A judge Wednesday dismissed the most serious charges against a Kansas City-area Planned Parenthood clinic accused of falsifying records and failing to follow abortion law after a prosecutor revealed that state officials had destroyed key evidence.
Johnson County District Attorney Steve Howe told the judge he had no choice but to ask that 49 of 107 charges against the clinic be dismissed because documents central to the case were destroyed.
Meanwhile, authorities in the state capital of Topeka, at the request of Attorney General Derek Schmidt, plan to investigate the records shredding to determine if any laws were broken. The documents were reports on individual abortions performed in 2003, filed by Planned Parenthood's clinic in Overland Park with the state health department, as required by law, and copies held by the attorney general's office under Schmidt's predecessors.
District Judge Stephen Tatum dismissed 23 felony counts of falsifying such reports, as well as 26 misdemeanor charges that the clinic had failed to maintain its own copies, as required by law. Prosecutors wanted to compare in court copies of the documents the state had with those Planned Parenthood produced later when the clinic was under investigation. Prosecutors allege the documents didn't match, suggesting the clinic didn't keep proper records and created false ones when compelled to produce them.
Fifty-eight misdemeanor charges remain, accusing the clinic of performing illegal abortions and failing to follow a state law restricting late-term abortions.
The case stems from an investigation by Phill Kline, a Republican abortion opponent, focusing on abortion clinics when he was Kansas attorney general and later as Johnson County district attorney.
A Planned Parenthood attorney said the charges always were baseless and blamed the problem with the records on Kline, who filed the criminal case in 2007.
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 in April 2009 _ 18 months after the criminal charges were filed in Johnson County.
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 dismissed charges alleged that Planned Parenthood had failed to maintain its copies of the reports, then produced falsified versions when compelled to do so in 2006 by a judge during an ongoing investigation of abortion providers by the attorney general's office.
Planned Parenthood attorney Pedro Irigonegaray said in court that the clinic's set of reports didn't match the health department's set exactly because clinic employees made hand copies, not photocopies. The information contained in each set was the same, he said.
The health department shredded its copies during the administration of Gov. Kathleen Sebelius, a Democrat who supports abortion rights and who later became U.S. secretary of health and human services.
Six, appointed by Sebelius in 2008 to fill a vacancy in the attorney general's office, also supports abortion rights. Earlier this year, President Barack Obama nominated Six for the 10th U.S. Circuit Court of Appeals, but opposition from both abortion opponents and Kansas' two GOP senators prevented a vote and kept him off the bench.
Shawnee County Sheriff Richard Barta confirmed he is investigating the records destruction at the request of Schmidt, a Republican who defeated Six last year.
Schmidt declined to comment but wrote in a letter to Barta that without an investigation, he couldn't determine whether the attorney general's office under Six had followed state law or its own records-destruction policies in shredding its copies of the abortion reports.
Sebelius spokesman Richard Sorian said Wednesday that Sebelius "has no knowledge of the matter" and declined to comment further.
Six did not return telephone messages to the Kansas City, Mo., law office where he is a partner.
Irigonegaray blamed the "legal fiasco" that led to the dismissal of the charges on Kline. The attorney general's office under Kline had obtained copies of the full reports from the health department in 2004, Irigonegaray said, but the agency never declared their authenticity _ and now can't with its set destroyed.
"Competent lawyers know the importance of obtaining authenticated copies," Irigonegaray said in court.
Kline, who was attorney general from 2003 to 2007, lost his bid for re-election in 2006 and served as Johnson County district attorney from 2007 to 2009.
Kline said in a telephone interview that the criminal case "was defeated" by the actions of others, including Sebelius and Democrats who succeeded him as attorney general.
"We did what we were supposed to do," he said.
A hearing on the remaining charges against Planned Parenthood is set for February.
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