LJWorld.com

Wichita — An anti-abortion judge who once accused abortion provider Dr. George Tiller of "defying legal and moral authority" withdrew Friday from a case against the doctor, saying he wanted to avoid the appearance of impropriety.

Sedgwick County District Judge Anthony Powell, who was a vocal anti-abortion state lawmaker in the late 1990s, said he did not remember making the statements and recent news reports about them did not refresh his memory. However, he said he did not deny the reports.

"In a high profile case such as this where the judiciary is on trial as much as the defendant, even a hint of impropriety or even the slightest appearance of partiality must be dealt with to protect our system of justice," Powell said in court.

Attorney General Paul Morrison, an abortion-rights Democrat, charged Tiller in June with 19 misdemeanors for allegedly failing to get an independent second opinion on some late-term abortions. Tiller maintains his innocence, and his attorneys are challenging the constitutionality of the Kansas statute.

Defense attorneys filed a motion Monday asking Powell to remove himself from the case. Powell met briefly with attorneys in the case Wednesday behind closed doors. No arguments on the issue were presented in open court.

As a legislator, Powell was among the Legislature's most vocal abortion foes and voted regularly for new abortion restrictions. 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."

Shortly after the enactment of a 1998 law restricting late-term abortions, he accused Tiller of breaking it.

"I have no doubt in all candor that for a reasonable person my statements about Dr. Tiller 10 years ago could raise doubts in the mind of such a person of my ability to be impartial in regards to the defendant in this case," Powell said Friday. "While I have no doubt of my actual ability to be impartial, I have to acknowledge that such comments do raise a question of the appearance of impartiality."

Powell said he wanted to make it clear he was not stepping down from the case because of his views on abortion or his involvement as a legislator in the passage of the state's late-term abortion statute. He said he did not author the statute.

"If having pro-life views would be grounds for recusal, having pro-choice views would be equal grounds for recusal," he said.

Lee Thompson, an attorney for Tiller, said the judge's ruling was appropriate.

Ashley Anstaett, spokeswoman for Morrison, said that the law dealing with recusal does not allow the non-requesting party - the attorney general's office in this case - to voice a position in court.

"We are not surprised with the decision, given Judge Powell's previous comments about the defendant," she said. "This will not influence our case or how we go forward."

Powell sent the case back to Judge Gregory Waller, the county's chief criminal judge, for the appointment of another judge.

The 1998 law under which Tiller is charged applies after the 21st week of pregnancy and when a fetus can survive outside the womb. Two independent doctors must conclude that if the pregnancy continues, the woman or girl could die or face "substantial and irreversible" harm to a "major bodily function," a phrase interpreted to include mental health.

Outside the courthouse, three abortion rights supporters touted signs demanding Powell recuse himself from the case. Friday's hearing did not draw any anti-abortion demonstrations.