The records exist

The last of the criminal charges that former Kansas Attorney General Phill Kline filed against a Kansas City-area Planned Parenthood facility were dropped last month because key evidence was reportedly destroyed.

But now the pro-life activist group Operation Rescue has posted documents on its website suggesting that the records exist and the abortion giant should still be facing a trial - and the group blames the prosecutor who took over the case after Kline was ousted as Johnson County, Kansas, district attorney in 2008.

Operation Rescue filed an ethics complaint last Tuesday against current Johnson County District Attorney Steve Howe, a Republican, accusing him of lying to a judge to justify dropping the charges against Planned Parenthood of Kansas and Mid-Missouri. The group says Howe reported records key to the investigation were destroyed when admissible copies of the records were in the custody of the judge who supervised Kline's investigation from 2003 to 2008.

Operation Rescue filed the complaint with the Office the Disciplinary Administrator, the state board responsible for investigating cases of attorney misconduct.

The Planned Parenthood facility in Overland Park, Kan., had faced charges of falsifying documents and performing illegal late-term abortions. Howe asked a judge in November 2011 to drop 49 of the original 107 charges, including the felonies, filed against Planned Parenthood in 2007. The last of the charges were dropped in August. (See "Charges dismissed," Aug. 24.)

The most serious charges alleged that the abortion center failed to maintain records on individual abortions performed in 2003, as required by law, then fabricated a set when ordered to produce them in 2006 for Shawnee County District Judge Richard Anderson.

Planned Parenthood said no wrongdoing occurred, but a trial likely would have included a comparison of what the abortion center produced for Anderson with copies of the reports submitted to the state in 2003.

Various copies of the reports existed, but Howe contends he didn't have clean, complete copies of what the abortion center submitted to the state in 2003. He largely escaped criticism from pro-life activists in November 2011 after he said in court that the "last complete copies" he could have used were "destroyed" by the attorney general's office in April 2009 under Steve Six, a pro-abortion Democrat. (See "Shredded again," by Timothy Lamer, Nov. 9, 2011.)

An external investigation later concluded that the attorney general's office didn't destroy any documents involving the Planned Parenthood case.

Moreover, according to Operation Rescue, the supposedly destroyed documents "currently exist and were placed under seal in the custody of" Anderson on Jan. 12, 2012. Operation Rescue has posted a copy of the protective order, obtained under a Kansas Open Records Request, on its website.

Operation Rescue also has evidence indicating that Howe never even asked Anderson for his copies of the records. On Aug. 6, Operation Rescue formally asked the judge to release the records in his custody along with documents related to communication between Howe and Anderson about those documents. The judge declined to release the records and noted that he was not obligated to release documents related to communication between his and Howe's offices about the records. But he added, "A search was conducted and no documents were found to exist" that match the request.

"This is not just about abortion. It's about whether you can expect justice in Johnson County when the district attorney is willing to lie to judges," said Cheryl Sullenger, Operation Rescue's senior policy advisor. "We did our homework more than Steve Howe did on this case."

Howe declined to comment Tuesday, saying he had not yet reviewed the ethics complaint.

Operation Rescue has called for Howe and Kansas Attorney General Derek Schmidt to resign for the handling of the Planned Parenthood case. Sullenger said the group planned to file an ethics complaint against Schmidt in the coming days. "This is just the first round," she said.

The body hearing the charges against Howe is the same one that recommended that Kline's Kansas law license be suspended indefinitely for allegedly misleading state officials and the courts during the initial investigation and prosecution of Planned Parenthood between 2003 and 2008. Two earlier ethical investigations had cleared Kline. He is waiting for the Kansas Supreme Court to rule on the recommendation in November. Meanwhile, he is teaching law at Liberty University in Lynchburg, Va.