How the appeals process works
Appeals play a vital role in identifying legal problems with death penalty laws.
Though they can take years – and can result in a retrial or resentencing – appeals help trial courts figure out how higher courts expect a capital punishment case to be tried, as well as how to avoid legal errors.
By law, defendants in death penalty cases have three kinds of appeals available to them.
Brothers Jonathan and Reginald Carr, whose capital murder cases and death sentences are under review by the U.S. Supreme Court, are in their first round of appeals.
So are all other Kansas death-penalty inmates.
First round
In legal circles, the first round is called the direct appeal. It automatically goes to the state’s highest court – here, that’s the Kansas Supreme Court – and focuses only on legal or constitutional issues stemming from the trial itself.
Attorneys for the state and for the death row inmate prepare and file written briefs and sometimes responses. Then the court schedules and hears oral arguments from the attorneys. The justices can ask questions.
After the Kansas Supreme Court issues a decision, the losing side can ask the U.S. Supreme Court for a review. That’s called a writ of certiorari. The U.S. Supreme Court can agree to take up the case or refuse.
Each year, the Supreme Court agrees to hear about 75 to 80 cases out of roughly 10,000 requests for review.
If the U.S. Supreme Court refuses to hear a case, the Kansas Supreme Court ruling stands – whether it was to overturn and order a new trial or sentencing or to uphold a death penalty sentence.
If the U.S. Supreme Court agrees to hear a case, then oral arguments are held and a decision is issued.
If the U.S. Supreme Court sides with the Kansas Supreme Court ruling, that must be followed. If it reverses the decision, the case goes back to the lower court for reconsideration.
Second round
At some point, the direct appeal is exhausted. Defendants then can pursue the next round. Post-conviction appeals start in the court where the trial took place (in the Carr brothers’ cases, that’s Sedgwick County District Court) and look at issues such as defense attorneys’ effectiveness and allegations of misconduct.
As in direct appeals, rulings in this round can be appealed to the state and U.S. supreme courts.
Final appeals
The final set of appeals are filed in federal court. Habeas corpus petitions are civil remedies that allow a person to challenge his or her incarceration, including last-minute challenges before an execution takes place. The court can agree to consider them or refuse.
As in other types of appeals, habeas corpus cases can work their way up to the U.S. Supreme Court. A death row inmate can also directly ask the Supreme Court for a stay of execution.
The final remedy for death row inmates is executive clemency, in which a governor postpones an execution or commutes a sentence to something lesser, such as life imprisonment.
Next for the Carrs
If the U.S. Supreme Court, after hearing oral arguments Wednesday, decides the Kansas Supreme Court was wrong to throw out the Carrs’ death sentences, they will remain on death row and can start their post-conviction appeals.
If the court, however, decides the Kansas Supreme Court was right to vacate the Carrs’ death sentences, the cases will come back to Sedgwick County District Court for resentencing.
At that point, new attorneys would be appointed.
A new jury or juries would be picked.
Witnesses would be called again to testify.
Jurors would again weigh the facts and decide whether the brothers each deserved death for their crimes.
If either would receive a second death sentence, the appeals process would start over.
Sources: General information about the appeals process was gathered from a variety of sources, including attorneys, the Death Penalty Information Center and the U.S. Supreme Court.
Reach Amy Renee Leiker at 316-268-6644 or aleiker@wichitaeagle.com. Follow her on Twitter: @amyreneeleiker.
Answers on Kansas death penalty
How many people are on death row?
Nine. All are men. Eight are held in solitary confinement at the state prison in El Dorado. One is held at the prison in Lansing. All are awaiting appeals.
Where is the Kansas death chamber?
The Kansas death chamber is in the Lansing prison. It’s a small room with a hospital bed, a clock, a phone and one-way windows so witnesses and the executioner can see in but the inmate can’t see out. Kansas’ method of execution is lethal injection using three drugs delivered intravenously. The Kansas Department of Corrections does not keep the drugs on hand.
How much does a death penalty case cost?
In Kansas, defense costs for death penalty trials averaged about $400,000 per case, compared to $100,000 per case when the death penalty was not sought, according to a Death Penalty Information Center report that cites the Kansas Judicial Council in 2014. The cost to house inmates while they appeal their sentence and the execution itself cost extra. In 2014, the state spent an average of $25,000 per inmate at the El Dorado prison.
Why hasn’t Kansas executed anyone after 21 years, but other states have?
Death penalty statutes vary across the country. Kansas’ is one of the most restrictive, allowing death sentences only for capital murder when a limited number of additional circumstances – called aggravating factors – exist and when the jury orders it. Other states, including Texas, allow death sentences for a wider range of murder crimes, which generally means they have had more cases appealed and more chances to identify and fix legal problems with their laws. Other states also have had their death penalty laws longer.
Will Kansas ever execute an inmate?
“If Kansas keeps the death penalty, yes. That’s a virtual certainty. When? I do not know. But I think we’re almost still 10 years out from that,” said Washburn University School of Law professor Jeffrey Jackson.
“Once we start to eliminate these bigger constitutional issues (with Kansas death penalty cases), I think that's when we get to that point,” said Sedgwick County District Attorney Marc Bennett.
This story was originally published October 3, 2015 at 6:31 PM with the headline "How the appeals process works."