Attorneys for abortion provider George Tiller tried to show in court Monday that former Attorney General Phill Kline was planning to prosecute Tiller even before he took office.

Tiller made a rare court appearance as he watched as one of his attorneys sparred with Kline, who launched an investigation of Tiller more than five years ago.

Tiller, one of the few U.S. physicians performing late-term abortions, is accused of violating Kansas’ restrictions on those procedures. He faces 19 misdemeanors in Sedgwick County District Court, filed by Paul Morrison, Kline’s successor as attorney general. But the case rests partly on evidence Kline gathered.

Tiller’s attorneys have asked District Judge Clark Owens to suppress the evidence linked to Kline or to dismiss the charges. They accuse Kline of outrageous conduct in his pursuit of Tiller.

Kline says Tiller is simply trying to avoid prosecution.

Tiller is scheduled to go to trial in March. He’s accused of failing to obtain a second opinion from an independent physician for some late-term abortions, as required by law.

Questioning Kline 

In court Monday, Tiller attorney Dan Monnat asked Kline whether he assumed Tiller was breaking the law.

“I had reason to believe that he was,” Kline said. “My belief was that the law was not being enforced.”

Tiller, who has largely skipped court hearings, sat with his attorneys at the defense tables, occasionally taking a note or doodling on a yellow legal pad. On his shirt was a button saying “Attitude is everything.”

Tiller’s attorneys also have raised as an issue a sex scandal that forced Morrison to resign from office, arguing that Morrison’s mistress, while working for Kline, pressured Morrison into filing charges in June 2007.

Kline was the first witness called by Tiller’s attorneys, and his testimony lasted about three hours. He is expected to testify again Friday.

Monnat questioned Kline about his opposition to abortion, and Kline acknowledged that he personally would like to see all abortions banned.

“You wanted to do something about it,” Monnat said.

Kline replied: “I wanted to enforce the law.”

Monnat also had Kline review several internal memos from the attorney general’s office in 2003. One summarized an April 1, 2003, meeting with Kline and his top deputy, in which they discussed investigating Tiller over allegations that he wasn’t reporting to authorities cases of children being raped, as required by law.

Kline told Monnat that he and his staff were looking at all abortion providers, but, “We had specific information coming forward about Dr. Tiller, as I recall.”

Anti-abortion activist 

In addition, Monnat questioned Kline about hiring anti-abortion activist Bryan Brown as his consumer protection chief in the attorney general’s office.

Kline previously had asserted that Brown, who has been arrested a dozen times during abortion protests, was not involved in the Tiller prosecution. However, defense attorneys produced a 2003 memo Brown wrote with the subject line, “abortion clinic overview.”

Kline then conceded that Brown helped with the facts of the case, while insisting Brown did not consult on matters of law.

The defense also pointed to a 2004 memo advising Kline that Brown and his contacts were obtaining the names of employees at two clinics. Kline defended the use of Brown and other anti-abortion activists, saying it’s “normal law enforcement procedure” to use witnesses in investigations.

Morrison unseated Kline when he ran for re-election in 2006. Shortly before leaving office, Kline filed 30 misdemeanor charges, alleging Tiller performed illegal late-term abortions, but a Sedgwick County judge dismissed them for jurisdictional reasons.

Morrison took office in January 2007, and the attorney general’s office maintains an independent investigation started afterward.

Assistant Attorney General Barry Disney said if Tiller’s attorneys are trying to show that the prosecution of Tiller is selective, they face the reality that Tiller is “uniquely situated” because he performs late-term abortions.

“What we would like to do in this case is take away all that publicity and all that excitement and focus on the law,” Disney told the judge.

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Associated Press