The Lawrence Journal-World is asking judges in Douglas County to give the public more access to the facts of criminal cases.

The newspaper made a request this week with Chief District Court Judge Robert Fairchild to start letting the public see “probable cause” affidavits – written statements used by police and prosecutors to get arrest warrants and search warrants.

The request coincides with Sunshine Week, an annual nationwide event that emphasizes open government and with an ongoing effort by the Kansas Press Assn. to change state law to make criminal affidavits open to the public.

“The reason they need to be open is because we need to be able to have a check and a balance on police and on judicial power,” said Doug Anstaett, executive director of the KPA. “If you drag in somebody and arrest them and then find out that you made a mistake, right now they can’t get access to that affidavit that explains why they were coming after you in the first place.”

That’s exactly what happened to Roger Valadez, a Wichita man arrested in December 2004 because police wrongly suspected he was the BTK killer. After Dennis Rader’s arrest, Valadez wasn’t allowed to see the document that explained why he was a suspect in the first place, and he had to sue to get it.

In 44 states, the documents are considered open unless a judge specifically rules that a document must be closed. In Kansas, the law is just the opposite – a situation that Anstaett called “an embarrassment” in testimony last month before the Legislature.

KPA is lobbying to change the law this session and has a proposal before the House Judiciary Committee. A compromise bill that was shot down last month by the House Governmental Organization and Election Committee would have kept the documents sealed for 20 days or until there was an arraignment.

The affidavits had been open for public viewing in Kansas. But in 1979, the Legislature made the documents closed unless a judge specifically orders them open.

Only one judicial district in Kansas – the 5th Judicial District in Emporia – has a standing order allowing the affidavits to be open to the public, according to information from the state’s judicial branch.

The Journal-World is asking Douglas County to issue an order similar to Emporia’s.

Douglas County’s current practice is to keep the affidavit in a confidential file and put it into the public file only after the criminal case has been closed. But Anstaett said one concern with the way the law was written is that, in some cases, affidavits were presented to the court and people were never charged.

“There’s no way for the public or for the defendant to review the rationale that the police used for the arrest,” he said.

Judge Fairchild said he would take the newspaper’s request under consideration and discuss it with other judges in the district.

“The concern is that information in those probable-cause affidavits is based on hearsay and all kinds of things that may not be consistent with what the evidence is later,” Fairchild said. “If you publish that and people on the jury read that, they may be getting information that’s totally inadmissible at a later date.”

Fairchild also said that if a person was arrested based on an affidavit and not charged, he or she could apply to have the document opened.

Douglas County Dist. Atty. Charles Branson said he opposed making affidavits open in Douglas County before the case ended and someone was convicted.

Defense attorney Mark Manna, who regularly handles murder cases in Douglas County, said he would prefer affidavits remain closed to the public.

“A lot of that information is inaccurate, not correct, ultimately doesn’t pan out that way,” he said. “It could prejudice your client.”