Judge: AG can't prosecute Tiller for abortions

Judge: AG can't prosecute Tiller for abortions
Kline says ruling may be appealed, and child rape cases developing
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Posted: December 28, 2006
1:00 a.m. Eastern

By Bob Unruh
© 2006 WorldNetDaily.com

A special prosecutor is being appointed to take over the case against an influential abortionist in Wichita, according to state Attorney General Phill Kline, who also confirmed that documentation in support of more than two dozen cases of child rape is being turned over to various local prosecutors around the state.

The announcement came just as a state judge ruled Sedgwick County District Attorney Nola Foulston refused to "acquiesce" to a case involving 30 criminal counts that was investigated and documented by Kline, so it must be dismissed.

Judge Paul W. Clark had dismissed charges against abortionist George Tiller, who specializes in late-term procedures, last week without hearing any arguments but those of Foulston, and then held a hearing yesterday on the issue of whether those counts even could be filed by the state.

He said no, after listening to Foulston's opinion that she was the only person authorized to file counts in her judicial district. That despite arguments from Assistant Attorney General Steven Maxwell that Kansas law does allow the attorney general, the state's top law enforcement officer, to file counts in any county in the state.

"I control the prosecution of cases in this jurisdiction!" Foulston said in a voice witnesses described as loud and angry. 'The district attorney is being usurped by some out-of-towner on his way out as Attorney General."

Maxwell noted that wasn't Kansas law, and in fact, the state attorney general had filed hundreds of cases in various Kansas judicial districts in recent years, including several cases with district attorneys as defendants, but never had been required to obtain permission from the DAs.

Staff member Cheryl Sullenger, of the pro-life advocacy and action organization Operation Rescue, said it appeared that Foulston was taking the case against Tiller as a personal affront to her.

"It was very clear that Nola rules the roost in Sedgwick County and even the judges are afraid to oppose her," she said.

Foulston also asserted that the statute of limitations had expired on each of the 30 counts filed last week by Attorney General Phill Kline, but Maxwell corrected her, noting the legislature had extended that limit from three to five years.

Maxwell also told the judge Kline is appointing Wichita attorney Don McKinney as special prosecutor in the Tiller case, and the office was reserving the right to appeal Clark's conclusion.

Kline, who wasn't in the hearing but came to the courthouse later, announced on his website that two independent judges had found probable cause to believe crimes had been committed in the case, and the latest review "resulted in a finding of probable cause to believe that Mr. Tiller committed those crimes."

"Furthermore, the Kansas Supreme Court reviewed this investigation for over one year and has now twice ruled that the investigation may go forward," Kline noted.

"I was stunned that the District Attorney, after meeting with me prior to the filing of charges and pledging not to stand in the way, later reversed course and without any effort to notify myself or my office went to a different judge who had not reviewed the evidence and obtained a dismissal ex parte contrary to law and contrary to the facts," Kline said.

He told reporters at the hearing Foulston also cited no relevant case law in support of her position.

Clark's decision was delivered immediately from the bench, and apparently was based on the "he said-she said" dispute over whether Foulston agreed to the case.

"This case is far from over," said Operation Rescue President Troy Newman. "We strongly believe that once an appeals court hears the arguments, the charges will be reinstated."

"KSA 22-3103 states '(i)f the testimony taken at an inquisition discloses probable cause to believe that a crime has been committed … the attorney general … may file such testimony, together with his complaint … against the person or persons alleged to have committed the crime … and a warrant shall there upon be issued for the arrest of such person…as in other criminal cases,'" said Kline. "Also, the Kansas Supreme Court has stated that once the Attorney General commences a prosecution, the Attorney General may not be removed from the case but for cause."

The case against Tiller resulted from an investigation of more than two years, as Tiller and another abortion provider in Kansas, Planned Parenthood, battled unsuccessfully all the way through the state Supreme Court against providing any medical documentation to the state's chief law enforcement officer.

The counts cite a number of abortions, such as the July 22, 2003, abortion on a 14-year-old child, patient "072203LM," where Tiller "wrongfully relied on a diagnosis of Anxiety Disorder … or Adjustment Disorder with mixed anxiety and depressed mood to determine that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman when such diagnoses do not establish that a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman, in violation of [Kansas law.]"

The local prosecutor's earlier filing in support of dismissing the counts had cited two state laws "which require the Attorney General to initiate actions in certain circumstances," Kline said. However, they "do not contain a prohibition from filing actions."

Kline, who lost his re-election bid on the strength of strong pro-abortion support for his opponent, Democrat Paul Morrison, will be moving into a post as a district attorney in Kansas after he leaves state office, and still will have the authority to continue investigating some allegations of abortion business misconduct.

The charges include claims that Tiller provided abortions to the mothers after the statutory age limit of 22 weeks for the unborn babies. There also are allegations that the "medical reasons" listed in the abortion businesses' documents for the abortions were insufficient.

Kline said the 30 counts relate to 15 different abortions, provided to mothers ranging in age from 10-22, with the babies aged 25-31 weeks. They allege that Tiller "induced or performed an illegal late term abortion contrary to Kansas statute 30-6537-03" and that he "failed to report the reason and basis for performing that abortion on a viable child as required by that statute."

Operation Rescue officials, who earlier shut down one Wichita abortion business by purchasing the building it was in, said they weren't surprised much. "Foulston has come under criticism by pro-life supporters for refusing to prosecute accusations against Tiller because of her personal friendship with him. It is alleged that she adopted her only son through Tiller, who has stated publicly that he has arranged adoptions in return for political favors," a statement on the organization's website said.

Morrison had promised to begin a domestic violence unit, without any additional expense to the state. "Some of the money that's been used on misplaced priorities could easily fund" the plans, he had told the Lawrence Journal-World. He cited Kline's investigation of the abortion businesses run by Tiller in Wichita and Planned Parenthood as an example.

Morrison also got a huge boost in his campaign when a non-profit organization that the newspaper linked to Tiller mailed hundreds of thousands of dollars worth of mailings critical of Kline.

The mailings called Kline "Snoop Dog" and were mailed by Kansans for Consumer Privacy Protection, said the newspaper, which noted that group had the same office address as ProKanDo, a political action committee Tiller started and is funding to elect pro-abortion candidates.

Kline also earlier had raised the issue of state statistics that showed in 2003, for example, there were 78 abortions provided to underage girls, including some as young as 10, without a single case of child rape being reported.

He said there now are 25 cases pending, and his work on those cases is continuing.