Tuesday, March 27, 2007

Kansas: Is the effort to force prosecution of George Tiller constitutional?

By Diane Silver

I can't tell you whether Wichita abortion provider George Tiller has committed any misdemeanors in his practice. I can't tell you whether it's a right or wrong to prosecute him, although certainly former Kansas Attorney General Phill Kline's Ahab-like pursuit of Tiller began to verge on the absurd.

However, Operation Rescue' current effort to force our new attorney general, Paul Morrison, to prosecute Tiller worries me. It should also worry you whether you love Tiller or hate him, and no matter where you stand on the subject of abortion.

Yesterday the House Federal and State Affairs Committee passed a resolution ordering Morrison to reinstate the 30 now dismissed misdemeanor charges Kline had filed against Tiller. The committee did this without holding a hearing, although that supposedly will come this afternoon. (What an odd kind of legislating: Pass the proposal, THEN hold the hearing. You've gotta love the Kansas Legislature.)

Not holding a hearing is bad enough, but what really worries me is the fact that the Legislative branch is trying to force the attorney general to file charges. I know that an obscure law is being invoked, but can this possibly be constitutional? What happened to separation of powers?


KSDP Focus said...

I also can't say for certain if forcing the AG to file charges would be constitutional (I need to check some wording in the Kansas Constitution first). But, I have to say that it would be funny as hell for Tiller to be acquitted and then watch these nut jobs start arguing that the jury was packed. They would be totally unable to accept a verdict, despite what they day, of not guilty.

Diane Silver said...

I suspect you're right that they wouldn't accept the verdict if he was acquitted.

Anonymous said...

Can you name another case where two judges found probable cause to believe that crimes were committed and the two prosecutors charged with enforcing the law worked procedural efforts to dismiss the case after receiving hundreds of thousands of dollars of financial support from the suspect? No corruption there?

This is called "checks and balances." Either house in the legislature can (and has in the past) directed the attorney general to take legal action. Actually, if the House directs Morrison to prosecute and he ignores that, I think there's a case to take the matter to Federal Court since the state is ignoring its own laws. If two Kansas judges have already found "probable cause" why isn't Morrison seen as obstructing justice by ignoring these legal findings?

Wouldn't Kline look quite foolish by charging someone that wasn't breaking the law? While jury nullification may be likely, the public will at least me more aware of why two judges found probable cause that laws were really broken.

What will the LGBT community do when we are unfairly targeted by a pre-natal LGBT test and LGBT babies are never allowed to be born?

Diane Silver said...

Hi anonymous. It's nice to know that all sides of the debate keep reading my blog.

A couple of thoughts...

First, no one knows what Morrison is going to do. He has been investigating Tiller and news reports say he will make an announcement "soon." Perhaps it makes sense to wait and see what happens.

You talk about the financial support Morrison's campaign received from ProKanDo, a PAC that supports abortion rights, yet you never mention the money Phill Kline received from anti-abortion forces. Kline's attempt to prosecute Tiller could be seen as nothing more than political.

As far as Kline's foolishness goes... there are honest disagreements about what the law says. See the Wichita Eagle articles I'll link to in a few minutes.

On the two judges actions... I feel like I need to research that more, but I do know that one of those judges is Eric Yost. I knew Eric when he was a state senator representing the Wichita area. I always liked Eric. He was a friendly, nice guy and always treated me fairly when I was a reporter in the Statehosue, but one thing that was clear was that Eric was about as anti-abortion as a person can be. It's not a surprise that he would help Kline pursue Tiller.

The issue now is what is the evidence against Tiller? Do you know? I know that I don't, and looking at an indictment is not the same as looking at the evidence.

The fact that lawmakers have not looked at the evidence is one of the frightening thing about their actions. As it should be, the evidence in this case has not been opened to the public or the Legislature. In other words, if the Legislature hasn't seen the evidence in a case, how can lawmakers possibly decide that anyone -- you, me or George Tiller -- should be charged with anything? Do you really want the Kansas Legislature to determine whether you should be charged with a crime?

I'll post more on this separately, and if I can get some time away from this thing called making an income, I intend to look more at the details of this case.

Keep visiting, anonymous. Keep posting.