The Wichita lawyer who Attorney General Phill Kline named as a special prosecutor in the George Tiller case is a longtime abortion opponent who supported Kline’s failed re-election bid.

Donald McKinney was admitted to the Kansas Bar Association in 1987. He is active and listed in good standing.

Kline called McKinney, a Democrat and brother of House Minority Leader Dennis McKinney, D-Greensburg, a highly respected attorney.

McKinney could not be reached for comment late Wednesday.

“This appointment of an independent special prosecutor will remove this investigation from a highly charged political process,” Kline said during a news conference Wednesday.

But Wichita lawyer Dan Monnat, one of Tiller’s lawyers, said of McKinney, “We’ve known him to protest outside Tiller’s clinic.”

Cheryl Sullenger, spokeswoman for the anti-abortion group Operation Rescue, said that within the last year she’s seen McKinney outside Tiller’s clinic “praying for the babies,” walking up and down the sidewalk. “He has a constitutional right to do that.”

His opposition to abortion shouldn’t disqualify him, she said. “I think you can have personal views on things and still conduct yourself professionally, and I think Mr. McKinney would do that.”

As for him being outside the clinic, she said: “I think it gives him a unique perspective when it comes to prosecuting this man. You don’t have to be neutral to do your job.”

Steve Joseph, a longtime Wichita lawyer, said that “in terms of the legal community, Don is politically and socially on the far-right fringe.”

During this fall’s attorney general’s race, McKinney was a leader of a group called Democrats for Kline, along with state Sen. Mark Gilstrap of Kansas City, Kan., and former state Rep. Charles Laird of Tecumseh.

In October, McKinney criticized The Eagle in front of its offices for not investigating 15-year-old, unproven allegations of sexual harassment against challenger Paul Morrison, and for an editorial criticizing statements Kline made at campaign events.

McKinney said the old charges raised serious questions about Morrison’s character, though two lawsuits filed by a former employee were dismissed and she received no damages.

In July 2001, McKinney represented local members of the group Operation Save America who took the city of Wichita to federal court after it blocked an anti-abortion parade outside Tiller’s clinic. A federal judge overturned the city’s action.

In May 1992, a year after the so-called “Summer of Mercy” anti-abortion protests in Wichita, McKinney urged City Council members to prohibit off-duty police officers from working as security guards at medical clinics. He also accused city leaders of spending thousands of dollars guarding clinics where abortions are performed.

A month later, he said a list of one council member’s campaign contributions showed “how the blood money of the abortionist has crept into the political process.” That council member is no longer in office.

Bill Townsley, president-elect of the Wichita Bar Association, said that he could not offer an official association comment but said McKinney is a member in good standing and participates in committees.

The disciplinary administrator’s office, an arm of the Kansas Supreme Court, has no record of disciplinary action or complaints against McKinney.

Contributing: Tim Potter of The Eagle; Associated Press
Reach Deb Gruver at 316-268-6400 or [email protected]

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By DEB GRUVER
The Wichita Eagle

Kline Abortion Inquiry

A legal battle over whether Attorney General Phill Kline has authority to pursue charges against a Wichita abortion provider will play out today in Sedgwick County District Court.

Kline seeks reinstatement of 30 misdemeanor charges against physician George Tiller that were dismissed Friday at the request of Sedgwick County District Attorney Nola Foulston. In a request for “emergency reconsideration,” Kline’s office contends that Foulston wrongly interfered and that she did not object to Kline’s filing the charges when he met with her in Wichita last Thursday.

Attached to the court document filed by Kline’s office is an e-mail Foulston sent to Kline on Friday.

In it, she wrote: “Nothing in our conversation yesterday should be construed as having acquiesced in the filing of these charges by your office . . . .”

She wrote that after researching the issue, “I have determined that you clearly have no authority to pursue criminal charges in this jurisdiction without my consent.”

In bold type, she asked Kline to forward to her the investigative file that led to the allegations against Tiller so her office could determine whether prosecution is warranted.

The district attorney’s office was acting only on the question of whether Kline had authority to bring the charges, not on the merits of his case, said district attorney’s spokeswoman Georgia Cole. Cole declined to comment further.

District Judge Paul Clark signed the order to dismiss the charges Friday. He will preside over the hearing at 2 p.m. today.

In a brief statement, he said the hearing would focus on whether the court has “power to limit the authority of a district attorney to dismiss” the charges.

The charges included allegations that Tiller carried out 15 illegal late-term abortions and didn’t properly report the procedures to state health officials. The charges said the violations occurred in 2003. His lawyer says he is innocent.

One of Tiller’s lawyers, Dan Monnat, said Tuesday: “We have confidence in the decision made last week by Judge Clark and District Attorney Foulston. We believe that will stand.”

Monnat said he knows of no other similar charges filed in Sedgwick County since the Roe v. Wade decision in 1973 that declared a basic right to abortion.

“These charges related to his (Kline’s) personal disagreement” with courts, including the U.S. Supreme Court, “that a woman’s mental health factors into her decision to terminate a pregnancy,” Monnat said.

A spokesman for Kline’s office didn’t return phone calls today, and Kline declined to comment.

Kline, a Republican who lost in November to Democrat Paul Morrison and will leave office in two weeks, requested the “emergency reconsideration” late last week.

The court document says the charges stemmed from “years of on-going investigation” by the attorney general’s office, “involving hundreds of man-hours, the review of thousands of pages of documents, pleadings, and exhibits, and interviews with witnesses.”

After reviewing the evidence, Sedgwick County District Judge Eric Yost found probable cause to believe that Tiller committed the crimes, the document said.

“District Attorney Foulston has sought to bring an immediate and summary end to this criminal case, without allowing a jury to decide the charges on the evidence . . . ” the document said.

Reach Tim Potter at 316-268-6684 or [email protected]

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By TIM POTTER
THE WICHITA EAGLE

Kansas Attorney General Phill Kline overstepped his authority by filing criminal charges against Wichita abortion provider George Tiller, a Sedgwick County district judge ruled Friday.

Judge Paul Clark granted District Attorney Nola Foulston’s request to drop 30 misdemeanor charges against Tiller, after she argued that Kline did not have jurisdiction in the case.

Kline’s complaint, filed Thursday afternoon and signed by Judge Eric Yost, accused Tiller of performing 15 illegal late-term abortions and not properly reporting those procedures to state health officials.

Kline said Friday afternoon that he intended to file an “emergency motion for reconsideration” of the dismissal. It was unclear whether he succeeded by the time the Sedgwick County Courthouse closed for the Christmas holiday weekend.

The case created a news roller coaster on Friday.

Kline had filed the charges under seal at 4:37 p.m. Thursday. But Tiller didn’t receive the notice until Friday morning — when he found a court summons on the front door of his house, his lawyers said.

Tiller’s lawyers called a news conference before noon, saying they expected the case to be dismissed next week and sharply criticizing Kline’s actions. Kline has less than three weeks left in office; voters denied him re-election.

“The filing of criminal charges by Phill Kline is the last gasp of a defeated and discredited politician,” said Lee Thompson, who represents Tiller. “Rather than exercising his duty as a prosecutor to see that justice is done, he has chosen to engage in a malicious and spiteful prosecution on the eve of Christmas.”

Thompson didn’t know Foulston was already preparing to have the charges dropped on the basis of jurisdiction.

The attorney general is the chief law enforcement officer in the state, but under Kansas law he cannot pursue a case without the consent of the local prosecutor.

“The district attorney has not invited or requested, consented or acquiesced, or failed to object to the filing of the complaint,” Foulston told the judge in a court filing. “The district attorney does in fact object to any such filing by the Attorney General, as he lacks the legal authority to file such complaint in this jurisdiction.”

She did not address the allegations made in the criminal complaint.

By 12:50 p.m., Clark had signed the order to dismiss the charges.

At 1:20 p.m., Foulston’s office e-mailed copies of her filing to local news reporters.

During his own news conference at 3 p.m. Friday in Topeka, Kline said that he had met with Foulston before filing charges, and that she had not questioned his decision.

The charges included allegations that Tiller performed abortions at 25 to 31 weeks of gestation, misdiagnosed a variety of mental illnesses and disorders in those cases and did not properly report them to the Kansas Department of Health and Environment.

A few weeks ago — after a two-year legal battle — Kline obtained the records of 90 patients from Tiller’s clinic and from a clinic in Overland Park operated by Planned Parenthood of Kansas and Mid-Missouri.

The U.S. Supreme Court has said abortions after 22 weeks of gestation must be intended to reduce a health risk to the mother. The Kansas Supreme Court has ruled that such risks include the mental health of the woman.

Kline said what he saw in the medical records did not constitute “a finding of substantial and irreversible damage to a major bodily function of the mother” as the law requires for a late-term abortion.

“Kansas law only allows a post-viability abortion if the mother’s life is in jeopardy,” Kline said, “which has happened in zero instances in Kansas according to reports over the past numerous years.”

Dan Monnat, a criminal defense lawyer who represents Tiller, told The Eagle: “You can see each primary count is Phill Kline’s disagreement with the notion that a woman’s mental health can be considered in a abortion determination. And each secondary count is some hypertechnical bizarre view of the state’s reporting requirement.”

Monnat said he and Thompson, a former federal prosecutor, had contemplated the legality of Kline’s dealings with the Sedgwick County District Court but had not discussed the matter with Foulston.

“Really, there were multiple legal grounds on which to get this dismissed,” Monnat said. “Factually, Dr. Tiller is innocent of any wrongdoing, so a motion to dismiss should be granted on that basis. Nola has now found the legal flaw in the attorney general’s parting action, which resulted in an expeditious dismissal.”

Paul Morrison, the Johnson County district attorney who switched parties to take on Kline as a Democrat and who assumes office Jan. 8, questioned the way Kline handled the case without consulting him.

“I just don’t think it was a very professional way to do it,” Morrison said. “I would never file a very involved and controversial case and leave it for somebody else to have to deal with.”

If charges against Tiller are reinstated, as Kline hopes, Morrison said he will evaluate the charges before deciding how to proceed.

“We’ll look at them and evaluate them and make a decision about what to do,” he said. “It’s hard for me to talk about the merits of the case because I haven’t seen it.”

Said Thompson: “Attorney General Morrison is an experienced prosecutor. With him, I expect we can deal with him as we would with any other experienced, credible professional prosecutor.”

Kline is nationally known as an anti-abortion advocate, and it proved a touchstone issue in his campaign. A committee of Republicans recently chose Kline to replace Morrison as Johnson County district attorney.

When asked at his news conference if he had “work on this to do in Johnson County,” Kline answered:

“No comment. I will mention that the investigation is ongoing.”

Reach Ron Sylvester at 316-268-6514 or [email protected].
Contributing: Fred Mann and Hurst Laviana of The Eagle; Steve Vockrodt of the Olathe News reporting from Topeka.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By RON SYLVESTER
The Wichita Eagle

A Sedgwick County judge dropped misdemeanor charges today against Wichita-based abortion provider George Tiller at the request of the district attorney, who said that Kansas’ top law enforcement official overstepped his authority.

Judge Paul Clark granted District Attorney Nola Foulston’s request to drop 30 charges filed Thursday by Attorney General Phill Kline, a vocal abortion opponent.

Kline added to the legal jousting by announcing this afternoon that he’ll file an emergency motion for the judge to reconsider “what we believe is a flawed decision.”

Although the attorney general is the chief law enforcement officer in the state, Foulston said that Kline cannot pursue charges in a particular county without being invited by the local prosecutor to do so, or without authority from the governor.

“The statutes and case law are clear,” Foulston said in a statement released by her office this afternoon.

“The district attorney has not invited or requested, consented or acquiesced, or failed to object to the filing of the complaint,” Foulston’s office added. “The district attorney does in fact object to any such filing by the Attorney General, as he lacks the legal authority to file such complaint in this jurisdiction.”

Foulston said she’d received no word from Gov. Kathleen Sebelius allowing Kline to file charges in Sedgwick County District Court.

That’s because Sebelius didn’t.

“I can tell you with absolute certainty the governor did not” consent to the charges, said Nicole Corcoran, the governor’s spokeswoman. “This is a basic rule governing the office of the attorney general, and it’s rather surprising he doesn’t know that.”

During a news conference this afternoon, Kline said he had met with Foulston, told her of his intentions and she had not questioned his decision.

Kline was trying to fend off a day of criticism.

It began with Tiller finding a summons to appear in court stuck in the door of his home overnight.

Kline had apparently filed the charges under seal at 4:37 p.m. Thursday. But Tiller didn’t find the summons until the next morning.

Tiller’s lawyers called a press conference before noon, saying they expected the case to be dismissed and sharply criticizing Kline’s actions with three weeks left of his office, after voters denied him re-election last month.

“The filing of criminal charges by Phill Kline is the last gasp of a defeated and discredited politician,” Lee Thompson said from his law office in Wichita. “Rather than exercising his duty as a prosecutor to see that justice is done, he has chosen to engage in a malicious and spiteful prosecution on the eve of Christmas.”

The charges include allegations that Tiller performed late-term abortions anywhere from 25 to 31 weeks of gestation.

To perform abortions after 22 weeks of gestation, the provider must show a health risk to the pregnant woman, under case law from the U.S. Supreme Court. The Kansas Supreme Court has ruled that such risks include the mental health of the woman.

The charges include claims that Tiller misdiagnosed a variety of mental illnesses and disorders in those late-term abortions and did not properly report them to the Kansas Department of Health and Environment.

“You can see each primary count is Phill Kline’s disagreement with the notion that a woman’s mental health can be considered in a abortion determination,” Dan Monnat, a criminal defense lawyer who represents Tiller, told The Eagle after the complaint had been unsealed. “And each secondary count is some hypertechnical bizarre view of the state’s reporting requirement.”

By 12:50 p.m. today, Clark had signed the order.

Monnat said he and Thompson, a former U.S. attorney, had contemplated the legality of Kline’s dealings with the Sedgwick County court but had not discussed the matter with Foulston.

“We were pleasantly surprised by the courageous actions of the district attorney,” Monnat said. “Really, there were multiple legal grounds on which to get this dismissed. Factually, Dr. Tiller is innocent of any wrongdoing, so a motion to dismiss should be granted on that basis. Nola has now found the legal flaw in the attorney general’s parting action, which resulted in an expeditious dismissal.”

Voters overwhelmingly rejected Kline in the Nov. 7 general election. Paul Morrison, the Johnson County district attorney who switched parties to take him on as a Democrat, assumes office Jan. 8.

Abortion proved one of the biggest issue in Kline’s campaign. Republicans recently chose Kline to replace Morrison as Johnson County district attorney.

Over the years, Kline has investigated whether Tiller and other abortion providers have performed illegal late-term abortions and have failed to report suspected child abuse as required by law.

Tiller’s clinic is the site of daily protests. He has also be the target of violence: His clinic was bombed in 1985 and he was shot by a protester in 1993.

A few weeks ago — after a two-year legal battle — Kline obtained the medical records of 90 patients from Tiller’s clinic and from a clinic in Overland Park operated by Planned Parenthood of Kansas and Mid-Missouri.

Reach Ron Sylvester at 316-268-6514 or [email protected].
Contributing: Fred Mann and Hurst Laviana of The Eagle; Steve Vockrodt of the Olathe News reporting from Topeka.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By RON SYLVESTER
The Wichita Eagle

And the top 100-ratings include several Kansas private defense attorneys that I have a lot of respect for, like Tom Bath and Dan Monnat. Click here to continue reading

TOPEKA – Wichita abortion provider George Tiller will ask the Kansas Supreme Court to investigate Attorney General Phill Kline and Bill O’Reilly over the Fox television host’s comments that he obtained information from Kansas abortion records, Tiller’s attorneys said Saturday.

They said Tiller wants the court to appoint a special prosecutor to handle the investigation and take possession of the records of 90 patients from two clinics. They said he will make his requests Monday.

Kline spokeswoman Sherriene Jones said the attorney general doesn’t know how O’Reilly obtained his information.

She said the Supreme Court isn’t the proper place for such requests and said Tiller’s plans are a “political ploy.”

“They’re just trying to create a media frenzy just days before the election and once again are trying to confuse and lie to Kansas voters,” she said.

Friday night during a national broadcast of “The O’Reilly Factor,” the host said while interviewing Kline that a “source inside” told the show that Tiller performs late-term abortions when a patient is depressed, which O’Reilly deemed “executing babies.”

He also said his show has evidence that Tiller’s clinic, off Kellogg just east of Oliver, and another unnamed clinic have broken Kansas law by failing to report potential rapes with child victims ages 10 to 15.

Late-term abortions are illegal in Kansas unless physicians determine the pregnancy could put the woman’s physical or mental health at risk.

Source of info unknown 

Tiller’s attorneys, Pedro Irigonegaray of Topeka, and Lee Thompson and Dan Monnat of Wichita, issued a joint statement decrying the “national media event.”

“The fears about threats to the sanctity and privacy of medical records were well-grounded,” they said.

O’Reilly did not say whether his information came from the records of 90 patients from Tiller’s clinic and a clinic operated in Overland Park by Planned Parenthood of Kansas and Mid-Missouri. Kline waged a two-year battle to obtain those records and received edited versions of them Oct. 24.

It wasn’t clear Saturday whether O’Reilly or his staff had viewed any records themselves. A request to Fox in Washington to interview O’Reilly or someone associated with his show wasn’t answered Saturday.

“We don’t know anything about Mr. O’Reilly’s inside source,” Jones said. “I assumed he was talking about somebody on the inside of the abortion clinics.”

Asked about the possibility that the information came from a clinic insider, Irigonegaray said, “That’s preposterous.”

Campaign issue 

Patient privacy has been a major issue as Kline is running for a second term against Paul Morrison, the Johnson County district attorney. Morrison has repeatedly criticized Kline for seeking abortion clinic records, saying it invaded patients’ privacy. Kline says he’s not investigating any patient, only potential rapists and doctors who may have broken Kansas’ abortion laws. He maintains that patients’ privacy has been protected.

“Phill Kline told us these records would be kept private, but now that Phill Kline has them, the host of a national talk show Kline is on says he has seen the records,” said Mark Simpson, Morrison’s campaign manager. “O’Reilly would not be claiming to have seen the private medical records of Kansans if Phill Kline had not violated Kansans’ privacy by seizing the records.”

Irigonegaray said in an interview that he was outraged both by O’Reilly’s remarks and by Kline’s failure to demand answers from the television host about where he received his information. Irigonegaray said the records contain no evidence of wrongdoing by the clinics.

“This has been our concern from the beginning, that if he ended up with these records, that just this type of event would occur. Our worst nightmare has happened,” Irigonegaray said. “Women in America deserve better than this.”

Staff reviewing records 

Kline confirmed last week that he’d received the records from Shawnee County District Judge Richard Anderson, edited so that individual patients could not be identified.

Kline said he’s turned the records over to staff who are reviewing them to prosecute possible cases of child rape, forcible rape, incest, illegal late-term abortions, failing to report sexual abuse of a child and making a “false writing.”

“There’s only a limited number of people within the attorney general’s office who have access to those records, and I can assure you that none of them have shared that information beyond the investigators and prosecutors who are reviewing the cases,” Jones said.

O’Reilly told viewers Friday night that his program has been investigating Tiller for a year. Now, he said, it has evidence about abortions in Kansas.

Kline suggested during his interview that O’Reilly inferred that late-term abortions had been performed for mental health reasons, given that state statistics show none have been performed to preserve a woman’s life or to prevent permanent damage to a physical bodily function, two other reasons they are allowed.

O’Reilly replied: “Our information says that on almost every medical sheet — and obviously we have a source inside here — it says, ‘depression.’ I don’t know whether you have that information or not — I don’t know — but that’s what it says.”

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

By JOHN HANNA
Associated Press

KSN calls the Wichita detective to bolster its defense in the defamation case. Detective Dana Gouge told a jury Thursday that Wichita police obtained a warrant to take the DNA of Roger Valadez because he was a BTK suspect.

KSN-TV’s lawyer called Gouge to the witness stand in its defense against Valadez’s lawsuit, which claims the NBC affiliate invaded his privacy and defamed him by suggesting he could be Wichita’s notorious serial killer.

Lawyer Bernie Rhodes, representing KSN, sought to show that Channel 3 provided its viewers with accurate information after police took Valadez into custody on Dec. 1, 2004. Valadez’s lawyer, Craig Shultz, portrayed KSN as being lucky in its accuracy.

Shultz asked Gouge whether he or any other members of the BTK Task Force provided information to news reporters, including KSN, about police suspicions.

“Absolutely not,” Gouge said.

Gouge’s testimony about what happened that day was similar to what television crews across Wichita reported. KSN was the only station to use Valadez’s name. That has the station facing the first defamation trial against a media outlet in Sedgwick County in decades — the first in Kansas in 10 years.

During testimony spanning three days, KSN news director Todd Spessard said Valadez’s name was publicly available on jail logs. Spessard also said the details KSN reported were true. Gouge testified that he received a tip at 7:50a.m. Dec. 1, convincing him that Valadez fit a profile of the serial killer that police had released the day before, Nov. 30.

“There was a strong likelihood he was BTK,” Gouge said.

Police watched Valadez’s home most of that day. Although they got no answer at the door, they knew he was home. Valadez, who took the stand briefly Thursday, said he’d been in bed sick for three days and didn’t hear the knocking.At about 7:30 p.m., police went into the house, guns drawn. Valadez said he was startled. Police took a swab from Valadez’s mouth and took him from his home.

Valadez spent the night and most of Dec. 2 in jail, as police rushed his swab to the Kansas Bureau of Investigation’s DNA testing lab in Topeka. Valadez was held on years-old misdemeanor warrants on 10 times the cash bond typical for such minor charges.

“I could not eliminate him as a suspect until I had the DNA results later that day,” Gouge said.

Those results cleared Valadez.

Valadez got out of jail about 5:30 p.m. Dec. 2, 2004. He met his family at the office of Dan Monnat, the lawyer his three children hired in time to hear his name linked to BTK on KSN’s 6 p.m. news. Daughter Melanie Valadez testified Thursday that she’d never seen her father cry as he did at that moment.

More than two months later, Dennis Rader was arrested. He pleaded guilty to 10 murders as BTK and is serving a life prison sentence. 

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Ron Sylvester

Wichita police complied with a court order Tuesday and destroyed more than 1,300 DNA swabs that were taken as part of the BTK investigation. Manila envelopes containing swabs were tossed several hundred at a time into a portable incinerator at the Police Department’s firing range.

After 10 minutes in a propane-fueled incinerator that is usually used to destroy ammunition, all that was left was a light gray powder the consistency of cigarette ashes. The destruction of the evidence marked the end of a sometimes-controversial process in which police asked for DNA samples from hundreds of people whom callers to BTK tip lines named as suspects.

Although some considered the process an invasion of privacy, Deputy Chief Robert Lee said their concerns should be eased knowing the samples had been destroyed.

In a typical criminal case, a DNA sample can be used to prepare a profile that can then be stored on a computer. But Lee and other police officials said no such profiles were used in the BTK testing. They said all DNA evidence in the case had now been purged from investigative files.

With the BTK case solved and Dennis Rader serving a life sentence for 10 murders, District Judge Greg Waller ordered the swabs destroyed on Oct. 12. Police and prosecutors blamed the delay in carrying out the order on an innocent oversight by investigators and the time required to complete paperwork. Not everyone was satisfied by that explanation.

Wichita psychologist Bernie Mermis, a former Wichita State University professor, said he was probably swabbed because of BTK’s known ties to the university. He said he didn’t give it much thought when detectives showed up at his door and asked for a DNA sample.

“I certainly wouldn’t do it again, not without some clear guidelines about what would happen to the sample,” he said. Mermis said he now realizes that scientists can use a DNA sample to glean information about a person’s relatives or health. “I think are some very significant problems with these DNA sweeps,” he said.

Wichita lawyer Dan Monnat, whose firm represents a man who was forced by a court order to give a DNA sample in the BTK investigation, said he was leery of the process. “I think any time law enforcement officers show up at your doorstep and forcibly or unforcibly obtain bodily fluids from you, there’s some invasion of privacy,” he said.

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Hurst Laviana

Six months after a judge ordered the destruction of more than 1,300 DNA samples taken to eliminate possible suspects in the BTK serial murder investigation, none have been destroyed, police say. That situation will change soon, they say. Deputy Police Chief Robert Lee told The Eagle on Monday that the department expects to have all the samples destroyed — in a careful, deliberate process — by mid-June.

The task has not been completed partly because a key police official – Lt. Ken Landwehr – didn’t receive the paperwork on the court order until March, Landwehr said. “It’s probably as much my fault as anybody because I didn’t ask for it,” Landwehr said. He said he promptly took the order to the police property and evidence staff once he received it.

Still, the disposal process is more time-consuming than people probably realize, said Landwehr, the homicide unit supervisor who has been widely praised for his work in the BTK investigation. Only two people in the property and evidence unit have clearance to handle and dispose of such evidence, Landwehr said. And they also have to handle evidence streaming in from ongoing cases.

“It’s not like I can take 20 people over there and do it one day,” said Landwehr.

He headed the investigation that led to the arrest of Dennis Rader last year for 10 murders committed by BTK since 1974. Rader pleaded guilty last summer. During the investigation leading to Rader’s capture, Bernie Mermis voluntarily gave a DNA sample to police. He figured he was on a list of potential suspects because he taught at Wichita State University in the 1970s. Authorities concluded that BTK had ties to the campus.

Beginning in December, Mermis said, he began writing officials to find out if his DNA was being destroyed as ordered. Although Mermis appreciates the work of police to catch Rader, he said he would be reluctant to give his DNA again, partly because of privacy concerns and partly because of the time it’s taken to dispose of the samples.

“Nobody followed through on what (District Attorney) Nola Foulston promised and what the judge had ordered” regarding DNA disposal, said Mermis, a Wichita psychologist.

Before investigators arrested Rader near his Park City home, they received thousands of tips about possible suspects, and they used DNA samples to eliminate the innocent. Each sample, taken by a swab of the inside of each person’s cheek, went into a package that has been stored in a secure location, police said.

On Oct. 12, with the case solved and Rader starting to spend the rest of his life in prison, District Judge Greg Waller, who presided over the BTK court proceedings, ordered the destruction of the DNA samples.

Kevin O’Connor, a deputy district attorney, said prosecutors asked that the DNA samples be disposed of to protect the privacy of those who gave samples. Both O’Connor and Lee, the deputy chief, said Monday that they want to again thank those people who aided the investigation by giving samples. “Unfortunately,” O’Connor said, “it’s taking more time than we expected it would” to dispose of the samples.

Each person’s DNA has been kept in a separate sealed package. The two property and evidence personnel have to locate each package, verify the name and check it off. “We want to make sure it is indeed the correct one,” Lee said. Because the samples are considered biohazards, Landwehr said, they likely will be incinerated. “Disposing of those swabs is a priority to us,” Lee said. “We are glad to get rid of these 1,300-plus swabs.”All but a handful of those people whose DNA was taken gave samples willingly, police and prosecutors have said.

Among the few people whose samples were taken against their will was Roger Valadez, a Wichita man who said police wrongly targeted him as a suspect. BTK task force investigators and KBI agents came to his home one night in December of 2004 and seized items. His DNA was taken, and he was arrested on unrelated, minor charges and then released.

Asked about the time it has taken to destroy the samples, Valadez’s lawyer, Dan Monnat, said: “That’s one of the problems with sensitive, personal information in the hands of the government. “There may be a court order to destroy it, but you discover a long time hence that the personal information is still in the hands of the government, undestroyed and with the government still having the opportunity to put it to use.”

Waller, the judge, said people have a right to ask about the disposition of their DNA samples. But Waller said he wasn’t troubled by the time it has taken to follow his order. “I don’t really see it as a problem,” he said, “because court orders don’t necessarily happen right now.”

All content © 2006 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Tim Potter

Judge Greg Waller will allow Roger Valadez’s lawyers, but for now not Valadez, to find out why BTK investigators raided Valadez’s home and took his DNA last December. The Sedgwick County district judge wants the lawyers representing Valadez in civil and criminal cases to get with a prosecutor to review the affidavits for search warrants executed last December.

Waller ordered Friday that the lawyers should see if they can agree what information needs to be removed to protect the identity of the police informant who apparently connected Valadez to the infamous BTK strangler. Wichita police said they were acting on a tip relating to the BTK case when they and KBI agents burst into Valadez’s home, took a sample of Valadez’s DNA, booked him into custody and then searched his house. But authorities have never publicly acknowledged Valadez was a BTK suspect.

Two months later, police arrested Dennis Rader, who confessed to being BTK, pleaded guilty to killing 10 people and was sentenced to life in prison. For the past nine months, Valadez has tried to see the sworn affidavits that persuaded Waller to sign the warrants.

Assistant Sedgwick County District Attorney Kevin O’Connor stressed to Waller that the person who tipped off police should remain anonymous. “It is the public policy of this state to protect police informants,” O’Connor said. O’Connor also told the court that the affidavits contain information, “that, frankly, I don’t think Mr. Valadez wants to see.”

That suggestion irked Dan Monnat, Valadez’s lawyer. “To Roger, saying ‘you don’t want to know the truth’ sounds an awful lot like ‘we don’t want you to know the truth,’ ” Monnat said afterward.

Kansas is one of the only states in America where arrest and search warrant affidavits remain sealed after they are executed. Other states cross out identities of police informants and details of other confidential investigative procedures, then release the documents.

Waller allowed Monnat, O’Connor and Craig Shultz, who represents Valadez in an invasion-of-privacy lawsuit against one Wichita television station, to see the documents. They are to try to agree on what information to take out regarding the tipster.

All content © 2005 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Ron Sylvester