Death penalty challenges from two Wichita, Kan., brothers convicted of a notorious rape-and-murder spree seemed to sputter Wednesday before skeptical Supreme Court justices. The Carr Brothers are now serving life plus sentences for the what has been referred to as the Wichita Massacre.
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Wednesday’s cases involved the Kansas Supreme Court’s decisions striking down death sentences against three convicted murderers because of instructions given to the juries and, in the case of two brothers, the use of a joint rather than separate sentencing hearings.
It was the first high court hearing on death penalty cases since a bitter clash over lethal injection procedures exposed deep divisions among the justices last term.
The Kansas Supreme Court has overturned every death sentence that has come before it on appeal since the state brought back capital punishment in 1994.
Attorney Frederick Liu countered that Scalia himself in an earlier decision noted that “the egregiousness” of an offense is just one factor considered when sentences are set.
“The two outcomes would be the case would be reversed and remanded”, Foulston said.
“You truly think that this jury… would not have imposed the death penalty?”
James has been the spokeswoman of a victims’ group, Kansans for Justice, which formed weeks before the November 2014 election to persuade voters to oust Kansas Supreme Court Justices Lee Johnson and Eric Rosen.
Justice Stephen Breyer warned that requiring separate sentencing hearings in such cases could “throw a monkey wrench” into hundreds of other cases where gang members and other co-defendants are tried and sentenced at joint proceedings.
There, over the course of about three hours, they forced three male residents to have sex with two women who were visiting. The other issue was whether the judge erred in refusing to sever the sentencing proceedings, so that each brother would receive his own hearing.
Four of the victims died, but one woman survived a gunshot wound to the head because a plastic clip in her hair deflected the bullet.
Kansas Attorney General Derek Schmidt argued that the instructions also included “an open-ended invitation” to consider any facts that might spare a death sentence, including pleas for mercy.
James said her group hasn’t decided yet whether it will campaign against the four justices, but state GOP Chairman Kelly Arnold said he would endorse voting against their retention.
The Kansas Bar Association worries about voters basing their decisions about retaining a justice based on rulings in one case or a few, said Jordan Yochim, its executive director.
Nine men now sit on death row in Kansas.
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The justices appeared likely to rule against the brothers on both legal issues raised.
