During a pre-trial proceeding this week, lawyers for George Tiller, the infamous late-term abortionist who’s facing 19 abortion-related misdemeanor counts in Sedgwick County, attempted  to revive one of the most familiar characterizations in modern Kansas jurisprudence.

Tiller's attorneys portrayed former Kansas Attorney General Phill Kline as a wild-eyed, right-wing radical who launched an investigation into Tiller’s clinic based on his overzealous opposition to abortion.

It's a familiar trope whenever a case involving Kline and abortion makes its way into court. Judging from the constant media spotlight placed on Kline no matter how tangential his involvement in a given story, he seems such a favorite target of the left, that if he didn't exist, abortion advocates might have to invent him.

The caricature is so pervasive, endlessly echoed in unrelated election campaigns and almost daily in newspapers, including Friday's Wichita Eagle, that many Kansans assume it must be accurate.

But, as Caleb Stegall, an attorney for Kline who was on hand for much of this week’s proceeding, said, even if it were true, “it still doesn’t change the facts of the case, or the fact that either four or five judges have now found probable cause that crimes were committed.”

Tiller’s lawyers, in questioning Kline and several investigators on the witness stand this week, suggested that the investigation was launched by Kline, despite the fact that no complainant had alleged wrongdoing.

“The idea that a specific complainant is required in order to conduct an investigation is simply not the law,” said Stegall, who is also an analyst and occasional columnist for Kansas Liberty.

Furthermore, Stegall said the idea that even a state’s top law enforcement agent, the Attorney General, has the power to unilaterally launch an investigation based on a personal belief reflects “either a misrepresentation or a misunderstanding of how the legal system works.”

“One of the first things to remember is that prosecutors, including the Attorney General, don’t have the authority to issue subpoenas or arrest warrants; they don’t have the authority to make probable cause findings or to issue search warrants or to launch an inquisition,” Stegall said. “Those powers all rightly rest with the court.”

Judges, not Kline, Stegall explained, authorized the investigation, the issuance of subpoenas and search warrants, and it was a judge, not Kline, who authorized the inquisition that led to the pending charges.

Stegall also reiterated that while the whole proceeding to date has focused almost exclusively on Kline’s investigation, the charges were actually filed by his successor and sometime nemesis, Paul Morrison, who accepted substantial campaign contributions from Tiller’s Political Action Committee and ran as a pro-choice Democrat when he unseated Kline as Attorney General.

“Attorney General Morrison conducted a complete and thorough review of the case and made his own charging determinations,” Stegall said.

Since Morrison’s departure after an extramarital affair involving a colleague in the Johnson County District Attorney’s Office came to light, the Tiller case had been inherited by Attorney General Steve Six, whose staff is vigorously defending the appropriateness of the charges.

Morrison has not yet taken the stand, and the whereabouts of his ex-mistress, who allegedly contends that she pressured Morrison to file the charges, are unknown.

It is not known what relevance the persuasive skills of a girlfriend may have on the facts of the case. However, Tiller’s lawyers are asking the Sedgwick County judge assigned the case to either suppress evidence gathered during Kline’s investigation, or to dismiss the case altogether.

The proceeding was suspended today and will resume Jan. 6, with Kline expected to take the stand again. Morrison also is expected to testify when the proceeding resumes.

- Phil LaCerte

The week in Review