Friday, October 21, 2011

State of Kansas v. Planned Parenthood

The Kansas City Star is reporting today that some key evidence in the State of Kansas's case against Planned Parenthood has been destroyed. At issue is the original documents Planned Parenthood filed with the state department of health. According to reports the records were probably destroyed during a routine document purge in 2005. My guess is this will mean the end of the state's criminal case against Planned Parenthood as I will try to explain.

First, some background. I have not been following this story particularly closely so I do not know all of the details, but a basic overview will hopefully suffice. The case was initiated by Phill Kline when he was the Kansas Attorney General. During his investigation of abortions performed by Planned Parenthood he made copies of the original documents filed with the Department of Health and, apparently, returned the originals. At some later point Planned Parenthood again submitted documents regarding its abortion practices. According to the Attorney General the documents contained materially different information than what was in the copies he made and so criminal charges followed. The accusations of the charges essentially boils down to whether PP maintained sufficient records as required by law and whether PP knowingly submitted false information to the state. The case is finally making its way to trial and the Johnson County District Attorney has notified the court the original documents maintained by the Department of Health have been destroyed. (Phill Kline lost his bid for re-election as the Kansas AG and was appointed to fill the unexpired term of the Johnson County DA. Kline brought his files with him and initiated the criminal case as the Johnson County DA).

In a normal criminal case the loss of the original records would not be crippling to the prosecution. Photocopies of documents are almost always admissible, especially if the originals were destroyed inadvertently by the record keeper. But this is far from a usual case. Just this month a disciplinary panel recommended Mr. Kline's Kansas law license be indefinitely suspended (one step short of being disbarred) because he lied to judges and the grand jury about this investigation and other related investigations. The Kansas Supreme Court has not yet ruled on the recommendation but it usually accepts the recommendation of the panel or increases the punishment - it seems unlikely Kline will not be severely punished by the Kansas Supreme Court. As a result the original documents are crucial. Because what the prosecutor is faced with now is one set of documents maintained by the defendant, Planned Parenthood, and another set maintained by an attorney who has been found to have repeatedly mislead the court about this very case. Planned Parenthood will argue the state's documents are forgeries crafted by Kline to falsely implicate them and, without the originals, it will be impossible to prove they are not. 

Usually when the defendant claims the police or prosecutors tried to frame them they sound unbelievable. The state does not have to prove they are not telling lies or forging documents because the public does not believe the state does that, generally speaking. But, because of Kline's documented misconduct in this case, it is the prosecutor who will be difficult to believe. That is why the current prosecutor wanted/needed the original set of documents from the Department of Health - so Kline would not be an issue in the case. If the originals were different than the second set of documents provided by Planned Parenthood, the case would be about those inconsistencies. If the originals were consistent the case would be dismissed. Without the originals the case comes down to who do you believe.  It will be virtually impossible to prove to twelve people beyond a reasonable doubt that the documents maintained solely by Phill Kline and his office are genuine since he has been shown to lie to the court in this very case. That is why I believe the prosecutor will eventually have to dismiss this case.

Of course the message boards are all a twitter with accusation about who destroyed the records - did Planned Parenthood order their puppet governor Sebelius to destroy them? Did the evil Attorney General Kline order them destroyed because he knew he had forged documents? Did the Illuminati destroy them to keep the Catholic Church from electing a new pope?

Actually I would guess he answer is much simplier, with no grand conspiracy. I expect Phill Kline did not instruct the Department of Health to maintain the originals because he had his copies.  The Department of Health, because the records were old, destroyed them in the usual course of business. Phill was a career politician not a professional prosecutor. I would guess this was a simple oversight on his part. He should have subpoenaed the records or obtained a court order requiring them to be maintained. I think he just made a mistake. A mistake which will ultimately mean the prosecution he was so desparate to bring about will ultimately be dismissed. That is not to say he did or did not forge the records. I have no way of knowing, although I would not put it past him at this point. I just don't think he would had the foresight or authority to either have the records destroyed or to know they would be inadvertently destroyed in the routine course of business.  As much fun as it would be to imagine the records destroyed as part of a vast conspiracy theory I think it was just boring incompetence.

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