Anthony S. Bush/The Topeka Capital-Journal
James Kraig Kahler waits in Osage County district court for a motion hearing Wednesday. The motion was on whether or not the surviving child of James Kraig Kahler will testify by remote television during his father's preliminary hearing on June 22 and 23 in Osage County District Court.

Wayne White | Managing Editor

LYNDON—The son of a man accused of killing his family in Burlingame in November will testify by closed-circuit television during a preliminary hearing scheduled for June, an Osage County judge ruled last week.

The court considered the prosecutors’ motion to allow Sean Kahler, 11, to give testimony outside the courtroom via closed circuit television in the capital murder case filed against his father, James Kraig Kahler.

Kahler is charged with capital murder for the deaths of Dorothy Wight, Karen Kahler, and the Kahler’s daughters, Emily, 18, and Lauren, 16, all shot in Wight’s Burlingame home Nov. 28. Karen, Emily and Lauren died from their injuries that evening, and Wight died three days later.

Following the tragedy, a spokesperson from the Kansas Attorney General’s office confirmed that Sean Kahler, who was then 10, was at Wight’s home at the time of the shootings, and that he had escaped safely to a neighbor’s house from where one of the first emergency calls about the incident was made.

During last week’s motion hearing, Barry Disney, assistant attorney general, told the court the state intended to call Sean to testify regardless of the hearing’s outcome. In its motion, the state cited a statute that allows testimony from child victims to be conducted outside the presence of the defendant, either by closed circuit television or by videotape, as a method to prevent traumatizing the child.

Kahler, who appeared in court in a dark suit and tie instead of orange jail clothes as he had in previous court appearances, was represented at the hearing by attorney Tom Haney, of Topeka.

Disney called to the stand Phillip Newman, a clinical social worker from Wichita, who said he had seen Sean professionally on a continuous basis since December.

During Newman’s testimony, the defense and prosecution agreed to speak about Sean using only his initials, although both sides called him by name several times during the hearing.

Disney questioned Newman about the reason he was counseling the boy, noting the prosecution was required to show that he was a victim before the law would allow the remote testimony.

“The presenting problem was that he, by report, allegedly witnessed his father shooting his mother with a gun,” Newman said. “It is my understanding he was in the room when his mother was shot.”

Disney questioned Newman’s opinion of the effect on Sean if he was to testify in open court with his father present.

Haney objected to Newman’s testimony, questioning his expertise in the subject.

Before overruling Haney’s objection, Osage County Magistrate Judge Stephen Jones questioned Newman about his opinion of the boy’s ability to testify.

“Are you able to tell with S.K. whether he will be traumatized by the presence of the defendant if he were to testify in this court?” Jones asked.

“I believe it would be very difficult for him, very difficult, you could say traumatized. I think it would be very difficult for him to sit there in front of his father and testify,” Newman said.

The judge asked if testifying in open court would adversely affect the child’s testimony.

“Would it diminish or alter it or change it in any way?” Jones asked.

“I don’t think it would change what he said,” Newman said. “I think it would make it very difficult for him to do that, to carry it out.”

Jones allowed Disney to continue questioning Newman, who explained that Sean was a witness to past violence in his home.

“Which causes great fear in a child when they see parents fighting … it’s very scary for a child,” Newman said. “And then seeing his father coming into this home with a gun and shoot his mother, that’s traumatizing.”

Newman said Sean’s fear of his father would be the traumatizing factor in the courtroom.

“The relationship he had and has with his father, is father and son, it’s filled with emotions,” Newman said. “There was some closeness there, and to have to testify about what he saw would produce a great conflict.”

“Could you tell us why in this particular situation, why S.K. testifying in court would be different than a child witnessing a stranger committing a crime,” Disney asked.

“It’s all about strong emotion of family, and the loss of his mother and sisters,” Newman said. “Those emotions are still raw and it’s intensely personal for him.”

Disney asked if the boy’s testimony would change if he had to testify on the stand as opposed to testifying via closed circuit television.

“I don’t believe the words he would use would change, it just would be harder to say them,” Newman said.

During cross examination, Haney questioned Newman whether the boy had gotten better since receiving therapy, and Newman referred to a scale that measures functioning, comparing the boy’s condition at the beginning of therapy to that after 19 sessions with Newman.

“Based on that, he has gotten better,” Newman said.

Haney asked about Sean’s relationship with his father.

“He reported very positive things about his father,” Newman said.

With Haney asking about activities Kahler and his son enjoyed together, Newman answered, “There was father son relationship. It was good.”

Haney asked if Sean would be able to testify in front of his father and if it would be less stressful if the boy did not testify at all.

Under Haney’s further questioning, Newman said it would be more difficult for the boy to testify in front of his father than via closed-circuit television.

“Even though very difficult, you would anticipate he would come in as a fine young man and tell the truth?” Haney asked.

“Yes,” Newman answered.

Newman also confirmed that if Sean did not have to testify, it would be less traumatizing. Haney explained that a videotaped statement could be used during the preliminary hearing instead of in-person testimony, and asked Newman what the effect of that would have on Sean.

Newman agreed there would be no effect.

In closing, Disney said, “The issue is not if S.K. is going to testify. S.K. is going to testify. The issue is the manner he’s going to testify.”

Disney told the judge there was substantial evidence indicating that requiring the boy to testify would traumatize him or prevent him from reasonably communicating to the jury.

“A child 11 years old, who on one moment had a warm loving relationship with a parent and the next moment witnesses that parent coming into a house and killing everyone else in the family,” Disney said. “I don’t think it’s a stretch to say that to require that child to sit in the courtroom not a mere 10 feet from the assailant would traumatize that child more than just mere nervousness.”

“Were not talking about a situation at where a child happens to witness a robbery or happens to witness a murder,” Disney said. “This is a child who witnessed his father kill his family.”

He said he believed the state met the burden of proof to require the closed-circuit testimony.

Haney argued the state had not met the burden and the testimony presented did not show the child would be so traumatized as to not be able to reasonably communicate to the jury.

“The testimony was that it would be difficult, the testimony was he’d tell the truth,” Haney said.

“The issue is that as I suggested, we don’t want to traumatize this young child in any way whatsoever,” Haney said. “There is no reason for the preliminary hearing for this child to testify … it is unnecessary and why the state wants to put this child through this in any form, I don’t know.”

Haney also questioned the constitutionality of such testimony, which he said did not allow the accused the right to face his accuser and also denied the right to effective assistance of counsel.

Jones cited a Supreme Court case in which the constitutional questions raised by Haney had been deemed satisfied.

“This judge is not going to be the one to tell the Supreme Court it is wrong,” Jones said.

“The fact that this is a child of almost tender years, and easily traumatized, influences the court,” Jones said.

“The court finds that the state has established by clear and convincing evidence by its witness that the child may testify by use of one-way closed circuit television because he would be traumatized by presence of the defendant, his father,” Jones said.

Also during the hearing, the judge entered an order allowing Kahler to appear in court in civilian clothing and without restraints visible to media or observable in court.

A preliminary hearing has been set for June 22-23 in Osage County District Court, in Lyndon.