Ex-Kansas Atty Gen Responds to Illegal Abortion Case Dismissal

State   |   Steven Ertelt   |   Feb 19, 2007   |   9:00AM   |   WASHINGTON, DC

Ex-Kansas Atty Gen Responds to Illegal Abortion Case Dismissal Email this article
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by Phill Kline
February 19, 2007

LifeNews.com Note: Phill Kline is the former Kansas Attorney General and now a county district attorney.

Today [Feb. 14, 2007], the Kansas Supreme Court granted Paul Morrison’s request to dismiss the appeal of Judge Clark’s dismissal of the charges against George Tiller. Already, it appears the media is once again failing to report the substantive facts regarding the action today. We will see if their full stories do any better tomorrow.

As a refresher, the following is important to know:

1. After consulting with the Sedgwick County District Attorney, I filed charges against Dr. Tiller in December. In order for the charges to be filed, a district court judge must review the evidence submitted and find that there is probable cause to believe that crimes have been committed and probable cause to believe that the defendant, Tiller, committed the crimes. (Kansas legal ethics require I remind you the allegations in a complaint are mere allegations and the defendant is presumed innocent as a matter of law). Such a finding of probable cause was made by a Sedgwick County district judge, who signed the complaint, which was filed with the clerk. A summons was then issued for Tiller to appear in order to answer the charges.

2. The finding by the Sedgwick County judge represents the second judge who has reviewed evidence in the case and found probable cause to believe that crimes have been committed. The judge, who originally issued the subpoenas to Tiller’s clinic, also made a probable cause finding.

3. The following day, without notification to my office, Sedgwick County District Attorney Nola Foulston went to a different judge, who did not review any of the underlying evidence of the case, and obtained a simple dismissal of the charges.

4. My office sought for Judge Clark to reverse his decision. Judge Clark claimed that Kansas law does not allow the attorney general to file criminal charges, only the district attorney can do so. In our argument, we pointed out that we prosecuted numerous criminal cases in the AG’s office without DA invitation, including prosecuting DA’s for criminal conduct. We also pointed the judge to the following language in Kansas law, KSA 22-3103, which states:

"If the testimony taken (in an investigation) discloses probable cause to believe that a crime has been committed…the attorney general…may file such testimony together with his complaint…and a warrant shall there upon be issued for the arrest of such person…"

It was under this direct authority afforded by Kansas statute that the Tiller charges were filed. Regardless, Judge Clark refused to reverse his earlier order.

I then appointed Don McKinney as a special prosecutor as I prepared to leave office. This appointment occurred after Morrison, who initially said he would drop the investigation of Tiller, called on me to appoint a special prosecutor.

The special prosecutor filed an appeal of Judge Clark’s decision in the form of a "mandamus" action. That appeal was filed with the authority of the Office of Attorney General.

Morrison initially said he would not interfere with the appeal but then decided to dismiss it. As attorney general, he could now dismiss the action since it was originally brought by that office. In other words, all the Kansas Supreme Court did was dismiss an action brought by the Office of Attorney General at the request of the attorney general. It did not review the merits of the case and it took the only action it could legally. All the responsibility of the recent action falls on Morrison, not the court, and the action had nothing to do with the merits of the case against Tiller.

One thing that is continually lacking is any media reports (except one story by David Klepper in the Kansas City Star) about the substance of what was reflected in the complaint against Tiller. The media should report:

1) The complaint alleges the abortions were performed on children and adults late-term, as late as 32 weeks, all at times that Tiller found the unborn children to be viable.

2) The complaint alleges Tiller performed the abortions based on a diagnosis that the mother would otherwise suffer severe depression, single episode depression, anxiety disorder, or, in other cases, adjustment disorder if the abortion was not performed.

3) Kansas law allows a late-term abortion only if two doctors find that there will be substantial and irreversible damage to a major bodily function of the mother if the abortion is not performed.

4) In 2000, Attorney General Carla Stovall (who is pro-choice) issued an AG’s opinion that the Kansas law allowed a mental health exception for late term abortion as long as the mental health harm was irreversible and permanent.

The media then needs to ask and get the answers to the following questions: Are the mental health conditions listed in the complaint irreversible? Did Tiller perform abortions based on this diagnosis? They need to ask Morrison, if the evidence in the complaint is true, was a crime committed? The same question should be asked of Foulston.

Kansas law requires that, as attorney general, I must file supporting information with the court to support the probable cause finding when I file the charges. All of the supporting evidence is in Sedgwick County and can be reviewed by the district attorney.

In fact, she claimed she did. However, she reviewed it for evidence of crimes for which the charges were not filed. A while back, Foulston announced that in her "limited" investigation, she did not find sufficient evidence to charge Tiller with failure to report child rape. She said she reviewed the filings of my office to conclude as such. She failed to tell the media that I did not file such charges and, therefore, did not file any evidence to support such charges. The charges I filed all relate to criminal late-term abortions and the failure to properly report the reason and basis for the abortions. In other words, as I said at the time, "The DA looked at the moon and found no evidence that it is the sun."

Yet the media reports seemed to indicate, consistent with the DA’s desire, that there was not any evidence to support the charges filed. False! Two judges made probable cause findings to believe that crimes have been committed — the only judges to review the case.

And now, we have two prosecutors charged with upholding the law engaged in procedural actions to prevent any review of the substance of the evidence.

Do not lose hope. Deception has always been a part of this issue and each step we take to reveal the truth is a positive step. We must keep moving forward and there are a lot of things yet to be done that are consistent with the law, our responsibilities and the truth. Stand firm!

I issued the following statement in response to the latest action by Morrison:

"The attorney general has now sought the effective dismissal of criminal charges against a major political supporter, even after two independent judges have found probable cause to believe that crimes have occurred. This is not a proper action by the state’s chief law enforcement officer. We have the fox guarding the henhouse, and he has just eaten one of the hens. These charges deserved to be aired out in a court of law with the evidence presented, and the procedural machinations of some to avoid their sworn duty should stop."