Phill Kline
The Sebelius, Morrison and Six flim flam flummox defense of Dr. Tiller and Planned Parenthood
By Phill Kline
Flummox 'em
As Roxie is facing the gallows for the murder of her lover in the musical Chicago, her defense attorney Billy Flynn played by Richard Gere, turns towards her and says:
"Roxie, you got nothing to worry about...it's all a circus, kid...you've got to razzle dazzle 'em, give 'em the old flim flam flummox, fool and fracture them — how can they hear the truth above the roar?"
Such was the strategy of the defense team for Dr. George Tiller and Planned Parenthood. To accomplish this end Planned Parenthood and Dr. Tiller retained the services of former Kansas Governor Kathleen Sebelius, her hand-picked Attorney General Paul Morrison, her later appointed Attorney General Stephen Six and Sebelius appointed Kansas Supreme Court Justice Carol Beier. [1]
Now Mr. Six is attempting the same flim flam flummox approach in his nominations hearing. President Obama has nominated Six for a seat on the 10th Circuit Court of Appeals on the recommendation of Ms. Sebelius, now Secretary of Health and Human Services in the Obama Administration. The Sebelius appointment and now the Six nomination were both strongly supported by Planned Parenthood.
Mr. Six has failed to inform those considering his nomination that as Kansas Attorney General he prevented Dr. Tiller from facing substantive charges and worked hard and long to prevent charges against Planned Parenthood from moving forward.
Thus far, Six's flim flam flummox strategy in his Senate hearings has resulted in a delay of his nomination and the opposition of his two home state Senators — a rare occurrence in the Kansas world of politics.
Dr. Tiller and Planned Parenthood Face Their First Ever Criminal Investigation
As Kansas Attorney General and then as Johnson County District Attorney, I engaged in a criminal investigation and prosecution of the two abortion providers. The stakes were high as Dr. Tiller and Planned Parenthood "invested" millions in Kansas politics. A criminal conviction could lead to Planned Parenthood's loss of its $350 million plus in yearly federal funding and could shut down Dr. Tiller's clinic.
Both Dr. Tiller and Planned Parenthood are prime benefactors of Kathleen Sebelius's political aspirations.
In Sebelius's multi-year battle to keep Planned Parenthood and Dr. George Tiller above the law, the Governor directed her administration to fight my efforts to obtain abortion compliance reports and reports of child molestation. Generals Morrison and Six assisted the effort by suing a sitting judge and by joining Planned Parenthood in suing me in a two-fold effort to have all incriminating evidence returned to Planned Parenthood. [2]
General Six also obtained a secret order silencing a key witness against Planned Parenthood, and joined Dr. Tiller in suing another sitting Judge to prevent the incriminating evidence from being used against Dr. Tiller. [3]
This month at his nomination hearing Mr. Six portrayed his unprecedented legal efforts in defense of Planned Parenthood and Dr. Tiller as merely "referring" issues to the Kansas Supreme Court.
In oral testimony Mr. Six failed to mention that he was the person who actually sued these Judges and myself. Rather, Mr. Six inferred the lawsuits were initiated by third parties. Mr. Six also testified that the legal efforts were all about seeking guidance. The true expressed aim of the various lawsuits was to end the prosecutions and investigations of Dr. Tiller and Planned Parenthood. [4]
Under probing and probably unexpected questioning from Senator Grassley, Mr. Six was unable to explain his contradictory and legally unsupportable actions to protect Dr. Tiller and Planned Parenthood. [5] But who could?
The Flim, Flam: Claim Only Those Who Can't Prosecute Can Have the Evidence — While Those Who Can Prosecute Cannot Have the Evidence
When I was Attorney General, Mr. Morrison and Mr. Six maintained that the Attorney General did not have the authority to file charges against an abortion clinic. [6] This was convenient since Sedgwick County District Attorney Nola Foulston, where Tiller's clinic was located, and Mr. Morrison, then Johnson County District Attorney where Planned Parenthood is located, refused to file charges against the clinics despite compelling evidence of criminal conduct.
This argument was made during my tenure as Attorney General in an effort to limit my authority as Attorney General. Later, however, I became a District Attorney and Mr. Morrison, and afterwards Mr. Six, became Attorney General. They realized that it was necessary to come up with some new legal theory in an effort to limit my ability as District Attorney to file criminal charges. They were creative.
They supplemented their legal position with a new argument. Mr. Morrison and Mr. Six now took the position that the Attorney General was the only person who could ever possess the documents indicating the clinics had violated the law.
Not too dense to see the opportunity, Planned Parenthood supported this legal position. If the argument prevailed, the office which Mr. Morrison and Mr. Six argued could not file criminal charges, would be the only office entitled to possess the evidence of criminal activity.
Conversely, the District Attorney, myself, the only office they claimed could file the charges, must give up the records. [7] In other words, any case against the clinics was impossible to make. The devil himself would be embarrassed to make such an argument.
For Their Defense, the Abortion Clinics Simply Adopted the Arguments of Mr. Morrison and Mr. Six
A criminal defendant could not hope for a more supportive legal team. At times, AG's Morrison and Six were working so effectively as defense counsel for the abortion clinics that the clinics simply adopted their legal arguments and positions.
Further, both Mr. Morrison and Mr. Six interpreted Kansas late-term abortion law to be toothless, asserting that the state cannot question Dr. Tiller's judgment about whether an abortion is necessary. Accordingly, Dr. Tiller could say anything and everything to justify a late-term abortion on a viable child. [8]
My investigation of Dr. Tiller revealed that he was doing just that — performing late-term abortions on viable unborn children for any and all reasons. [9]
Kansas had one of the most restrictive late-term abortion laws in the nation, requiring that two doctors find the mother would suffer "a substantial and irreversible impairment of a major bodily function" unless the abortion was performed. [10]
Dr. Tiller Performs Late-Term Abortions on Viable Unborn Children to Prevent the Mother From Having to Hire a Babysitter
Since the child, if born, would likely outlive the mother, Dr. Tiller reasoned that her worry about competing in the rodeo constituted substantial and irreversible "anxiety disorder." Furthermore, Dr. Tiller reasoned, the mind was a major part of the body. Dr. Tiller concluded, therefore, that a woman concerned about rodeo season was sufferinga substantial and irreversible impairment of a major bodily function.
Other examples from Dr. Tiller's files include late-term abortions in order to go to prom and another to avoid hiring a babysitter while attending rock concerts. To each of these "conditions," Dr. Tiller, a pathologist by training, assigned a mental health diagnosis. [11] Every mental condition Dr. Tiller diagnosed, he considered to be "permanent" necessitating the "treatment" of abortion. These conclusions are, of course, not supported by medical literature.
Dr. Tiller's second "confirming" doctor was Dr. Kristin Neuhaus, a laser hair technician in north central Kansas. Dr. Neuhaus rarely saw Dr. Tiller's patients. She would periodically drive to Tiller's clinic to sign form letters designed by Tiller's lawyers, which stated "I find the mother will suffer substantial and irreversible impairment of a major bodily function." In testimony, she could not recall her individual diagnoses, nor could she name any single patient she rejected for an abortion. Tiller paid her $300 a letter.
Child Rape Goes Unreported
The investigation further revealed that during a time period when 166 abortions in Kansas were performed on underage children (10-14 years old), that Dr. Tiller and Planned Parenthood each only reported one case of child rape. [12]
For Mr. Morrison and later Mr. Six, this behavior met the requirements of Kansas law and could not be questioned.
The Original Substantive Criminal Case Against Dr. Tiller
I, on the other hand, do not view abortion doctors as the source of law. I went to one of our nation's most esteemed psychiatrists, Dr. Paul McHugh, Chair of the Johns Hopkins School of Psychiatry for 20 years.
Dr. McHugh reviewed Dr. Tiller's records and found the following:
1) None of Dr. Tiller's abortions complied with Kansas law;
2) None of the records supported Dr. Tiller's "mental health" diagnoses; and
3) Dr. Tiller's diagnoses were not "substantial and irreversible impairments;"
4) Although Dr. Tiller claimed the conditions of the women were severe, he did not follow up on the well-being of any of his abortion patients by referral to a psychiatrist or psychologist or conducting any follow-up sessions. Again, for Dr. Tiller, a pathologist by training, abortion was the cure for any ailment. [13]
Mr. Morrison and Mr. Six, as Attorney General, fought aggressively to end the real case against Dr. Tiller that was premised on Dr. McHugh's expert review of the records. Mr. Morrison repeatedly criticized this original case filed against Dr. Tiller — a case that would have ended Dr. Tiller's practice in Kansas.
During this entire time that Mr. Morrison and Mr. Six fought to end this case, they never once spoke to Dr. McHugh about his opinions in an effort to understand the case they were trying to prevent. [14]
As Attorney General, in December of 2006, I took my findings to Judge Eric Yost in Sedgwick County. Judge Yost found probable cause to believe that Dr. Tiller committed the crimes alleged. I then filed the charges.
By this time, I had lost the 2006 election to the Sebelius-recruited Morrison, then Johnson County District Attorney. Mr. Morrison, however, had to resign from office to assume the office of Attorney General. In a special caucus election I was chosen to fulfill Mr. Morrison's term as District Attorney. On January 13, 2007, Mr. Morrison and I switched offices.
The day after I filed charges against Dr. Tiller, without notifying me, Democrat and long-term acquaintance of Dr. Tiller, District Attorney Nola Foulston of Wichita, cornered a judge who was not assigned the case and who did not review the evidence. Foulston asked for a dismissal of my charges against Dr. Tiller. The judge granted the request without a hearing, finding that as Attorney General I did not have authority to file the charges. [15] This is the same position that Six took during his tenure as Attorney General and is reflected in his Senate testimony. Foulston's actions came less than 24 hours after I notified her of my intention to file charges. [16] She had told me: "I will not stand in your way." She lied.
I immediately appealed the decision, confident that even the Sebelius-appointed Kansas Supreme Court could not ignore the clear law supporting the authority of the Attorney General to file such charges. Since Morrison had already promised to end my "witch hunt," I appointed a Special Prosecutor to pursue the appeal.
As a newly-minted Attorney General, Morrison immediately fired the Special Prosecutor and later dismissed my appeal, stating his office did not have authority to enforce Kansas late-term abortion restrictions and that only a District Attorney could file the charges.
At that time I publicly predicted that Morrison, with the approval of DA Foulston, would eventually charge Tiller with "highly technical violations of Kansas law" in order to demonstrate his "independence." I believed Morrison would plead these charges out, allowing Tiller to go on aborting late-term children at will.
Meanwhile, I believed, Governor Sebelius would propose an unnecessary "fix to the technical problems" with Kansas law, thus appearing reasonable. — Setting up a straw man simply to knock him down is unfortunately a common tactic in deceptive politics.
Covering for Planned Parenthood and Dr. Tiller
Less than six months later, General Morrison announced "highly technical" charges against Dr. Tiller. . Arguing that the state could not question Tiller's conclusions about his diagnosis of the mother, Morrison asserted that my original charges had no legal basis. General Morrison also announced that in his opinion Planned Parenthood had committed no wrong.
AG Morrison then sued the District Judge who first subpoenaed the records, and also joined Planned Parenthood in suing me. The purpose of the lawsuits, as stated, was to obtain all evidence against Planned Parenthood and return it to Planned Parenthood. The Judge and I resisted the lawsuits. The Judge filed numerous pleadings indicating his belief the records contained evidence of criminal activity. [17]
On October 17, 2007, Judge James Vano in Johnson County reviewed my evidence and found probable cause to believe that Planned Parenthood committed 107 criminal acts including 23 felonies. This filing got the attention of the Kansas Supreme Court. A majority of the Supreme Court had been appointed by Sebelius, for life. Kansas does not require any confirmation process for judicial appointments.
Suddenly the Supreme Court ordered a secret trial in Mr. Morrison's and Planned Parenthood's lawsuit against me. Because Mr. Morrison denied me state resources for my defense, I was forced personally to find more than $200,000 just to keep the criminal evidence against a defendant in the hands of the prosecutor prosecuting the defendant. I won that lawsuit in June, 2008, but it caused another costly delay. [18]
In mid-December, 2007, General Morrison resigned in scandal in the midst of allegations that he had an extra-marital affair with a woman in my office and that he attempted to use that relationship to undermine my prosecution of Planned Parenthood. Sebelius appointed Mr. Six as General Morrison's replacement.
The Tiller Show Trial
General Six did not miss a beat. He refused to reinstate the real Tiller charges. General Six also joined Dr. Tiller in suing a District Court Judge in Sedgwick County, claiming that redacted abortion records were beyond the reach of subpoena. He additionally refused to give the grand jury the redacted records I had already subpoenaed.
More significantly, Mr. Six helped rehabilitate Dr. Tiller's image and close off any possible subsequent substantive charges by throwing away what remained of the case.
In order to appear independent, Mr. Morrison had charged Dr. Tiller with "highly technical" charges. The charges were not a threat to Dr. Tiller's practice. I still believe Mr. Morrison would have entered a plea bargain with Dr. Tiller to allow him to continue his practice — but Mr. Morrison was forced to resign. Mr. Six inherited the case.
At trial, Mr. Six only called one witness — a hostile witness who did not agree with the State's charges. That witness denied the State's allegations. Mr. Six rested his case, but he was not finished with his efforts to guide the jury to a not guilty verdict. Mr. Six further stipulated that every single abortion by Dr. Tiller was medically necessary. [19]
Accordingly, under Mr. Six's agreement with Dr. Tiller's attorneys, the jury was instructed that the state did not dispute Mr. Tiller's claims that his abortions were performed to save the women from dire health consequences. The State called no experts, did not present the redacted abortion records, and stipulated away the truth about Dr. Tiller's late-term abortion practices. The State's case, as presented by Mr. Six, would become one of Dr. Tiller's most effective public relations tools.
In a recent hearing Assistant Attorney General Veronica Dersch, the lawyer who evaluated the Tiller case for Mr. Six, testified as follows:
Q: Ms. Dersch... isn't it true that the lawyer that tried the case for the Attorney General's Office entered into a stipulation that ultimately caused a defendant verdict for every charge filed?
A: The answer to that question is, yes...
Q: And isn't it true that he called one witness in the case?
A: Yes, that's true.
Q: And...that one witness that was Doctor Kristin Neuhaus?
A: That's right. [20]
Dr. Neuhaus was Dr. Tiller's partner in the abortions. She provided a rubber-stamp "second opinion." The testimony of Dr. McHugh was never presented. As a result, the jurors never heard the evidence that Dr. Tiller performed abortions on viable children in order to preserve a rodeo season or to avoid the cost of babysitters. The jury only heard that Dr. Tiller courageously provided medically necessary services in the face of substantial obstacles.
An article in the Fall 2009, Issue of "The Warrior," the Journal of Noted Trial Attorney Gerry Spence's Trial Lawyer's College, describes the only evidence Mr. Six's attorneys presented in the Tiller case — the examination of Dr. Neuhaus. The author writes:
Acquittal was swift, and Dr. Tiller's reputation rehabilitated. A first year law student could have obtained that acquittal. The illegal abortions continued. Scott Roeder was in the audience when the verdict was read. Two months later, Roeder shot Dr. Tiller dead, as Dr. Tiller was attending church.
Suing Prosecutors and Judges to Return Criminal Evidence to the Criminal Defendant and Misleading the Senate
Mr. Six also fought against my Planned Parenthood prosecution. He filed a motion without notice to my office to silence a key witness. The order was granted and eventually reversed two years later — again delaying the criminal case .[22]
When asked by Senator Charles Grassley about these unprecedented efforts to interfere with pending criminal cases, Six tried to couch the cases as mere "referrals" to the Kansas Supreme Court to seek guidance on "sensitive" issues. Mr. Six went so far as to state that his office fought to ensure that patient identities were redacted from the records and that Judge Anderson had stated the records had patient identities. [23] This testimony is false.
The records in question were already completely redacted of patient identities by October 24, 2006, more than one year prior to General Six becoming Attorney General. The judge who oversaw the redaction process testified that it was not possible for a third party to identify any patient by reviewing the records. [24]
Mr. Six failed to mention his lawsuit against the Sedgwick County judge and his refusal to give redacted records to the grand jury. Six failed to mention his role in the Tiller case, his flawed interpretation of Kansas late-term abortion law, and his refusal reinstate the real Tiller charges.
In fact, Mr. Six testified at his nominations hearing "I've never read the statute" relating to late-term abortion. [25] This is either deceptive or a remarkable statement of neglect by an Attorney General who had such a prominent role in preventing the enforcement of that very statute.
General Six's evasive and deceptive testimony before the United States Senate has placed his nomination in jeopardy. The flim flam flummox may work in small town Kansas, but here's hoping the DC crowd is a little too sophisticated for such razzle dazzle.
NOTES:
© Phill Kline
June 21, 2011
Flummox 'em
As Roxie is facing the gallows for the murder of her lover in the musical Chicago, her defense attorney Billy Flynn played by Richard Gere, turns towards her and says:
"Roxie, you got nothing to worry about...it's all a circus, kid...you've got to razzle dazzle 'em, give 'em the old flim flam flummox, fool and fracture them — how can they hear the truth above the roar?"
Such was the strategy of the defense team for Dr. George Tiller and Planned Parenthood. To accomplish this end Planned Parenthood and Dr. Tiller retained the services of former Kansas Governor Kathleen Sebelius, her hand-picked Attorney General Paul Morrison, her later appointed Attorney General Stephen Six and Sebelius appointed Kansas Supreme Court Justice Carol Beier. [1]
Now Mr. Six is attempting the same flim flam flummox approach in his nominations hearing. President Obama has nominated Six for a seat on the 10th Circuit Court of Appeals on the recommendation of Ms. Sebelius, now Secretary of Health and Human Services in the Obama Administration. The Sebelius appointment and now the Six nomination were both strongly supported by Planned Parenthood.
Mr. Six has failed to inform those considering his nomination that as Kansas Attorney General he prevented Dr. Tiller from facing substantive charges and worked hard and long to prevent charges against Planned Parenthood from moving forward.
Thus far, Six's flim flam flummox strategy in his Senate hearings has resulted in a delay of his nomination and the opposition of his two home state Senators — a rare occurrence in the Kansas world of politics.
Dr. Tiller and Planned Parenthood Face Their First Ever Criminal Investigation
As Kansas Attorney General and then as Johnson County District Attorney, I engaged in a criminal investigation and prosecution of the two abortion providers. The stakes were high as Dr. Tiller and Planned Parenthood "invested" millions in Kansas politics. A criminal conviction could lead to Planned Parenthood's loss of its $350 million plus in yearly federal funding and could shut down Dr. Tiller's clinic.
Both Dr. Tiller and Planned Parenthood are prime benefactors of Kathleen Sebelius's political aspirations.
In Sebelius's multi-year battle to keep Planned Parenthood and Dr. George Tiller above the law, the Governor directed her administration to fight my efforts to obtain abortion compliance reports and reports of child molestation. Generals Morrison and Six assisted the effort by suing a sitting judge and by joining Planned Parenthood in suing me in a two-fold effort to have all incriminating evidence returned to Planned Parenthood. [2]
General Six also obtained a secret order silencing a key witness against Planned Parenthood, and joined Dr. Tiller in suing another sitting Judge to prevent the incriminating evidence from being used against Dr. Tiller. [3]
This month at his nomination hearing Mr. Six portrayed his unprecedented legal efforts in defense of Planned Parenthood and Dr. Tiller as merely "referring" issues to the Kansas Supreme Court.
In oral testimony Mr. Six failed to mention that he was the person who actually sued these Judges and myself. Rather, Mr. Six inferred the lawsuits were initiated by third parties. Mr. Six also testified that the legal efforts were all about seeking guidance. The true expressed aim of the various lawsuits was to end the prosecutions and investigations of Dr. Tiller and Planned Parenthood. [4]
Under probing and probably unexpected questioning from Senator Grassley, Mr. Six was unable to explain his contradictory and legally unsupportable actions to protect Dr. Tiller and Planned Parenthood. [5] But who could?
The Flim, Flam: Claim Only Those Who Can't Prosecute Can Have the Evidence — While Those Who Can Prosecute Cannot Have the Evidence
When I was Attorney General, Mr. Morrison and Mr. Six maintained that the Attorney General did not have the authority to file charges against an abortion clinic. [6] This was convenient since Sedgwick County District Attorney Nola Foulston, where Tiller's clinic was located, and Mr. Morrison, then Johnson County District Attorney where Planned Parenthood is located, refused to file charges against the clinics despite compelling evidence of criminal conduct.
This argument was made during my tenure as Attorney General in an effort to limit my authority as Attorney General. Later, however, I became a District Attorney and Mr. Morrison, and afterwards Mr. Six, became Attorney General. They realized that it was necessary to come up with some new legal theory in an effort to limit my ability as District Attorney to file criminal charges. They were creative.
They supplemented their legal position with a new argument. Mr. Morrison and Mr. Six now took the position that the Attorney General was the only person who could ever possess the documents indicating the clinics had violated the law.
Not too dense to see the opportunity, Planned Parenthood supported this legal position. If the argument prevailed, the office which Mr. Morrison and Mr. Six argued could not file criminal charges, would be the only office entitled to possess the evidence of criminal activity.
Conversely, the District Attorney, myself, the only office they claimed could file the charges, must give up the records. [7] In other words, any case against the clinics was impossible to make. The devil himself would be embarrassed to make such an argument.
For Their Defense, the Abortion Clinics Simply Adopted the Arguments of Mr. Morrison and Mr. Six
A criminal defendant could not hope for a more supportive legal team. At times, AG's Morrison and Six were working so effectively as defense counsel for the abortion clinics that the clinics simply adopted their legal arguments and positions.
Further, both Mr. Morrison and Mr. Six interpreted Kansas late-term abortion law to be toothless, asserting that the state cannot question Dr. Tiller's judgment about whether an abortion is necessary. Accordingly, Dr. Tiller could say anything and everything to justify a late-term abortion on a viable child. [8]
My investigation of Dr. Tiller revealed that he was doing just that — performing late-term abortions on viable unborn children for any and all reasons. [9]
Kansas had one of the most restrictive late-term abortion laws in the nation, requiring that two doctors find the mother would suffer "a substantial and irreversible impairment of a major bodily function" unless the abortion was performed. [10]
Dr. Tiller Performs Late-Term Abortions on Viable Unborn Children to Prevent the Mother From Having to Hire a Babysitter
Since the child, if born, would likely outlive the mother, Dr. Tiller reasoned that her worry about competing in the rodeo constituted substantial and irreversible "anxiety disorder." Furthermore, Dr. Tiller reasoned, the mind was a major part of the body. Dr. Tiller concluded, therefore, that a woman concerned about rodeo season was sufferinga substantial and irreversible impairment of a major bodily function.
Other examples from Dr. Tiller's files include late-term abortions in order to go to prom and another to avoid hiring a babysitter while attending rock concerts. To each of these "conditions," Dr. Tiller, a pathologist by training, assigned a mental health diagnosis. [11] Every mental condition Dr. Tiller diagnosed, he considered to be "permanent" necessitating the "treatment" of abortion. These conclusions are, of course, not supported by medical literature.
Dr. Tiller's second "confirming" doctor was Dr. Kristin Neuhaus, a laser hair technician in north central Kansas. Dr. Neuhaus rarely saw Dr. Tiller's patients. She would periodically drive to Tiller's clinic to sign form letters designed by Tiller's lawyers, which stated "I find the mother will suffer substantial and irreversible impairment of a major bodily function." In testimony, she could not recall her individual diagnoses, nor could she name any single patient she rejected for an abortion. Tiller paid her $300 a letter.
Child Rape Goes Unreported
The investigation further revealed that during a time period when 166 abortions in Kansas were performed on underage children (10-14 years old), that Dr. Tiller and Planned Parenthood each only reported one case of child rape. [12]
For Mr. Morrison and later Mr. Six, this behavior met the requirements of Kansas law and could not be questioned.
The Original Substantive Criminal Case Against Dr. Tiller
I, on the other hand, do not view abortion doctors as the source of law. I went to one of our nation's most esteemed psychiatrists, Dr. Paul McHugh, Chair of the Johns Hopkins School of Psychiatry for 20 years.
Dr. McHugh reviewed Dr. Tiller's records and found the following:
1) None of Dr. Tiller's abortions complied with Kansas law;
2) None of the records supported Dr. Tiller's "mental health" diagnoses; and
3) Dr. Tiller's diagnoses were not "substantial and irreversible impairments;"
4) Although Dr. Tiller claimed the conditions of the women were severe, he did not follow up on the well-being of any of his abortion patients by referral to a psychiatrist or psychologist or conducting any follow-up sessions. Again, for Dr. Tiller, a pathologist by training, abortion was the cure for any ailment. [13]
Mr. Morrison and Mr. Six, as Attorney General, fought aggressively to end the real case against Dr. Tiller that was premised on Dr. McHugh's expert review of the records. Mr. Morrison repeatedly criticized this original case filed against Dr. Tiller — a case that would have ended Dr. Tiller's practice in Kansas.
During this entire time that Mr. Morrison and Mr. Six fought to end this case, they never once spoke to Dr. McHugh about his opinions in an effort to understand the case they were trying to prevent. [14]
As Attorney General, in December of 2006, I took my findings to Judge Eric Yost in Sedgwick County. Judge Yost found probable cause to believe that Dr. Tiller committed the crimes alleged. I then filed the charges.
By this time, I had lost the 2006 election to the Sebelius-recruited Morrison, then Johnson County District Attorney. Mr. Morrison, however, had to resign from office to assume the office of Attorney General. In a special caucus election I was chosen to fulfill Mr. Morrison's term as District Attorney. On January 13, 2007, Mr. Morrison and I switched offices.
The day after I filed charges against Dr. Tiller, without notifying me, Democrat and long-term acquaintance of Dr. Tiller, District Attorney Nola Foulston of Wichita, cornered a judge who was not assigned the case and who did not review the evidence. Foulston asked for a dismissal of my charges against Dr. Tiller. The judge granted the request without a hearing, finding that as Attorney General I did not have authority to file the charges. [15] This is the same position that Six took during his tenure as Attorney General and is reflected in his Senate testimony. Foulston's actions came less than 24 hours after I notified her of my intention to file charges. [16] She had told me: "I will not stand in your way." She lied.
I immediately appealed the decision, confident that even the Sebelius-appointed Kansas Supreme Court could not ignore the clear law supporting the authority of the Attorney General to file such charges. Since Morrison had already promised to end my "witch hunt," I appointed a Special Prosecutor to pursue the appeal.
As a newly-minted Attorney General, Morrison immediately fired the Special Prosecutor and later dismissed my appeal, stating his office did not have authority to enforce Kansas late-term abortion restrictions and that only a District Attorney could file the charges.
At that time I publicly predicted that Morrison, with the approval of DA Foulston, would eventually charge Tiller with "highly technical violations of Kansas law" in order to demonstrate his "independence." I believed Morrison would plead these charges out, allowing Tiller to go on aborting late-term children at will.
Meanwhile, I believed, Governor Sebelius would propose an unnecessary "fix to the technical problems" with Kansas law, thus appearing reasonable. — Setting up a straw man simply to knock him down is unfortunately a common tactic in deceptive politics.
Covering for Planned Parenthood and Dr. Tiller
Less than six months later, General Morrison announced "highly technical" charges against Dr. Tiller. . Arguing that the state could not question Tiller's conclusions about his diagnosis of the mother, Morrison asserted that my original charges had no legal basis. General Morrison also announced that in his opinion Planned Parenthood had committed no wrong.
AG Morrison then sued the District Judge who first subpoenaed the records, and also joined Planned Parenthood in suing me. The purpose of the lawsuits, as stated, was to obtain all evidence against Planned Parenthood and return it to Planned Parenthood. The Judge and I resisted the lawsuits. The Judge filed numerous pleadings indicating his belief the records contained evidence of criminal activity. [17]
On October 17, 2007, Judge James Vano in Johnson County reviewed my evidence and found probable cause to believe that Planned Parenthood committed 107 criminal acts including 23 felonies. This filing got the attention of the Kansas Supreme Court. A majority of the Supreme Court had been appointed by Sebelius, for life. Kansas does not require any confirmation process for judicial appointments.
Suddenly the Supreme Court ordered a secret trial in Mr. Morrison's and Planned Parenthood's lawsuit against me. Because Mr. Morrison denied me state resources for my defense, I was forced personally to find more than $200,000 just to keep the criminal evidence against a defendant in the hands of the prosecutor prosecuting the defendant. I won that lawsuit in June, 2008, but it caused another costly delay. [18]
In mid-December, 2007, General Morrison resigned in scandal in the midst of allegations that he had an extra-marital affair with a woman in my office and that he attempted to use that relationship to undermine my prosecution of Planned Parenthood. Sebelius appointed Mr. Six as General Morrison's replacement.
The Tiller Show Trial
General Six did not miss a beat. He refused to reinstate the real Tiller charges. General Six also joined Dr. Tiller in suing a District Court Judge in Sedgwick County, claiming that redacted abortion records were beyond the reach of subpoena. He additionally refused to give the grand jury the redacted records I had already subpoenaed.
More significantly, Mr. Six helped rehabilitate Dr. Tiller's image and close off any possible subsequent substantive charges by throwing away what remained of the case.
In order to appear independent, Mr. Morrison had charged Dr. Tiller with "highly technical" charges. The charges were not a threat to Dr. Tiller's practice. I still believe Mr. Morrison would have entered a plea bargain with Dr. Tiller to allow him to continue his practice — but Mr. Morrison was forced to resign. Mr. Six inherited the case.
At trial, Mr. Six only called one witness — a hostile witness who did not agree with the State's charges. That witness denied the State's allegations. Mr. Six rested his case, but he was not finished with his efforts to guide the jury to a not guilty verdict. Mr. Six further stipulated that every single abortion by Dr. Tiller was medically necessary. [19]
Accordingly, under Mr. Six's agreement with Dr. Tiller's attorneys, the jury was instructed that the state did not dispute Mr. Tiller's claims that his abortions were performed to save the women from dire health consequences. The State called no experts, did not present the redacted abortion records, and stipulated away the truth about Dr. Tiller's late-term abortion practices. The State's case, as presented by Mr. Six, would become one of Dr. Tiller's most effective public relations tools.
In a recent hearing Assistant Attorney General Veronica Dersch, the lawyer who evaluated the Tiller case for Mr. Six, testified as follows:
Q: Ms. Dersch... isn't it true that the lawyer that tried the case for the Attorney General's Office entered into a stipulation that ultimately caused a defendant verdict for every charge filed?
A: The answer to that question is, yes...
Q: And isn't it true that he called one witness in the case?
A: Yes, that's true.
Q: And...that one witness that was Doctor Kristin Neuhaus?
A: That's right. [20]
Dr. Neuhaus was Dr. Tiller's partner in the abortions. She provided a rubber-stamp "second opinion." The testimony of Dr. McHugh was never presented. As a result, the jurors never heard the evidence that Dr. Tiller performed abortions on viable children in order to preserve a rodeo season or to avoid the cost of babysitters. The jury only heard that Dr. Tiller courageously provided medically necessary services in the face of substantial obstacles.
An article in the Fall 2009, Issue of "The Warrior," the Journal of Noted Trial Attorney Gerry Spence's Trial Lawyer's College, describes the only evidence Mr. Six's attorneys presented in the Tiller case — the examination of Dr. Neuhaus. The author writes:
-
The prosecution called only one witness: Dr. Neuhaus, who testified under the prosecution's grant of immunity. Her direct examination was brief: the prosecutor limited his questions to the least common denominator of his allegations, never asking any questions that would tell the jury who this witness was and how she had gotten to this trial and this witness stand. (Defense counsel) knew that this presented his opportunity to commandeer the case away from the prosecution and to tell Dr. Tiller's story and Dr. Neuhaus's own story through his cross examination...." [21]
Acquittal was swift, and Dr. Tiller's reputation rehabilitated. A first year law student could have obtained that acquittal. The illegal abortions continued. Scott Roeder was in the audience when the verdict was read. Two months later, Roeder shot Dr. Tiller dead, as Dr. Tiller was attending church.
Suing Prosecutors and Judges to Return Criminal Evidence to the Criminal Defendant and Misleading the Senate
Mr. Six also fought against my Planned Parenthood prosecution. He filed a motion without notice to my office to silence a key witness. The order was granted and eventually reversed two years later — again delaying the criminal case .[22]
When asked by Senator Charles Grassley about these unprecedented efforts to interfere with pending criminal cases, Six tried to couch the cases as mere "referrals" to the Kansas Supreme Court to seek guidance on "sensitive" issues. Mr. Six went so far as to state that his office fought to ensure that patient identities were redacted from the records and that Judge Anderson had stated the records had patient identities. [23] This testimony is false.
The records in question were already completely redacted of patient identities by October 24, 2006, more than one year prior to General Six becoming Attorney General. The judge who oversaw the redaction process testified that it was not possible for a third party to identify any patient by reviewing the records. [24]
Mr. Six failed to mention his lawsuit against the Sedgwick County judge and his refusal to give redacted records to the grand jury. Six failed to mention his role in the Tiller case, his flawed interpretation of Kansas late-term abortion law, and his refusal reinstate the real Tiller charges.
In fact, Mr. Six testified at his nominations hearing "I've never read the statute" relating to late-term abortion. [25] This is either deceptive or a remarkable statement of neglect by an Attorney General who had such a prominent role in preventing the enforcement of that very statute.
General Six's evasive and deceptive testimony before the United States Senate has placed his nomination in jeopardy. The flim flam flummox may work in small town Kansas, but here's hoping the DC crowd is a little too sophisticated for such razzle dazzle.
NOTES:
[1] In the fall of 2005, Governor Sebelius recruited long-serving District Attorney of Johnson County Paul Morrison to switch political parties and run for Attorney General in 2006. Mr. Morrison defeated me in November of 2006 with the help of millions of dollars of abortion provider dollars. Mr. Morrison, however, was forced by scandal to resign from office in January of 2007. Ms. Sebelius appointed Mr. Six to the position. Mr. Six served from February 1, 2007 to January of 2011, having been defeated in the 2010 elections. Every public position Mr. Six has held is due to being appointed by Governor Sebelius. Justice Carol Beier was appointed to the Kansas Supreme Court by Ms. Sebelius. Ms. Beier previously was a lawyer with the abortion supporting National Women's Law Center.
[2] Morrison filed and then Six continued after replacing Morrison two original Mandamus actions to retrieve all evidence of Planned Parenthood's criminality and return that evidence to Planned Parenthood. Morrison/Six v. Anderson, No. 99050 (October 19, 2007) (suing the District Court Judge who issued the subpoenas for redacted abortion files) and Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri and Morrison/Six v. Kline, 287 Kan. 372, 197 P.3d 370(2008)(hereinafter "PP/Six v. Kline") (suing myself as prosecutor in the criminal case against Planned Parenthood). Documents related to these lawsuits are available at: www.plannedparenthoodcorruption.org/library-of-documents/ [hereinafter "website"].
[3] Protective Order, Six v. Anderson (April 4, 2008), available atwww.plannedparenthoodcorruption.org/library-of-documents/ The order silencing the witness was issued at Six's request in Six v. Anderson. The motion and the order came within weeks of the witness indicating that Planned Parenthood apparently manufactured documents in response to a subpoena. You can view the order and Six's motion to obtain the order at the above website. In 2008, Mr. Six sued Sedgwick County District Court Judge Michael Corrigan and Judge Paul Buchanan in an effort to prevent a sitting Grand Jury from obtaining abortion records in its investigation of Dr. Tiller. The records sought were entirely redacted of patient identities and did not pose a threat to patient privacy. The case is Tiller v. Corrigan, 286 Kan. 30, 182 P.3d 719 (2008) and may be viewed on the website.
[4] During the hearing, Senator Grassley asked Mr. Six about several lawsuits which hampered the investigation of Planned Parenthood. Mr. Six replied: "When any judge is...uh...sued they contact the attorney general's office for representation...(g)iven the sensitive nature of the case I thought it would be best to supply outside counsel outside the office to him...and the matter was referred again to our Kansas Supreme Court." Transcript, Testimony of Stephen Six (May 24, 2011), available at the website. Mr. Six refers to Judge Richard Anderson, who possessed documents produced by a subpoena he issued to. The documents did not contain patient names, but do contain "evidence of criminal activity" according to Anderson. Mr. Six fails to mention that the "referral" to the Supreme Court was really Mr. Six suing Mr. Anderson in an effort to prevent the subpoenaed documents from being used to prosecute Planned Parenthood. Outside counsel was required for Judge Anderson because Mr. Six brought the lawsuit. Source documents are available at the website.
[6] In his written testimony Mr. Six testifies: "My understanding is that the Kansas Attorney General's Office does not have original criminal jurisdiction for criminal cases. The Kansas Attorney General's Office is required to be asked by a district or county attorney to assume jurisdiction in a case in order to become involved as prosecutors." Yet, despite Mr. Six's claimed lack of jurisdiction in criminal matters, he files civil lawsuits in an attempt to prevent a district attorney with jurisdiction from proceeding. Later, Mr. Six is asked if he ever coordinated these efforts with then Governor Sebelius. Mr. Six's reply is carefully couched to mislead when he states that "his criminal division" never worked directly with the Governor. This is true; it was his "civil division" which coordinated with Governor Sebelius. See, Six Oral Testimony and Six Written Testimony, all available at the website.
[7] Mr. Morrison and Mr. Six made these legal arguments in Morrison/Six v. Anderson, No. 99050 (October 19, 2007) and Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri and Morrison/Six v. Kline, 287 Kan. 372, 197 P.3d 370 (2008).
[8] It is important to note that my investigation regarding abortion only related to criminal late-term abortion. Kansas law allowed abortion on demand prior to the time the child was capable of living away from the mother's womb. The law clearly demonstrated that the women were not under investigation and could not be charged with a crime. Furthermore, the records in the case did not contain patient identities. The remaining part of my investigation related to the abortion clinics' failure to report child rape.
[9] You can hear audio of Dr. Tiller describing his practice on the website. You can also view a videotaped interview of Dr. Paul McHugh. Dr. McHugh reviewed Dr. Tiller's files and found that every single abortion did not comport with Kansas law or the standard of care for Doctors in Dr. Tiller's position. See, Dr. McHugh's videotaped interview at www.standwithtruth.com and at: http://standwithtruth.com/kansasabortionwars/johns-hopkins-university-school-of-psychiatry-chair-no-justification-for-tillers-abortions/
[10] K.S.A. §65-6703.
[11] Dr. Tiller diagnosed either "adjustment disorder," "anxiety disorder," or "single episodic severe depression." Dr. Tiller considered all of these mental conditions to be "permanent" and he considered the only treatment to be an abortion.
[12] This part of the investigation was stalled by the Kansas Supreme Court. Justice Beier and the Court allowed the abortion clinics the unprecedented ability to stall the subpoena with a lawsuit. My investigators did not seek the names of adult patients but we did seek the names of child patients in order to act to protect the children. The Kansas Supreme Court, in February of 2006, finally ruled that the abortion clinics must produce the subpoenaed records. The Court, however, stated that the abortion clinics could redact child names as well. Justice Beier wrote that once I received the records without children's names, I could go back and obtain the records with their names. The records without names, however, were not produced until October of 2006, more than two years after they were subpoenaed. I did not have sufficient time remaining in my term to obtain the names. Mr. Morrison and Mr. Six later refused to continue the investigation. The hundreds of children whose child molestation were not reported to the state remain unknown.
[13] You can view Dr. McHugh's interview at: http://standwithtruth.com/kansasabortionwars/johns-hopkins-university-school-of-psychiatry-chair-no-justification-for-tillers-abortions/
[14] Affidavit of Dr. Paul McHugh
[15] Kansas law allows the Attorney General original jurisdiction in many criminal cases, yet reserves jurisdiction in some to County and District Attorneys. The Attorney General has concurrent jurisdiction when the Kansas law relevant to the criminal prosecution mentions the Attorney General. The Kansas abortion enforcement laws expressly mention the authority of the Attorney General in K.S.A. §65-445 and I, therefore, could file the Tiller charges. In an abundance of caution, however, I met with D.A. Foulston prior to filing the Tiller charges and informed her of my intentions. Kansas law clearly states that an Attorney General has jurisdiction if the D.A. is aware of the filing and does not object.
[16] See, Foulston Email (Dec. 22, 2006 at 12:46pm) available at the website. In the email Foulston falsely claims that she raised objections when we met the evening before. The email, however, does acknowledge that we met.
[17] See., e.g., Phill Kline, Why the Senate Should Reject Stephen Six for the 10th Circuit Court of Appeals (and supporting documents, including case pleadings), (June, 2011), available at www.plannedparenthoodcorruption.org
[18] Writing for the Court, Sebelius appointed Justice Carole Beier ordered that I copy all of my evidence obtained against Planned Parenthood and provide that copy to General Six's office. The Court denied the request of General Six and Planned Parenthood that I be forced to give up all of my evidence. Accordingly, I could continue my case. The Court order that I give Mr. Six copies of my files, however, is odd considering Mr. Six and Mr. Morrison had publicly announced their belief that Planned Parenthood had not committed a crime and that they had sued to have all evidence returned to Planned Parenthood. By entering an order against me Justice Beier, whose opinions on abortion read more like a political diatribe, than legal opinion, gave the Kansas media fodder to once again claim that I lost a key case when we won on every substantive issue of law. Such an approach was consistent in the many Supreme Court decisions relating to the investigation. On this occasion, however, two justices thought Justice Beier went too far.
[19] Agreed Order Regarding Trial Stipulation, at ¶¶ 3-7, Kansas v. Tiller, Case No. 07 CR 2112 (March 12, 2009); document available at the website.
[20] Dersch Testimony, In re Matter of Phillip D. Kline, (February 22, 2011) (quoted transcript available at the website.
[21] Maren Lynn Chaloupka, TLC Methods in Practice, THE WARRIOR at 16-23 (Fall 2009). The article contains several factual errors, but its description of this portion of the trial is accurate and was provided with the cooperation of Mr. Dan Monnat, Dr. Tiller's defense counsel. You can read the entire article at: www.plannedparenthoodcorruption.org Click on the documents link.
[22] The Kansas Supreme Court originally gagged the witness in April of 2008. I was forced to appeal that decision back to the Kansas Supreme Court which finally rescinded its order in October of 2010.
[24] See Six Deceives Senate Summary, available at the website (summarizing Judge Anderson's statements that the medical records are redacted of patient identities to an even greater extent than required by law).
© Phill Kline
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