Transcript of state's motion for discovery

AUGUST 10, 2005

Proceedings had before the Honorable Richard Ballinger, Chief Judge of Division No. 13 of the District Court of Sedgwick County, Kansas, in the Eighteenth Judicial District at Wichita, Kansas, on the 10th day of August, 2005.


The State of Kansas appeared by Mr. Kevin O'Connor and Ms. Kim Parker, Deputy District Attorneys, Sedgwick County Courthouse Annex, 535 N. Main, Wichita, Kansas 67203.

The Defendant appeared by his attorneys, Mr. Charles Osburn, Chief Public Defender and Ms. Sarah McKinnon, Assistant Public Defender, 604 N. Main, Suite D, Wichita, Kansas 67203.

THE COURT:We are in session in the State of Kansas vs. Dennis Rader matter, 05 CR 498.

Appearances, please.

MR. O'CONNOR:Your Honor, the State of Kansas appears by Kevin O'Connor and Kim Parker.

MR. OSBURN:Mr. Rader appears by and through counsel, Steve Osburn and Sarah McKinnon.

THE COURT:This hearing is a result of a meeting that was ordered by myself at 1:00 o'clock with counsel and Judge Waller concerning this case. It is set for sentencing next week, I believe on the 17th.There were some practical issues that needed to be taken care of involving security.Judge Waller and I have an agreement that he is responsible for all the legal issues, the courtroom procedures involving this case, trying of the lawsuit, all those decisions.And then I was taking care of the logistics, security, working with our very learned, experienced and professional media coordinator in dealing with those outside issues. Also dealing with the seating chart, working with the outside agencies, the Sheriff's Office, security.So we had a meeting this afternoon at 1:00 o'clock to tidy up all those issues.And I might add that there is a possibility of taking three chairs away from the media, by the way, Ms. Parker.

MS. PARKER:Thank you, Your Honor.

THE COURT:Well, you may thank Mr. Longhofer.

As a side note, it doesn't really affect the defendant, but, Mr. Osburn, you were part of that conversation and you know how adamant I was about not doing that, but it appears that might be a possibility.And during that process we were able to take care of most issues.It came up that a tape has now been created in the last couple of days or week — I think about a week ago.Anyway, a tape was created sometime between plea and now, and it involved an interview by Dr. Mendoza of the defendant Mr. Rader.

And the State does not have access nor have they had access to that tape, they have requested access.They filed a motion to compel discovery.During the process of our discussing that issue, which normally is a very informal, sit down, discuss it, take care of it situation, and they were discussing it with Judge Waller, it quickly became evident that there were issues and problems that were fairly unique to both the case and the tape.Judge Waller came to the belief that that was an issue that didn't directly involve sentencing, and he was not going to handle it, and I would need to take charge.

He also made the comment that if it appeared the situation became heated enough, he may actually be a witness to certain acts that occurred with an order which would also require his withdrawing at least from this issue.I think everybody agreed that this issue is totally separate and apart from the sentencing except for the original request to compel is so the State has an opportunity to review the tape and see if there is any information in that tape which could be utilized during their presentation at sentencing, which includes the requirement that they prove the needed elements of the Hard 40.

Now, I don't want to put words in your mouth.Ms. Parker or Mr. O'Connor, which one of you will be addressing the Court?

MS PARKER:Yes, Your Honor, I might just add another portion to that, another segment, and that would be that it is the State's position that this information is important to be discovered by the State, one, because the order indicated that this tape was done in anticipation of sentencing; two, the State has the belief based on some media presentations that this particular tape will be displayed to the public prior to sentencing, and because of any effect it may have on that sentencing, the State believes that we are entitled to discovery of that at least to the extent that the public might have that prior to the State having that.

THE COURT: Okay, before I go any further I want to do two things.I want to ask Mr. Osburn — well, first of all, do you need to make any additions or corrections to my recitation of what brought us up to this point in the courtroom?

MR. OSBURN:No, Your Honor.

THE COURT:Okay.I also asked Mr. Osburn if he felt that the defendant needed to be present during this impromptu hearing.Again there is a motion on this motion to compel.It is actually a hearing, rather, set for next week at 1:00 o'clock — is it tomorrow at 1:00 o'clock? But this is the type of thing that really needs to be taken care of today because there are certain actions that the State will need to do or not do based on what happens, what occurs here.So I had asked you if you felt he needed to be here and you indicated you didn't feel, first of all, certainly not a necessary stage.

MR. OSBURN:I feel comfortable at this point proceeding without Mr. Rader being present, Your Honor.

THE COURT:Okay.As long as we stick to this particular issue, I likewise.Do you agree or object, Ms. Parker or Mr. O'Connor?

MS. PARKER:No, Your Honor.

THE COURT: Okay. Second thing.I purposely have withdrawn myself to a certain extent with many issues involving the legal issues with the Rader case, substantive issues. We are post-plea and I don't have anything to do with the sentencing. There are some connections between myself and some of the victims' families. Is there any objection for me handling this motion to compel on this issue only?

MR. OSBURN: None from the defense, Your Honor.

MS. PARKER: None, Your Honor.

THE COURT:And both sides are aware of what those connections are, I have gone into detail before.

Okay, part of this discussion we had back in the library.Certain allegations were made by the State that this tape was made, and Mr. Osburn and/or Mr. Rader and/or Ms. McKinnon had possession of this tape.I point blank asked Mr. Osburn if they ever had possession, they meaning he and his staff, legal staff, had possession of this tape. Did you ever have possession of this tape, Mr. Osburn?

MR. OSBURN:We did not, Your Honor.

THE COURT:Is it your tape that they are talking about in describing this motion that now some media people have?

MR. OSBURN:Your Honor, we had asked the Court's permission, Judge Waller, for our psychiatrist, Dr. Robert Mendoza, who wanted —had asked us to see if he can get in and speak with our client and to videotape that for his own purposes, not knowing at that point where we would be proceeding to sentencing.This was done immediately after the plea back on June 27th, so it's been some time ago.The tape was prepared for Dr. Mendoza.I believed at the time by Dr. Mendoza.We didn't know exactly what we might be facing at sentencing at that point, so the idea was it may help him prepare us for possible mitigation at sentencing.We didn't know what the State was going to be presenting at that point.

THE COURT: Okay.Bottom line, then, you do not have any objection to me reiterating Judge Waller's previous order, and there is an order for reciprocal discovery in this case; is that correct?

MR. OSBURN:No, Your Honor, I have no objection to the order that's in place.

THE COURT:Okay.Do you have any objection that I am going to order you to turn over any tape in your possession to the State; do you object to that order?

MR. OSBURN:I don't have a tape, Your Honor, so there is no basis for me to object to it.

THE COURT:Okay, and if I order for you to turn it over?

MR. OSBURN:I would comply with the Court's Order, Your Honor.

THE COURT:If you could.


THE COURT:And you just told me you don't have it in your possession.

MR. OSBURN:I don't and never had it.

THE COURT:I will enter an order if you have the tape or if you gain possession of the tape or a copy of this tape, that you immediately forthwith turn it over to the State of Kansas. Notify Ms. Parker, Ms. Foulston and/or Mr. O'Connor immediately and deliver it to them.Either you, Ms. McKinnon or any of your staff get ahold of this tape.

MR. OSBURN:We will comply, Your Honor

THE COURT:Mr. O'Connor.

MR. O'CONNOR: Judge, if I could, my motion requests certain other items, too, in addition to a tape.So I can't read them all off, a report prepared by Dr. Mendoza, drafts, anything he used to make an opinion.All that I consider to be what we would normally ask for when you are dealing with an expert.I would ask that that also be part of the Court's order, and if the defense does not have it, I would ask that because this would be asked of me if it is not in my possession.I would likely be ordered to the Court to make every effort to get it into my possession.I would ask that that be part of the order, too.They may not have it, but I would ask the Court to order them to make every effort — reasonable effort to obtain it. Also to order the additional items that I requested. believe it's (a) through (i), (i) being the last thing, asking for the actual tape of the interview.

THE COURT:Does that requirement also include psychiatric reports?Are they included in the statute, Mr. Osburn?Well, first of all —

MR. OSBURN:Your Honor, I think it is clear 22-3212, Subsection C, which governs this, is clear that reciprocal discovery requires us to turn over to the State material that we intend to introduce in court.


MR. OSBURN:We have done that.Anything that we would intend to introduce either already have or at sentencing, they have.Anything beyond that, which is basically everything in their motion, I don't believe they are entitled to.I think that Subsection C specifically says that they are not entitled to that.

THE COURT:And I think I made that comment back in the library earlier what you intend to utilize in court.I specifically made that comment.

MR. O'CONNOR:Well, the State's position would be is that — I mean, if there is no other way to do this or make an argument without saying that if an order was presented to Judge Waller saying that this tape was being made — or this interview was being made in order for preparation of sentencing and possible mitigation evidence.


MR. O'CONNOR:And so what happens — I don't know what happens, but they are not in possession of the tape is what they say.But this tape that was done for the purposes of sentencing mitigation has wound up, apparently, in the hands of a national t.v. program that is going to present it before sentencing.

THE COURT:And you know that by how?

MR. O'CONNOR:Because they are running promos on their web site and on their television show at the end of the last show, it's Dateline. They show a clip of it with Dr. Mendoza in a jail or cell-type facility with Mr. Rader there, too.I believe there is a comment that Mr. Rader makes that, Yes, I am BTK, the man you've been looking for.And now Channel 3 locally is apparently running promos about this, running clips from it, and running promos about Dateline's Friday's show, Friday night's show is when they say they are going to air it.So it is going to be aired to the public.It's going to be out there, and I think based upon that, we certainly would be entitled to review whether it may be something like Ms. Parker said that we may want to either refute at sentencing or to use ourselves at sentencing, quite frankly.

(Off-the-record discussion between prosecutors, after which the following proceedings were had:)

MR. O'CONNOR:And as prosecutors — Ms. Parker reminds me, as prosecutors, we have an affirmative duty to ensure there isn't any mitigating evidence out there that defense may not be aware of or didn't uncover.Since they never saw the tape is what they are saying, they never had it, how did they know that it's not mitigating when it was made for the purposes — ostensibly for the purposes of possibly looking at mitigating evidence. I wouldn't want it to come back we knew about the tape and we didn't make any efforts to obtain it. Maybe even possibly to turn it back over to them — to turn it over to defense, I mean, because who knows what's on this tape.We don't.They apparently don't know either.

THE COURT:Well, if the person or entity that had the tape was in this courtroom, I could certainly order them, if they were part of the action.I can only rely, and I am going to assume as I always have, that what counsel has told me is absolutely accurate and true, period.There is no evidence to the contrary today.So I ordered him to turn over the tape and he says he doesn't have it. Period.If it's a party to the action or somebody's in the courtroom, I will order them to.There is not.

I note that a local attorney is in the courtroom, Roger Falk, and our media coordinator is in the courtroom, basically because he was up here incidentally on another matter, and I basically wanted to keep him here so — well, I just wanted to keep him here for a little while.He's joined us in the courtroom today.And I think that's all I can do.

Now, I think that pretty much takes care of this hearing.I will order that the documents (a) bench notes, do you have bench notes?

MR. OSBURN:Your Honor, I don't have the State's motion in front of me because I had it on my desk.I didn't know we were going to be taking this up today.But as I recall, I looked through it, and, really, the only things we do have possession on this list are Dr. Mendoza's C.V., which I believe is on line on his website, but I don't have a problem giving the State that.

THE COURT:I will order you to do that.

MR. OSBURN:And I do have this report that was prepared basically for our protection, and I have no problem presenting that to the Court for an in-camera inspection.I do not want this filed as a public record.But that's all that we do have. But I don't think the State is entitled to that.

THE COURT:I don't think the report should be filed as public record, doesn't need to be.

MR. O'CONNOR:That's another issue and the suggestion Mr. Osburn makes is fine with the State, an in-camera review.

THE COURT:Okay.I will order that that be presented to Judge Waller.Since technically that's an evidentiary issue, I will order it be provided to Judge Waller.I will let him know what my order is and then he will — do you object to them reviewing it with Judge Waller?

MR. OSBURN:No, Your Honor.I have told them basically what it says.

THE COURT:So when they provide it to Judge Waller, you all can go back and read it in Judge Waller's Chambers.Do you want to be present when they do that?

MR. OSBURN:No, Your Honor, I trust them.That's fine.

THE COURT:I will order you to release the report back to Judge Waller, who will hold onto it, and do with it what he feels is appropriate. And that will be done before 4:30 today?

MR. OSBURN:Yes, Your Honor.

THE COURT:Then you can make arrangements with Judge Waller when and how you want to review that report.That's the only issue. Is there any other issues, any other comments you want to make, Ms. Parker?


THE COURT:Mr. O'Connor?

MR. O'CONNOR:No, Your Honor.

THE COURT:Mr. Osburn?

MR. O'CONNOR:No, Your Honor.

THE COURT:Ms. McKinnon?

MS. McKINNON:No, Your Honor.

THE COURT:We are in recess.