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File Photo/Herald-Chronicle
Wayne White | Managing Editor
LYNDON—The defendant charged in a quadruple murder case has
asked the court to dismiss the complaint against him, saying investigators
improperly seized and reviewed privileged attorney-client communications
during investigation of the case.
The case is now tainted due to violations of James Kraig Kahler’s
constitutional rights, according to the 17-page motion filed by
Kahler’s attorney, Thomas Haney, last week in Osage County
District Court.
Kahler, 46, is charged with capital murder for the deaths of his
wife Karen Kahler, the Kahlers’ daughters, Emily, 18, and
Lauren, 16, and Karen’s grandmother Dorothy Wight. All were
shot in Wight’s Burlingame home Nov. 28. Karen, Emily and
Lauren died from their injuries that evening, and Wight died three
days later.
Haney outlines in the motion that an arrest affidavit in the case
alleges the Kahlers’ marital difficulties beginning in January
2009, and notes Kraig Kahler’s prior arrest for domestic battery
and pending divorce litigation described as “contentious.”
Haney says in the document the state executed numerous search warrants
in the murder case, including a search of Kahler’s parents’
home in Meriden and Kahler’s Ford Explorer.
“During the search, numerous documents were seized which,
on their face, show such documents were attorney-client privileged
and used by the State in spite of the privileged context,”
Haney wrote in the motion.
Haney provided examples of the privileged documents that included
Kahler’s contract with an attorney in his divorce case, factual
summaries prepared by Kahler for his attorney, letters from attorneys
to Kahler, and other confidential reports. Haney also notes a list
of documents to be seized contained a notation by an investigator
that the documents were to be reviewed to determine “the possible
motive behind the crime.”
Haney said the Kansas Attorney General’s Office has no policy
or procedure to avoid breaching attorney-client privilege during
searches.
“The State has made no attempt … to isolate these documents
or to remove them from the file or to have them reviewed by an independent
prosecutor not involved with this case,” Haney says.
The government engaged in misconduct in obtaining and reviewing
the materials and violated Kahler’s Fifth and Sixth Amendment
rights under the U.S. Constitution and also violated his rights
under the Kansas Constitution, the motion says. Haney says the government’s
intrusion into the attorney-client privileged materials violates
Kahler’s right to effective counsel, his right against self-incrimination,
and his right to a fair trial.
In the event Kahler is convicted of the charges, “the guilty
verdict would be invalidated by the violations of his Fifth and
Sixth Amendment rights. Any conviction obtained against Defendant
would be tainted by the government’s improper use” of
the privileged information, Haney says in the motion.
“The severity of the crimes alleged should not prevent the
application of justice,” Haney wrote.
“It is important to note that the prosecutors know a substantial
amount of attorney-client matters,” Haney says. “These
documents cover issues similar and identical to those at issue in
this case and cover matters such as potential defenses and factual
admissions.”
Haney argues that dismissal of the indictment is the sole remedy
for the government’s misconduct. In the alternative, he proposes
that all prosecutors and investigators who have reviewed the documents
be removed from the case.
“The prosecution’s knowledge of sensitive attorney-client
matters such as defense strategy and factual admissions are injurious
to Defendant and beneficial to the government,” the motion
says.
Haney cites other Kansas court cases in which prosecutors have obtained
privileged or confidential information; in those cases prosecutors
were restricted from participation in prosecution.
“Here, both the prosecuting attorney and the investigators,
not only seized, but searched through files which were clearly confidential
information detailing prior meetings Mr. Kahler had with his attorney,”
Haney said.
In one cited case, an entire attorney’s office was disqualified
due to one of the firm’s secretaries obtaining confidential
information about a litigant in that case.
Referring to the cited cases, Haney determines, “Therefore,
because the prosecutor has acquired information that is protected
by attorney-client privilege, he and his office are thereby disqualified
from any further participation in the matter.”
A hearing on the motion has been scheduled at 9 a.m. June 22 in
Osage County District Court.
A preliminary hearing for Kahler scheduled for next week has been
postponed due to a request from the defendant. A defense motion
indicates that Kahler is undergoing evaluation that will not be
completed until the end of July. The preliminary hearing has been
set for 9 a.m. Aug. 19-20. |
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