(CNSNews.com) - In his closing days as Kansas Attorney General, Republican Phill Kline is still battling to prosecute one of America's most prominent abortionists. After a judge ruled Wednesday that Kline lacked the jurisdictional grounds to charge Wichita-based abortionist George Tiller, Kline announced that he was appointing a special prosecutor with the necessary jurisdiction.
The controversy over Tiller involves his performing of late term abortions. His willingness to perform the procedures, including partial birth abortions, has made him notorious among pro-life activists and the subject of numerous protests.
Kansas allows "post-viability" or late term abortions only in order to save the life of the mother or if continuing the pregnancy will cause her irreversible injury to a major bodily function, including psychological damage. Kline alleges that Tiller performed the abortions for reasons not falling within the two exception categories.
On Dec. 21 Kline filed 30 charges against Tiller, alleging that he had performed illegal abortions after the 22nd week of pregnancy. But Kline ran into opposition from Sedgwick County District Attorney Nola Foulston, who argued that she alone had the authority to file charges in her jurisdiction.
Kline argued that as attorney general he had the authority to file charges regardless of the support or opposition of the district attorney, but District Court Judge Paul Clark Wednesday sided with Foulston.
Kris Kobach, a constitutional law professor at the University of Missouri-Kansas City told Fox News' "The O'Reilly Factor" Wednesday that the jurisdictional argument was "ridiculous."
"The attorney general in Kansas routinely brings criminal prosecutions in the counties of the state. This attorney general has filed hundreds of criminal cases," Kobach said. "And yet, this judge is pretending as if the attorney general has no power to bring a criminal case in a county court unless the D.A. wants to."
Kline lost his re-election bid in November after Democrat Paul Morrisson painted his rival's views on abortion as extreme.
In a statement announcing the appointment of Don McKinney as special prosecutor in the Tiller case, Kline noted that "two independent judges have found probable cause to believe that crimes have been committed."
He said Foulston "has never sought to review the evidence supporting these charges, despite the existence of such evidence in the public realm for several years and this ongoing investigation."
"This appointment of an independent special prosecutor will remove this prosecution from a highly charged political process in which millions of dollars has been spent in media and campaign efforts to elect as attorney general a candidate who, without reviewing any of the evidence, repeatedly pledged not to pursue this investigation," Kline said, in reference to Morrisson.
Even Kline's appointment of McKinney is expected to be short-lived. Morrisson will have the power to dissolve the special prosecutor's position and end the investigation of Tiller. He has reportedly pledged to fire the special prosecutor when he takes office, but has not commented on whether he will continue investigations of Tiller.
Georgia Cole, a spokeswoman for Foulston, told Cybercast News Service that if Kline made available the evidence his office has gathered against Tiller, the district attorney would review the material and determine whether to file criminal charges.
"Up to this point in time, the district attorney has not seen any evidence that has been gathered during the investigation," Cole said, "so she can't give any opinion as to whether the charges are or are not warranted."
She pointed out that the recent court decisions were not a commentary on the charges themselves, but rather on Kline's authority to file charges without Foulston's consent. But pro-life activists worry that Foulston won't pursue charges against Tiller even if she gains access to the evidence Kline's office has collected. They also charge that Foulston may be protecting Tiller.
Cheryl Sullenger, a spokeswoman for the pro-life activist group Operation Rescue, told Cybercast News Service that Foulston was trying to protect her "friend" by blocking the charges.
"When her personal friend has charges filed against him she reacts in an emotional way as one would react when their friend is attacked. She's not behaving as a professional; she's behaving as a woman whose friend has been attacked," Sullenger said of Foulston. She described Foulston as "a well-known abortion rights advocate here in Sedgwick County."
Sullenger suggested that Kline was reluctant to hand over to Foulston the evidence he has gathered because "he knows she's not going to do a thing about it."
On Dec. 22, Thompson told the Wichita Eagle that Kline's efforts to file charges were "the last gasp of a defeated and discredited politician."
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