Kline accuses Morrison of gathering documents for false purpose

Johnson County District Attorney Phill Kline alleges that former Attorney General Paul Morrison’s intent in gathering documents and medical records in 2007 was not to investigate Wichita abortion doctor George Tiller or Planned Parenthood of Overland Park for criminal wrongdoing, but to return the records to the organizations and thwart further criminal investigation.

Kline filed a brief and supporting evidence Tuesday in response to Planned Parenthood’s attempt to block a Johnson County grand jury from receiving documents and medical records pertaining to abortions. Johnson County District Court Judge Kevin Moriarty asked Kline last week which records the grand jury sought.

In a press conference June 28, 2007, Morrison cleared Tiller of the 30 criminal charges filed by Kline when he was attorney general. And two days before the conference, Morrison, in a written letter, cleared Planned Parenthood of all criminal allegations.

At that press conference, Morrison said those investigative files, which also included Planned Parenthood records, were not in the attorney general’s office and had been scattered all over the state. Morrison’s office had to conduct a seven-week “scavenger hunt” to obtain the “unredacted” medical records and files.

Morrison also accused Kline of abusing his power as attorney general by keeping a copy of the investigative files and doing so with no legal “oversight.” He also claimed Kline “manufactured evidence” in the case.

But according to court documents, Morrison knew where the records were kept the week he took office and that a set of those records were in his office. Before Kline left Topeka, he provided a detailed report of the files locations' to Shawnee District Court Judge Richard Anderson, who then granted Kline permission to keep a copy of the files.

In the report, complete or partial copies of the files were in the attorney general’s office, Sedgwick County District Court, Shawnee County district attorney’s office and with Kline, Anderson and Dr. Paul McHugh of John Hopkins Medical Center — a witness in the case — in Baltimore, Md.

Kline submitted records showing that KBI agents recovered the records without incident at each location listed in the report, except for Kline and Anderson’s files.

“Accordingly, the redacted medical records were provided, as required by law and in order to further legitimate law enforcement objectives, to agencies, courts and one expert witness consistent with such duties,” Kline wrote.

At an April 11, 2007, hearing in Shawnee County District Court, Morrison tried to force Anderson and Kline to turn over files pertaining to the investigation. Anderson had turned over records in January 2007, but he kept files he had produced from an inquisition on the matter. He dismissed Morrison’s request.

He also ruled that Kline had a right to the records because they revealed enough probable cause that crimes had been committed.

“I’m concerned that if I would order all copies of those records to be returned that (it) would impair investigation that he (Kline) has the authority to conduct,” Anderson wrote.

Anderson could have made Kline give back the records, and the district attorney could start a new investigation: “But that does not seem to be in the interests of justice to slow an investigation, to impair the ability to prosecute crimes,” Anderson said.

After that hearing, Morrison and Planned Parenthood began legal proceedings against Anderson and Kline that are now in the higher courts. All hearings are closed to the public, and all records sealed.

In the motion to quash the Johnson County grand jury subpoena, Planned Parenthood attorneys submitted the letter from Morrison.

Kline, however, alleges the letter shows Morrison’s true intent — to turn all records back to Planned Parenthood and prevent further criminal investigation. He said Morrison did this because the records revealed that some documentation had been altered.

“The Attorney General’s 'clearance' letter was issued after General Morrison became aware of “serious” discrepancies in the CH records,” Kline wrote.

The discrepancies within the records were “so serious,” that Anderson took the records to a handwriting expert with the Topeka Police Department, who after analysis found the records “did not match up.”

Anderson testified in a Johnson County District Court hearing that he was surprised Morrison issued the clearance letter knowing about the discrepancies. A representative of Planned Parenthood tried to retrieve the records, using the letter, but Anderson refused the request because the records “contained potential evidence of criminal activity,” records state.

Morrison, at the June press conference, said his office wanted the records because of the importance of protecting the privacy of women. The records being “scattered” all “over the country” threatened the privacy of women.

Kline said Morrison and Planned Parenthood have perpetrated a “falsehood” in order to scare women about records that cannot identify a single patient. The records meet the Kansas Supreme Court’s directive on patient identity and have met the standards of the lower courts, Kline wrote.

Anderson had ruled in November 2006 — and the higher state courts were aware of this ruling — that the files had been redacted and there was no information that would identify a patient. Anderson said the redacted records met the standard of the Supreme Court’s directive established in Alpha Medical Center v. Anderson case, and “no patient can be identified from the review of any medical file.”

These are the same records the Johnson County grand jury subpoenaed, Kline said, and for the court to rule in favor of Planned Parenthood would result in the courts interfering in a criminal investigation, which is contrary to legal precedent regarding grand jury procedures and authority.

The Alpha case also states, Kline wrote, that the target of an investigation — in this case Planned Parenthood — does not “determine the relevancy of information sought by a subpoena.” It states that patient identities be redacted if not needed for investigative purposes. And HIPAA states that medical information should be provided if requested by subpoena or order of the court.

The records Kline possesses and which the grand jury seeks go beyond the standards of the law by redacting all patient information, Kline said.

The only difference is the grand jury wants the ages in some abortion cases, which is part of investigating whether a crime against a child was committed. But law provides that that information can be provided if relevant to a criminal investigation, Kline said.

Kline also wants the court to extend the grand jury’s time to convene. The 15-member jury's service is scheduled to expire March 10. Kline said the Planned Parenthood motion to quash has prevented the grand jury from achieving its directive in the allotted time.

Moriarty asked last week that Kline and Planned Parenthood attorneys Pedro Irigonegaray and Robert Eye compromise on what information to give the grand jury.

If an agreement couldn't be reached before the grand jury reconvenes Feb. 20, Moriarty said, he would rule on the motion to quash the subpoena — a ruling that one of the parties likely would appeal, Moriarty said.

Contact Kevin Wright at kwright@theolathenews.com.