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.

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The Wichita Eagle – By Ron Sylvester

A Sedgwick County district judge heard arguments Friday over whether authorities should turn over a document that explains why police searched a Wichita man’s home in December as part of the BTK investigation. Roger Valadez was cleared of being a BTK suspect days after police rushed into his home, searched his house and took a DNA swab from him against his will, his lawyer says. But five months later, Valadez still doesn’t know how authorities justified the search warrant.

In a sometimes tense and impassioned hearing before District Judge Greg Waller, Valadez’s lawyer, Dan Monnat, contended that it is his client’s right to know why police — acting on a tip in the serial-murder case — suspected him and searched his home. It’s not clear when Waller will rule on the affidavit.

Dennis Rader, a 60-year-old Park City man, has since been charged with 10 counts of murder in the BTK case.

Monnat called the police search a “home invasion” and said information in the affidavit could be used in a lawsuit seeking damages. But Kevin O’Connor, a deputy district attorney, argued that releasing the affidavit would disclose information that could interfere with the pending case against Rader. He didn’t elaborate.

O’Connor also contended that releasing the affidavit, which would disclose the identity of a tipster or informants, would have a chilling effect on others who provide information to authorities.

Monnat said Valadez poses no threat to any tipster. Knowing the identity of the tipster is important to any challenge against police, he said. During Friday’s hearing, Waller granted Valadez’s request that his DNA be purged from any state databases and sample repositories.

But the main point of contention in Waller’s courtroom Friday was the affidavit, or oral testimony, used to justify the search. Monnat filed a motion seeking the information in early March, after Waller signed a seal on search warrants involving Valadez. Prosecutors said the seal was sought to protect informants and privacy interests.

Police said they went to the home to follow up on a tip they had received in the BTK investigation. Police arrested Valadez on an unrelated misdemeanor trespassing warrant.

Monnat argued that state law says Valadez is entitled to see the affidavit. “Mr. Valadez can think of no reason on Earth” why someone would suspect him in the BTK case, Monnat said. “The power of the state to break down doors and raid homes is an awesome power,” Monnat said. When O’Connor stepped up to address Waller, he dismissed the “scary words by Mr. Monnat.” O’Connor said the search was legally executed.

The affidavit, he said, is not in the public interest and should remain confidential, to protect informants. If the information were released to Monnat, O’Connor implied, it could be released to others, including media covering the issue.

Valadez initially came under intense media scrutiny. Within hours of his arrest, and before he had been cleared, his name and address were aired in some media accounts.

He has a pending privacy lawsuit against KSN-TV, Channel 3.

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The Wichita Eagle – By Tim Potter

A Wichita municipal judge on Tuesday dismissed charges of battery against a security guard for the city’s main abortion provider.

Judge Jennifer Lind-Spahn ruled that the city’s case against John M. Rayburn had violated the state’s speedy trial laws.

Rayburn’s lawyer, Dan Monnat, argued that because city lawyers had backed out of a plea deal, they’d violated his due process rights.

Last year, Rayburn was charged with battery after a scuffle with protesters outside Women’s Health Care Services, 5107 E. Kellogg Drive. The clinic has been the site of many protests over the past two decades — some of them violent.

According to court files, Monnat and the city’s law department had negotiated for Rayburn to plead no contest in a lesser charge of “interfering with a parade.” City lawyers acknowledged agreeing to the deal.

But when lawyers Gary Rebenstrof and Mary McDonald presented the deal to the victim, Mark Hollick of Operation Save America, he asked the prosecutors to take the case to trial.

The anti-abortion rights group posted messages on its Web site encouraging supporters to call Wichita City Council members and other officials to nix the plea bargain.

Hollick’s request resulted in the city missing the 180-day deadline prescribed under the Kansas speedy trial law.

The city told the judge it would consider appealing the ruling.

Reach Ron Sylvester at [email protected].

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The Wichita Eagle

DNA swabs have been collected from only about 1,300 people in the BTK serial murder investigation, Sedgwick County District Attorney Nola Foulston said Tuesday — less than one-third the number she reported in an earlier news conference about the case. Foulston said the 4,000 figure she used in January actually referred to the number of tips that were cleared by the 1,300 samples. In many cases, Wichita police asked a person for a sample after receiving multiple tips about him. Foulston said the discrepancy in the numbers surfaced during a meeting about the case Tuesday morning.

During an afternoon news conference, she said the DNA “elimination samples” were compared only to evidence collected in the BTK investigation. She said the samples would not be put into any criminal DNA database. Police started collecting DNA samples from potential suspects in March 2004 after BTK sent a letter to The Eagle that claimed responsibility for a 1986 murder that had not previously been linked to him.

Ten other packages have since turned up that reportedly were connected to the killer. One contained a computer disk that reportedly led police to the arrest last month of Dennis L. Rader. Rader is awaiting a preliminary hearing on 10 counts of first-degree murder.

During the news conference, Foulston apologized for the mix-up in the numbers and said she did not blame it on the Wichita Police Department, which oversaw the collection of the samples. “It was my fault, not their fault,” she said. “I don’t know why no one corrected me…before today.” The 4,000 figure had been widely reported in the past two months.

Foulston said the DNA samples probably will be held in the crime labs that processed them — one at the Sedgwick County Forensic Science Center and one at Kansas Bureau of Investigation headquarters in Topeka. Although some have questioned plans to hold onto the evidence from people who have been cleared, Foulston said state law requires evidence in criminal cases to be kept as long as the case remains open. If and when the BTK investigation is closed, she said, it will be up to a judge to decide what to do with the evidence. She said a judge could decide to simply destroy it.

In the meantime, Foulston said, law enforcement officials will make no attempts to solve other crimes with the samples. “This evidence will not, shall not and cannot be placed in any database at all,” she said. The evidence is not subject to the Kansas Open Records Act, she said. “These records are not available to anyone in the media,” she said. “These records are not available to anyone on the street. These records are protected. “We are the guardians of this evidence, and evidence is being protected.”

One Wichita defense lawyer with an interest in the topic is Dan Monnat, who represents a man who was forced through a court order to submit a DNA sample to police. The man, Roger Valadez, went to court last week in an effort to get the sample back.

“Negotiations are ongoing with the state of Kansas in that case, and we are hopeful that the matter will be resolved by agreement,” Monnat said.

Foulston declined to comment on the Valadez case.

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The Wichita Eagle – By Hurst Laviana

Roger Valadez wants his DNA back and wants to know why Wichita police once considered him a BTK suspect. His lawyer filed a motion Tuesday in Sedgwick County District Court seeking the return of a DNA sample and personal items seized from Valadez’s home after his Dec. 1 arrest. The motion also asks that Valadez’s DNA profile be returned and that the information be purged from any data bank or database.

The court filing raises a broader question: What will happen to the DNA samples taken from more than 4,000 other men in the BTK serial murder investigation, now that Dennis L. Rader has been charged with the homicides?

Dan Monnat, the Wichita lawyer who filed the motion for the 64-year-old Valadez, said his client’s situation is different from most because although many of the others consented to giving swabs, police had a search warrant for Valadez’s DNA and collected the sample while he was in handcuffs. He was excluded as a BTK suspect shortly after, police said.

The motion also seeks disclosure of documents and oral testimony used to justify the search warrants served on Valadez. That information was sealed by District Court Judge Greg Waller “to protect informants, tipsters and the privacy interests of any individuals that may fall under suspicion.” The court filing touches on an issue of growing significance, a pair of Harvard University professors said Tuesday.

The question of what happens to DNA samples collected in this case “is huge,” said David Lazer, associate professor of public policy at the Kennedy School of Government at Harvard. A colleague agreed. “I certainly believe there are serious privacy concerns relating to DNA dragnets and DNA sweeps, involving what’s going to happen to the sample and what’s going to happen to the sample and the profile once a case has been solved,” said Frederick Bieber, associate professor of pathology at Harvard’s Brigham and Women’s Hospital.

The ethical questions raised by what to do with DNA samples collected by sweeps are being actively debated in policy circles, Bieber said. “What is the balance between freedom and liberty and privacy and the obvious natural instinctive interest in having safe streets and safe communities?” Bieber asked. “There’s got to be some balance. This is something that society will need to continue to wrestle with. “No one would argue with the value of arresting the perpetrator of a heinous crime. The question is, at what cost?”

Wichita police spokeswoman Janet Johnson declined to comment on the motion. Asked for comment on Valadez’s DNA and the samples taken from others, the district attorney’s spokeswoman Georgia Cole referred to a Jan. 14 media release. It said that “much of the BTK investigation has involved the collection of DNA samples by legal consent from individuals.”

“Thousands of citizens have willingly submitted their DNA samples to law enforcement.”

“While speculation may suggest otherwise, samples collected during this investigation are not entered into any DNA database.”

But such assurances mean little, Bieber said. Although Wichita police may not have reported the DNA information to state or federal criminal databases, “there’s nothing to stop them from putting that in an Excel file and having it in their laptop,” Bieber said. Valadez’s DNA was tested by the KBI. Spokesman Kyle Smith wouldn’t comment on Valadez’s situation but said the only DNA information kept in a KBI database is from convicted felons.

Monnat said he doesn’t know where Valadez’s DNA or DNA information may be now. “We’ve been given no direct assurances about it,” he said. “There is no reason to have that information unnecessarily in the hands of the government.”

A judge could hear the motion March 18.

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The Wichita Eagle – By Tim Potter and Stan Finger

Kansas Attorney General Phill Kline on Thursday defended his secret inquiry into the records of late-term abortion patients, saying it is necessary to prosecute suspected child abusers.

Anti-abortion groups across the state chimed in with emotional support for Kline that went as far as accusing two clinics — which on Tuesday had asked the Kansas Supreme Court to intercede – of aiding child molesters.

Both sides are battling over individuals’ privacy rights and the limitations on government power. Each claim to be protecting the rights of the individuals.

And because most of the evidence has been sealed in Shawnee County District Court, few details are being discussed outside the pleadings to the state’s high court.

Information in the court records indicates that the abortion providers fighting Kline and Judge Richard Anderson are Wichita’s Women’s Health Care Services and Overland Park’s Comprehensive Health of Planned Parenthood of Kansas & Mid-Missouri.

Their battle involves Kline’s attempt to subpoena the unedited records of 90 women and girls who sought abortions at least 22 weeks into their pregnancies.

During a news conference Thursday, Kline would not discuss his specific reasons for wanting the complete records.

In October, Anderson ordered the medical records be turned over to Kline, prompting this week’s appeal by the clinics to the state’s highest court.

Kline addressed one of the two reasons that have been cited in court records for his investigation — the sexual activity of girls.

“Rape is a serious crime, and when a 10-, 11-, or 12-year-old is pregnant, they have been raped under Kansas law,” Kline said Thursday. In Kansas, no one under the age of 16 can legally consent to sex.

“There are two things child predators want, access to children and secrecy, and as attorney general I am bound and determined to not give them either.”

Kline’s comments unleashed a flurry of responses from anti-abortion groups and the state’s two main abortion providers.

“No agency offering abortion services or the judges that are complicit in the stonewalling of justice should be allowed to be accessories to the exploitation of women and children,” read a statement from Concerned Women for America of Kansas, a group based in Johnson County.

Both George Tiller, the doctor who owns the Wichita clinic, and Planned Parenthood of Kansas & Mid-Missouri released responses that said they were complying with laws that require reporting of child sexual abuse.

“Dr. Tiller has always consistently, carefully and appropriately followed the law in all respects,” read a statement released on Tiller’s behalf by Wichita lawyers Lee Thompson and Dan Monnat.

The lawyers pointed out that earlier this week Tiller complied with a Texas request for records, which they called “a legitimate inquiry…to more fully investigate a specific event.”

The same lawyers, in their filing to the state Supreme Court, characterized Kline’s investigation as a “fishing expedition” into the private lives of the clinic’s patients.

In a statement, Planned Parenthood said Kline, at his news conference, “sought, falsely, to portray abortion providers as somehow impeding legitimate investigations of statutory rape….Planned Parenthood and Comprehensive Health provide high quality reproductive health care, protect medical privacy and fully comply with the law.”

Court records also claim that Kline’s subpoena isn’t limited by age. Kline’s office has argued to Anderson, the pleadings say, that it also wants to inspect the legality of all late-term abortions performed in Kansas.

The clinics are asking the high court to limit the scope of Kline’s inquiry and not release complete medical records.

Reach Ron Sylvester at 268-6514 or [email protected].
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The Wichita Eagle

Wichita police looking for the BTK serial killer illegally searched a man’s home last month, one of the man’s lawyers contends. Police didn’t have to rush into Roger Valadez’s home with guns drawn to get a DNA swab from him, lawyer Dan Monnat said Tuesday. “I don’t think you can lawfully kick down a citizen’s door to execute a warrant for a mouth swab for DNA the day you get the warrant,” Monnat said. “There’s no emergency. The DNA is not going to disappear.”

Valadez should never have been considered a suspect in the serial killings, he and his lawyers say. Three days after his Dec. 1 arrest on misdemeanor housing code and trespassing charges – which were dismissed or resolved Tuesday — police said they had excluded him from the BTK investigation. Monnat has said that DNA testing cleared Valadez.

Told of the lawyers’ comments, Police Chief Norman Williams said: “If a person feels their Fourth Amendment right has been violated, they have the court venue.”This is a very complex, intense investigation,” Williams said of renewed efforts to catch BTK, who has eluded capture since 1974. Still, Williams said, “we do not allow ourselves to get caught up in an investigation to the point that we are not mindful of what is expected….which is to work within that Constitution.”

Police arrested Valadez, 64, and took him to jail on misdemeanor warrants brought as a “pretext” to search his house, Monnat said. He said police did not show Valadez a search warrant that night.

Craig Shultz, another lawyer representing Valadez, said his client is exploring possible legal action against the city. Monnat said police acted with unnecessary haste.”There is no doubt that if they had waited,” he said, Valadez would have answered his door and police could have executed the warrant for his DNA “without all the endangerment that occurred by kicking in his door at night.”

Officers rushed into Valadez’s home about 7 p.m. According to copies of search warrants, Monnat said, the warrant for Valadez’s DNA was issued at 2:47 p.m. the day of his arrest. The warrant to search his house was issued at 10:34 p.m., about three hours after police took control of the home.

Kim Parker, chief deputy district attorney for Sedgwick County, said police do not have to show a citizen a search warrant before conducting a search but have to leave a copy on the premises.

Because the probable-cause affidavit has been put under court seal, Monnat said, he and Valadez haven’t been able to learn why police searched Valadez’s home and took his DNA. Police have said they were following up on a tip to their BTK hotline when they went to the home. Monnat said he and Valadez would like to see the document “because neither of us believe there was a sufficient factual basis to justify the degree of home invasion and media frenzy that occurred.”

On Monday, Valadez sued the parent companies of three media organizations, alleging they invaded his privacy and defamed him. In an interview Monday, Valadez said he wanted The Eagle to identify him so he could clear his name. Parker said probable-cause affidavits remain closed because of public safety issues. “Everything in the legal system is a balancing act,” she said. “We balance the public greater interests in safety….against an individual’s constitutional right.”

Meanwhile, a municipal judge Tuesday granted Monnat’s motion to dismiss the misdemeanor trespassing warrant against Valadez. Monnat contended that police executed the misdemeanor warrants in an unreasonable or untimely way.

To resolve a housing code charge, Monnat said, Valadez agreed to paint the eaves on a rental house and pay a $10 fine.

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The Wichita Eagle – By Tim Potter and Ron Sylvester

The lead investigator in the BTK serial murder case confirmed Saturday that a man arrested last week following a BTK-related tip is no longer a subject of the investigation. Wichita police Lt. Ken Landwehr said the man, whom The Eagle has not named, has been “excluded from my investigation.” Landwehr would not say why the man was no longer a subject of the BTK investigation.

But Dan Monnat, the lawyer representing the man, said Saturday: “Our question to Lt. Landwehr was whether or not DNA testing had excluded our client as a suspect in the BTK investigation. His answer clearly indicated to us that DNA testing had excluded our client.” Authorities obtained a DNA sample from the man using a mouth swab “against his will,” Monnat said, declining to elaborate. Monnat also said his law firm hasn’t confirmed whether the swab was taken before or after the issuance of a search warrant.

Told of Monnat’s assertions, Landwehr would not comment. The Kansas Bureau of Investigation, which said Thursday it put a priority on testing the man’s DNA, could not be reached Saturday to discuss the test results. KBI spokesman Kyle Smith on Friday declined to say any more about the BTK investigation.

Wichita police arrested the man Wednesday night on outstanding misdemeanor warrants after conducting a daylong, undercover surveillance of his home that was monitored at times by homicide detectives, including some who have worked on the BTK case. Besides taking a DNA sample, authorities, including KBI agents, seized items from the man’s house.

Wichita Police Chief Norman Williams emphasized Thursday that the man had not been arrested in connection with the BTK case. Williams said police were only following up on a BTK-investigation tip involving the man and had no choice but to arrest him when they discovered he had outstanding warrants, one dating back about nine years.

The misdemeanor charges against the man allege housing-code violations at a rental property and involve a domestic-violence trespassing case. Monnat said the misdemeanor cases are pending. The man, who had been held on a bond that was reduced to $6,125, was released from jail Thursday. His arrest and the unusual circumstances surrounding it drew national media coverage.

The BTK case has haunted Wichita since 1974, when the killer bound and strangled four members of the Otero family, including two young children, in their home.

BTK — which he has said stands for bind, torture, kill — has claimed at least eight victims in Wichita. He became a household name again, after 25 years of silence, when in March he mailed a letter to The Eagle linking himself to the killing of Vicki Wegerle in her home in 1986.

In a statement Friday night that Monnat said was approved by his client, Monnat said: “We don’t believe his name ever should have been connected to the BTK investigation….” Monnat said his law firm is investigating how the man, who is 64 according to most public records, became the subject of a BTK-related tip.

The statement also said: “More than anything, the inaccurate linking of this man to the BTK investigation illustrates that, in our understandable haste to catch BTK, we must not leap to conclusions that trample the rights and lives of innocent people.”

Monnat said his client appreciates that police and some media didn’t release his name. Still, because of the attention, “he’s been unable to return to his home because of the risk of curious onlookers or crackpot vigilantism.” Monnat said he has been told that some, if not all, of the items authorities seized from the man’s home have been returned. The man hasn’t yet been able to completely confirm what has been returned, Monnat said.

“He’s anxious to get back home and resume a normal life.”

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The Wichita Eagle – By Tim Potter

National exposure of Wichita’s BTK serial murder case could be key to solving it, a Wichita State University professor said. The case drew a new infusion of national media attention Thursday after word spread that Wichita police, acting on a BTK-investigation tip, arrested a man on outstanding misdemeanor warrants.

What made the situation unusual is that police put the man’s south Wichita house under daylong surveillance Wednesday, the Kansas Bureau Investigation tested DNA taken using a search warrant and homicide detectives were involved. Police noted that the man was arrested only on the outstanding warrants — not in connection with the BTK case. He was released on a relatively small bond.

Late Friday, Wichita lawyer Dan Monnat released a statement saying that the man who was arrested “is not BTK.”

“The WPD has now confirmed that DNA testing has excluded him as a suspect in the BTK investigation,” Monnat’s statement reads. When contacted Friday night, Monnat said his office was notified by Lt. Ken Landwehr about the DNA results.

Wichita police spokeswoman Janet Johnson would not comment on Monnat’s statement. It is department policy, she said, not to discuss the results of forensic testing such as DNA analysis. Still, the developments drew national media. Network TV satellite trucks lined up outside Wichita City Hall. Police received calls from papers across the country, including the New York Times.

The wider exposure should help increase the chances of drawing a key tip, said Brian Withrow, an assistant professor of criminal justice at WSU and a former Texas State Police inspector. On Tuesday, Wichita police released information about BTK’s background, details they say the killer has claimed to be true in letters he has written.

The information released by police doesn’t say whether the killer claims to be from Wichita or Kansas. However, “based upon the investigation to date,” police said they think that BTK frequented the WSU campus in the early 1970s and that he was acquainted with a professor there. He claimed at least eight victims in Wichita from 1974 to 1986.

If BTK is from another state, the national exposure could help, Withrow said. The exposure also could bring the information released by police to the attention of someone who knew BTK years ago but moved from Kansas and lost touch with the case, he said.

“It’s almost always better to spread that information out as far as you can, particularly as transient as our culture is,” he said. It takes only one tip to solve the mystery. “Big, big cases have been broken on little-bitty tips,” Withrow said. “It happens every day.”

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The Wichita Eagle – By Tim Potter

A federal judge in Wichita has sided with lawyers who claim it is unethical to comply with an Internal Revenue Service regulation that requires them to identify clients who pay fees in large sums of cash.

Chief U.S. District Judge Patrick Kelly has issued an order suspending IRS attempts to force Daniel Monnat, a Wichita criminal defense lawyer, to comply. Monnat had reported receiving $16,000 in cash as a fee, but he refused to provide the person’s name, address and Social Security number.

Kelly acknowledged that some circuits of the U.S. Court of Appeals have upheld the requirement. But he said the rulings “fly in the face of what an attorney’s role is all about.”

January 14, 2004