Johnson County prosecutors on Wednesday dismissed 49 charges, including 23 felonies, that were filed as part of the nation’s first criminal case against Planned Parenthood.
Johnson County District Attorney Steve Howe said that all copies of key documents needed to support those charges no longer exist, including a set destroyed in 2009 by Steve Six, who then was the Kansas attorney general.
The Kansas Department of Health and Environment destroyed the original records in 2005.
Howe said he would prosecute the remaining 58 misdemeanors in the complaint Phill Kline filed in 2007, when he was the Johnson County district attorney. Those misdemeanor charges accuse Planned Parenthood of failing to test fetuses for viability and performing late-term abortions.
The case had been scheduled for a preliminary hearing last month so a judge could decide whether there was enough evidence to support the 23 felony counts of falsifying pregnancy termination reports. But prosecutors asked for a delay after they discovered that records critical to their case were destroyed in 2005. They said the documents had been shredded about two years before Kline filed the charges.
Judge Stephan Tatum gave prosecutors until Wednesday to see whether they could find evidence to authenticate the copied records, which Kline had obtained from the Kansas Department of Health and Environment when he investigated Planned Parenthood during his tenure as Kansas attorney general.
The original copies of those records were passed on to Paul Morrison after he became attorney general, and Kline made copies for the Johnson County case. Howe said Wednesday he has learned that Six destroyed the copies in the attorney general’s office in 2009 when he succeeded Morrison. That appears to have violated the office’s document retention protocol, Howe said.
Kline said Wednesday that the document shredding demonstrates a pattern of obstruction by the administration of former Gov. Kathleen Sebelius
Howe said the destruction left him with only records that cannot be authenticated. And those records also could be troublesome in court because Kline moved them around, at one time storing them in a house, Howe said.
Derek Schmidt, the current Kansas attorney general and a Republican, on Tuesday sent a letter to the Shawnee County sheriff asking for an investigation on what happened to the documents that apparently were destroyed by Six, a Democrat.
The attorney general’s evidence room records suggest that documents in a number of abortion-related investigations were destroyed after abortion provider George Tiller was acquitted by a Sedgwick County jury, Schmidt wrote to the sheriff. Tiller was murdered in 2009.
Schmidt said he cannot determine exactly what was destroyed and whether any destruction violated state law or the office’s records retention policy, but the Planned Parenthood case was pending when the records were apparently destroyed. Mary Kay Culp, executive director of Kansans for Life, also called Wednesday for an investigation of Six.
Six, who now is a lawyer in Kansas City, did not return phone calls Wednesday.
The records deal with reports that Planned Parenthood must file for each abortion. Planned Parenthood keeps one copy in the patient’s file and sends another to state health officials.
Prosecutors contended that Planned Parenthood had not kept copies of the records for five years, as required by law, and committed a felony by recreating them when they were requested. Prosecutors wanted to prove that the records of abortions performed in 2003 that Kline obtained were the same as those that had been filed with the state and different from the alleged copies Planned Parenthood later provided.
At the hearing Wednesday, Pedro Irigonegaray, an attorney for Planned Parenthood, said that Kline wrongly assumed that records were fraudulent just because they were hand-copied. Rather, he said, they were part of a system intended to ensure accuracy of the reports.
Kline also erred by not getting authenticated copies of the reports to start with, Irigonegaray said.
Lawyers fought over access to the state documents for years, although the records had been destroyed long before charges were filed.
At the hearing last month, Johnson County District Attorney Steve Howe said state health officials never told prosecutors of the shredding during the court fights. Health officials have declined to comment on the issue.
Irigonegaray asked the judge last month to dismiss charges, saying they have lingered for years without key evidence to support them. He said that health officials destroyed the records routinely under Kansas Historical Society protocol on public records.
As for health officials not telling prosecutors about the destruction, he said, “It is not the responsibility of the KDHE to educate counsel on retention policies.”
In court Wednesday, Irigonegaray blamed years of needless, damaging and expensive legal fighting on Kline.
Planned Parenthood called today’s action “a significant victory.”
“While additional charges in this case remain, we are pleased the most serious charges have rightfully been dismissed. We are grateful Johnson County taxpayers and Planned Parenthood will no longer waste enormous time and money on these politically-motivated allegations brought by now discredited prosecutor Phill Kline,” the organization said in a statement released Wednesday morning.
“For seven years, Planned Parenthood has been consistent in our determination to protect the medical privacy of women who rely on us for safe, legal reproductive health care, and in our assertion none of the charges filed in 2007 have any factual or legal foundation,” the statement said.