Wichita lawyer sought death penalty for BTK cases

Steve Joseph worked to try to amend the law to include killings from 30 years ago. In the end, he changed his mind.

06/26/2005 12:00 AM

03/27/2012 10:45 AM

Nearly 28 years later, Steve Joseph can still see himself as a young prosecutor looking through the Otero family crime-scene photos for the first time.

That day in 1977, he stopped when he saw the photo of 11-year-old Josephine Otero's body, hanging from a basement sewer pipe. The photo revealed something particularly evil the killer had done, something Joseph won't divulge. It made Joseph angry, and he said to himself: "This guy is going to pay for this... some day." It made him decide the killer deserved to die.

Earlier this year, shortly after Dennis Rader was charged with the BTK killings, the terrible thing in the picture made Joseph feel compelled to draft a proposed change to state law that would make Rader eligible for lethal injection if he was convicted.

Legislators never introduced his draft as proposed legislation. But Joseph says his activism prompted a behind-the-scenes discussion among lawmakers and prosecutors about whether to make the state's death penalty, reinstated in 1994, apply to BTK killings dating back 31 years.

"If any person in Kansas has ever deserved the death penalty, it's BTK," Joseph said.

Joseph, now a veteran Wichita defense lawyer, related how his conviction led him to push for the change and why he ultimately decided not to keep pursuing it.

One of the people interested in Joseph's proposal was state Sen. Phil Journey, R-Haysville, a defense lawyer and member of the Judiciary Committee.

"I got to the point that I thought it might fly," Journey said of Joseph's draft.

Joseph first became directly exposed to the BTK killings in March 1977. He was the assistant district attorney on duty who was dispatched to a house on South Hydraulic where police found Shirley Vian Relford's body.

It was partly the way the killer tied her up that made Joseph suspect it was BTK. The killer named himself that in letters and said it stood for "bind, torture, kill."

The serial killer's first known victims, in January 1974, were Joseph and Julie Otero and their two youngest children, Josephine, and Joseph II, 9. They were found strangled in their home on North Edgemoor.

Because of his BTK suspicion, Steve Joseph started reviewing the Otero investigation and looking at Otero crime scene photos.

Then in March 2004, nearly 25 years after BTK had last communicated with police or the media, a letter from him arrived at The Eagle.

The deluge of news that followed caused Joseph to start thinking about amending the 1994 death penalty law to make it apply to crimes occurring back when BTK was killing.

Three days after Rader's Feb. 25 arrest, Joseph sent an e-mail to Sedgwick County's legislative delegation with information about a Florida case he thought bolstered the idea of making the death penalty apply to BTK homicides.

Some lawmakers, including Journey, voiced interest in the idea, and Joseph started drafting the proposal.

Joseph contended that the law that reinstated the Kansas death penalty in 1994 could be applied to crimes occurring from 1969 to 1979 because the state had a capital punishment law during that period, when many of the BTK killings occurred.

Prosecutors and lawmakers agreed that anyone convicted of the BTK killings deserved to die, Joseph said.

But prosecutors statewide, including in Sedgwick County, were concerned that any amendment would interfere with current efforts to get the U.S. Supreme Court to review the state high court's December 2004 ruling that the Kansas death penalty is unconstitutional.

The Kansas high court faulted a sentencing provision that says when jurors weigh factors for or against a defendant, they should rule for death when the factors weigh evenly.

At stake for prosecutors are several other cases, including some in Sedgwick County, where defendants received the death penalty.

Prosecutors feared that the U.S. Supreme Court would not take up the Kansas law if there were ongoing efforts to change it, Joseph said.

"It just became too sensitive of an issue to touch."

Legal experts also disagreed with Joseph's contention that the death penalty could be applied, arguing that court rulings had voided the death penalty law in effect around the time of the BTK killings.

A BTK defendant has to be tried under the laws in effect at the time of his crimes. And the U.S. Supreme Court invalidated death penalties nationwide in 1972, two years before the first known BTK homicides occurred. The last killing that Rader is charged with occurred in 1991. Kansas didn't reinstate the death penalty until three years after that.

But Joseph said the best argument against pursuing an amendment — the reasoning he ultimately accepted — came from an official he wouldn't identify.

That person told him that if a death sentence could be obtained in the BTK case, it would bring years of extra appeals because of his amendment. That would withhold any closure, and Joseph agreed there needed to be a resolution. The victims' families had gone so many years without one.

Charlie Otero, Josephine Otero's oldest brother, now 47, said he wishes Joseph had kept pursuing a possible death penalty for Rader. Otero said any person convicted of his family's killings should "get a little room on death row.

Now, if convicted, Rader could face life in prison.

Joseph stresses that it was his personal feelings about the Otero case, not legal arguments, that drove him to try to apply the death penalty to the BTK cases.

"There are a very few cases... where I don't have a problem with the death penalty," he said.

Josephine Otero's killing is one.

"This is not legal with me. This is personal."

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