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Doctor acquitted by Kansas jury in late-term abortion trial

Prosecutors had argued that the second opinions in 19 of his procedures weren't given by an independent physician. Next up is an administrative challenge from a state health board.

March 28, 2009|Robin Abcarian

WICHITA, KAN. — In a trial watched closely by activists on both sides of the abortion debate, Dr. George Tiller, the Kansas physician accused of performing illegal late-term abortions, was found not guilty Friday. The jury of three men and three women deliberated for less than an hour.

Tiller has been targeted by antiabortion politicians, legal officials and activists for years, but this was the first time he faced a jury.

When the court clerk announced the first of the 19 verdicts, Tiller, 67, squeezed his eyes shut for a moment. It was the only reaction he showed.

Spectators in the courtroom were silent when the first not-guilty verdict was read. Most of them were affiliated with the antiabortion group Operation Rescue. Some bowed their heads in disappointment. Some wept.

A few minutes later, Tiller was escorted out of the courtroom by a sheriff's deputy, who held tightly to the cuff of Tiller's sport coat. A cordon of uniformed and plainclothes officers planted themselves between Tiller and the spectators.

Tiller's three attorneys spoke to reporters after the jury was dismissed.

"Dr. Tiller and his family are just happy it's over, with an eminently just result. This whole trial was political," said lead defense attorney Dan Monnat. He praised "these six brave souls" as refusing to be swayed by the politics of the abortion debate in Kansas, where passions on the issue run high.

Outside the courtroom, Assistant Atty. Gen. Barry Disney said: "We respect the jurors, and they worked hard. We can do no more than give them the facts and let them make a decision."

Disney, a methodical prosecutor who often tries death penalty cases with no courtroom audience at all, did not seem surprised by the verdict. When asked about criticism that he had not been aggressive enough, he said: "I don't agree with that at all. We presented all the evidence we had. We left no stone unturned."

Tiller was charged with 19 criminal misdemeanor counts. Kansas law requires that a physician get a second opinion from a doctor with whom he or she has no legal or financial ties before terminating a pregnancy of longer than 22 weeks when the fetus is considered "viable" (able to survive outside the womb). The consulting doctor must agree that continuing a pregnancy to term would cause "substantial and irreversible harm" to the woman, including mental or emotional harm.

The criminal charges were based on cases involving mostly teenagers. One patient was a 10-year-old who was 28 weeks pregnant; another, 24 years old, was 30 weeks pregnant.

Many of the abortions Tiller performed were of fetuses found to be medically compromised.

In 1999, the law was interpreted to mean that the second doctor had to be from Kansas, a problem for Tiller, whose patients -- mostly from out of state -- had always been referred by their own physicians. Few Kansas doctors were willing to consult on his cases. Tiller testified that he called about 100 retired physicians whose licenses were still active, but that no one would help him.

He considered challenging the requirement in court, but changed his mind after Larry Buening, executive director of the Kansas Board of Healing Arts, which licenses and disciplines medical practitioners in the state, urged Tiller to contact Dr. Ann Kristin Neuhaus, a physician in Lawrence, 2 1/2 hours away.

Buening's recommendation of Neuhaus, said Tiller's attorneys, meant that Tiller had followed in good faith the advice of a public official and thus did not commit a crime.

"It would be like a public official throwing water on you," said Monnat, "and then arresting you because you are wet."

The prosecution tried to show that Tiller's relationship to Neuhaus, who provided referrals in 2003 for the 19 women whose late-term abortions were the basis of the criminal charges, was not financially independent.

Disney said that Neuhaus, a witness for the state who received a grant of immunity to testify, essentially functioned as Tiller's employee. She saw his patients at his office, and on his schedule. Also, in 2003, Tiller's patients provided her with her only income.

And, in what Disney described as "the smoking gun," Tiller's own day planner reflected that in 1999, he had discussed on the phone the rate that Neuhaus would charge his patients for a consultation (Tiller had written "$200-$250").

"He wasn't just writing down what she said she was going to charge," said Disney. "He was negotiating and working with her on the amount she was going to charge."

Disney reminded jurors that during cross-examination, he had asked Tiller, "And you approved that fee?" and that Tiller had responded, "Yes."

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