Featured Story

Posted on Sun, Nov. 08, 2009

e-mail	print	RSS	reprint
AIM	Digg it	del.icio.us	Facebook

Death penalty cases take time and scrutiny

Fifteen years after reinstating its death penalty, Kansas struggles to satisfy victims' families while following the law.

BY RON SYLVESTER

The Wichita Eagle

Larry Williams expected to wait 10 years to see the death sentence carried out for his daughter's killer. Now, 13 years later, Williams said he may have to wait another decade before Gary Kleypas exhausts his appeals.

Lawyers understand the need for such scrutiny in death penalty cases, but others like Williams wonder whether the execution chamber in Lansing will ever be used.

"Oh, it's been frustrating for me in more ways than one, obviously losing your daughter but then the long court case," Williams said.

The length of time it takes to resolve a capital case is one reason the death penalty costs about 16 times more than life in prison, according to a 2003 Kansas study. States in which executions have been carried out estimate even higher costs for death sentences.

Kleypas, found guilty of raping and killing 20-year-old Carrie Williams in 1996, was the first person condemned to die in Kansas in more than 30 years. Since the state reinstated the death penalty in 1994, no one has been executed.

New Mexico brought back capital punishment in 1979. By the time New Mexico repealed the death penalty in March, it had carried out one execution.

"And he voluntarily gave up his appeal or he would still be on death row," said Viki Elkey, director of the New Mexico Coalition to Repeal the Death Penalty.

As Kansas' first capital punishment case since the death penalty was reinstated, Kleypas' case has taken more than a decade because of legal errors and questions about how people here should be put to death.

The state Supreme Court overturned Kleypas' sentencing because of instructions given to the jury about the death penalty. After another jury sentenced him to death last year, Kleypas' appeal process began again.

Because appeals are taken in order, the state's first death penalty case now takes its place at the end of the line behind nine others.

Kleypas, 40 at the time he was charged with Williams' murder, turned 54 last month.

Williams' father, 51 at the time of his daughter's death, is now 64.

"In all honesty, I don't think it will ever happen," Williams said of Kleypas' execution. "They've piddled around for so long, and they keep on piddling.

"Do I honestly think that I'll live to see it? I'm not sure."

Link: (Listen to more of what Williams had to say about the death penalty)

Intense scrutiny

Prosecutors and defense lawyers explain that it takes time to work through a death sentence because of the intense legal scrutiny required for each case.

As the U.S. Supreme Court has ruled, "death is different" from other sentences. It's a sentence that can't be corrected.

"No one wants to rush a case through the system," said Barry Disney, the prosecutor in Kleypas' case. "These cases get extraordinary judicial review and it simply takes time to do that.

"... We want all that review because the penalty we're seeking is so final, it needs that review."

Link: (Listen to more of Disney's interview about the death penalty).

Williams and others would like to see the appeals process streamlined and shortened. That might expedite execution but could also increase the chances of an innocent person dying, critics say.

The Death Penalty Information Center lists 139 people who have been released from death row since 1973, after evidence pointed to their innocence.

Gov. Bill Richardson said in signing New Mexico's repeal that the system could not be certain that no innocent people would be executed.

That lack of certainty is one reason death sentences take so long to carry out.

"Most evidence of exonerations were not found until years after the crime," said Rebecca Woodman, a public defender who handles death penalty appeals in Kansas. "It has taken an average of 12 years before innocence has been discovered."

There have been 1,178 executions nationwide since 1976, when the U.S. Supreme Court ruled states could implement the death penalty in certain cases.

Kleypas' appeal

In Kleypas' case, his guilt has not been in question.

Kleypas was on parole for murdering a 78-year-old woman in his hometown of Galena, Mo., when he enrolled in the nursing program at Pittsburg State University.

He confessed to raping and killing Williams, another Pittsburg State student, at her off-campus home.

Kleypas' appeal took five years, in part because of legal issues that had never been argued in Kansas.

Actually, Kleypas' appeal may have been filed faster than other cases, Woodman said, because six lawyers worked on examining the case and preparing legal arguments for the defense. Now, only two lawyers work full-time on a capital case.

Nationwide, inmates face a death sentence for an average of 12 years and nine months before being executed, according to the U.S. Bureau of Justice Statistics.

"We are not moving at a slower pace than other states are, especially since we're breaking new ground for Kansas," Disney said.

Adding to the time in Kansas have been three legal rulings that produced more trials or postponed appeals.

Kansas Supreme Court rulings

Death penalty cases are like two trials.

In the first, a jury decides whether the defendant is guilty of capital murder.

The trial then moves into a second phase, in which jurors are asked to weigh evidence for and against a death sentence. The jury must decide unanimously on death.

In reviewing Kleypas' case, the Kansas Supreme Court found a flaw in the law that justices said gave an unfair advantage to prosecutors seeking death.

Its ruling required jurors to receive different instructions on the law, forcing new sentencing for the first three men condemned to die in Kansas: Kleypas, Michael Marsh and Gavin Scott.

Before Kleypas' sentencing could be rescheduled, the Kansas high court handed down another key decision, this one in Marsh's case.

The court considered the same issues for Marsh as it had for Kleypas, but this time determined the law was unconstitutional and struck down the death penalty.

Phill Kline, then the state's attorney general, took the case to the U.S. Supreme Court.

Cases on hold

For two years, the state's death penalty cases were put on hold. The U.S. Supreme Court in 2004 ruled the Kansas law constitutional.

Woodman, the public defender, then asked the court to consider the issue in light of the Kansas Bill of Rights, which would prevent review by the U.S. Supreme Court. Once again, death penalty cases in Kansas were put on hold for more than a year.

The Kansas Supreme Court, in Scott's case, ruled the state's law constitutional in May 2008.

That September, Kleypas went before another jury in Kansas City, Kan., which again sentenced him to death.

Under the law, however, every death sentence receives an automatic review. Kleypas' new sentence will again begin the appeal process.

"Now we have to wait another seven to 10 years," said Williams, father of the woman slain by Kleypas.

Disney, the prosecutor, is confident that the process will move more swiftly this time because many of the issues have already been argued and decided.

"Capital litigation is a marathon, it's not a sprint," Disney said. "It's a severe punishment and it takes a long time. We should just settle in for the long run and not put pressure on ourselves to have this done quickly."

But Williams said he sees the postponements as delays in justice and a political ploy to increase the costs of capital punishment. The state pays for both the prosecution and defense costs.

"The other side is building up the bill, so they can go to the Legislature and say, 'Here's what it cost to put this guy to death,' " Williams said.

Possible repeal of state's death penalty

Next year, Kansas lawmakers are set to take up a bill to abolish the death penalty because of cost. It was introduced last year by state Sen. Carolyn McGinn, R-Sedgwick.

A 2003 study showed that seeking the death penalty in Kansas cost on average $508,000 per case. A non-capital case cost $32,000.

Elkey, who led the effort to repeal the death penalty in New Mexico, said cost was considered by state lawmakers. But the decision ultimately came down to support from the state's faith community and victims' families.

"Many supported the death penalty when their loved one was murdered," Elkey said. "Then they had to go through years of trials and appeals and realized it didn't work."

One part of the push to repeal the death penalty in that state, Elkey said, was a realization that victims' families were "revictimized" every time a case came up for appeal or a new hearing was ordered.

New Mexico replaced the death penalty with life in prison without parole.

"They would rather send the murderers to jail and be done with it," Elkey said.

Elkey said the New Mexico coalition is now pushing for legislation that would take money previously spent on the death penalty and start programs to help victims' families.

Link (Listen to Elkey explain the bills for victims' families)

A life of isolation

Those condemned to death in Kansas lead a solitary life in prison while awaiting their execution.

Nine of the 10 men under death sentences reside in unit A at the El Dorado Correctional Facility. Scott Cheever is awaiting his death sentence in Lansing.

Cheever was convicted of killing Greenwood County Sheriff Matt Samuels. Members of Samuels' family, including his widow, work at the prison in El Dorado.

Those facing death sentences are kept in isolation cells with limited human contact.

Their cells measure 8 feet by 10 feet. They remain alone in the cells 23 hours of each day. Four times a week, they are allowed to go outside to an enclosed area 8 feet wide, 20 feet long and 10 feet high.

They are allowed to shower in a locked stall three times a week. They also may meet with mental health workers in enclosed areas.

Otherwise, they remain in seclusion. They may earn telephone privileges. They see visitors only on video monitors from their cell block.

"Whenever they leave their cells, they are in restraints and must be accompanied by two staff members," said Capt. Dale Call, public information coordinator for the El Dorado prison.

Unlike those sentenced to life in prison, inmates under death sentences aren't allowed to earn their way into the general prison population. This means that they remain in isolation for decades, waiting to die.

Paul Snyder, a unit manager who has worked in the segregation unit, said some inmates who started out with death sentences and were later commuted to life had trouble being around other people after spending so much time alone.

" (Michael) Marsh, for example, asked us to put him back in segregation because he needed more time for the transition back to the general population," Snyder said.

Marsh is now listed as high-medium custody in the general population, according to prison records.

Process takes years

The only certainty about the death penalty in Kansas is that if the law continues to allow it, it will take years before someone dies by lethal injection in Lansing.

Appeal briefs were filed last summer for three more defendants: Jonathan Carr, Reginald Carr and John Robinson.

The Carr brothers were sentenced to death in 2002 for killing four people in Wichita. Robinson was convicted the same year of killing two women in the Kansas City area.

The cases are waiting for the state to file its replies early next year. No oral arguments have been scheduled.

Next up are Doug Belt and Sidney Gleason. Their initial legal arguments are due next spring.

After they have exhausted their state appeals, the condemned men can file a new round of civil actions and then go to federal court. At each stage of the process, they can ask the U.S. Supreme Court to review their cases.

Disney, who prosecuted Kleypas and Cheever, said he expects future cases to move more quickly.

"It's like building a car," Disney said. "The first time you build a car, it's going to take longer and costs more money. The next one won't take as long or be as expensive.

"You never want to get to a situation where you're just throwing it off the assembly line. But once we have an established body of case law, there will be fewer and fewer issues.

"Our position is it's too early to say it takes a long time."

Reach Ron Sylvester at 316-268-6514 or rsylvester@wichitaeagle.com.