George Tiller took the stand Wednesday in his own defense against 19 misdemeanor charges of performing late-term abortions with the second opinion of an improperly affiliated doctor.

When defense attorney Dan Monnat called the Wichita abortionist as a witness at the opening of the session, the announcement surprised the audience in the packed courtroom and created a palpable sense of drama as the defendant walked slowly to the stand and answered a series of questions by Monnat, often speaking in a very quiet voice.

Tiller recalled that when the Kansas Board of Healing Arts changed its interpretation of a law requiring a second doctor’s opinion before performing a post-viability abortion - saying it now required that the second doctor be licensed to practice in the state - he tried to compile a list of retired but still-licensed doctors willing to perform the service, “and I did not have very good luck.”

Tiller said that in June 1999 he called Larry Buening, then-executive director of the Board of Healing Arts, to discuss how he might meet the requirements of the new interpretation of the law.

Tiller said he had a “cordial relationship” with Buening, and had previously relied on Buening for advice on Kansas abortion law. Buening was later forced to step down after being charged with not adequately enforcing the board's standards.

In cross-examination, prosecutor Barry Disney made use of the hand-written notes in a planner of the conversation with Buening that had been placed in evidence. In one entry, Tiller had written Buening told him, "Why don't you use Kris Neuhaus and that would take care of all your problems?"

However, Buening told Tiller he could not quote him.

Disney pointed to another entry several days after the Buening conversation that suggested that Tiller was still concerned that Neuhaus’ consultations would constitute a legal or financial affiliation, in violation of the law as newly interpreted.

The entry seemed to suggest that Tiller was not relying on Buening’s advice but on the advice of his own lawyers, something Tiller at first denied, then admitted.

At one point in the questioning, Tiller referred to Neuhaus and said, "She was working for me," but then quickly corrected himself.

After a lunch recess, Judge Clark Owens announced he would at last address issues about the defense that had been contested since the onset of the trial. Although Owens had already declared that the crime in question was a “general intent” crime, meaning that the prosecution would have to prove general intent but that an ignorance-of-the-law or reliance-on-counsel defense was not permitted, he had delayed a ruling on the defense’s “entrapment by estoppel” defense, meaning that the state - in the person of Buening - had cleared the behavior with which Tiller had been charged. Owens said it was difficult to find a precedent using that defense, but that a Sixth Circuit case from 2006, U.S. vs. Blood, might be applicable.

However, when Disney pressed Tiller on the question of whether he was relying on the advice of Buening or his own attorneys, Tiller carefully considered his reply before answering, “I confer with my attorneys on all matters." In the end, he said, it was the advice from his attorney, not from Buening, that governed his actions.

As questioning continued, Disney asked several questions about Buening’s alleged statement that he would deny any conversation with Tiller, wondering if anyone could rely on a statement after such a disclaimer, and “Is it a signal that that the person is not going to back up what they told you?”

Tiller’s eventual answer to that question: “Not necessarily.”

The comment caused some pro-life activists to suggest the answer indicated a confidence that Kansas law regarding abortion wouldn't be enforced. In a statement issued Wednesday, Kansans for Life Executive Director Mary Kay Culp asked, "Why would both Tiller and Neuhaus feel free to operate the way they did because of a statement Buening was afraid to make on the record."

Today's testimony also drew a picture of the profitability of Tiller's clinic. He testified that he performed 250-300 abortions a year at an estimated fee of $6000 per abortion. His profit margin, he estimated, was about 32 percent.

It was also a noticeably quieter day of testimony after Tuesday's testimony by Neuhaus, whose answers were often angry. Owens permitted the prosecution to label her a "hostile" witness, although the jury wasn't informed of that decision.

At one point on Tuesday, Neuhaus had said that when she gave a potentially damaging deposition in 2006, while Phill Kline was state attorney general, she had been "intimidated" by Phill Kline, and characterized the questioning as “the Spanish inquisition minus the torture chamber.”

Wednesday, Kline circulated a statement to Kansas Liberty and other members of the Kansas press saying, "I have never met Neuhaus.  I was not present at her deposition.  I am not aware that Memorial Hall resembles a torture chamber.  She was represented by counsel and to my understanding was allowed restroom and lunch breaks.  The deposition was taken by Assistant Attorney General Stephen Maxwell who worked for (former Attorney General Robert) Stephan, (former Attorney General Carla) Stovall and is a former Assistant US Attorney."

Rachael Perner, an attorney who advised Tiller on how to comply with state laws and regulations during the period involved in the case, was called to the stand near the end of the day. Her testimony will continue on Thursday.

- Bud Norman

with additional reporting by Kansas Liberty editorial staff.

Resources:

• The Board of Healing Arts in the news a year ago: Reform sought to increase medical oversight (Topeka Capital-Journal)

The Week in Review