The case against Dennis Rader, one of the biggest criminal court proceedings in Kansas history, is unfolding under an unprecedented veil of secrecy.
But lawyers on both sides say that will change.
Since Rader was charged March 1 with 10 counts of first-degree murder in connection with the BTK serial murder case, Sedgwick County District Judge Greg Waller has sealed seven motions and orders from public view. Most of the orders closing the records give no reason for the actions.
Six of the seal orders were prepared by a lawyer in the Sedgwick County district attorney's office, and one was prepared by a member of the public defender's office. But last week, both District Attorney Nola Foulston and Rader's lawyers talked to Waller about proceeding differently.
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"And we have agreed that not all future records need to be sealed," Foulston said.
That discussion was not part of any public hearing.
Foulston also said previous seals are being reviewed to see whether those records might eventually be made public.
Openness and fairness have always underpinned criminal justice in America. Even the U.S. Constitution doesn't divide the issues. The Sixth Amendment reads: "The accused shall enjoy the right to a speedy and public trial, by an impartial jury."
But the tradition goes back centuries. The U.S. Supreme Court, in a 1980 ruling, said public criminal proceedings can be traced back "beyond reliable historical records."
Closing court records can actually cause more harm than good, said Mike Kautsch, a professor at the University of Kansas School of Law who specializes in public policy.
"There's a danger of rumors that go and grow unchecked, and the rumors can be more damaging than anything that would be disclosed if everything was open," Kautsch said.
From a lawyer's point of view, however, there's a weighing process between the public's right to know and attempts to provide a fair trial to the defendant.
"I think it's important to keep information from potential jurors that they might never see in court," said Val Wachtel, one of the lawyers who handled the capital murder case of Jonathan and Reginald Carr, which also drew great public interest.
Wachtel said people who will make up the jury pool at trial will remember hearing if a suspect confesses. They are less likely, Wachtel contended, to remember if a judge throws out the confession because it was coerced or otherwise illegally obtained by police.
Kautsch said social science studies and actual case results show otherwise.
"There is a lot of ambiguities in studies about whether publicity actually does prejudice jurors in a way that makes them incapable of a fair verdict," he said.
Acquittals of O.J. Simpson and Robert Blake in two of the most publicized trials in recent memory are examples. Locally, a jury in 2002 found Earl Bell II not guilty on four counts of first-degree murder in Wichita, despite months of comprehensive news coverage.
The U.S. Supreme Court has given guidelines for closing courts, and it's not meant to be easy. It's supposed to go beyond lawyers asking for seals, or judges deciding to close portions of a case.
- Courts delay and reschedule hearings to allow time for information to fade from public memory.
- Judges move trials, or "change venue." That hasn't happened in recent history in Sedgwick County.
- Lawyers are allowed to more vigorously and completely question potential jurors about their knowledge of a case and whether that has caused them to carry any prejudice against the defendant.
If all else fails, a judge may decide the only way to protect a defendant's right to a fair trial is to restrict information. But the court must stay within strict boundaries.
"Judges are supposed to select only those specific items which would clearly affect the defendant's fair-trial right," Kautsch said.
Judges also are expected to hold public hearings before restricting access, then give specific rulings and reasons for stopping the flow of information.
"That, of course, makes it possible for an appellate court review of the judge's view of the case and the reason for imposing the restraint," Kautsch said.
Rader's case, thus far, has consisted mostly of brief orders of seals. There have been no notices of hearings about the closures and few reasons given for issuing the seals.
"In this case, any request for seals has been accompanied by requests from both sides," Foulston said, even when one side prepared the paperwork.
Last week, Waller met with Rader's public defenders and prosecutors to discuss whether there is a need for continuing Rader's proceedings in such secrecy.
"We've sat down and talked about that very issue and said we'll balance the need for them to be sealed versus the public right of disclosure," Foulston said. "And you'll see more documents being opened to the public in the future."