

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