October 1, 2014

Arrest affadavits should be public record

Dane Hicks
Guest Columnist
You and your spouse are sitting in your living room watching Laverne &
Shirley re-runs some night when all of a sudden you hear a window break and something that looks like a jelly jar lands on the floor nearby.
Before you can get up to see what happened, the stun grenade detonates – the flash blinding you for a few seconds and the ringing in your ears has you completely disoriented. In a little more than one second you and your wife are face down on the carpet with a SWAT team member’s knees on the back of your neck, handcuffed and arrested.
Hours later when the mess is sorted out, they let you out of jail with an apology. Ooops. Sorry. You weren’t who we were looking for. Just a big misunderstanding. You’re free to go.
Like most people, you want to know “why?” What in the world made the cops think you were a dangerous criminal drug suspect? What information led them to treat you like this and where did it come from?
The answer – the information the police and prosecutor submitted to the judge to base your arrest warrant – is listed in a court document called a “probable cause affidavit.” In any other state in the union, you can make a public records request, get a copy of that affidavit, and find out just why you were arrested.
But not in Kansas. Our Legislature keeps it secret.
Think I’m kidding? The scenario above is pretty close to what happened to Robert and Adlynyn Harte in Johnson County. After a year in court and $25,000 of their own money paid in legal fees to unseal an affidavit, these two former CIA agents with security clearances found out Robert’s trip to a hydroponics store for his tomato garden and some tea leaves Adlynn threw out in the trash were all that cops and prosecutors needed to send a SWAT team to their front door early one morning. They didn’t find an indoor marijuana growing operation or any other drugs. For the Hartes to get answers – not to mention the humiliation- was expensive indeed.
A bill that came out of the Kansas House this session would have changed that, but thanks to the Senate Judiciary Committee headed by Republican Senator Jeff King from Independence, it got gutted and the important provisions regarding arrests deleted. King even seconded the motion on the neutered bill when no one else on his committee would. As of this writing and unless the bill is put back into its original form, Kansans can still be deprived of their freedom, treated like criminals, and never know the reasoning of the cops and prosecutor and judge who did it to them.
How can Republicans like Jeff King – stalwarts of the party that supposedly will stand up for open government and individual rights – still hold to a policy that seems more like it came from the Kremlin than the Sunflower State? That’s a question Sen. King and his cohorts should answer. Funny how, when they’re campaigning, politicians can’t say enough about how much they believe in open government. But elect them and we see how things change when the rubber meets the road.
Opponents say they fear too much pre-trial publicity will taint a case if too much of that information is available. But the fact is that no criminal conviction in Kansas has ever been overturned due to pre-trial publicity. They may have been overturned because, cops, prosecutors or judges are later found to have screwed up – but never because a newspaper or TV station ran a news story.
The public should be able to see those affidavits. The work of cops, prosecutors and judges should be subject to the same public scrutiny as the work of any other public official, especially when it can deprive Kansans of their freedom and the sanctity of their homes.
Kansas deserves better than this.
Dane Hicks, is president of Garnett Publishing, Inc. and editor and publisher of the Anderson County Review.

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