Archive for Saturday, August 11, 2007

Tiller judge former abortion activist

August 11, 2007


— A judge who once called abortion "the slaughter of the innocents" was picked Friday to handle a criminal case against one of the nation's highest-profile abortion providers.

Sedgwick County District Judge Anthony Powell previously served in the Kansas House and was among the Legislature's most vocal abortion opponents. He voted for - and, some say, helped write - a 1998 law restricting late-term abortions. Shortly after its enactment, he accused Dr. George Tiller of breaking it.

Tiller was charged with 19 misdemeanors in June. Attorney General Paul Morrison alleges the doctor failed to get a second opinion on some late-term abortions from an independent physician, which the late-term law requires. Tiller maintains his innocence, and his attorneys are challenging the law.

Powell had an hourlong hearing Friday on the law's constitutionality but doesn't plan to rule until at least next month. If Powell upholds the statute, Morrison's office can move toward a trial. If Powell strikes it down, a trial will be delayed until appeals of such a ruling are resolved.

The case was assigned to Powell by Judge Gregory Waller, the county's chief criminal judge. Waller said he didn't know about Powell's past legislative activities and picked him because he was "the most available" for a hearing.

Tiller is among a few U.S. doctors performing late-term abortions, and national groups are watching his case. The anti-abortion group Operation Rescue has questioned whether Waller and another judge previously involved in Tiller's case could be impartial because they received contributions in past campaigns from attorneys linked to Tiller.

Also, abortion opponents don't trust Morrison because he is an abortion rights Democrat. They contend he's focusing on potential technical violations of the law, rather than more serious problems. They're hoping to force the county to convene a grand jury for a fresh investigation.

"It's about time things start leaning toward the side of life," said Troy Newman, Operation Rescue's president.

Powell wouldn't comment about the case after the hearing. But before the hearing began, from the bench, he mentioned his past as a legislator.

He noted that he'd served with legislators who signed "friend of the court" arguments submitted in the case. He said two of them may have contributed to his first campaign for judge in 2002, though campaign finance records later showed they didn't.

He said his judgment wouldn't be affected. He then asked the state's and Tiller's attorneys whether they objected to him presiding in Tiller's case.

Lee Thompson, an attorney representing the doctor, replied: "We trust the court's judgment in that regard."

After the hearing, Tiller's attorneys declined to comment about Powell's assignment.

Peter Brownlie, chief executive for a Planned Parenthood chapter that operates an Overland Park abortion clinic, said most people expect judges to be impartial and, "Somebody who was a sponsor or major backer of a law being challenged shouldn't be hearing the challenge."

Waller said he didn't take the case because he had scheduling conflicts. He said judges are always free to remove themselves from cases and said because attorneys in Tiller's case didn't object to Powell remaining, they seem satisfied that he can be impartial.

Newman said, "The opportunity was presented to them to request Judge Powell's recusal, and they declined to do so."

During the hearing, Tiller's attorneys said the law is unconstitutional because it's too vague to give doctors guidance on what conduct is prohibited and too much of a burden for a woman seeking an abortion. The attorney general's office argued the two-doctor requirement is a reasonable restriction, especially because the state has an interest in protecting late-term fetuses.

Powell said he'll give interested groups until Aug. 31 to file "friend of the court" arguments and that he'll probably have another hearing before ruling on the law's constitutionality. "This court can, frankly, use all the help it can get," he said from the bench.

As a legislator, Powell's views on abortion were clear. He voted regularly for new restrictions. He served in the House in 1995-2002, a Republican representing a Wichita-area district.

In a 1997 committee debate on banning a procedure critics call "partial-birth" abortion, Powell said, "Many of us regard abortion as the slaughter of the innocents."

The next year, when the late-term law passed, The Wichita Eagle reported that Powell "helped craft the bill." He led anti-abortion House members in explaining their yes votes as "an affirmation, in the name of the people of Kansas, elderly and young, frail and healthy, born and unborn, of the value of life."

Three months later, anti-abortion legislators accused Tiller of performing prohibited late-term abortions, something he said wasn't true. Powell participated in a news conference outside Tiller's clinic and said the doctor was "defying legal and moral authority."

"We regard it as central to our oath of office that we rise up against this law breaking," Powell said then.

The state board that regulates doctors looked into the allegations but found no wrongdoing. The same board investigated a patient's death in 2005 but concluded Tiller and his clinic had met all standards for reasonable care.

The late-term law under which Tiller is now charged applies after the 21st week of pregnancy and when the fetus can survive outside the womb.

It says before abortions can be performed in such cases, two doctors must conclude that a woman or girl faces death or "substantial and irreversible" harm to "a major bodily function," which has been interpreted as including mental health. It also says the two doctors can't be legally or financially affiliated.

Seventeen other states have a requirement that a second doctor sign off on some abortions or be present when some are performed, according to the Guttmacher Institute, a Washington-based research group.

Morrison allege that for 19 late-term abortions Tiller performed in 2003, the second opinion came from Dr. Ann Kristin Neuhaus, of Nortonville and formerly of Lawrence, and she and Tiller were financially affiliated. Tiller's attorneys contend the charges stem from a disagreement about "unusual technicalities."


storm 10 years, 10 months ago

The GOP no longer believes laws should be applied conservatively - which is of course the traditional viewpoint for being Republican. They want laws to be applied across (liberally) all states, and this is clearly Democratic. So MM's statement is accurate.

Ragingbear 10 years, 10 months ago

Like this entire thing doesn't reek of unlawful bias.

compmd 10 years, 10 months ago

Jesus H. Tapdancing Christ, it never changes on this topic. Tiller the man has nothing to do with this. This is about the technical aspects of his trial, not whether or not you like him, or whether you think abortions are okay, or about crazy conservatives, or looney liberals. This is a perfect example of why the justice system is so screwed up in this state; the constituency makes far too many decisions on opinion and emotion rather than fact, and it is quite evident.

storm 10 years, 10 months ago

Dr. Tiller, alot of people appreciate all that you have done and continue to do.

KS 10 years, 10 months ago

And Tiller is now the victim? Storm, I'm not so sure the babies appreciate his services!

compmd 10 years, 10 months ago

And parkay shoots and scores to prove my point.

Cait McKnelly 10 years, 10 months ago

An ethical judge would recuse him/herself. But I'm convinced there is no such thing in this state. However, it DOES lay the groundwork for a good reason for appeal.

purplesage 10 years, 10 months ago

Why the presumption that a conservative judge cannot rule without bias? Nobody would be suggesting that a liberal judge should be off a case for similar reasons. Sounds to me like the presiding judge should have done his homework.

Anyone who goes to court has to deal with the judge he / she gets.

oldgoof 10 years, 10 months ago

Tony Powell being a judge is reason #407 why you don't want to directly elect judges, as Wichita does. He is far far far from a disinterested party in abortion issues.

Dani Davey 10 years, 10 months ago

Purplesage, it's not that he's conservative that makes him biased, it's that he helped write the law that is being challenged and has already on numerous occasions accused Tiller of violating it. Of course he's going to find the law he wrote is constitutional and he's already got it in his mind that Tiller is guilty.

lunacydetector 10 years, 10 months ago

M_M, i didn't realize at 21 months along a baby is considered an embryo, trophoblast, and/or a zygote.

please educate us. you sound real smart on this issue.

Uhlrick_Hetfield_III 10 years, 10 months ago

Powell already gave all of the parties an opportunity to ask him to step down and, according to the article, was forthcoming about his legislative history. In many ways, he may be the best judge to hear this case. The accusations thus far have all been that Tiller is getting special treatment from a pro-choice DA, AG and judges who have received campaign contributions that created alleged conflicts. Now Powell is the ultimate decision maker in the case and by allowing the amicus briefs in he has eliminated any argument that Morrison didn't make the case properly. There is no way now for the right to criticize the decision because they've been able to make their case before a judge who shares their beliefs.

Uhlrick_Hetfield_III 10 years, 10 months ago

PS: I see you've returned from your trip Oldgoof. Welcome back.

BigDog 10 years, 10 months ago

He said judges are always free to remove themselves from cases and said because attorneys in Tiller's case didn't object to Powell remaining, they seem satisfied that he can be impartial.

Newman said, "The opportunity was presented to them to request Judge Powell's recusal, and they declined to do so."

Kind of hard to base an appeal on his work as a legislator when he was upfront about it. Each side was given the opportunity to request a recusal and neither did ......... I am no lawyer but seems kind of hard to base an appeal on his "bias" when Dr. Tiller's lawyers didn't ask for a recusal after knowing his history.

It is also amazing to see how many know what Judge Powell is going to do without knowing anything about the man besides what is written in this article.

Uhlrick_Hetfield_III 10 years, 10 months ago


So what's the scoop on Powell?

And MM, I've got the perfect office for you to run for. You could pretend to live in the same district wealthy Republican socialite Barbara Allen pretends to live in. If you have the mentality of a small house plant, you've got to be brighter than she is and the folks there obviously aren't hung up on residency requirements. Your mother would be so proud.

Uhlrick_Hetfield_III 10 years, 10 months ago

Most judges have track records of not revealing any potential bias and I think few have been legislators precisely owing to the fact that they have expressed opinions on so may controversial issues. Lawyers who want to pursue a career on the bench usually keep their personal opinions to themselves.

Laura Watkins 10 years, 10 months ago

lunacydetector (Anonymous) says:

M_M, i didn't realize at 21 months along a baby is considered an embryo, trophoblast, and/or a zygote.

please educate us. you sound real smart on this issue.

um, good one. gestation period for a human is 9 months. 21 months along they would be considered a baby because they would have actually been born.

Uhlrick_Hetfield_III 10 years, 10 months ago

Just read a piece in the Eagle that says it's common for legislators to become judges and rule on legislation they helped create. I stand corrected.

yourworstnightmare 10 years, 10 months ago

KS spouted: "And Tiller is now the victim? Storm, I'm not so sure the babies appreciate his services!"

What babies? Do you mean embryos and fetuses? And how are these embryos and fetuses able to "appreciate" anything?

Please enlighten us with your reasons behind this statement.

staff04 10 years, 10 months ago

OK folks...calm down. This isn't about conservative or liberal, it is about a judge who is obligated under the law to be objective despite his well documented and established bias against the defendant.

On the bright side, if Powell finds Tiller guilty the appeals courts will laugh his ass into obscurity on their way to dismissing any and all charges heard in his court...

yourworstnightmare 10 years, 10 months ago

Ag said "Technically, we're "done" at 36 weeks; the last four weeks are just "icing on the cake," putting on a bit more weight, etc."

Not exactly true. While viable at 36 weeks, cerebral cortex development has just begun. The cerebral cortex is the brain region of higher cognitive function, such as consciousness, learning, language, and thought. Cerebral cortex development continues after birth and through childhood.

Laura Watkins 10 years, 10 months ago

uh okay, ....weeks.... months...i was just pointing out that lunacy detector was wrong in saying that women have a 21-month gestation period. they don't.

Uhlrick_Hetfield_III 10 years, 10 months ago


Judges tend to cover for one another. If Tiller gets off on appeal it won't be because Powell was the judge, it will be because Powell did something goofy trying the case. It may be the case that they look a little harder at Powell's decisions and give the defense attorneys a bigger benefit of the doubt, but the defense gave up their right to complain about Powell when he conveyed his background and ask both sides if they wanted a different judge.

The pressure will actually be on Powell to demonstrate that he's really a judge and not an ideologue and that's what I suspect Tiller's attorneys are counting on. Also, if Powell finds in Tiller's favor who's going to challenge him again?

gccs14r 10 years, 10 months ago

"...what about the legions of liberal activists judges who infest our courts?"

Liberals? We're overrun with Republican judges from a quarter-century of reich-wing rule. Why do you think we don't have any civil rights any more? Remember, the last time the Democrats were fully in charge was the late 70s, and the last time Liberalism had any teeth was back in the mid 60s. You guys have been in charge for a long, long time now, and our country has the scars and the massive debt to prove it.

packrat 10 years, 10 months ago

I've been thinking about this story since this morning. I think the judge should recuse himself.

Uhlrick_Hetfield_III 10 years, 10 months ago

The GOP is no longer conservative???? MM where have you been? All four districts of the Republican Party in Kansas are controlled by the conservative KRA organization. From what I understand, you can be a conservative, but if you're not KRA conservative, you're out.

Why do you think Morrison and Parkinson are pretending to be Democrats? Answer: They can't win anything in the Republican primaries. Oy, that had to be a typo. Didn't you mean the GOP is now really conservative?

Uhlrick_Hetfield_III 10 years, 10 months ago

What's more, the Democratic Party is now more conservative. Sebelius is pushing good Democrats away from her table and bringing in these disaffected Republicans. Read the latest Pitch. She's sold out to the people building coal power plants. Then look at Boyda and Moore, both hold themselves out as conservative Democrats. No one is winning as a progressive.

In fact,isn't this what this article is really about? A conservative judge is now in control of George Tiller's destiny after years in which he was literally above the law.

Uhlrick_Hetfield_III 10 years, 10 months ago

And how many fingers am I holding up...........

Uhlrick_Hetfield_III 10 years, 10 months ago


And so MM is really arguing that she is actually a conservative and that the KRA (which actually controls all 4 districts of the republican Party) is liberal? If that's the case I would have been more eager to vote for her when she conveyed that she had a great rack and a propensity to share it photographically (hence my suggestion of a campaign motto: Vote for me, it's how you picked your wife).

Sorry, saying that the religious right is really the liberal left is a bit too Orwellian for my tastes.

jonas 10 years, 10 months ago

"purplesage (Anonymous) says:

Why the presumption that a conservative judge cannot rule without bias? Nobody would be suggesting that a liberal judge should be off a case for similar reasons."

You don't think there would be anybody saying that? Personally, I would assume, were the headline to say judge was an ex-pro-choice advocator, the commentary to go to about 400 comments, filled with most of our regular righty voices voicing their opinion of unfairness and bias in a loud and vociferous manner. And of course, an equal number defending, with at least one or two suggesting that if it were a conservative judge, there wouldn't be anyone talking about it. Much the same as with Klein/Morrison arguments.

Do your eyes glaze over a lot as you're reading the comments here? You seem to be remarkably one-sided in your perception of events.

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