In the News

Prosecutors fight to retain prelim

Defendant can waive prelim hearing, but prosecutors like them to preserve testimony

By Steve Fry
THE TOPEKA CAPITAL-JOURNAL
December 11, 2010

In Kansas courts, it is common practice for a defense attorney to tell the judge his client wants to waive the preliminary hearing.

The judge usually then turns to the defendant to ask whether that is what he wants to do. If so, the judge normally grants the motion, binds the defendant over for trial and sets a trial date.

But that wasn't the case in the preliminary hearing of capital murder defendant James Kraig Kahler, 47, in Osage County District Court. Kahler is charged with killing his wife, Karen Kahler, 44; their two daughters, Emily, 18, and Lauren, 16; and Karen Kahler's grandmother, Dorothy Wight, 89.

Kahler defense attorney Tom Haney is seeking to waive the preliminary hearing.

But assistant attorney general Barry Disney wants the hearing conducted, saying the prosecution is "exercising its right to a preliminary examination and does not waive" it. Disney cited a 2006 Kansas statute he says gives the defendant and the prosecution the right to have a preliminary hearing and requires both sides to agree to a waiver.

As of Friday, the two-day preliminary hearing in Osage County District Court in Lyndon is to start Dec. 21.

The purpose of a preliminary hearing is for a prosecutor to present evidence that a crime occurred and that more than likely the defendant did it.

Topeka lawyer Chris Joseph, whose practice includes homicide and sexual assault cases and other serious charges, is surprised at the prosecution's position in the Kahler case.

"Preliminary hearings are waived all the time in state court," Joseph said. If the defendant agrees to the waiver, the judge grants it. "I've never once seen a judge ask the prosecutor. It just doesn't happen."

"It's common practice and common understanding that it's the defendant's right to a preliminary hearing only," Joseph said.

Prosecutors contest that, however.

"The state has a right to a preliminary hearing, and that right is equal to a defendant's right," Shawnee County deputy district attorney Jacqie Spradling said this past week.

Preserving a witness' testimony is the primary reason prosecutors sought to amend the preliminary hearing statute, said Spradling and Ann Swegle, deputy district attorney in the Sedgwick County District Attorney's Office, who is the author of the draft to the 2006 preliminary hearing statute.

Swegle said Kansas prosecutors had the right to a preliminary based on the interpretation of a 1908 Kansas case, but that changed with a ruling in a 1988 case saying prosecutors didn't.

The Kansas Legislature amended the preliminary hearing statute in 2006 following a U.S. Supreme Court decision three years earlier dealing with a defendant's Sixth Amendment right to confront a witness, Swegle said.

Prosecutors wanted the amendment for cases such as domestic violence so that if the victim changed her mind, disappeared or something happened to her, they would have her testimony preserved, Swegle said.

The 2006 statute "preserves the defendant's right to confront those witnesses," Swegle said. "It doesn't adversely impact those rights at all. It simply lets us preserve testimony."

Spradling and Swegle said the defense would oppose the prosecution right to a preliminary hearing because without it, the witness' testimony wouldn't be preserved.

If the witness disappears, the preserved testimony can be admitted as evidence, Spradling said.

In the Kahler case, Haney contends the 2006 statute stating the prosecutor can demand a preliminary is unconstitutional under the Kansas and U.S. Constitutions.

Haney wrote that even if the statute is constitutional, there is no legal reason to have a preliminary hearing in the Kahler case because determining whether there is probable cause to charge him isn't an issue because he is waiving the hearing; bail isn't an issue; and there aren't witnesses whose testimony must be obtained.

"Moreover, to traumatize an 11-year-old child is uncalled for and serves no useful purpose," Haney wrote.

In May, Kahler opposed having his son testify during the preliminary hearing.

"It is my express desire not to have my son be compelled to testify at a preliminary hearing and be subject to the stress and emotional trauma such testimony would cause," Kahler said in the waiver motion.

The boy, who was 10 at the time of the killings, fled uninjured from the Burlingame home of his great-grandmother where the slayings occurred on Nov. 28, 2009.

Joseph speculated prosecutors want the son's testimony on the record during the preliminary hearing in case he would change his mind later. At the preliminary, defense attorneys could cross-examine the youth, Joseph said.

Joseph said he rarely waives a preliminary hearing, which has advantages because:

- It gets a witness on the record to a specific position so he can be challenged if he testifies otherwise during the trial.

- It helps Joseph learn the facts of the case.

In May, Magistrate Jon Stephen Jones ruled the boy, Sean Kahler, would testify via a remote TV hookup outside the courtroom during the preliminary hearing.

When the slayings occurred, the victims and Kahler's son lived in Columbia, Mo., and the defendant lived in Meriden.

Steve Fry either can be reached at (785) 295-1206 or at steve.fry@cjonline.com.