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Archive for Wednesday, December 27, 2006

Kline appoints special prosecutor in abortion case

Says prosecution can continue even when Morrison takes office

December 27, 2006

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— Attorney General Phill Kline today said he will appoint a special prosecutor to take over his investigation into abortions performed by George Tiller.

Kline's announcement came just minutes before a scheduled hearing in Wichita in front of a judge who last week dismissed 30 misdemeanor charges that Kline filed against Tiller.

Kline, who is leaving office Jan. 8 after losing his re-election bid, said he will appoint Don McKinney, an attorney from Wichita, to be the "independent special prosecutor."

McKinney "will have full discretion regarding how the state will proceed with its case against Mr. Tiller," Kline said in a prepared statement.

Kline, an ardent abortion opponent, has accused Tiller of performing illegal late term abortions. Tiller has denied the charge, saying the late-term abortions comply with exceptions to the law.

McKinney, a Democrat, endorsed Kline, a conservative Republican, in last month's election.

Kline lost that contest to Republican-turned-Democrat Paul Morrison.

Morrison criticized Kline repeatedly over the investigation into abortion clinics run by Tiller and Planned Parenthood in Overland Park. He said Kline was abusing his power in the investigation.

In his statement today, Kline said the appointment of McKinney would preserve the investigation once Morrison takes over the attorney general's office.

"This appointment of an independent special prosecutor will remove this investigation from a highly charged political process in which millions of dollars has been spent in media and campaign efforts to elect as Attorney General a candidate who, without reviewing any of the evidence, repeatedly pledged not to pursue this investigation and expended the majority of his campaign criticizing the existence of the investigation," Kline said.

After the election, Morrison asked Kline to hold off on any action in the case.

When asked what he would do with the investigation when he took office, Morrison said, "That is an open case now, and I have an obligation to look at all open cases up there, which we will do, and we'll do that quickly. We will give that the attention that deserves. Whether that's a lot or a little, remains to be seen."

Comments

thomgreen 8 years ago

What does it take for this guy to get the hint? Kline is abusing his power beyond belief. Forget what the people voted, he's on his own personal crusade.

Baille 8 years ago

"...repeatedly pledged not to pursue this investigation and expended the majority of his campaign criticizing the existence of the investigation."

Kline is lying again.

newsreader 8 years ago

How is Kline lying with that statement? Morrison said that, didn't he?

Centrist 8 years ago

"newsreader" ... (your name not entirely accurate?)

Kline misquoted Morrison aka LIED about what was ACTUALLY said. Morrison NEVER said he would "not" pursue this investigation. What he said is there for you to see in the article ... it's plain as the nose on your face. He said that if it was an open case when he takes office, then he'd be obligated to see it through.

When, O when, will the RIGHT stop DISTORTING facts?

It's OK to argue on moral or political grounds, it really is. That's called a democracy. But why, oh, why does it ALWAYS involve character assassination and twisting of the truth??

Argh ... it's enough to send you to the Left.

Trouble is, they're no better!!

white_mountain 8 years ago

I have never seen such a sore loser as Kline, still taking shots at Morrison.

THE VOTERS REJECTED YOUR BS, KLINE. NOW GO AWAY.

justthefacts 8 years ago

http://www.ksag.org/Press/2006/1227_statement_concerning_charges.htm has the whole statement issued by the AG's office, for those who want to read all of it and not just the parts the papers printed.

justthefacts 8 years ago

Here's what it says (too long to print in one comment, so it will have to be split up):

I am announcing that tomorrow I will appoint an independent special prosecutor for the case of Kansas vs. Tiller in Sedgwick County, Case No. 06CR 2961. With this appointment, Mr. Don McKinney, a Democrat attorney from Wichita, will have full discretion regarding how the state will proceed with its case against Mr. Tiller.

It is important to note that at this stage of the case two independent judges have found probable cause to believe that crimes have been committed. The latest review of the evidence by a judge in this community 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.

Kansas law relating to such investigations expressly states that the Attorney General may file a criminal complaint if the evidence supports such a complaint.

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."

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. State v. Finch, 128 Kan. 665, 280 P. 910 (1929); rehearing denied November 16, 1929.

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.

The District Attorney has never sought to review the evidence supporting these charges, despite the existence of such evidence in the public realm for several years and this ongoing investigation.

justthefacts 8 years ago

Part II:

This appointment of an independent special prosecutor will remove this prosecution from a highly charged political process in which millions of dollars has been spent in media and campaign efforts to elect as Attorney General a candidate who, without reviewing any of the evidence, repeatedly pledged not to pursue this investigation and expended the majority of his campaign criticizing the existence of the investigation. The Attorney General-Elect has also, without foundation, wrongfully criticized the Shawnee County District Court Judge overseeing the investigation falsely alleging that the judge failed to perform his duties. The Attorney General-elect at times has called for my appointment of a special prosecutor and he should not attempt to interfere with the duties of such a prosecutor.

It is also important to note what has not happened in this investigation and case. The privacy of the patients has never been compromised. This office has never sought nor has it received the identity of the patients who are not victims of rape. I have asked that Mr. McKinney continue this approach and he will maintain the position that the names of the patients need not be revealed by the court or the parties.

The charges in this case are just that charges. Mr. Tiller is presumed innocent by law. The charges relate to 15 counts of criminal late-term abortion and 15 counts relating to failure to report the reason and basis of those abortions as required by Kansas law. Each count is a class A misdemeanor punishable by up to one year in jail and a $2,500 fine.

As stated in the complaint, the ages of the patients ranges from 10 years of age to 22 years of age, and the age of the fetuses ranges from 25 weeks to 31 weeks. In all cases charged it is alleged that Mr. Tiller performed an abortion on a viable fetus with the reason justifying the late term abortion being that the mother would suffer either severe depression - single episode, anxiety disorder, or adjustment disorder if the abortion was not performed.

My office has now referred over 25 cases of child rape to local authorities from abortion records for further investigation and or prosecution. Neither Mr. Tiller nor his attorneys would be notified of such referrals as they are not parties nor are they investigating authorities.

The records supporting the present charges were not finally delivered to my office until October 24, 2006. The investigation is ongoing.

cowgomoo 8 years ago

Judge Clark denied the Motion for Reconsideration this afternoon so it's a moot point anyway.

Baille 8 years ago

"The Attorney General-Elect has also, without foundation, wrongfully criticized the Shawnee County District Court Judge overseeing the investigation falsely alleging that the judge failed to perform his duties."

Looks like he had some justification, although the judge appears to have been trying to get it right:

"His order simply failed to incorporate all that the hearing had revealed. We discern three specific errors:

"First, the judge misstated a critical provision of the criminal abortion statute. The two physicians who must agree that an abortion at 22 weeks' gestational age or later is necessary must do so on the basis that the life of the pregnant woman is endangered or on the basis that "continuation of the pregnancy would cause a substantial and irreversible impairment of a major bodily function of the pregnant woman." K.S.A. 65-6703(a). Judge Anderson joined these two bases by the conjunction "and" rather than the disjunctive "or." This misstatement of the law must be corrected lest the attorney general be misled as to the limits of his authority to prosecute.

"Second, Judge Anderson also stated that "presumed flaws" in the attorney general's interpretation of the criminal abortion or mandatory child abuse reporting statutes would not prevent production of the files called for in the subpoenas. In essence, this statement adopted senior assistant attorney general Maxwell's position that any error in the attorney general's interpretation was irrelevant. We disagree. To hold otherwise could permit exactly the abuse of prosecutorial power the courts must be vigilant to prevent. To the extent the inquisition rests on the attorney general's ignorance, disregard, or misinterpretation of precedent from the United States Supreme Court, subpoenas pursuant to the inquisition cannot be allowed.

"Third, Judge Anderson erred in refusing to allow redaction of patient-identifying information from the files. This information must be redacted by petitioners before the files are turned over to the court. Should patient-identifying information later be required, the district judge may approve appropriate subpoenas for that information at that time. In sum, Judge Anderson must withdraw his order and first evaluate the inquisition and subpoenas in light of what the attorney general has told him regarding his interpretation of the criminal statutes at issue. If the judge requires additional information in order to perform this evaluation, he should seek it from the attorney general in the inquisition proceeding. As targets of the investigation, petitioners need not be included in any hearing or other communication to enable this evaluation.

"In sum, Judge Anderson must withdraw his order and first evaluate the inquisition and subpoenas in light of what the attorney general has told him regarding his interpretation of the criminal statutes at issue. "

Baille 8 years ago

"It is also important to note what has not happened in this investigation and case. The privacy of the patients has never been compromised. This office has never sought nor has it received the identity of the patients who are not victims of rape. "

This appears to contradict the factual basis for this passage:

"(1) Petitioners' counsel must redact patient-identifying information from the files before they are delivered to the judge under seal; (2) the documents should be reviewed initially in camera by a lawyer and a physician or physicians appointed by the court, who can then advise the court if further redactions should be made to eliminate information unrelated to the legitimate purposes of the inquisition. This review should also determine whether any of the files demonstrate nothing more than the existence of a reasonable medical debate about some aspect of the application of the criminal abortion and/or mandatory child abuse reporting statutes, which the attorney general's office has already acknowledged would not constitute a crime. If so, those files should be returned to petitioners; and (3) any remaining redacted files should be turned over to the attorney general."

Why order the judge to issue a protective order redacting identifying information if Phill had not requested it that way to begin with?

Phill's sneaky little qualifier "who are not victims of rape" is not accurate because he requested 90 unredacted patient files - some of which were below the age of consent, some of which were above. In any case, he should not have identifying information until specific probable cause as to each patient has been established.

Baille 8 years ago

Further in his zeal to continue the Crusade of the religious right, Kline violated court orders. One can not break the law to enforce the law - not even an AG who believes himself anointed by God.

"Kline's initial responses were troubling. He admitted that he attached sealed court records to a brief he knew would be unsealed; that he did so knowingly because, in his sole estimation, he believed it to be necessary to further his arguments; that he held a press conference on this criminal matter merely because he determined that petitioners had painted his previous actions in an unflattering light; and that he later permitted his staff to provide electronic copies of the sealed transcript to anyone who requested them. In essence, Kline has told this court that he did what he did simply because he believed that he knew best how he should behave, regardless of what this court had ordered, and that his priorities should trump whatever priorities this court had set. Furthermore, although there is conflict between the parties on exactly what was said in the press conference, i.e. whether the actual content of the sealed documents was discussed, Kline's stated reason for holding the conference -- to combat what he saw as unflattering earlier press coverage -- does not appear to be among the permissible reasons for an attorney in his position to engage in extrajudicial statements under Kansas Rule of Professional Conduct 3.6 (2005 Kan. Ct. R. Annot. 473). This too is troubling. "

Alpha Medical v. Phill Kline

Godot 8 years ago

Wichita Eagle:

"Kline said he would have the special prosecutor move forward with the investigation, even if Judge Paul W. Clark does not reinstate the criminal charges. "There are numerous options," Kline said when asked how the prosecutor would procede."

Cait McKnelly 8 years ago

This man has made so many errors of law that even if he actually managed to get it into court (which the judge has made clear that he's not) there would be grounds for motion after motion after motion for dismissal. Nowhere in Kansas law is the AG permitted to appoint a "special prosecutor". Now he is usurping the powers of the Governor. Good luck Johnson County. You let your precinct committee members blindside you. All of you nouveau riche, Alex Keaton Republicans who long for the return of the Reagan era are going to see what it's like to be hijacked by the Religious Right.

oldgoof 8 years ago

Don McKinney is well known in Wichita circles......he is a frequent regular visitor to, and leader of, the regular anti-abortion vigils conducted in Dr. Tiller's front yard....you know the ones where people hold up signs as obnoxious as those of Fred Phelps. Mr. McKinney is not known because of his legal or professional skills or abilities.

oldgoof 8 years ago

Klines release: "This appointment of an independent special prosecutor will remove this prosecution from a highly charged political process" . Ha! This statement is a total farce. Don McKinney is far from an "independent" person in this issue.

WilburM 8 years ago

Independent special prosector? Ha. This is Phill Kline wanting to keep this case going by appointing a nominal Dem to carry out his post-election crusade. The idea that this guy in any way fits the notion of an independent prosecutor strains all credulity. One hack appointing another, with no respect for the law or for the democratic process.

Baille 8 years ago

"...all while warring fiercely against the powers of darkness." http://www.operationrescue.org/?p=403

Oh, yeah. Dingo McKinney is going to elevate this debacle.

greyhawk 8 years ago

<>

Cowgomoo, you posted this an hour ago....what's your source? I haven't seen confirmation anywhere yet.

SpeedRacer 8 years ago

"This appointment of an independent special prosecutor will remove this investigation from a highly charged political process..."

And Dingo McKinney fits this discription how?

Godot 8 years ago

Morrisson says he will likely not pursue this, yet he admits has not seen the evidence.

Sounds like bias to me.

rhd99 8 years ago

Kline says he wants a special prosecutor to keep politics out of this abortion case. TOO LATE PHIL! You, moron, started this whole mess four years ago! Talk about foot in the mouth disease, Kline has it all over himself! May he go down in flames.

Richard Heckler 8 years ago

Cut the funding for the special prosecutor and go with the judge. If there was hard evidence it seems Kline would have called for a grand jury.

Perhaps there will be some pressure to recall the appointment of Kline in JOCO...who knows.

Godot 8 years ago

shadower thinks anyone whose opinions are opposed to his/hers is a right wing religious nut.

That is revealing in and of itself.

Curious 8 years ago

Well, well, well! Child abuse and baby killing remain alive and well in Kansas. Do we have any other laws you [gentle?] men would like to avoid investigating?

Morrison is everything you wanted, bought and paid for.

Now get the laws changed to reflect reality as you would like it to be: where men can go to the Kansas abortionists and have the results of their child abuse discarded.

I might give you the benefit of my doubt IF you can show me that Tiller HAS reported even one suspected child abuser to the authorities . . . or that he has NEVER damaged the womb of an underage child by opening it up and suckinig the contents down the drain

Linda Endicott 8 years ago

And exactly how would the abortion records reveal who the perp was anway, even if there was child abuse?

Many times patients don't tell everything, and that's their right. If they don't tell the doctor, then how in the world could that information be in the abortion records?

A woman can go to any hospital in the state, have a baby, and never put the father's name on the birth certificate. Perfectly legal, and it happens all the time.

Unless you want to start trying to beat it out of those teenage girls, what do you plan to do about it if they won't tell?

Curious 7 years, 12 months ago

Should have been "show me that Tiller has reported even one suspected case of child abuse to the authorities" Sorry for the misstatement.

Of course patients don't tell everything. That is why doctors, emergency room staff, teachers, etc. are REQUIRED by law to report suspected instances of child abuse. That includes baby killers. Sorry, I tell it as I see it. You can put your own word in.

What is in the abortion records is if a patient is 10 years old and brought in for an abortion. Don't know if that has happened but if it did BY LAW that would have to be reported to the authorities as possible child abuse. [If Tiller does not report, the perp could even bring the child in. Can you imagine the child saying anything with her abuser doing all the talking?]

As far as no father's name on the birth certificate, I don't know. But the state sure wants his social security number to make sure he pays his fair share. [Remember that, guys! They don't want your number to put your name in any lottery but theirs . . . for the next eighteen to twenty four years.]

And if girls under [not sure of the age] 12 won't tell . . . it does not stop the authorities from investigating the case. That is what we have laws for . . . to protect children, even from themselves. Now if you don't like the laws, change them! That is what we have elections for.

As I said, "Now get the laws changed to reflect reality as you would like it to be: where men can go to the Kansas abortionists and have the results of their child abuse discarded." because we might get another attorney general who wants to test the laws and there might not be a Tiller sympathizing judge so close at hand.

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