Next week’s appeals in the cases of convicted Wichita murderers Jonathan and Reginald Carr are the first of many anticipated before their death penalties, if upheld, could reasonably be imposed, Sedgwick County District Attorney Marc Bennett said Thursday.
And it could be years before every appeal available to the brothers is exhausted.
“This is the very first appeal in this case, even though it is now some 12 years old,” Bennett said of the Carrs’ appeals, which are scheduled to be heard Tuesday by the Kansas Supreme Court.
“It takes a long time for these things to get into court. This isn’t the last appeal. If we win or the defendants win, it’s not over with next week.”
Arguments in Reginald’s case start at 9 a.m.; Jonathan’s will be heard at 1:30 p.m. Live video of the hearings will be streamed at kscourt.org.
Attorneys for each man will ask that his convictions and death penalty sentence be overturned based on dozens of issues, including the trial court’s refusal to try the brothers separately.
The Carrs are also challenging the constitutionality of Kansas’ death penalty law.
Prosecutors from the Sedgwick County District Attorney’s Office will argue to uphold the lower court’s decision.
Bennett said Thursday he’s confident that the Carrs’ attorneys “have done an admirable job of raising the issues” in preparation of the appeals.
“I won’t hazard a guess on how they are going to handle these issues,” he said. “All I can tell folks is that ... we have given the full measure of the (D.A.’s) office to ensure that the best possible result could happen.”
Appeals filed in 2002
Tuesday’s hearings come more than 10 years after the brothers first filed their appeals in November 2002.
A Sedgwick County jury found the brothers guilty of killing Jason Befort, Brad Heyka, Aaron Sander and Heather Muller on Dec. 15, 2000, in soccer field near K-96 and Greenwich after a home invasion. A woman who survived the attack ran through snow to a nearby house and called 911.
Reginald Carr also was convicted of fatally shooting Ann Walenta during a carjacking on Dec. 11, 2000.
The killings are among Wichita’s most notorious crimes.
One of the earliest delays to Tuesday’s hearings came in December 2004 when the Kansas Supreme Court declared the state’s death penalty unconstitutional, a little more than a year after the brothers’ trial. The move halted seven capital-murder cases, including the Carrs’. The U.S. Supreme Court overturned the ruling nearly two years later.
Reginald Carr’s attorneys were granted 23 extensions before filing their written brief in October 2009, also stalling the appeal process. Jonathan’s lawyers filed for 20 extensions before filing their written brief.
The Sedgwick County’s District Attorney’s Office followed with eight requests for extensions before filing its brief in Reginald Carr’s appeal in October. It requested nine prior to filing a brief in Jonathan Carr’s case last July.
Asked when the public could expect an execution if the Carrs lose their appeals, Bennett said: “It will be years, many years, before we can reasonable expect to see a death penalty verdict imposed.”
“We file so few death penalty cases, in the first place, here – so few get get past just the vetting process, so few then get convicted in the appellate loop – (that) I don’t know.”
He added: “In Texas and Virginia where they have a more, frankly, robust death penalty practice ... we know what it takes” to get from conviction to execution.
Kansas reinstated its death penalty in 1994. Since then, no death sentence has withstood appeal.
The state’s last execution took place in 1965.
Months for ruling
It could take weeks or months – possibly more than a year, Bennett said – for the Kansas Supreme Court to deliver its ruling on the Carrs’ appeals.
If the justices rule the brothers were denied a fair trial, their convictions can be set aside and the case sent back to Wichita for retrial.
If just their sentences are overturned, prosecutors could seek the death penalty again, Bennett said, provided the court does not rule it unconstitutional.
If both the convictions and sentences are upheld, another phase of appeals begins.
“(They will file appeals) to the federal side of things, to the 10th Circuit in Denver,” Bennett said. “Ultimately they have the right to go to the United States Supreme Court.”
After that “collateral attacks on the convictions,” such as claims of ineffective counsel, start, he added. Those also are subject to appeals through state and federal courts.
“We are at the first step of what will be a very long process,” Bennett said the Carr brothers’ appeals to the Kansas Supreme Court.
“Even though 12 years have passed (since the killings) and people have come to assume that the process has played itself out, we are at step one.”
Public appellate defenders Sarah Ellen Johnson and Meryle Carver-Allmond are representing Jonathan Carr on Tuesday. Debra Wilson and Reid Nelson will represent Reginald Carr.
Sedgwick County Chief Deputy District Attorney Kim Parker and assistant D.A. David Lowden will present the arguments for the state.