Media try to open seals on BTK case

The Wichita Eagle and five other news organizations are asking a judge to open the court files in the case of the man accused of being the city's notorious BTK serial killer.

Joining The Eagle in motions filed Wednesday afternoon in Sedgwick County District Court are television stations KWCH, KAKE and KSNW, the Associated Press and the Kansas Press Association.

The motions ask Judge Greg Waller to remove seven seals on motions and orders in Dennis Rader's murder case and to allow public access to other documents in what many are calling the biggest criminal court case in Kansas history. Authorities have accused Rader of 10 killings from 1974 to 1991.

"As far as I can tell this is possibly an unprecedented coming together of local news media to challenge a court seal, and the reason for that is this is an unprecedented court seal," Eagle editor Sherry Chisenhall said.

"I've never seen such a complete blanket of secrecy thrown over a court case here, let alone a case of such intense public interest. We think it's dangerous and grossly inappropriate."

District Attorney Nola Foulston and Rader's public defenders declined comment after receiving copies of the motions Wednesday afternoon.

Wichita First Amendment lawyers Lyndon Vix and William Tretbar, who filed the motions, contend that the way documents have been sealed in the Rader case violates procedures outlined by the Kansas Supreme Court.

"Compliance with the directives... is not optional," Vix wrote in the motion.

The state Supreme Court ruled in 1981 that to close a hearing or file, a judge must first find that releasing the information "would create a clear and present danger to the fairness of a trial."

Some lawyers believe that the public flow of information before a trial can create a public bias that prevents an impartial jury. That's a popular misconception that is not supported by case law and other research, Vix said Wednesday.

"To say you can't find 12 people in Sedgwick County who would say they could put aside any preconceived biases to judge the evidence is really a stretch," Vix said.

The Kansas Supreme Court recommended in the 1981 case that there are seven options short of closing public access:

  • Rescheduling hearings to allow memories to fade.
  • Severing aspects of the cases and trying them separately.
  • Moving the case to another community, where potential jurors might be less affected.
  • Picking jurors from another community and bringing them to Wichita to hear the case.
  • Giving lawyers on both sides additional chances to remove people during jury selection.
  • Isolating the jury during a trial.
  • Giving special instructions to guide jurors during deliberations.

In the Rader case, the court sealed one order "to protect the integrity and confidentiality of the criminal proceedings" and to limit pretrial publicity.

No other specific reasons have been given for the seals in the Rader case, nor is there any indication that hearings were held to consider alternatives.

Vix wrote: "The present proceedings have been conducted as if there were no rules governing the sealing of court records."

Courts have long held that conducting criminal cases in public increases confidence in law enforcement and the judicial system.

Even the basic information provided in other Sedgwick County court cases is closed in Rader's file.

"Given the 30-year investigation that preceded the defendant's arrest, not to mention the level of terror that these crimes struck in the hearts of tens of thousands of Wichitans, the public is entitled to at least a glimpse of the evidence which causes the State to believe the defendant is responsible for 10 murders," the motion said.

The information is available in a sworn police affidavit, which is closed by state law and has also been sealed by Waller.

The affidavit, which would routinely be available to the public in federal court and nearly every other state, provides a summary of information authorities used to arrest Rader.

Because Rader waived his preliminary hearing last week, Vix said, there's no longer any reason to keep the affidavit secret.

"But for him waiving the preliminary hearing, we would know what was in that affidavit — and probably more," Vix said. "The district attorney's office was ready to put on a probable cause case. And so it would seem if they were willing to do that in public, there's really no cause to keep that affidavit private."

Rader is charged with 10 deaths police thought to be carried out by a serial killer who called himself BTK.In letters to police and news media over three decades, the killer gave himself that nickname for the way he would "bind, torture and kill" his victims.

The killer fell silent for nearly 25 years before resurfacing in March 2004 with a letter to The Eagle.

The killings "affected people individually in a way few crimes do," Chisenhall said. "People took measures of safety in their own homes, and there's an enormous public safety interest in this story."

News media outlets receiving those communications from BTK turned them over to police. Sources say police were able to use clues within those packages to track down Rader.

In announcing Rader's arrest during a news conference carried nationally, Wichita Police Chief Norman Williams said: "The bottom line, BTK is arrested."

Vix and Tretbar argue that Williams' proclamation is more threatening to Rader's case than any of the documents sealed in the court file.

"It is unreasonable and unfair to saddle the media, in the guise of belated 'pretrial publicity' concerns, with the consequences of a potential community bias that is not of its own making," the motion reads.

Doug Anstaett, executive director of the Kansas Press Association, said it is the media's job to challenge information that the government holds from the public.

"Interest in this case is higher than any in Wichita's history, and we believe the public's right to know far outweighs any concern about perceived harm if certain unidentified information is disseminated," Anstaett said. "KPA has become involved because this kind of blanket secrecy must be challenged."