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."
But Kline said in an email statement that he left copies of the abortion reports with a Shawnee County judge who'd supervised his investigation of providers as attorney general, for safe-keeping. Those copies were turned over to Paul Morrison, the abortion rights Democrat who unseated Kline in the 2006 election and later resigned because of a sex scandal.
"Then AG Six destroyed the files knowing they were evidence in a criminal case," Kline wrote. "This is just further evidence of those tied to former Governor Sebelius destroying evidence implicating a political benefactor of Sebelius."
Troy Newman, president of the anti-abortion group Operation Rescue, called the developments "disgusting."
"It's even more repulsive that they destroyed the records," he said.
Schmidt said without an investigation, he couldn't say whether the office under Six had complied with state law or its own document-destruction policies. Before Wednesday, Schmidt's office had not answered an inquiry from The Associated Press about the status of any records in its possession relating to the Planned Parenthood case.
Six did not immediately telephone message at the Kansas City law firm where he now is a partner. Earlier this year, President Barack Obama — who appointed Sebelius as U.S. health and human services secretary — nominated Six to the 10th U.S. Circuit Court of Appeals in Denver, but anti-abortion groups successfully opposed him, and his nomination never came to a vote.
Kline himself is facing a professional ethics complaint over allegations that he and his subordinates misled other officials to further their investigations of abortion providers. A state panel has recommended that his Kansas law license be suspended indefinitely. Kline says the allegations are part of unwarranted attacks on him by abortion providers and their political allies.
Mary Kay Culp, executive director of the anti-abortion group Kansans for Life said: "There's another attorney general who needs to be thoroughly investigated, and that's Stephen Six, and thank goodness he's not sitting on the federal bench."