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
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By RON SYLVESTER AND DION LEFLER
The Wichita Eagle