IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION SEVEN

STATE OF KANSAS, Plaintiff,
vs.
KENT BRADLEY LINDSTROM, Defendant.

Case No. 95-CR-04071

TRANSCRIPT OF SENTENCING

APRIL 5, 1996

BEFORE

HONORABLE
District Judge Franklin R. Theis

Shawnee County Courthouse
200 S. E. Seventh Street
Topeka, Kansas

APPEARANCES

The State of Kansas appears by Assistant District Attorney Mr. Joel Meinecke, Attorney at Law, Shawnee County Courthouse, 200 S.E. Seventh Street, Suite 204, Topeka, Kansas 66603.

The Defendant appears in person and by Mr. Pedro L. Irigonegaray, Attorney at Law, Irigonegaray and Associates, 1535 S.W. 29th Street, Topeka, Kansas 66605-0795.

INDEX

On behalf of the victims:

Mr. Jonathan Phelps Page 7
Mr. Fred Phelps Page 8

THE COURT: This is the State of Kansas versus Kent Bradley Lindstrom, 95-CR-4071, for sentencing. State your appearances.

MR. MEINECKE: Your Honor, the state appears by Joel Meinecke.

MR. IRIGONEGARAY: May it please the Court, Your Honor, the defendant appears in person and with Pedro Irigonegaray.

THE COURT: Mr. Lindstrom, do you recall that back on February 26th you appeared in person with your attorney at the time, Mr. Irigonegaray, and the state appeared by Mr. Meinecke, the charge against you in the complaint of arson, a value less than $25,000, a Level 7, nonperson felony was amended to criminal damage to property over $500 in violation of K.S.A. 21-3720, a severity level 9, a nonperson felony. At that time, you waived the reading of the complaint and entered a knowing, intelligent, voluntary plea of nolo contendere, no contest, to that charge. The Court made inquiry and found you guilty. The Court ordered a presentence investigation and it was continued to today; do you recall that?

DEFENDENT LINDSTROM: I do.

THE COURT: Do you know of any legal reason the Court shouldn't proceed to pronounce sentence on you today?

DEFENDENT LINDSTROM: Yes, sir.

MR. IRIGONEGARAY: Mr. Lindstrom has a hearing difficulty.

THE COURT: Any legal reason I shouldn't pronounce sentence?

DEFENDENT LINDSTROM: No, sir.

THE COURT: Is there anything you want to say, your attorney or both, by way of statement or evidence before I consider the sentence?

MR. IRIGONEGARAY: Yes, sir.

THE COURT: Use the podium if he wants to.

DEFENDENT LINDSTROM: We are here today because I have been -- unfortunate circumstances that took place on August 20, 1995, and an immature and dangerous prank I made that could have resulted to a more disastrous consequence. And I deeply regret my involvement in this act and I'm thankful many times that no one was hurt. I sincerely hope that this can serve as a message for others as it has to me and hope that this could prevent somebody from being hurt in the future.

THE COURT: Mr. Irigonegaray?

MR. IRIGONEGARAY: Yes, sir, just briefly. When Mr. Lindstrom first came to my office, and since that day forward, he has demonstrated an immense sense of
remorse for the immature and reckless act that he committed. While we in our society have a right to disagree and that right to disagree must be protected as it has been protected for Mr. Phelps and his family, we cannot allow the right to disagree to include an act that could result in harm to those with whom we disagree and that is why the plea has been entered. It is with deep regret that Mr. Lindstrom comes before this Court for his actions and I would like to on his behalf echo the need for respect of others, respect of each others' views and an understanding that no one has a right to enforce their views on anyone else in the land that is based on the constitution and the idea of free speech and thought. It is our request to this Court that you would allow Mr. Lindstrom, under the sentencing guidelines, the privilege of probation. It is indeed fortunate that no one in the Fred Phelps family and extended family was injured, for this could have injured someone. It is also fortunate that Mr. Lindstrom recognizes the wrong that he has committed and it is, in my view, best for him and our society in general if you were to follow the recommendations set forth in the grid and further allow him to pay back our community by doing an additional 50 hours of community service. I have reviewed the request for restitution, which includes a request that an informant paid by the Phelps family be included. I respectfully disagree with that request and ask that that request not be included in the restitution process. I want to make it clear that it is not a part of our plea for probation in this case that the behavior demonstrated by Mr. Phelps and his family in any way mitigates the actions of my client. We are not suggesting to this Court that it is an appropriate response against Mr. Phelps or his family to conduct this type of act or any other type of act that could endanger property or life, but rather that as a civilized people, as a civilized state and as a civilized city, we must from this experience and all the experiences that have proceeded it learn that we as individuals have certain constitutional rights and that no one should interfere with them. I thank you, Judge.

MR. MEINECKE: Your Honor, before the Court considers sentence, there are two gentlemen here whom the state would ask you to permit to address the Court. They are Jonathan B. Phelps, attorney at law, representing Shirley Phelps-Roper and her husband; and Fred W. Phelps, father of Shirley Phelps-Roper, who seeks to address the Court as well.

THE COURT: That's fine.

MR. JONATHAN PHELPS: Your Honor, I appear on behalf of Brent Roper and Shirley L. Roper and their children, as their attorney. Pursuant to K.S.A. 22-3424, subsection 3, they have asked that Fred Phelps, Sr., address the Court, being a member of the victim's family and with the Court's finding, that we deem it appropriate to permit that in lieu of Shirley Phelps-Roper and Brent Roper, so I make that request on behalf of the family. And with regard to the restitution fee, Your Honor has seen a letter dated March 18, 1996 from Shirley Phelps-Roper to Kathleen McCue and I won't repeat it unless the Court says you haven't seen it.

THE COURT: I have seen it.

MR. JONATHAN PHELPS: But, in essence, we believe that the Court is authorized pursuant to K.S.A. 22-3424, in language "if the verdict or finding is guilty, upon request of the victim or the victim's family and before imposing sentence, the court shall hold a hearing to establish restitution." And we would ask the Court to set the matter for a hearing, since the defendant disputes the restitution figure, and permit testimony related to the issue involving the award that was, reward that was offered for confidential information which was a direct link to successful prosecution in this case and for which the victims' family will be required to pay. And, in particular, we ask the Court to establish a time frame for those who would make a claim as informant to submit their claim and that their claim be considered along with the other evidence that the Court would take at a restitution hearing. And that is our request.

THE COURT: What was the total paid out on the reward?

MR. JONATHAN PHELPS: Potential payout is $5,000. The only one that has made a claim heretofore and the only amount that has been claimed is $833.33, and that's the only amount that a claim has been made and that claim was made March 18, 1996, and I think the Court file reflects that person's statement making that claim.

THE COURT: Has that been paid out?

MR. JONATHAN PHELPS: It has not been paid out yet.

THE COURT: Wherever you want to be.

MR. FRED PHELPS: If it please the Court, thank you, Your Honor. I requested to be allowed to speak at this hearing briefly, for the primary reason that I was the intended victim. And for the secondary reason that I'm a member of the victims' family. The affidavit that was filed in connection with the obtaining of the warrants or the warrant, included a reference to the value, my word, of the informant's efforts. And indeed, Judge Theis, from what I understand from the federal authorities that did the investigation of it, there would have been no case except for the information that we generated in response to the reward offered. And the defendant comes today and for the first time since the bombing have I or any of us heard any hint of remorse and I want the Court to know that I don't believe that there has been any remorse and that the remorse expressed here today is motivated by obvious reasons. And the truth of the matter is and if any dispute or question about this is raised, one of the informants is available to tell the Court exactly what she told me in one of the responses to the reward. She's a student at Washburn and a friend of the defendant. And what happened is this defendant and several others -- and at least four, I believe, of those others are referred to in the affidavit of the state -- were having a big time and planned to do this thing, to blow up my house. They said that the reason they put the bomb off of Shirley's house was because it was the biggest house in the block and they assumed it was my house. And that this bomb that they set off was the first of several planned, bigger and bigger, and that they invited the informant and her boyfriend to accompany them --it was going to be a frolic -- and the informant declined. And they had a longer fuse on the bomb so that they could be at the Sonic Drive In on Gage at about Munson so that they could have an alibi, if needed. I'm giving Your Honor what the informant told me and that I published shortly after. This is information I published, made available to the media and all parties and the state and the federal authorities on August 24, 1995. And that they did it because they were angry at our picketing at Washburn University, a protected activity. They bombed Shirley's house and car, thinking it was my house, because they were retaliating a protected activity. And they did it in the midnight hours, the night riders. And they were collecting all the news stories about the bombing for bragging purposes around their apartment at Washburn University. They were living at 21st and MacVicar. And that they were not one bit concerned about getting in trouble for this crime because to the Topeka police, prosecutor, and all law enforcement authorities, violent crimes against the Phelps' is welcomed as a big joke. I believe Your Honor probably knows that our church has been vandalized seventeen times and the property of our people vandalized more times. And there's never been any prosecution worthy of the name for any of those crimes although we on several of the occasions have positively identified the criminals. This is the first. Now, I have a file of correspondence flowing between the church office and the Attorney General's Office of the United States and the Secretary of the Treasury, Robert Rubin's office, he being in charge of the Bureau of Alcohol and Tobacco and Firearms. They investigated this case. Had it been left to local authorities, Judge Theis, this case would not have been investigated. Notwithstanding, we presented them with the information. I'm suggesting, Your Honor, that the two political branches of government in this community are operating criminal enterprises in respect to the crimes committed with almost total impunity against the property and lives of the members of Westboro Baptist Church and their children. How this case could be classified by anybody as a nonperson crime is elegant testimony to the criminal conduct of the non -- of the political branches of government here. I'm glad that it has finally reached the nonpolitical branch. The majoritarian pressures I can understand on the executive and the legislative branches. I say I can understand them, whipped into a constant froth and a foam, be irresponsible for the state. So I'm glad the matter has now come at long last for the destruction of property and the intent to hurt people within eight to ten feet of where these people, not just person and whose names are known but who are not prosecuted for anything let alone this demonomist assault, within eight to ten feet of where these people deliberately set that bomb off was a four-day-old grandson of mine named Gabriel and a one-and-a-half-year-old granddaughter named Gracie. And the damage from the bomb that tore holes in a steel Ford van, had the van not been there fortuitously, it would have tore holes in the very thin siding of the house, the only thing that separated those children from the bomber. Nonperson crime of a very low order. When the irrefutable offer, this as evidence because I know that the testimony could easily be brought forward to every word I'm saying to you if the Court wants it. And when you have a group of people plotting to blow holes in a residence where they think it's mine and there are no children or not, I believe legally irrelevant, but when you have got the circumstance that they didn't care anything about, they were having fun; when you have got the circumstance that these people because they're mad at our religious message decide to set off a bomb, I don't think that the nonpolitical branch can conceive of that possibly as a nonperson crime. And this defendant, Mr. Kent Lindstrom, whose name I gave the media August 24, 1995, and all the information I'm giving Your Honor today, told this informant and her boyfriend who lived over in the same apartment complex, as I understand, with this defendant, about plans to go and bomb Phelps and invited them to go along for the fun. And after they had done this deed, at least one car of them sitting close by within feet of where the bomb was set off, these conspirators had a big laugh and then had another meeting at their apartment afterwards with this informant and her boyfriend to boast about it and urge them to watch the news. We did it. Now, an illustration of the conduct of the non --of the political branches came almost immediately when the police chief held a news conference and said August 23, the whole line of Phelps family wasn't the bomb target, police say. Having done not one iota of any kind of investigation, the police chief holds a news conference to add insult to this injury. And after the federal authorities had made the case and turned it over to the district attorney's office, we got a call from the federal authorities a month or two after they made the case, wondering why in this world the state authorities hadn't filed any case. And they put pressure and through the United States attorney who wrote and called, as I understand it, the local prosecutor, only then did we get this diminimous [sic] kind of a state prosecution. I testified on two occasions when the legislature was holding hearings on these sentencing guidelines and I testified because of their inclusion and the factors were deep for consideration in deviating from the guidelines, sexual orientation. And I did that because sexual orientation has never been recognized at any level and homosexuals have never been recognized at any level as a legally protected minority. And the reason is eloquently articulated by the Sixth Circuit a few months ago in Cincinnati, that they identified themselves not by any unactionable and immutable qualities of being but by criminal conduct voluntarily engaged in. My testimony before the legislature went unheeded and so Your Honor has a law now that you could consider that today, the reverse of what they intended. There's no question what motivated this gentleman. Religion. He doesn't like my religion, the old time gospel, that homosexuality is a sin that will damn the soul and the nation that indulges it. That's my religion. It used to be everybody's religion in this country. He doesn't like my religion, therefore, he set out to bomb me in the night hours. That's a factor Your Honor can consider. And he doesn't like the particular aspects of it that the legislature included over my objection. So there's two factors. The file is available to the Court if you want it.

THE COURT: Thank you. Mr. Meinecke, do you have anything?

MR. MEINECKE: Your Honor, the state has no quarrel and asks the Court to find the criminal history as accurate. Other than that, we have nothing concerning the presentence report to ask the Court to consider.

MR. IRIGONEGARAY: Your Honor, I would like an opportunity to respond briefly.

THE COURT: On the issue of the restitution?

MR. IRIGONEGARAY: No, sir, regarding the issue when, which have -- some of the issues that were raised by Mr. Phelps.

THE COURT: I think that's reasonable.

MR. IRIGONEGARAY: First of all, there is no evidence that there was any intent or plan to blow up the house. It is an exaggeration without foundation. This was an immature act which intended to set off a device, a large firecracker, and it was intended to make a sound. There was no intent to cause anyone an injury or any harm. That doesn't make it right. The fact that it occurred is absolutely wrong and that's why we have entered an appropriate plea. Violent crimes against the Phelps' extended family, including Mr. Phelps, is not a joke. I think this city can be extremely proud of the fact that without any direct injury to Mr. Phelps and his family, they have conducted a campaign that at times has been exceedingly offensive and abusive of others. And while that does not justify anyone to act against them, I think it is inappropriate to cloak those acts of both verbal and demonstrative violence as religion. Heretofore, I have always thought of religion as being inclusive, loving, and forgiving, not hateful. And it was always my understanding that it is God that is the one to judge, not us mortals. No one on the face of the earth should assume that they represent God and that God has given them the answer. This is a crime that deserves to be punished accordingly, for notwithstanding the behavior of Mr. Phelps and his family, it should not have occurred. There was no intent to hurt anyone. It was not directed against the person of Mr. Phelps. It was intended not to cause bodily harm. It was an immature act that could have resulted in harm to people. Fortunately, I repeat fortunately, it did not. For notwithstanding how much I dislike, disapprove and disagree with Mr. Phelps and his family, as citizens of our state, they are protected by our laws and I would be the first to defend their rights to be protected and that is why this plea has been entered. I respectfully urge the Court to follow the presentence report, its conclusions, and place my client on probation. And further, absent a cite to a specific statutory authority allowing a citizen to make an offer of recompense for the attainment of information to turn over to a state agency for prosecution, I would request that the restitution request for the $833.33 not be granted. For first of all, I don't believe it's pursuant to law. And, secondly, it can lead to rather arbitrary policy regarding payout in criminal prosecution. Thank you, sir.

THE COURT: Is there anything you want to say further, Mr. Lindstrom?

DEFENDENT LINDSTROM: No, sir.

THE COURT: Well, the Court reviewed the presentence report and this is a sentencing guidelines case. His criminal history is accurate, severity level 9. Criminal history, and he has no criminal history. The sentencing range is from seven months down to five. There's no motion for departure before the Court. The Court would have the authority to depart on its own. Other than the issue that Reverend Phelps raised about the motivation for the act, there would be nothing in this that would justify departure. Whether Mr. Lindstrom's motivation, I mean, whether it was intended, ideological, merely to spite someone, whatever his thinking was, it really doesn't appear too material to the circumstance. The thing is it was, in its base origin and as it began, an act of terrorism and whether it was intended to harm, it was intended to affect and interrupt and impede and scare the parties against who it was perpetrated and there's no justification for it. And whether it was a neighbor, angry neighbor, or whether it was -- or someone exercising their rights to free speech and other matters doesn't particularly make too much difference. I mean, whoever would do this would have to have a wrong sense of purpose. The Court, I think, is locked in under the circumstances of the reduction by the sentencing guidelines, make you look at the offense, and as I indicated, I don't think there's a departure justified here. The question of restitution for reward funds, I'm going to reserve that issue and anybody can submit anything they want to on it. It's a fairly novel concept in the law to make someone repay restitution or reparation funds that are proffered for a reward. A person offering the award sets the amount in their own mind, it presumes that law enforcement wouldn't eventually accomplish the circumstance. Generally, it's a novel concept but whether someone should pay for it, they don't pay for the cost of their prosecution, generally, so I'm not sure that private reward would, how it would fit in with the scheme of justice, make people pay for their own prosecution other than court costs, which are fixed by the legislature, and I will reserve that issue and he and the victims' family or Mr. Irigonegaray and the state can decide something and I will decide it on the merits alone.

It will be the judgment of the Court, Mr. Lindstrom, that the Court will impose a term of seventeen months incarceration with the Secretary of Corrections and pursuant to the guidelines, grant you probation for a period of 24 months. Court would direct you pay the Court costs of this case, would direct you pay a probation fee of $50. Would direct that you make restitution in the amount of $1,750.76. And as I've indicated, reserve the question of whether the reward fund would be included. And I will specifically do that. As an addition, the Court would direct that you perform 100 hours of community service work in lieu of the fine in this matter; that you have no contact whatsoever with the victims in this case or any member of their family whatsoever; that you report -- participate in programs that the Court recommends through our court services; that you not possess any explosive devices or any other weapons. Further, the Court, I think really that some message needs to be sent. I think this is an act, as I indicated, criminal damage to property, but under the circumstances, it was terroristic in its nature. I think some punishment is warranted. Are you employed right now?

DEFENDENT LINDSTROM: Yes.

THE COURT: Where do you work?

DEFENDENT LINDSTROM: Gage Motors.

THE COURT: What are your hours of work?

DEFENDENT LINDSTROM: Evening hours. I'm a full-time student so I go to school during the day, sir, for sales and they're usually from 6:00 to 9:00.

THE COURT: Do you work weekends?

DEFENDENT LINDSTROM: Yes, I do.

THE COURT: Every weekend?

DEFENDENT LINDSTROM: It depends, questionable, sometimes every other weekend, sometimes every weekend.

THE COURT: All right. It will be the judgment of the Court that the Court would order under his probation period thirty days in jail. Would direct that you spend eight weekends in jail, which would be sixteen days. And you have -- and you can arrange your service with court services when you will do -- when you work on Saturday, do it on a Sunday, I don't know, but there will be sixteen times you would be in jail. You can go in on Friday and get out on Sunday, that is two days there, but a total sixteen days on the issue of probation.

MR. IRIGONEGARAY: Your Honor, may I interrupt a minute? Mr. Lindstrom will be out of school in the summer. Would the Court have any objection allowing, let's say, a three months period of time to work that in so that he can be out of school, finish finals, go through all of that process and then be able to work out a schedule?

THE COURT: Well, I would prefer him to begin some weekends. And weekends when he has finals or something, that he can work out with court services to skip, but I intend to disrupt his lifestyle on the weekends when you're not putting a lot of people for long periods of time or to a young man is disruptive as anything so I intend to send a message and intend to interrupt his life.

MR. IRIGONEGARAY: All right, sir.

THE COURT: And I don't want to discharge him from his employment, I don't want to destroy his studies, but I do want him to sit in jail and think about it. So I will direct that within ten days that you provide a schedule to court services of when you can do this and if there's any dispute in it, I will order it and be provided in a order to provide custody slips to provide the times.

MR. IRIGONEGARAY: Within ten days?

THE COURT: Within ten days.

MR. IRIGONEGARAY: Okay.

THE COURT: And you can make those payments on a monthly basis consistent with your income so that they're paid out as soon as possible. Any questions here about the sentence imposed?

DEFENDENT LINDSTROM: No, sir.

THE COURT: Do you understand if you're to violate the conditions, the Court could call you back and could send you in to the custody of the Secretary of Corrections?

DEFENDENT LINDSTROM: Yes, sir.

THE COURT: That's the judgment and sentence of the Court.

MR. IRIGONEGARAY: Thank you, sir. I'd like to request a transcript.

THE COURT: Give the parties ten days in order to submit anything on that secondary restitution issue.

MR. IRIGONEGARAY: Thank you, Judge. (Hearing concluded)

 

CERTIFICATE

STATE OF KANSAS
COUNTY OF SHAWNEE

I, Marlene Percefull, a Certified Shorthand Reporter in and for the State of Kansas, certify that I reported in shorthand the foregoing proceedings had on the 5th day of April, 1996.

I further certify that the foregoing transcript is a true, correct and complete copy of all of the proceedings of my shorthand notes as reflected by this transcript.

IN WITNESS WHEREOF, I have hereunto set my hand and seal this 8th day of April, 1996.

Marlene Percefull
Certified Shorthand Reporter