Author Archives: «Monnat & Spurrier»

• May 31, 2006
• The Wichita Eagle
• -
• by Hurst Laviana

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

• Apr 25, 2006
• The Wichita Eagle
• -
• by Tim Potter

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

• Sep 10, 2005
• The Wichita Eagle
• -
• by Ron Sylvester

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

• Mar 16, 2005
• The Wichita Eagle
• -
• by Hurst Laviana

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.

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

The Wichita Eagle – By Hurst Laviana

• Mar 09, 2005
• The Wichita Eagle
• -
• by Tim Potter and Stan Finger

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.

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

The Wichita Eagle – By Tim Potter and Stan Finger

• Jan 12, 2005
• The Wichita Eagle
• -
• by Tim Potter and Ron Sylvester

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.

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

The Wichita Eagle – By Tim Potter and Ron Sylvester

• Dec 05, 2004
• The Wichita Eagle
• -
• by Tim Potter

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.”

All content © 2004 THE WICHITA EAGLE and may not be republished without permission.

The Wichita Eagle – By Tim Potter