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Probable cause affidavits have become public in Kansas

By Erin Mathews

The Salina Journal

A new law that took effect Tuesday should make it easier for Kansans to determine on what grounds an arrest was made or why a home was searched by law enforcement.

Anyone can now request disclosure of probable cause affidavits written and sworn to by law enforcement in support of an arrest or in application for a search warrant that has been served. At Saline County District Court, forms to request disclosure of the affidavits, which previously have not been released locally until conviction, are available in the court clerk's office, on the third floor of the City-County Building.

"When the first request is made, the clock starts," said Doug Anstaett, executive director of the Kansas Press Association.

Within 10 days, the affidavit should be released with any necessary redactions, unless a judge decides to seal the requested affidavit from public view.

"This isn't a cure-all, but it's certainly a lot better than we used to have," Anstaett said.

While the law is not retroactive, Anstaett said if there is a previous search warrant or arrest that someone wants more information on, it wouldn't hurt to make the request if the affidavit hasn't been released.

He said prosecutors across the state probably will have different attitudes about the change. He said some county and district attorneys have told him they plan to change their procedures and submit a redacted copy of affidavits so that requests can be acted upon immediately.

"There will be some that don't like being dictated to, but I think they need to keep in mind the Legislature said these records should be open," he said.

Closed since 1979

Anstaett said that as far as the association's research could determine, Kansas was the only state of 50 that presumed affidavits were closed and could only be opened with a court order. He said it had been that way since 1979, when a late-night amendment pushed through the Legislature without hearings closed probable cause affidavits from public view.

"That's how things go south on us sometimes," he said.

Because 35 years have gone by, Anstaett said most of the state's serving district and county attorneys have always operated under the assumption that affidavits would not be publicly released.

"They've operated under a system where these could be closed, so kind of what we're up against is tradition," Anstaett said.

Raid helped cause

Anstaett said the KPA fought hard for the change, which finally came about mainly because of a police raid in Leawood. Rep. John Rubin, R-Shawnee, pushed for the bill after a Johnson County couple had to spend $25,000 and one year to gain access to the affidavit police used to get a warrant to search their house, according to media accounts.

Robert and Adlynn Harte have since filed suit in federal court against Johnson County officials seeking $7 million in compensation for damages caused when police conducted a SWAT-style raid at their Leawood home in 2012, holding them and their children at gunpoint for about 2 1/2 hours, and finding no evidence of the marijuana-growing operation they suspected was there.

Harte and Olaf Frandsen, Salina Journal editor and publisher and chairman of the KPA Legislative Committee, were among people who testified in Topeka in support of changing the law.

Hope for openness

Anstaett said he hopes the law change will allow prosecutors to feel they can more freely comment about cases when they are filed in an effort to allay public fear.

"It might allow them to make statements they might not have felt they could make before," he said. "We'll see."

Saline County Attorney Ellen Mitchell said she thinks the final version of the law does a good job finding the balance between the public's right to know and a defendant's right to a fair trial.

"Probably for me, it's more teaching an old dog new tricks," she said. "It's a different way of thought."

She said prosecutors abide by fairly restrictive rules established by the Kansas Supreme Court regarding what they can say to the media and what they can't to avoid tainting the jury pool. She said she thinks it's important to protect the identity of children, victims of sex crimes, confidential sources and witnesses in sensitive cases, but the new law allows for that type of information to be redacted.

Support release

Local defense lawyers said they support the release of information to the public.

Mark Dinkel, chief public defender at the Salina Public Defender's Office, 234 N. Seventh, said he likes openness in the criminal justice system.

"We have the right to a public trial; there are no star chambers here," he said. "The public can come in and watch, and I don't have an issue with arrest information being made public. The public has a right to understand how the criminal justice system operates and what offenses are being punished and some of the details of those offenses without prejudicing a defendant's right to a fair trial."

He said he did not think the release of probable cause affidavits would be problematic.

"The news media wants openness in government, and I think the citizens want openness in government," he said. "Government demands almost complete transparency of us, but it doesn't seem to go the other way all the time."

Criminal defense attorney Julie McKenna said she thinks affidavits should be made public sooner rather than later. She said they will enhance people's understanding of the court process and won't affect cases.

"Either they've got sufficient probable cause and they've done what needed done or they don't," she said. "It's a change that needed to happen. I don't know what the secrecy accomplished."

(c)2014 The Salina Journal