June 26, 2005

What will BTK suspect do at hearing on Monday?

No one really knows what Dennis Rader will do at 9 a.m. Monday when he walks into Sedgwick County Courtroom 7-1.

Perhaps not even his lawyers.

But in the justice system, options are limited for the man accused as Wichita's notorious BTK serial killer.

Rader can either proceed to trial or enter a plea, or his lawyers could ask for further mental evaluations or make other requests to the court.

"It's entirely up to Mr. Rader," said Sedgwick County District Judge Greg Waller, who presides over the case.

The only way it wouldn't be is if Rader is not mentally capable of making such decisions for himself.

A forensic psychologist named in a routine court order Friday is among those permitted to visit him in the county jail. Anyone making weekend visits to the jail, including defense lawyers or doctors, needs a court order.

"I'm not sure whether Dennis will want to see him," said Steve Osburn, Rader's public defender, after filing the order late Friday. "But we file these kinds of motions all the time."

The psychologist is part of the team that conducted a mental evaluation of Rader to see whether he would qualify for an insanity defense. Notice to seek such a defense is one action that could be taken Monday.

The 60-year-old Park City man is charged with killing 10 people from 1974 to 1991 and eluding capture for three decades.

The killer nicknamed himself BTK for "bind, torture and kill" in a series of letters and rambling poems sent to the public and police, beginning in 1974 and ending in February with Rader's arrest.

Here is what is known about the case against Rader:

  • He confessed to all 10 killings he has been charged with, and talked with detectives for hours after his arrest, The Eagle confirmed through several independent sources.
  • Wichita Mayor Carlos Mayans told The Eagle he had been informed by law enforcement officials that Rader was a match to DNA from BTK crime scenes.
  • To hide from Rader that they were zeroing in on him as a BTK suspect, investigators obtained DNA before his arrest through a tissue sample linked to his daughter's medical records, sources said. That sample was obtained for testing without her knowledge, the sources said. The investigators' strategy was to use a DNA sample from the daughter to see whether it would link her father to DNA left at BTK crime scenes.
  • A hidden electronic code on a computer diskette helped lead police to Rader, according to the pastor of Rader's church.

The Rev. Michael Clark, pastor of Christ Lutheran Church, said police searched the church and found that a 3.5-inch diskette containing what is alleged to be communication from BTK had once been used in the church office computer. Rader was president of the church council and used the computer at least once to print a meeting agenda, Clark said.

No sign of trial ahead

The case is set for trial Monday, but legal experts say all the signs point away from that.

If Rader decides he wants a trial, the date would likely be delayed to allow both sides time to prepare.

Kansas law requires defendants in custody to face trial within 90 days of arraignment. Rader's so-called speedy trial deadline doesn't run out until the end of July.

The simplest outcome in Monday's hearing would come if Rader decides to plead guilty.

District Attorney Nola Foulston has said repeatedly she won't accept a plea other than guilty.

But Wichita criminal defense lawyers, including Rader's own public defenders, say that if he doesn't ask for any special deals or plea bargains, prosecutors alone don't have a say in his decision.

For example, Rader could plead no contest.

A no contest plea, known in the courts as nolo contendere, does not admit guilt but recognizes the state has ample evidence to win a conviction at trial.

"The statute does not talk in any way, shape or form about the state having to agree or disagree with that plea," said Sarah McKinnon, one of Rader's public defenders. "It's one of the options available to the defendant."

After a no contest plea, a judge can declare the defendant guilty of the crimes. But it preserves certain rights for the accused.

"With a no contest plea, you don't give up your right to remain silent," said Roger Falk, a veteran Wichita lawyer.

Waller does have the final say, however, and he doesn't have to accept a plea.

How the process works

Defendants start out the judicial process with a constitutional right to be presumed innocent until the state proves its case.

That's why when Rader stood silent at his arraignment in May, Waller had no choice but to enter a not guilty plea.

But defendants often change their pleas to a judge.

The judge then decides if the facts support that plea. The judge also has to be satisfied that the plea has been made willingly, tell the accused of any rights that may be forfeited, and determine whether the defendant is mentally competent to make that decision.

To plead guilty, the defendant must actually admit to the crime.

That can be done simply by reciting the basic information of the crimes. Or defendants have been known to provide great details of their wrong-doings.

During a no contest plea, it's customary for the prosecutor to give an account of what evidence would be presented at trial that would lead to a conviction.

But prosecutors have refused to provide the facts, especially when they don't agree with the plea.

"It's common practice for the state to provide a factual basis, but I guess the defendant could as well," McKinnon said.

Upon a plea, Waller would then order a report by the probation office and set the case for sentencing.

That could give prosecutors another window to present evidence.

Who decides sentence?

The charges against Rader include the 1991 death of Dolores "Dee" Davis, 61. Davis lived near Park City, where Rader spent more than a decade working as the city's compliance officer.

A conviction in Davis' killing could bring a so-called Hard 40. That prevents prisoners from becoming eligible for parole on a life sentence for 40 years.

In 1991, the Hard 40 was determined by a jury, much as the death penalty is decided today. Kansas lawmakers didn't reinstate the death penalty until three years later.

Falk and other lawyers say Rader could waive a jury sentencing, just as he has a right to forgo a jury trial.

Prosecutors, however, could request to present evidence to the judge, even without a jury.

Legal experts said if Radar wants to keep witnesses off the stand, he might be able to file what's known as a stipulation, where both sides agree to the evidence.

Waller met Friday afternoon with Foulston and her prosecution team, Rader's public defenders and lead BTK investigator, Wichita police Lt. Ken Landwehr. They were making final preparations for Monday's hearing.

What will happen?

It's up to Rader, who has so far been unpredictable.

"To say any more would be mere speculation," Waller said. "It's his decision."

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