May 1, 2014

Bill making police documents public tied to faster death penalty appeals

A proposal making police investigations more open to public scrutiny shares the fate of efforts to speed and limit death penalty appeals.

A proposal making police investigations more open to public scrutiny shares the fate of efforts to speed and limit death penalty appeals.

State Rep. John Rubin, a Shawnee Republican, attached legislation to make probable cause affidavits open to the public to the death penalty bill in order to get it passed in the Senate.

The death-penalty measure imposes time-sensitive restrictions on appeals, including deadlines for filing briefs and limits on the number of pages in those briefs. The open records provision would make more documents used in police investigations readily available to civilians.

Rubin’s open records bill overwhelmingly passed the House, but it stalled in the Senate.

So supporters latched the proposal on to the far more popular death penalty effort.

“It was one of these things where we had no other options,” said Richard Gannon, a lobbyist for the Kansas Press Association and a former lawmaker who opposed the death penalty.

Gannon said supporters of the open-records bill were looking to attach the proposal to something Senate Vice President Jeff King supported.

“Procedurally, what are you going to do? You’ve to to find something that Jeff King really wanted,” Gannon said.

Some civil rights advocates are wary about linking the open-records measure to a bill limiting something as serious as an appeal of a death sentence.

“We’re dealing with the possibility of an irreversible mistake that ends a human life,” said Holly Weatherford, policy director for the American Civil Liberties Union of Kansas.

The probable cause affidavits are sworn documents that include evidence and establish the legal justification for a search, an arrest or criminal charges.

Today, probable cause affidavits start out closed from public view. Only a court order can make them public. The legislation would reverse that, requiring a court order to conceal such documents from the public.

Kansas is believed to be the only state where the default keeps the documents closed.

The issue gained attention two years ago when police raided a Leawood family’s home in a search for marijuana. The search didn’t produce any charges or evidence.

But the case spurred Robert and Adlynn Harte on a yearlong crusade for documents that would reveal what prompted the search.

King, an Independence Republican, said he didn’t oppose making the police records more open. He just didn’t agree with the original version of the bill that would have made them open immediately.

The final version of the bill, still pending in a House-Senate conference committee, calls for a delay of five business days from the time the record is requested, he said.

King said requiring the documents be made public would make it impossible to get search warrants by phone or at odd hours if they needed to be immediately available to the public. He also worried about the time law enforcement would spend redacting sensitive information.

“I wasn’t an opponent of what we were trying to do,” King said. “I was an opponent of immediate availability.”

The death penalty portion of the bill gives courts discretion to waive or extend the new deadlines for briefs and the limits on their size. Rubin said he has no desire to deny death row inmates their necessary appeals. But by giving courts waiver powers, he said the bill leaves in place adequate protections for defendants.

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