It was Sedgwick County’s version of the O.J. trial, and the verdict probably cost District Attorney Clark Owens his job.
“It was a very divisive verdict,” Owens said. “When the public sees a perceived injustice, they want somebody’s head. I was the person available.”
Today, Owens looks back at that 1988 election loss as a blessing. He went on to a 22-year career as a district court judge. A judge’s hours are better, he said, and so is the pension.
Owens, who turned 62 this month, will retire from the bench in January after spending three decades with a front-row view of Sedgwick County’s criminal justice system. In addition to the 1987 Bill Butterworth trial that cost him the election, he was the presiding judge in Sedgwick County’s first capital murder trial after the death penalty was reinstated in 1994. And he handled the preliminary matters in the quadruple-murder case of Jonathan and Reginald Carr.
Looking back though, it’s not the violent crimes that Owens wonders most about. If there’s something in the state’s criminal justice system that needs attention, he said, it’s property crime.
“My concern is that we have made it much more criminal friendly, especially on property crimes,” he said. “There are lots of people who don’t need to be in prison, but when you’ve got hard-core property offenders, you’ve got to take them off the streets for awhile.
“One thing you do when you put them in prison: You make sure they don’t commit any crimes while they’re there.”
If it costs $30,000 a year to keep an inmate in prison, Owens said, so be it.
“I’m not advocating sending every burglar to prison, but a good burglar can do $30,000 worth of damage in one night if he hits enough houses.”
The early years
Owens was born in Wichita and grew up in the 1400 block of North Lieunette, the son of a prominent judge with the same name. He walked to Woodland Elementary, Marshall Junior High and North High back in the days when “even kindergarten kids could walk to school.”
After earning an economics degree from Wichita State University, he attended Washburn Law School.
“I really never entertained anything seriously other than going to law school,” he said.
In 1972, the first year he was eligible to vote, Owens ran for the Kansas Senate and lost. In his second bid for office, in 1980, he was elected district attorney in an upset over Democrat Paul Clark.
Clark had been one of the top aides of outgoing District Attorney Vern Miller, who did not seek re-election. Owens was easily re-elected in 1984, and for the most part served a quiet two terms in office.
On at least three occasions – two involving traffic accidents and one involving a homicide – Owens filed criminal charges in the death of an unborn fetus. It was an uncharted area of the law.
The homicide involved the 1987 shooting death of Zeola Wilson, whose 8-month-old fetus also died. Although a jury found Willard Green guilty of two counts of first-degree murder, the Kansas Supreme Court overturned the conviction involving the fetus. It wasn’t until 1995 that Kansas Legislature made it a crime to injure a pregnant woman and cause the death of her fetus.
Owens was about to begin his eighth year in office on New Year’s Eve 1987 when Mary Fager came home and found her husband shot to death in their living room in the 7000 block of East 14th, between Woodlawn and Rock. Later that afternoon, police found the bodies of the Fager children – Kelli, 16, and Sherri, 9 – floating in the 92-degree water of the hot tub.
Butterworth, who had been building a sunroom at the Fager home, was arrested four days later in Stuart, Fla., where he was driving the Fagers’ missing 1983 VW Rabbit. Butterworth told police that he had panicked and left the scene after arriving at the house to find three dead people.
Police never found the gun used to kill Fager, and there was no usable DNA evidence found on the bodies of the girls. Butterworth was charged, tried and acquitted of three counts of first-degree murder.
“We thought it was a good case,” Owens said. “In our opinion, it was a very strong circumstantial case. We did the best we could.”
Owens as a judge
In 1990, Owens was appointed to a vacant judgeship by then-Gov. Mike Hayden. In five subsequent elections, he never drew a challenger. As of last week, he had presided at 226 jury trials.
Michael Marsh, the defendant in one of those trials, was the first Sedgwick County resident charged with capital murder after the Kansas Legislature reinstated the death penalty in 1994. Marsh was charged with breaking into a home in the 1700 block of South Washington on June 17, 1996, with the intention of committing a robbery. Once inside, he shot and stabbed Marry Ane Pusch, then set a fire that resulted in the death of her 18-month-old daughter, Marry Elizabeth.
Marsh, initially sentenced to death, was resentenced in 2009 to life in prison after a series of appellate court decisions involving his case.
Owens served seven years as Sedgwick County’s presiding criminal judge, a job that included assigning criminal cases to other judges. While in that job, he said, he would occasionally assign himself to a high-profile case.
That’s how he ended up as the presiding judge in the early hearings of the Carr brothers, who were later sentenced to death for the Dec. 15, 2000, shooting deaths of four people in east Wichita. Owens was disqualified from the case when it turned out that two of the witnesses were related to his wife.
Most of the trials were less newsworthy but still challenging. Such was the case with James Cromwell, who was charged with the 1987 murders of Ernestine Hoist, 60, and Isabell Moore, 85, both of whom were strangled. Owens said the defendant refused to attend the proceedings, sitting out the trial in his jail cell.
“We tried the entire case, and the jury never saw him,” he said.
Cromwell, 74, is serving a life sentence at the Lansing Correctional Facility. The prison lists his earliest release date as Oct. 10, 2085.