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Will BTK files be sealed 'forever'?

  • The Wichita Eagle
  • Published Wednesday, March 14, 2007, at 8:24 a.m.
  • Updated Tuesday, March 27, 2012, at 11:22 a.m.

The case of admitted serial killer Dennis Rader could yield information that helps police and aids public safety for years to come — if the state of Kansas cooperates.

Problem is, unlike most states, Kansas law doesn't look kindly on those who might want to study some of the darker chapters of its history.

So Sedgwick County District Attorney Nola Foulston makes folks nervous when she talks about Rader's case file being sealed "forever" once he is sentenced and goes off to spend the rest of his life in prison. Foulston has made such statements repeatedly since Rader's arrest in February and his admission of guilt this week as Wichita's BTK strangler.

Most Sedgwick County criminal files are shipped off to storage facilities in the salt mines beneath Hutchinson and can only be viewed publicly by a court order.

But Foulston and her staff know that the intense interest in Rader's case is likely to continue for years. Among the interested are psychologists, journalists, authors, historians, sociologists, criminologists and political scientists.

"We're not wanting to lock everything down," Kevin O'Connor, chief litigator for the district attorney's office and one of Rader's prosecutors, told The Eagle. "Nobody is saying they wouldn't see the light of day again, because the law itself allows for requests to be made through the Open Records Act."

The act is designed to ensure public access to government documents. But the law also allows officials to sometimes deny access, including to records of criminal investigations.

Looking at such records is easier in other states.

At least 35 states have specific provisions in their laws that allow criminal investigation files to become public after the case has gone through the court system. They include Arkansas, Delaware, Ohio, Tennessee, Missouri, Minnesota and Georgia.

Some states provide for public disclosure even before a case is resolved. Florida, for example, allows public release of investigations as soon as the information has been provided to defendants.

Kansas law is more ambiguous.

It doesn't require officials to close criminal records, but it allows them to.

A judge may also issue an order to open criminal files through a civil court proceeding. It's often a time-consuming and expensive process for those seeking the information.

"I know that those making the decisions often take the position that the public interest is best served by not reviewing painful episodes in the state's history, and letting bygones be bygones and moving on," said Mike Kautsch, a professor at the University of Kansas School of Law who specializes in public policy issues.

But Kautsch can recite a litany of legitimate reasons for studying the BTK files.

"This is an incredible case, and there are many lessons to be drawn for this," he said. "There's just a great range of historical, sociological, psychological, cultural studies that could be done and be of benefit, not only to Wichitans, but to law enforcement and the general public throughout the nation."

Daily, The Eagle receives letters and e-mails from members of the public searching for answers. Some ask why the arrest affidavit continues to be closed, even after Rader has pleaded guilty.

Arrest affidavits in Kansas are automatically closed by law — the only state where that is so. But the law allows judges to release them if they choose.

Sedgwick County District Judge Greg Waller, who is presiding over Rader's case, said he won't do that.

"The law says they should be closed," Waller said.

Both prosecution and defense lawyers have said the public now has more details through Rader's plea than the police provided in their arrest affidavit.

O'Connor said prosecutors are hesitant to stray from their usual procedures for Rader's case.

"The position this office has always taken is: We're not going to open up the file so you can go through it," O'Connor said. "To us, it would be worse to say, 'Oh, in the BTK case you can come and look at it and take what you want.' It would take forever, first of all."

That's one reason prosecutors are pushing to present evidence at Rader's sentencing Aug. 17, which is also likely to fuel a legal fight.

Rader already has agreed to the maximum penalty — life in prison. Foulston's position is that her office is required to give Waller all the information he needs to impose the proper sentence.

But Rader's lawyers and others have criticized Foulston, saying she's not disposing of the case in the most efficient way. Some have accused her of grandstanding, saying she's an elected official using the case for the greatest political gain.

"It's kind of frustrating," O'Connor said of the criticism. "Don't you want a public hearing where evidence is presented? Then you have people, and I think it's a minority of lawyers, complaining about having this hearing."

By airing testimony in court, O'Connor said, evidence can be argued and witnesses can be cross-examined, making the final information more reliable.

"The goal in the sentencing hearing is a legal issue, first of all, and then by the nature of the hearing itself, it will allow the public to hear and see what went into the investigation," O'Connor said. "We also think it's important that the community hear what this case is about — there is more than what Dennis Rader said" during his plea.

But the questions won't stop after court is adjourned.

The law in Kansas and elsewhere recognizes that some criminal cases draw intense interest. But courts across the country have said for decades that the need for details should go beyond "mere curiosity."

It's why authorities may choose not to disclose everything, especially in the Internet age.

"There's a fear that the painful, even frightening details of crime, the grotesqueness of crime, will be exploited by irresponsible individuals," Kautsch said.

Still, the law provides for the release of public files in a way that doesn't compromise privacy or integrity. It's common, for example, for police reports to be released with the names of undercover officers crossed out.

"So in cases like this, the definition of the public interest has to take that into account," Kautsch said. "The argument has to be made that overall, this kind of information will do far more good than harm.

"It's a difficult case to make," he said. "But it must be made."

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