Shawnee County district judge to decide whether to order a third trial for Dana Chandler

TOPEKA — As juror Ben Alford listened to Terri Anderson’s sensational story at last month’s high-profile double-murder trial in Topeka, he scribbled a big “WTF” in his notes.

The decision by prosecutors to place Anderson on the stand, even though they knew her story lacked credibility, and their request for a new trial demonstrate their persistence in a 20-year quest to convict Dana Chandler.

Anderson stepped forward near the end of the August trial to tell jurors about the night in 2002 when she heard gunshots in the basement of a duplex a block and a half away from her apartment and saw Chandler flee in the dark. Anderson had never told the story before, and her timeline was all wrong. The view from her apartment didn’t align with her memory. There was no record of her supposed 911 call. Shortly after the killings, she had told police she didn’t hear or see anything of interest on the night in question.

None of the jurors believed Anderson. There was no evidence to place Chandler in the state of Kansas on the day of the shootings. Police had fumbled the investigation.

But the sight of crying family members who attended closing arguments weighed on jurors.

“The most un-PC way of saying it: We felt like we were given a s*** sandwich to eat,” Alford said. “And we were told: ‘Tell us what it tasted like,’ but you can’t say, ‘There’s f***ing s*** in my sandwich.’ ”

In other words, jurors couldn’t agree on whether Chandler was guilty of murdering her ex-husband, Mike Sisco, and his fiancee, Karen Harkness, in 2002.

Prosecutors, in spite of the limited physical evidence in the case, police mistakes and testimony that can’t be taken seriously and resulted in a hung jury, asked for another trial in a court filing last week. A status hearing is scheduled for Thursday.

If Shawnee County District Judge Cheryl Rios grants the request, Chandler will be tried for a third time — prolonging an 11-year legal saga.

The Kansas Supreme Court threw out Chandler’s conviction from a 2012 trial because former prosecutor Jacqie Spradling lied to the jury about nonexistent evidence. Earlier this year, the Supreme Court disbarred Spradling for her misconduct at the trial.

Somil Trivedi, a senior staff attorney for the American Civil Liberties Union who focuses on prosecutorial misconduct, said there are problems with the case that can’t be resolved by conducting another trial with the same evidence.

“If you have had two bites at the apple, including one thrown out for misconduct and one simply because you couldn’t convince the jury, I don’t think there is any justice being served in taking yet another swing at this,” Trivedi said.

Shawnee County District Attorney Mike Kagay didn’t respond to an email asking why he expects a different outcome from a new trial, whether this is the best use of his office’s resources, why it was appropriate to put Anderson on the stand and why one of the prosecutors handling the case walked away on the second day of testimony.

In an interview with WIBW-TV, Kagay said his office would review “anything and everything” before deciding whether to ask for another trial.

“We take a step back, and we take a fresh look at the case,” Kagay said. “We analyze every facet of it, just like we do when we make a charging decision when the case first comes to us.”

Rage, not science

Prosecutor Charles Kitt kept telling jurors that science can’t solve this case.

Instead, he proposed, the case is about rage, obsession and jealousy.

“That left a lot to be desired,” Alford said. “It was like, OK, what are we going to have?”

Alford said the most compelling evidence against Chandler were the hate-filled emails she sent to her daughter, which helped convince seven of the 12 jurors that Chandler was guilty. Chandler also had placed numerous phone calls to the victims and showed up uninvited to family gatherings.

But for Alford and another juror, Carrie Kimes, that wasn’t enough to believe beyond a reasonable doubt that Chandler had driven from her home in Denver to Topeka and back without being detected.

“They could never put her in Topeka. They couldn’t put her in Kansas. So I couldn’t vote that she was guilty,” Kimes said.

Alford said the incriminating emails had been sent four years before the killings, shortly after a nasty divorce. He expected to see an escalation of rage over time. And what about the tedious drive across eastern Colorado and western Kansas? Alford found it difficult to believe someone could “be filled with constant rage for nine hours without changing your mind, without the good angel popping up on one side saying, ‘Think this is a good idea?’ ”

“To change my mind from not guilty to guilty,” Alford said, “I was looking for something like, ‘I hate him and want him to die.’ Something that actually said, ‘I want this person dead.’ ”

Chandler’s call logs showed she rapidly dialed a lot of people, which deflated the idea that she was obsessed with the victims.

“It just seemed like if she wanted to get a hold of somebody, she wanted to get a hold of them,” Alford said.

Then there was the “calamity of errors” by police, Alford said.

Over and over again, police failed to make or preserve records from their investigation. They botched recordings of conversations with Chandler, or taped over them. They unintentionally destroyed some DNA evidence and left DNA untested. When DNA test results excluded Chandler, police refused to place the results into a database to look for a match. They couldn’t find her fingerprints on shell casings or anything else at the crime scene.

Defense attorney Tom Bath questioned Richard Volle, the lead detective in the case, about how he lied to the jury in 2012 when he claimed Sisco convinced a judge to issue a protection from abuse order against Chandler. The order didn’t exist. Volle, now retired, said he was referring to an application for a restraining order, which was never granted.

Alford said Volle’s confusing testimony damaged his credibility with jurors. They looked through the entire divorce file in search of a protection order of any kind, and found nothing. If it had existed, Alford said, they might have convicted Chandler.

“I think he was probably a good cop — probably didn’t have bad intentions,” Alford said. “He just may not have been that great of a detective.”

Bath also persuaded some of the jurors that police had refused to explore any possibility that someone other than Chandler had killed Sisco and Harkness.

Alternate suspects included two criminals with a lengthy rap sheet and a connection to the daughter of Chandler and Sisco. In the weeks after the killings, the two men had tried to cash checks that were stolen from Sisco.

Kitt, the prosecutor, pointed out that Chandler’s alibi evolved over time. There was irrelevant testimony about wildfires. Chandler bought two five-gallon gas cans shortly before the killings. After the killings, she bought a change of clothes at a Walmart north of Denver.

“Honestly, when the prosecution rested, I think some other jurors felt like: ‘That’s it? Where is it? Where’s anything that proves this happened?” Alford said.

Mystery witness

The trial was nearly finished when prosecutors revealed a surprise mystery witness had emerged to testify about what she saw on the night of the killings.

Rios, the judge, paused the trial for three days to give the defense time to investigate Anderson, who had never told her story before.

Anderson lived in an apartment a block and a half away from the duplex where Sisco and Harkness were killed. She said she heard gunshots about 11:30 p.m. and saw someone who looked like Chandler get in a car and leave. Her story quickly unraveled.

Sisco and Harkness were at a casino north of Topeka until 1:30 a.m. on the night in question. Anderson’s description of her view didn’t align with the actual placement of buildings and houses. An investigator hired by the defense suggested that Chandler would have had to scale four 6-foot-tall fences to take the route Anderson described. There was a waxing crescent moon that night, and no streetlights.

Anderson said she called 911 that night, but records show she actually called the next day — to report someone in the laundry room of her apartment.

Topeka police canvassed the neighborhood after the killings. According to the written report by the police officer who questioned Anderson, she said nothing about hearing gunshots or seeing a fleeing suspect.

“We thought it was odd that they put her on the stand,” Kimes said. “But I think it was fair that she was there. She had something to say and they gave it to us to decide whether she was credible or not. We found her to be incredibly not believable.”

During closing arguments, Kitt told the jury it wasn’t up to him to decide whether Anderson was a credible witness. That was the jury’s responsibility.

“It didn’t feel like the prosecution was trying to pull one over on us, but it felt like they may have felt pressured from outside sources to do it,” Alford said. “They also, during their questioning, didn’t seem very pressing on the matter. It was: ‘Tell us your story. OK, thank you.’ ”

Trivedi, the ACLU attorney, previously served briefly as a prosecutor for the U.S. Department of Justice in Washington, D.C. He said prosecutors need to have some leeway in how they present a case, but there should also be “robust oversight by the judge.”

“That is how we get so many wrongful convictions, because we know that human beings are flawed and motivated and biased and all of these things — or just have bad eyesight or had their adrenaline pumping when they were looking at something. And so their memory or their vision was skewed,” Trivedi said. “There’s a million reasons why convicting people based solely on testimony, without corroborating evidence, can be dangerous.”

“Luckily, in this case, the jury didn’t buy it,” he added. “But a better prosecutor might have been able to massage this in a better way.”

He said the case is an example of the need to change the culture for prosecutors, “so that it’s not a win-at-all-costs mindset.”

“Rule No. 1 is you seek justice, not convictions, and I think cases like this are proof that most of the time they view their job as the opposite,” Trivedi said.

Bound by law

Alford had looked forward to the experience of jury duty.

But after three weeks of testimony, as the jury began deliberations, “we were joking around that the $10 a day isn’t going to cover the copay for therapy,” Alford said.

When the other jurors made Alford the foreman, he deployed his data analytics skills.

He passed around a deck of cards. One by one, the 12 jurors drew a red card for guilty or a black card for not guilty and placed them face down in the middle. He shuffled the anonymous votes and revealed the hand. They were split six to six.

In a small conference room with a coffeemaker and the $60 worth of snacks Alford brought from Target, they began to review every witness’s testimony and each piece of evidence. They took notes on a whiteboard. They played back audio recordings. Alford paused along the way to ask if anybody had changed their mind.

At times, the vote swung as far as eight to four in both directions. The jurors grew frustrated.

“Somebody broke a spoon at one point, and it was like, ‘Why did you break a spoon? Was it intentional?’ ” Alford said. “I was going through all the arguments like we were in court.”

Everybody had their own idea of how to interpret “beyond a reasonable doubt,” the standard for reaching a conviction. On the sixth day of deliberations, they told the judge they had reached an impasse and could not deliver a verdict.

Alford reflected on the experience during an interview a week later.

“We all definitely had sympathy for the kids,” Alford said. “It made the decision difficult because you have a plausible theory, and you can see the kids are really hurt, and you want to bring them closure. You really want to help them. But then we’re also bound by law.”

He predicted a new trial would end with the same result.

“If you played back the exact same case that we heard for 12 other people, I think you would end up with a similar split,” Alford said. “So I don’t know. Unless you can come up with something new that’s fruitful, I don’t believe it’s going to return a verdict.”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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