CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, June 16, 2008

Rare Form of Grand Jury Used to Investigate Abortion Providers

From N.Y. WICHITA, Kan. — Opponents of Dr. George Tiller and his clinic here, one of the nation’s few providers of late-term abortions, have tried many ways to stop him over three decades. They have held protests, lobbied lawmakers and complained persistently to state regulators and prosecutors. There have also been several acts of violence, including one in which Dr. Tiller was shot in both arms.

Now his opponents are using a legal tactic that some find startling and others consider inspired. They have turned to an unusual state statute, adopted in 1887, that allows ordinary citizens who gather enough signatures on a petition to demand that a grand jury investigate an alleged crime, a decision usually left to a prosecutor.

Inside a courthouse along Main Street here, 15 grand jurors have been meeting for months, convened under the statute by ordinary Sedgwick County residents to investigate whether Dr. Tiller’s clinic has illegally performed second- and third-trimester abortions. Their deliberations are scheduled to end next month.

Kansas is one of a few states that have laws that allow residents to force a grand jury investigation. Over all, the practice is seldom used, but grand juries by petition in Kansas have recently taken on new life, new targets and a host of new critics who say a law once meant to check official corruption is being twisted into a political weapon.

“This is an abuse of the grand jury system,” said Senator John L. Vratil, a Republican who serves on the Senate Judiciary Committee in Topeka. “It’s being used in a political way to further a political cause, and that was never the purpose of the grand jury system in Kansas.”

The grand jury meeting here is at least the 10th ordered by petition in the state in recent years: two investigated abortion providers, including Dr. Tiller, and the rest investigated misdemeanor obscenity violations by stores selling explicit videos, magazines and other items. Only one has led to a conviction.

Kansas lawmakers adopted the provision allowing grand juries by petition in the late 19th century when state politicians were fighting over which towns would be named county seats and the lucrative railroad industry was blossoming. The law was seen as a check against abuse by those in power.

In those early years, it required the signatures of 200 taxpayers to call a grand jury; now it requires the signatures of 2 percent of a county’s turnout in the most recent governor’s election, plus 100 more signatures.

“This is a measure for the people to get some justice if law enforcement doesn’t do its job, and that’s exactly what we’re doing,” said David Gittrich, of Kansans for Life, which was involved in both grand jury petitions involving Dr. Tiller and helped collect nearly 7,000 verified signatures, more than double the required number, for the current investigation.

Dr. Tiller, 66, who has performed abortions since the 1970s, has long been a focus of controversy in Wichita, where the bland building that houses his clinic belies the debate that has centered around it. Abortion opponents blame Dr. Tiller for drawing women from around the country to have abortions. Abortion-rights advocates point to him as a physician who has persisted even as protesters have gone to his home and church.

His lawyer, Lee Thompson, said such critics were “using the grand jury, I believe, as a tool to harass.” Dr. Tiller declined to be interviewed.

Several legal experts wonder where this will all end — how many more grand juries will be created by petition in response to social or political issues, and at what price to the taxpayers?

Continue reading article here. [Brooks Holland]

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