A Sedgwick County jury took only 45 minutes Friday to find Wichita abortionist George Tiller not guilty of 19 misdemeanor charges of performing illegal late-term abortions.

The shortness of the deliberation came as no surprise to most courtroom observers or even the prosecuting attorney, Barry Disney, who noted that there were few facts in dispute during the high-profile case.

Both sides agreed that Tiller had performed the 19 late-term abortions in question after obtaining a legally required second opinion from a Kansas physician, Kristin Neuhaus, stating that the health of the mother was threatened by carrying the pregnancy to term.

The case came down to the question of whether Tiller had a prohibited “financial affiliation” with Neuhaus, and the six jurors - who were given no definition of what constitutes a financial affiliation - apparently concluded that no such relationship existed between the doctors.

That outcome could have been anticipated even before the prosecution and defense presented their closing statements, when Sedgwick County District Court Judge Clark Owens heard last-minute arguments from the attorneys and announced his jury instructions. Disney formally entered his objection to the instruction allowing the jury to consider the defense’s “entrapment by estoppel” defense, meaning that they could consider convincing evidence that state Board of Healing Arts Executive Director Larry Buening had told Tiller that Neuhaus’ second opinions “would make his problems go away,” but the instruction remained.

 Defense attorney Laura Shaneyfelt then requested that the instructions include a definition of “financial affiliation,” but Owens overruled that request, saying the statute “doesn’t require a specialized legal definition,” and that jurors would be instructed to use “common knowledge and experience” to decide if Tiller and Neuhaus were financially affiliated.

In his final appeal to the jury, Disney cited Tiller’s own testimony and hand-written notes to argue that the doctor’s relationship with Neuhaus met a “common-sense” definition of a financial affiliation.

He argued that Tiller had “recruited” Neuhaus to provide the second opinions “so he could profit from late-term abortions.”  Showing notes from Tiller’s day planner on a large screen, Disney showed how Tiller had written, “Called Cris Newhouse (sic), will do consults $200 to $250,” arguing that the discussion over fees proved a financial affiliation.

He also showed portions of Tiller’s testimony, including the statements that “If somebody new is going to join your organization, it would take more than one telephone call to arrange,” and in response to a question by defense attorney Dan Monnat that “I wanted to talk ... about Dr. Neuhaus coming to work for us.”

Disney said Tiller “feels so justified in what he does that he crossed the line.” Flashing on the screen evidence that Tiller had earned $575,000 from the 19 late term abortions, Disney told the jurors, “I’m not saying he does this only for money, but that being said, you can’t ignore the financial aspect of what he does.”

With Neuhaus traveling to Tiller’s clinic to provide the second opinions, Disney said, Tiller was able to run a “one-stop shop” for late-term abortions. He likened Neuhaus to a yo-yo that Tiller kept on a string.

In his response, defense attorney Dan Monnat argued that Kansas law only bans a “financial affiliation.” Tiller and Neuhaus, he said, were not affiliated because she was not paid by Tiller, was free to render her own medical judgments and occasionally declined to provide a second opinion that an abortion was required, and did not benefit financially if abortions were provided. Because no legal definition of a “financial affiliation” was provided, Monnat argued that “common sense” should tell jurors that “you have to share ownership, have some compensation arrangement” and that “'employee’ means you’re getting paid.”

Responding directly to Disney’s argument that Tiller had admitted a financial affiliation in his testimony, Monnat argued that “imprecise phraseology or a slip of the tongue” shouldn’t sway the jury because “words have no abracadabra to convert a legal relationship into an illegal one.” Noting that Disney had earlier referred to Judge Owens as “Judge Kennedy,” another Sedgwick County judge, Monnat said “That slip of the tongue didn’t convert Judge Owens into Judge Kennedy,” prompting a slight smile from Owens.

Monnat was similarly dismissive of other evidence Disney had introduced during his “one-witness case.” As to Tiller relying on advice from his friend, Larry Buening, of the Kansas Board of Healing Arts, Monnat said the jury didn’t even need to consider the evidence that Buening had advised Tiller to use Neuhaus for second opinions. Monnat nonetheless argued the “situation can’t be laid at Tiller’s feet” because he had relied on Buening’s advice.

Quoting a statement from prosecution witness Neuhaus that the trial followed an “open season on abortion providers,” Monnat characterized the trial as a political prosecution and asked, “Is that America?”

Disney had another chance to address the jury with the last half of his allotted hour. He began by saying, “The pro-choice side, they see this as a political prosecution; the pro-life side, they see other issues ... I have no political agenda, nothing up my sleeve.” He disputed Monnat’s “one-witness case” line by noting that he had introduced other evidence and concluded by asking that the jury apply a “ common-sense” standard to find that Tiller and Neuhaus were financially affiliated.

Recalling that Monnat had quoted Abraham Lincoln, Disney said, “I like to quote Bob Dylan -- I guess it depends on who you grew up with -- who said that ‘You don’t have to be a weatherman to know which way the wind blows.’”

When it was announced by courthouse officials that a verdict had been reached, a long line quickly gathered outside the courtroom. Extra security precautions were in place, with spectators and reporters being patted down before entering the courtroom, and extra guards keeping a careful eye on the crowd, comprised mostly of anti-abortion activists who had been in attendance throughout the trial.

Troy Newman, regarded as a leader by most of the activists, urged several members of the audience to refrain from any displays of emotion regardless of the verdict, saying, “We’ve had setbacks and victories, and overall we’re winning.”

As the verdicts were read, with “not guilty” repeated for each of the 19 charges, the courtroom was otherwise completely silent. Tiller reacted with the same lack of facial expression that he had maintained throughout the trial, and it wasn’t until the 19th “not guilty” verdict was announced that Monnat and Thompson smiled slightly and patted Tiller on the back.

Owens then asked each of the jurors to verify that what they’d just heard was their verdict. One woman replied, “Absolutely.”

Afterwards, Disney answered questions from the media, saying, “I respect the jury’s verdict. They worked hard, and listened carefully.” He said he was not surprised by the quickness of the deliberations, adding, "The jury had plenty of time to think as the trial went on, and there were not many factual disputes.” 

Asked why he didn’t call Buening as a rebuttal witness, Disney said that Buening was available but,  “His statement was that he didn’t make that statement, and that was already in front of the jury. I didn’t want to give the defense a chance to beat him up, so there was nothing to be gained by calling him to the stand.”

Disney also disagreed with one reporter’s suggestion that his case should have provided more financial evidence. “We presented all the evidence there was," said Disney.

Others, including two sources who asked not to be named but who were familiar with the case, disagreed and criticized Disney for not using financial records they said existed and contained information that could have been useful to the prosecution.

They also wondered why Disney had not called Tiller's accountant or other witnesses aware of the business arrangement between Tiller and Neuhaus. "This was a lay-down," one said, suggesting the weak, one-witness defense may have been intentionally planned by pro-abortion Attorney General Stephen Six to exonerate Tiller and other controversial abortion providers, including Planned Parenthood, target of a separate investigation.

 In front of several local television cameras, Monnat called Tiller “the bravest man I ever met” and insisted again that “This whole trial is a political trial.” He praised “those six brave people” on the jury and called their verdict a victory for women’s rights.

Defense counsel Lee Thompson said, “Every time Dr. Tiller’s fate has been in the hands of the citizens of Sedgwick County, they’ve found there is no problem.”

Rev. Pat Mahoney of Operation Rescue, who had been in attendance through most of the trial, was disappointed but still defiant.

“From our point of this, this will not stop us,” Mahoney said. “If he had been found guilty, it would have energized us, but we’re thrilled he was on trial.”

Kansans for Life Executive Director Mary Kay Culp said, "This case did accomplish a few things. It established that Kansas is indeed the late-term abortion capital of America, if not the world.  It answered a puzzle we long pondered: How did Kristin Neuhaus manage to hold on to her medical license?"

Neuhaus' record, discussed in court, revealed problems with the way she practiced medicine. Most of her career apparently had been spent doing abortions.

"If Tiller is to be believed," Culp said in a statement, "it was former (Board of Healing Arts) Executive Director Larry Buening who matched Neuhaus and Tiller. But Buening's off-the-record help was never intended to be a defense for Tiller. His money was."

- Bud Norman

Resources:

Kansas Liberty: Reactions to the verdict.

Kansas Meadowlark: The Tiller-Sebelius money trail.

The Week in Review