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Archive for Monday, November 14, 2011

Analysis: Records shredding shadows Planned Parenthood criminal case

November 14, 2011

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— A big part of what’s thought to be the nation’s first criminal case against a Planned Parenthood clinic collapsed after Kansas prosecutors concluded document shredding by state officials made it too difficult for them to walk jurors through allegations that the clinic falsified reports on patients’ abortions.

Two state agencies, during administrations of Democrats who supported abortion rights, destroyed records prosecutors came to see as crucial evidence. Planned Parenthood officials believe the disclosures unfairly overshadowed serious weaknesses in the case against the clinic. Abortion opponents see events as part of the legacy of a persistent nemesis, former Gov. Kathleen Sebelius, now U.S. Health and Human Services secretary.

The resulting dismissal last week of the most serious charges facing Planned Parenthood’s clinic in Overland Park will keep abortion issues roiling in state politics. A new, state-requested investigation will examine whether officials broke any laws in shredding different sets of records in 2005 and 2009.

The clinic still faces 58 misdemeanor charges accusing it of performing illegal abortions and failing to comply with restrictions on late-term procedures, which it denies. But 23 of the 49 charges dismissed last week by District Judge Stephen Tatum were felonies, and all those he counts were tied to allegations the clinic created false copies of reports on individual abortions performed in 2003.

“We are left with no other alternative,” current District Attorney Steve Howe said in seeking the dismissal of the charges.

Reports and copies

Kansas law required Planned Parenthood to compile a report on each abortion it performed, send it to the Kansas Department of Health and Environment, and keep a copy in the Overland Park clinic’s file. Clinic attorneys have said repeatedly it complied fully.

Then-Kansas Attorney General Phill Kline, a Republican abortion opponent, launched an investigation into abortion providers in 2003, months after taking office. The following year, with his investigation ongoing and supervised by a Shawnee County judge, he obtained copies of thousands of reports on individual abortions from the state health department.

Sometime in 2005 — Howe’s office said in a court filing that the exact timing isn’t certain — the health department shredded its copies reports on abortions filed in 2003, including Planned Parenthood’s.

State law declares that records of “enduring value” should be stored to allow permanent preservation, but disposing of other, old records promotes “economy and efficiency” in government operations. Planned Parenthood attorneys have noted that a schedule set by state regulations allowed its abortion reports to be shredded.

State Archivist Matt Veatch, who sits on a board setting records policies, said only a small percentage of records are seen as worth preserving permanently, particularly given limited storage space. Speaking generally, he said schedules for destroying records are discretionary, setting a minimum period they must be preserved and allowing an agency to keep documents longer if it wishes.

Pedro Irigonegaray, an attorney for the Planned Parenthood clinic, said the health department did nothing wrong in destroying old papers on schedule because, “It’s housekeeping.”

Planned Parenthood clinic’s remained under investigation at the time.

Key players

The health department’s secretary in 2005 was appointed by Sebelius, who left the governor’s office in 2009. An HHS spokesman in Washington said in an email last week that Sebelius has “no knowledge” of matters involving the Planned Parenthood case. The health department, citing the criminal case, declined a request from The Associated Press last month to release a memo to Howe about the shredding.

In 2006, with Kline’s investigation of providers still ongoing, the clinic produced yet another set of the same reports to the Shawnee County judge supervising the attorney general’s work.

Kline lost his bid for re-election as attorney general in 2006. But he became Johnson County district attorney, and just before leaving the state office in January 2007, he had copies of records from his investigation transferred to Johnson County, including the abortion reports from Planned Parenthood.

Those copies — described by Howe in court as only partial copies of copies — remain in Johnson County.

In 2007, Kline saw physical differences between those copies and the ones produced by Planned Parenthood in 2006. The clinic acknowledged “certain idiosyncrasies,” later describing them as differences in handwriting, but conveying the exact same information. Irigonegaray said clinic staff simply made copies by hand in 2003.

Court records have shown since that Kline’s successor as attorney general, Paul Morrison, an abortion rights Democrat, was aware of the issue. Morrison concluded the Planned Parenthood clinic had committed no wrongdoing, saying so in a letter to its officials that he made public.

Kline concluded the clinic had created new copies of the 2003 abortion reports to cover up a failure to maintain them as required by law. He filed his criminal case in Johnson County in October 2007, expecting eventually to compare the set of reports produced by Planned Parenthood in 2006 with another set in the state’s possession, to highlight the differences.

The case would outlast both. Morrison, embroiled in a sex scandal, stepped down in January 2008, and Sebelius appointed Steve Six, then a Douglas County district judge, as Morrison’s replacement. Kline left office in January 2009, having lost his 2008 Republican primary to Howe.

Six’s handling of abortion matters remained in line with Morrison’s. And, in April 2009, Six’s office shredded its copies of the Planned Parenthood abortion reports at issue in the criminal case, Howe said in court.

In a letter to the Shawnee County sheriff seeking an investigation of the shredding, current Attorney General Derek Schmidt wrote that “some number” of documents from the investigation of abortion providers had been shredded.

Schmidt, a Republican who unseated Six last year, said he couldn’t determine whether the attorney general’s office had complied with state law or its own records-retention policy. The AP has filed an open records request for a copy of the policy then in place.

Six has declined comment.

Faulty paper trail

Irigonegaray said if Howe and Schmidt truly wanted to pursue the allegations of falsifying records, Howe’s office still could have pushed to use its copies of the abortion reports as evidence.

But abortion rights supporters previously made much of how those same copies were handled after being produced by Kline’s staff in his final hours as attorney general and transferred to Johnson County. For example, one investigator kept them and other materials for several weeks in early 2007 in a Rubbermaid container in his dining room.

Howe said he couldn’t document the exact chain of custody in enough detail and called the legal hurdles to using his copies as evidence “insurmountable.”

Comments

pace 3 years, 1 month ago

It wasn't enough that Kline lost his license, he should go to jail. More than unprofessional, Kline was a criminal and out of control. Not a lawyer, a criminal.

kansanjayhawk 3 years, 1 month ago

The violation of the law was by the abortion clinics and Planned Parenthood not Kline. Mr. Kline was trying to prove that PP had not properly filled out the legally required paperwork and that they were in the process of reconstructing it in 2006 a total violation of the law. Calling Mr. Kline the criminal really covers up for the true criminals the abortionists!

jafs 3 years, 1 month ago

The burden of proof is on the prosecution.

If he was "trying to prove" something and unable to do so, then the correct conclusion in our legal system is that the state has failed to meet their burden of proof.

Cait McKnelly 3 years, 1 month ago

I suggest you look at somebodynew's comment below.

Cait McKnelly 3 years, 1 month ago

Oh and keep towing that party line, KJH. No one believes you and you've shot your credibility wad into bankruptcy.

kansanjayhawk 3 years, 1 month ago

I guess you are the elitist with all the credibility--just happens to be extreme left???--remember you believe abortion is a method of "birth-control" hum----credibility???

Cait McKnelly 3 years, 1 month ago

Oh for gods sake, KJH. You're taking what I said completely out of context and doing an "Ahhhhm!" with a finger point like a six year old in a school playground. But I guess I shouldn't expect any less from you. As for being an elitist, I can pretty well guarantee I have a few IQ points on you. If I've got it, I may as well flaunt it. Here's a link to some free critical thinking exercises. They might do you some good so you stop sounding like Troy Newman's parrot. http://www.teach-nology.com/worksheets/critical_thinking/

kansanjayhawk 3 years ago

Really--I guess bragging about IQ points is something that will really reinforce your tired old libeal arguments--I betting you are wrong!

Mike1949 3 years, 1 month ago

What are the privacy issues surrounding these records being transferred from the attorney's general's office to Johnson county? It sounds like additional laws were broken by Kline. These patients sounds like their rights were totally disregarded.

I think Kline should be tried on that issue and spend some time in jail for breaking both State and Federal laws on privacy! From the article, sounds like more prosecutors are breaking a bunch of laws also. Maybe they should be investigated also! This whole thing is politically motivated and against the law!

Cait McKnelly 3 years, 1 month ago

http://www2.ljworld.com/news/2011/nov/10/unanswered-questions-persist-kan-abortion-case/#c1835568

The only thing I would add to this is that I agree with Ms. Getto that the OCR of HHS should do the investigation rather than DOJ.

Cait McKnelly 3 years, 1 month ago

On second thought perhaps it would be more appropriate for the DOJ to do the investigation, given that Kathleen Sebelius is head of HHS. This would quash any semblance of conflict of interest.

somebodynew 3 years, 1 month ago

Here is part of the key to this whole thing:

" He filed his criminal case in Johnson County in October 2007, expecting eventually to compare the set of reports produced by Planned Parenthood in 2006 with another set in the state’s possession, to highlight the differences."

Kline filed suit.....expecting eventually to compare.....

Most attorneys I have dealt with (and it has been a lot) know what evidence they have before filing suit. In fact it is in their code of ethics. Oh, yeah, Kline wouldn't know about those. Never mind......

Cait McKnelly 3 years, 1 month ago

Completely off-the-wall, inappropriate and unfounded conspiracy theory from kansanjayhawk in 3...2...1....

Cait McKnelly 3 years, 1 month ago

Wow. You beat KJH to the punch. I find it amusing that you would drag "Obama" into everything up to and including a dog fight.

kansanjayhawk 3 years, 1 month ago

condescending attitudes don't win debates---

ThePilgrim 3 years, 1 month ago

Shredding two year old files (2003 shredded in 2005)?! Everyone knows that records management requires files to be saved for many years - and controversial records that may be used in court must be saved for 9+ years. But maybe the gov't doesn't understand that.

Cait McKnelly 3 years, 1 month ago

Again, medical records are a completely different bailiwick and their retentention schedule is mandated by law. Obviously, you didn't read any of the links I posted yesterday. But then I pretty much expect this out of you and your cohort.

Cait McKnelly 3 years, 1 month ago

Not sure where you got your info on records retention but regulations for medical records are completely different and regulated by Federal law. I posted links to HIPAA at hhs.gov. yesterday. You might look them up. (I provide sources to back up what I say.)

Bob_Keeshan 3 years, 1 month ago

You know what's great about fools who post on the internet about what "everyone knows" about records management and which records must be saved for "9+ years"?

The internet fights back http://www.kshs.org/p/state-records-general-retention-schedule/11362

There's only one story here -- Phill Kline did not have evidence to file charges, and his successor Steve Howe did not evidence to continue litigating those charges. Now they both want to blame someone else for their failure.

Unless, of course, you believe it is A-OK for a prosecutor to file criminal charges against you based upon evidence he doesn't have, but thinks somebody else might have. If you are A-OK with this, then carry on...

Cait McKnelly 3 years, 1 month ago

http://www.kshs.org/recmgmt/retention_schedule_entries/search/agencyname:Department%20of%20Health/submit:SEARCH/searchtype:state/limit:1000

This is more to the point as it's the specific retention schedule for KDHE. Look for a subentry titled "SERIES ID 0686-264 TITLE Induced Termination of Pregnancy Report" Interestingly, according to KDHE's schedule, hard copies are only to be kept for ONE YEAR. This means that the records in question (as there was no litigation hold on them) were actually kept twice as long as what they were supposed to be. This begs the question of why they were even kept as long as they were?

kansanjayhawk 3 years, 1 month ago

Well--of course--we will never know now because the records were destroyed...if the issue was not abortion the liberals would be outraged at this document destruction...

jafs 3 years, 1 month ago

What law/s do you think were broken, and by whom?

WilburNether 3 years, 1 month ago

Let's not forget that there would be no issue here were it not for the reign of Gestapo Phill as Attorney General.

Cait McKnelly 3 years, 1 month ago

Agnostick, I just read your link at http://kansas.watchdog.org/6406/kline-ethics-case-documents-from-ag-office-to-tiller-attorney/ on the other thread and all I have to say is...wow! Can I make a viable comparison between Kline and Nixon? What gets to me is the fact that this man is still walking around and not in prison! (Of course, people said the same thing about Nixon but he was at least a US President and actually did some beneficial thngs while in office, like getting us out of Vietnam.) And all he got out of the state bar was "indefinite suspension"? What gets to me is that there are still people that say he was "railroaded" and a "good man" and how "I don't know all of the facts". They want to convince me that if it waddles like a duck and swims like a duck and quacks like a duck it must be a...wombat! Yeah, that's the ticket.

Cait McKnelly 3 years, 1 month ago

My guess is that the retention time is what it is, is because it's the law. Are you saying that it's not? In fact (scratches her head) what are you saying?

kansanjayhawk 3 years, 1 month ago

The current Attorney General stated at a Townhall meeting in Leavenworth that he believes that there might have been mischief here and he will be investigating it properly. The bottom line is we need to know both the exact facts, timeline, and the law at the time and whether it was followed.

jafs 3 years, 1 month ago

Wow.

A "belief" that there "might have been mischief".

Don't law enforcement officials have to meet some sort of "probable cause" standard?

kansanjayhawk 3 years, 1 month ago

Perhaps the standard was met and there is clearly something wrong going on in this shredding case. Come-on be the open-minded liberal person you claim to be wonder if the law was violated here what then?

jafs 3 years, 1 month ago

A "belief that there might have been mischief" doesn't constitute probable cause, as far as I know.

Who said I ever claimed to be either "open minded" or "liberal"?

If the law was broken, then appropriate consequences should ensue.

However, our system also contains a number of checks and balances to dilute the power of the state, and protect citizens from that power.

To that end, law enforcement must follow certain guidelines, and the burden of proof is on the prosecution, not the defense.

"Law and order" folks on the right seem to forget those parts of our system, in their zeal to punish the "guilty".

a_flock_of_jayhawks 3 years, 1 month ago

"...wonder why the retention time is what it is."

Money. In Kansas, it is the #1 concern. Storing records costs money. So, unless you want to buck up more taxes...

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