Even if Dennis Rader decides not to take his case to trial, District Attorney Nola Foulston may still get to present evidence to a jury. Rader stood silent Tuesday morning and let Sedgwick County District Judge Greg Waller enter a not-guilty plea on his behalf. But Foulston approached the man accused of being the BTK serial killer and told him the state intends to pursue a Hard 40 prison sentence.
That sentence, under a 15-year-old law, must come from a jury, which hears evidence in the case — even if Rader later decides to change his not-guilty plea.
The Hard 40 means Rader, 60, would have to live to 100 to face a parole board if he's convicted of the last of the 10 counts of first-degree murder he faces.
"You won't last that long," a voice from the back of the courtroom yelled at the end of Tuesday's hearing.
Under the state law in effect in 1991, when Dolores "Dee" Davis was killed near her Park City home, the Hard 40 brought a separate sentencing hearing in front of a jury. Kansas didn't have a death penalty law in those days, but juries decided the Hard 40 in the same way they determine capital punishment today: after hearing evidence.
But if Rader decides not to take his case to trial — for example, if he enters a guilty plea later — Foulston could still present her case to a jury at sentencing, producing evidence as she would at trial.
Rader's public defenders, though, have not indicated that he will do anything but go to trial.
That's what Foulston is pushing for, reiterating Tuesday that she would not engage in plea bargaining. Foulston said after the hearing that she wants the evidence made public.
"We cannot let this just close the book and walk away," Foulston said. "That would be so unfair to our victims and their families and to the community in which we serve."
When Foulston personally served Rader with her sentencing notice in the courtroom, she followed a practice that has upset defense lawyers in past cases.
"It remains to be seen what will happen to that motion," Sarah McKinnon, one of Rader's public defenders, said after the hearing. "That's the only comment I have on that procedure that happened this morning."
Foulston said the law requires her to personally serve defendants of such sentencing notices, such as in Rader's case and in those involving the death penalty. Some lawyers claim Foulston goes too far, however.
Ron Evans of the Kansas Death Penalty Defense Unit objected when Foulston spoke directly to Cornelius Oliver when she handed him notice to seek the death penalty in 2000 for four killings.
Evans filed a motion and succeeded in getting the court to order Foulston to instead hand a similar notice to lawyers in the murder case of Jonathan and Reginald Carr. Evans also objected when Foulston tried to ask questions of another of his clients, Douglas Belt.
"Wichita is the only place I've ever seen where the prosecutor personally addresses the defendant with a lawyer present," Evans said. "Every other place I've seen it is deemed appropriate to hand the documents to the lawyer."
Rader, who rarely looked up as his lawyers waived his preliminary hearing last month, looked across the gallery and nodded as he entered the courtroom Tuesday. He was wearing a navy blue sportcoat, bulletproof vest and shackles.
McKinnon said Rader had family in court for Tuesday's hearing, but she didn't want to identify them "to protect their privacy."
Journalists, investigators, victims' families and Rader's pastor filled the gallery for the brief hearing.
Waller set Rader's case on the trial docket as early as June 27, but no one involved expects a trial before fall. Foulston said October, at the earliest, would be her best guess.
McKinnon said writing motions and studying documents spanning the 31-year police investigation will take time.
Even without the Hard 40, Rader would still face life in prison on each of the 10 murder charges if he's convicted.
Before 1991, convicts sentenced to life had to wait only 15 years to face the parole board. That law would apply to nine of Rader's charges, dating back to 1974.
It's unlikely, however, that Rader would ever be free again, even if he received the lesser sentence.
Consider serial killer Donald Nemechek. He was convicted of five murders from 1971 through 1976 in western Kansas. By the laws of the day, Nemechek received multiple life sentences in 1977 with parole eligibility in 15 years.
Nearly 30 years later, Nemechek, 54, remains a resident of the Lansing Correctional Facility.