Yesterday’s announcement that the U.S. Supreme Court refused to hear the Thomas More Society’s appeal on behalf of former Kansas Attorney General Phill Kline was deeply disappointing, as the controversial ruling by the Kansas Supreme Court in October, 2013, indefinitely suspending Kline’s Kansas law license, had provoked widespread criticism on strictly legal grounds as a matter of professional legal ethics, as well as on moral and political grounds.
Kline acted as a pro-life trailblazer, the first chief prosecutor of any state who dared to investigate and then prosecute both Planned Parenthood and the late, late-term abortionist, Dr. George Tiller, for both failure to report apparent child abuse and violation of Kansas’ late term abortion restrictions.
Kline’s investigation, conducted under close scrutiny and monitoring on the part of Kansas lower courts, turned up sufficient evidence that crimes had been committed to warrant “probable cause” findings on the part of multiple Kansas trial judges, allowing the actual filing of criminal charges. But Kline’s investigation also provoked successive challenges on the part of the abortionists’ lawyers who brought a series of extraordinary appeals direct to the Kansas Supreme Court, whose Justices intervened repeatedly in the criminal cases, delaying and ultimately derailing them, and turning them into inquisitions about alleged ethics violations on the part of Kline, the prosecutor.
Specious complaints about Kline’s invasion of abortion patients’ privacy came to naught, as he had agreed that the abortion providers could redact patient identities from their own records before honoring subpoenas. But those complaints generated media criticism of Kline’s investigation that helped drive him from office as Attorney General, and later, as District Attorney of Kansas’ most populous county (encompassing Kansas City).
Kline’s successors either ignored or destroyed the evidence of criminal conduct (felonies as well as misdemeanors) that he had uncovered, and regrettably, the cases he developed were all dismissed. On the other hand, the Kansas Disciplinary Administrator filed repeated volleys of charges against Kline for alleged ethics violations, based on the abortionist lawyers’ earlier complaints — charges that evolved and were modified over several years. Ultimately, after a two week trial before a hearing panel several years ago, Kline was found guilty of a host of violations, and the Kansas Supreme Court had affirmed many of those findings.
But the Kansas Supreme Court only affirmed those findings by invoking vague “catch all” rules, as promulgated in Rule 8.4 or the American Bar Association Model Rules (e.g., conduct interfering with the administration of justice and conduct adversely reflecting on his fitness to practice law), and also by rejecting the holding of many federal and state courts that those vague proscriptions had to be “cabined” or confined to egregious violations as measured against an objective measure such as “professional norms” as known to all lawyers as part of the “lore of the profession.”
Worse, the Kansas Supreme Court deemed it an “aggravating factor” that Kline was motivated by what it called his “fervid” belief in his “cause,” i.e., the pro-life cause, as if this somehow put him outside the pale of legal professionalism — what seemed an explicit instance of “viewpoint discrimination or bias” in the teeth of the First Amendment. How does a prosecutor’s private belief that murder is a heinous crime somehow mark him or her as “biased” and unfit to prosecute, let alone condemn him or her as “unethical”? And if there are laws against child abuse, is it wrong that a prosecutor investigate and prosecute any violation of those laws that comes to his or her attention?
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This was a sad day in America’s legal history, as a fine and upstanding prosecutor has suffered an outrageous injustice that cries out for some remedy. It is bad enough that the guilty go free, but now an innocent man has been punished for bringing their crimes to light. We will not cease our efforts to see this grievous wrong set right and Phill Kline fully vindicated — in the court of public opinion if not also in our courts. And we are exploring every option by which we may somehow achieve that objective.
LifeNews.com Note: Tom Brejcha is president and chief counsel for the Thomas More Society, a pro-life legal group.