File Photo/Herald-Chronicle

Wayne White | Managing Editor

LYNDON—An Osage County judge has denied a motion to dismiss murder charges against James Kraig Kahler, and also denied the defense’s request to recuse the prosecuting team from the case.

In a motion filed June 7 in Osage County District Court, Kahler had asked the court to dismiss the complaint against him, saying investigators improperly seized and reviewed privileged attorney-client communications during investigation of the case, violating Kahler’s constitutional rights and tainting the case.

Kahler, 46, is charged with capital murder for the deaths of his wife Karen Kahler, the Kahlers’ teenage daughters, Emily and Lauren, 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 night and Wight died three days later.

Kahler’s attorney, Tom Haney, had provided examples of seized documents that included Kahler’s contract with an attorney in his divorce case, factual summaries prepared by Kahler for his attorneys, letters from attorneys to Kahler, and other confidential reports.

During the motion hearing Tueday morning, Haney said the government had already used the documents during investigation of the murders.

“The KBI agent stated in his report that he was going to go through these written materials to find out whether there was a potential motive,” Haney said. “He was going to use them for that purpose. They intended to use them for that purpose and did use them for that purpose.”

Haney said a remedy to the taint proposed by prosecutors from the Kansas Attorney General’s office, to not use the privileged documents in court, is “an overly simplistic solution because the use of documents contemplates more than simply admission into evidence.”

He said the privileged documents already could have been used by the state to prepare witnesses, determine mitigating or aggravating circumstances, and determine a motive.

“They’ve already been used because the KBI admitted it,” he said.

Haney said the documents remain in the prosecution’s possession and have not been sealed.

Although Haney did not fault the KBI for the search methods used, he argued that the attorney general’s office should have had procedures in place for handling such documents if discovered during an investigation.

“You seal them and return them to the defense,” Haney said. “You don’t simply continue to go through to see what you can get out of these things.”

He said the prosecution’s solution was not a sufficient remedy.

“The court can order the state not to admit these but that doesn’t cure the problem,” he said. “The way to cure the problem is to dismiss. A second way would be to recuse the prosecution team and the investigators for the state who have used these documents, that removes the taint.”

Barry Disney, assistant attorney general and lead prosecutor on the case, said the state’s actions in the case had “been above reproach.”

“The defendant’s claim of outrageous behavior is fanciful,” Disney said. “The claim that the attorney client privilege has been invaded is disingenuous. And finally this Hail Mary request to have the case dismissed or recuse the prosecution team is laughable if it were not for the seriousness of the case we have before us.”

Disney explained that Kahler’s Ford Explorer and his residence were searched after police identified him as a suspect in the murders. A green tub of documents was seized from the residence and a briefcase was seized from the vehicle.

He said that of the 10 documents seized and identified by the defense as attorney-client privileged documents, only three could have been claimed to contain privileged information.

Most of the privileged paperwork related to the Kahlers’ pending divorce in Missouri, Disney said.

“Most of the documents never contained any privileged information at all,” he said, “or it was lost when it was disclosed to a third party.”

He said that in the seized documents, there was little indication to law enforcement officials conducting the search the documents were subject to attorney-client privilege.

Referring to e-mails between Kahler and an attorney, Disney said, “There was no way law enforcement would know those were attorney-client privileged.”

Disney argued that of the three documents the state agreed were privileged, all involved the divorce case and did not pertain to Kahler’s relationship with defense attorneys in the murder case.

“All of this information pertains to a divorce,” Disney said. “The murders had not even occurred when the information was made.”

Haney had asserted in the original motion that questioned documents cover issues similar to those at issue in the murder case, such as potential defenses.

“There’s no way that this information would allow us to learn what the defense strategy is – it would be impossible if the crime had not occurred,” Disney said.

Disney also argued any constitutional claims about infringement on Kahler’s right to effective counsel were non-existent because charges had not yet been filed when the search was conducted.

“That right to counsel happens after charges are filed,” Disney said.

He argued that a claim of a 5th Amendment violation, or right against self-incrimination, also did not occur because all of the documents pertained to the divorce.

He said if there was a 5th Amendment violation, the remedy would be to exclude the information from being admitted in court.

“If they believe we’re in violation of attorney-client privilege information from the divorce,” Disney said, “they simply have to say ‘judge, we don’t think they should be able to use that.’”

“They simply file a motion saying we cannot use that,” he said.

Haney argued the documents had already been used by the state.

“They have been used and they continue to use them,” Haney said.

He said that prohibiting use of the documents “does not just mean they can’t be admitted in court, that means you can’t use it to prepare a case, to cross examine witnesses, to interview other witnesses, to define leads, that’s how you use them. It’s a continuing intrusion.”

Haney said that because the attorney-client privilege existed in a divorce case, that does not preclude it from pertaining to the current case.

“Attorney-client privilege doesn’t end once the case is over,” Haney said. “You cannot violate attorney-client privilege in another criminal case or civil case and use that information.”

Osage County Magistrate Judge Stephen Jones said that neither he nor the district judge, Phillip Fromme, had examined the documents that were presented to the court in a sealed envelope.

“The court has not looked to see what is included in these documents, out of deference to the parties, and will do so after this motion hearing is complete,” Jones said. “This court is not going to sustain this motion at this point.”

He said he would accept the state’s suggested remedy, “that is ordering the state not to offer these documents into evidence will be adequate to un-taint the situation here. The court finds that we can un-taint whatever taint there is here by ordering the state not to offer those documents into evidence.”

Jones noted he only had jurisdiction over the case until completion of the preliminary examination.

“You can raise that issue again before Judge Fromme if and when [Kahler] is bound over and facing a jury trial,” Jones told Haney.

Kahler’s preliminary hearing is scheduled to be held at 9 a.m. Aug. 19.