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Kansas judge tosses charges in abortion case

By John Hanna

Associated Press

Published: Wednesday, Nov. 9 2011 1:17 p.m. MST

OLATHE, Kan. — A judge dismissed on Wednesday the most serious charges against a Kansas City-area Planned Parenthood clinic accused of failing to follow abortion law after the disclosure that state officials had destroyed documents that became key evidence in the case.

Johnson County District Attorney Steve Howe said he had no choice but to ask District Judge Stephen Tatum to dismiss 49 of 107 charges against Planned Parenthood's clinic in Overland Park because both the state health department and attorney general's office destroyed reports on individual abortions filed with the Kansas Department of Health and Environment in 2003.

Tatum dismissed 23 felony counties of falsifying such reports, as well as 26 misdemeanor charges that the clinic had failed to maintain its own copies, as required by law. But 58 misdemeanor charges remain, accusing the clinic of performing illegal abortions and failing to follow a state law restricting late-term abortions.

Howe disclosed last month that the health department had shredded its copies of the reports in 2005, in what Planned Parenthood described as a routine destruction of documents. Howe said in court Wednesday that the attorney general's office, under Democrat Steve Six, also destroyed its copies of the same records in April 2009 — 18 months after the criminal charges were filed in Johnson County and amid legal disputes over the case.

The district attorney said his office has partial copies of the same records, but they haven't been declared authentic in the court record, and he can't establish a proper chain of custody.

"The legal hurdles are insurmountable," Howe told Tatum.

The health department shredded its copies during the administration of Gov. Kathleen Sebelius, a Democrat who supports abortion rights. Six, who was appointed by Sebelius in 2007 to fill a vacancy, is a supporter of abortion rights.

Six's successor as attorney general, Republican Derek Schmidt, disclosed Wednesday that he's asked the sheriff in Shawnee County, home to the state capital of Topeka, to investigate the destruction of documents by both the health department and the attorney general's office under Six. In a letter dated Tuesday, Schmidt told Sheriff Richard Barta that the Shawnee County district attorney had agreed to handle any resulting case, because Schmidt's office has a conflict of interest.

The criminal charges against Planned Parenthood were filed in Johnson County by District Attorney Phill Kline, a Republican who opposes abortion. Kline began investigating abortion providers in 2003, while serving as attorney general; he became Johnson County's prosecutor in 2007 after losing his bid for re-election as attorney general. Howe is Kline's successor as DA and inherited the case.

The dismissed charges alleged that Planned Parenthood had failed to maintain its copies of the reports, then produced falsified versions when compelled to do so by a judge during an attorney general's office investigation of abortion providers.

Planned Parenthood attorney Pedro Irigonegaray said the different copies of the records had different handwriting because clinic employees made a copy of each by hand for the clinic, with exactly the same information, before sending the first copy to the health department.

"The difference in handwriting did not represent criminal conduct," Irigonegaray said.

Irigonegaray also blamed Kline — long a subject to fierce criticism from abortion rights advocates — for the problems with the criminal case encountered by Howe. Irigonegaray said Kline, in seeking copies of the records as attorney general in 2004, could have asked the health department to declare them authentic then. The department never has in the court record, and Howe subpoenaed the agency's copies in October to deal with the issue.

"Competent lawyers know the importance of obtaining authenticated copies," Irigonegaray said in court. "The person responsible for the legal fiasco is Mr. Kline and nobody else."

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