Foster trial will start here May 5

By BOB JOHNSON
Register City Editor

Rory Foster

A jury trial to decide murder and other charges against Rory Foster will start May 5.
The trial here was confirmed Monday afternoon when District Judge David Rogers denied a defense motion for change of venue.
Foster, 27, is accused of killing Briawna Hardrick, 19, in her apartment on the east side of Iola April 26, 2006. He also is charged with aggravated arson, aggravated battery, aggravated kidnapping, making a criminal threat, rape and aggravated criminal sod-omy. The murder and arson charges have to do with Hardrick, while the alleged victim in the other five is Iolan Rachel Reeder, who also was 19 at the time.
Mike Brown, Foster’s court-appointed attorney from Mulvane, argued Monday morning that the trial should be moved elsewhere. He said newspaper reports — he cited 26 stories — in the Register made it difficult for Foster to have a fair trial in Iola.
“My conclusion is that he can’t get a fair and impartial trial here,” Brown said. He also cited “hazing” Foster had suffered from inmates at the Allen County Jail, which indicated general disgust with Foster and a public perception that he was guilty.
Jerry Hathaway, Allen County attorney and prosecutor in the case, said the Register stories only were “an example of good reporting” and an effort “to get out the facts to the public.” None, he said, “have created prejudice in the community.”
Further, Hathaway said, no polling has been done to statistically determine the attitude of people in the area. “There’s no way to show Allen County residents couldn’t give (Foster) a fair trial,” he said. The crime “happened here and the trial should be here.”
Rogers recessed the hearing at noon — proceedings started at 11:30 a.m. — until 1:30 p.m.
“I reviewed the stories over lunch,” when court reconvened, the judge said. “If the stories are the only evidence (all Brown submitted), they’re not prejudiced per se and I think Foster can have a fair and impartial trial here. The burden is on the defense to show otherwise.”
Rogers then denied Brown’s motion for a change of venue.
The decision was no surprise to Brown. He told a Register reporter before court reconvened that he doubted his motion would be sustained, noting that “not even the Carr brothers could get a change of venue in Wichita,” where they were convicted a few years ago of multiple murders and rape.

BROWN ALSO sought to omit from the trial testimony by a clerk in an Iola store who identified a “black man with a do-rag” as the person who bought a set of steaks knives the day before Hardrick was killed.
He claimed the identification was not positive.
Hathaway didn’t argue strongly against the motion. He said other means were available to show that Foster bought the steak knives; a receipt with a UPC number identifying purchase of the knives was found on him after his arrest.
Hathaway did not object to another motion from Brown that hearsay evidence about Foster threatening “people with a knife three weeks or three months, whatever (time element) it was” prior to Hardrick’s murder also be stricken from the prosecution’s bank of evidence for the trial.
Brown asked about security during the trial and was told that two jail employees, one in the courtroom and one outside, would be on duty, as would Deputy Roy Smith and Sheriff Tom Williams. The defense attorney had objected to having too many uniformed officers in view of the jury, for fear the visual impact would have negative connotations for Foster.
Foster wore a coat and tie to Monday’s hearing and had under his clothing an electronic device that if triggered would incapacitate him. He will wear the same out-of-sight device during the trial.
Hathaway said several officers would be called to testify and that a Kansas Bureau of Investigation agent would help with prosecution, but that they wouldn’t be positioned as security officers and most would be in the courtroom just for testimony.
All the week of May 5 has been set aside for jury selection and Foster’s trial.

NOTES: Arrested within two days after Hardrick’s murder, Foster has been incarcerated since. Brown is his third attorney; he asked that the first two be replaced. The defendant was not overtly emotional at any point during the hearing. Among a handful of onlookers was Hardrick’s mother, Andria Dillingham.