Over the objections of defense lawyers, and despite his own misgivings, a Wyandotte County judge said Wednesday he must allow private attorneys to assist in the prosecution of a man charged with killing two sheriff’s deputies.
Antoine Fielder, 30, is charged with capital murder in the fatal shooting last June of Wyandotte County deputies Theresa King and Patrick Rohrer as they were escorting him back to jail after a court hearing in a robbery case.
Under Kansas law, crime victims can pay for lawyers to assist prosecutors as “associate attorneys,” and the families of Rohrer and King have hired married law partners Tom Bath and Tricia Bath.
Because Fielder faces a possible death sentence, he is being represented by attorneys from the Kansas Death Penalty Defense Unit, who objected to what they termed “interference” in the case.
They argued that the Kansas law that allows the hiring of private attorneys to assist in criminal prosecutions has never been used in a death penalty case.
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They said it raises “novel constitutional, statutory and ethical issues.”
“Counsel for Mr. Fielder is not aware of any direct authority addressing the constitutionality of private prosecutions in obtaining sentences of death,” the defense said in court documents.
In their written response to the defense objections, the Baths noted that the Kansas Supreme Court has upheld the idea of crime victims hiring private attorneys in numerous cases.
And while it has never been used in a capital case, there is nothing in the law that excludes it.
At a court hearing Wednesday, defense attorney Jeff Dazey noted that the law has been on the books in Kansas since the early 20th century, “long before the modern era of the death penalty.”
A spokesman for Wyandotte County District Attorney Mark Dupree said he had met with the Baths before they entered the case and had no objection to their participation.
At Wednesday’s hearing, Tricia Bath said they would be operating under the direction of Dupree’s office.
She noted that both she and Tom Bath have represented defendants in death penalty cases and are familiar with the rules and ethical requirements for attorneys in death penalty cases.
“The law is clear,” she argued. “We get to be here and the victims get to have an official representative here.”
District Judge Bill Klapper said that, while he finds the inclusion of private associate prosecutors in the case “inherently problematic,” he is bound by Kansas law that mandates they “shall” be allowed.
The judge did order that the Baths will not have any role in the case until after the Feb. 1 preliminary hearing.