TOPEKA ─ Former Attorney General Phill Kline returned to Kansas on Tuesday for a new round of attorney ethics hearings against him.

In Feb. and March Kline faced eight days of hearings on Count I for allegations of violations of Kansas Rules of Professional Conduct dealing with his investigations as Attorney General and Johnson County District Attorney of abortion clinics in Kansas.  That matter has not yet been decided by the hearing panel.

On Tuesday a new round of hearings started on a Count II related to allegations that Kline misled a Grand Jury impaneled in Johnson County in late 2007 to investigate Planned Parenthood in Overland Park.  That Grand Jury ended its investigation in March 2008 without any indictments.

Disciplinary Administrator Stan Hazlett said six witnesses will testify in this round of hearings.

Kline’s hearing panel of Jeffrey Chubb, Independence, Jo Ann Butaud, Shawnee, and Calvin Karlin, Lawrence heard from two witnesses on Tuesday.

Grand Jury Presiding Officer

Stephanie Hensel, who now lives in Colorado but had served as the grand jury foreperson, filed an attorney ethics complaint against Kline because she believed Kline’s office mislead the grand jury over which statutes should be enforced in which way.

Hensel said her experience and knowledge about mandatory reporters — those who must report possible crimes of child sexual abuse — was not consistent with instructions given the jury.

That motivated her to investigate the matter with the help of Grand Jury Special Counsel, retired Johnson County Judge Larry McClain.

While researching the issue at the Johnson County law library Hensel found the federal case Aid for Women, which she believed had intentionally been been left out of notebooks given the grand jury members about how statutes applied.

Later courtroom discussions explained that that federal decision had been vacated when the Kansas law was changed.  The issue of which law applied to what cases was also at issue since the cases under review by the Grand Jury were from 2003.

In the video below Kline said he had “informed the grand jury of exactly what the law was.” Kline said on Dec. 17, 2007 he had given the grand jury instructions that were consistent with the Aid for Women case.

Several times Kline’s attorneys objected to statements by Hensel since none of the other grand jury members are known publicly by name and there is no way to ask them similar questions under oath to verify her claims.

Under cross examination Hensel described herself as “particularly apolitical” and said “I don’t follow politics.”  Earlier said she had concerns with Phill Kline because of public perception of his political activities.

Hensel had no recollection of Kline’s attorney, Reid Holbrook, trying to arrange a meeting in Denver with her through the Disciplinary Administrator.

Hensel also could not recall if she had asked Grand Jury Special Counsel to join the complaint she planned to file against Kline.

Grand Jury Special Counsel

Later special counsel Larry McClain testified he decided not to join in Hensel’s complaint  against Kline for two reasons.  Part of Hensel’s complaint was about matters that happened before he had become the special counsel.  McClain’s second reason was that “in 40 years I’ve seen some bad lawyers” but didn’t feel compelled to report them for ethics violations.

McClain recalled a dispute with Kline’s assistant Steve Maxwell when he learned about the Aid for Women case.  McClain said he asked Maxwell, “Why in the hell didn’t you tell us about this case?”  When Maxwell said he did not know about it, McClain said “I didn’t believe him” and later told Maxwell “I just can’t trust you.”

McClain said the grand jury had concerns over the performance of the DA’s office.  “They’re kind of demonizing Planned Parenthood,” according to McClain.

In the grand jury setting McClain said he heard things about Planned Parenthood such as they were “killing babies, were involved in  “late term abortion” and “selling fetal tissue” and “not reporting underage sex to KDHE.”  But in later questions McClain could not cite when any such statements were made on the record.  McClain still claimed he had heard them off the record.

Several questions to both Hensel and McClain dealt with an “informal agreement sought by the grand jury with Planned Parenthood because some on the grand jury felt that might be more successful in getting information from Planned Parenthood than a confrontational subpoena.  McClain had been tasked by the grand jury to make this informal agreement with Planned Parenthood.

In the video below, Kline said this secret agreement between the grand jury and Planned Parenthood was “what killed the process and eliminated our ability to be reasonably involved with that grand jury.”

“You don’t go to the target of an investigation, and say ‘go find what’s relevant, produce it to us, and then tell us what we can do with the documents’,” according to Kline.

Apparently some members of the grand jury were concerned when they learned of this agreement with Planned Parenthood that might allow them to be sued.

From transcripts that were read at the hearing, Juror #4 said “I just can’t go along with it”   and Juror #15 that “I don’t know anything about the agreement.”

Most records related to the grand jury are not open records.

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Questions asked Kline in the video above:

1. Your comments about Ms. Hensel and Judge McClain that you as Johnson County DA misled the grand jury?
2. In the  hearing your attorney talked about errors made my Ms. Hensel in her complaint.  What were those errors.  [Kline explains there were omissions, not errors.]
3. Do you have any comments about Judge McClain’s statement that your District Attorney office was demonizing the Planned Parenthood office?
4. How is the informal agreement that was negotiated between the grand jury and Planned Parenthood relevant to this ethics case?  Is it common to have an informal agreement in a criminal proceeding?
5. Do you worry about anything in this ethics case that might affect the current case in Johnson County against Planned Parenthood?

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Related:

• Witness: Kline’s D.A. office ‘demonized’ abortion clinic, Topeka Capital-Journal, July 19, 2011.
• Kline ethics case: Who gave CD with documents from A.G.’s office to Dr. Tiller’s Attorney?, Kansas Watchdog, Feb. 25, 2011.
• Kline’s attorney ethics hearing, day 5, Kansas Watchdog, Feb. 28, 2011.
• Kline calls for recusals by Justices Beier and Nuss, Kansas Watchdog, March 3, 2011.
• Chronology of Phill Kline’s Ethics Hearing, Kansas Meadowlark, Feb. 25, 2011.
• Background reading to prepare for Kline ethics hearing, Kansas Meadowlark, Feb. 9, 2011.
• Former AG Phill Kline responds to attorney ethics complaint, Kansas Watchdog, April 29, 2010.
• Attorney disciplinary complaint filed against former AG Phill Kline, Kansas Watchdog, Jan. 19, 2010.
• Who is playing politics in the Kansas Judiciary by leaking information to the press?, Kansas Meadowlark, March 12, 2009.
• Mystery surrounds release of letter from Kansas Attorney Disciplinary Administrator, Kansas Meadowlark, March 8, 2008.

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Contact: Earl F Glynn, earl@kansaswatchdog.org, KansasWatchdog.org

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