Carr Brothers

April 27, 2011

DA seeks help in appeal of Carr murder convictions

District Attorney Nola Foulston plans to ask Sedgwick County commissioners today to appoint a special district attorney to help with the appeal of convicted murderers Jonathan and Reginald Carr.

District Attorney Nola Foulston plans to ask Sedgwick County commissioners today to appoint a special district attorney to help with the appeal of convicted murderers Jonathan and Reginald Carr.

Foulston said the appointment will help ease the workload of her appeals office, which this month asked the Kansas Supreme Court for at least three months to file its side in one of the most notorious crimes in Wichita history.

It's the first time in her 22 years in office, Foulston said, she's asked for outside help.

"We are not asking the county for any additional money," Foulston said. "This will be paid for with savings we have accumulated."

Jurors convicted both men in November 2002 on counts of murder, kidnapping, rape and sodomy during a home invasion two years earlier that left four people dead.

Killed in an execution-style shooting in December 2000 were Heather Muller, 25, Jason Befort, 26, Aaron Sander, 29, and Brad Heyka, 27. A fifth woman survived a shot to the head and ran a mile in the snow to get help. She later testified at the trial.

Reginald Carr also was convicted in the death the previous week of Ann Walenta, a cellist with the Wichita Symphony.

The Carr brothers have appealed their convictions and their death sentences.

"It took them seven years to generate their brief," Foulston said of attorneys for the Carrs.

The appeal stalled, in part, because of weaknesses in the state's death penalty law. Since Kansas reinstated the death penalty in 1994, no capital murder conviction has withstood an appeal.

Little more than a year after the Carrs' trial, all capital cases were put on hold for more than a year after the state's highest court declared the death penalty unconstitutional in December 2004.

Cases involving seven death sentences, including the Carrs, were halted for two years while the state appealed to the U.S. Supreme Court. The nation's highest court ruled in Kansas' favor in June 2006.

The four public defenders who handle all of the state's death penalty cases filed their briefs in the Carr case in October 2009, after asking for 12 extensions.

"I'm not saying they were twiddling their thumbs. I'm saying it took them seven years to put this together," Foulston said. "Hopefully, it's not going to take us seven years to speak to it."

Among a long list of issues on appeal are whether the Carrs should have received separate trials. Jonathan Carr's attorney also argues that he didn't fire the shots that killed anyone and shouldn't have been sentenced to death for aiding in the murders.

Faced with more than 350 pages for each of the Carrs' appeals, Foulston's office filed for its sixth extension earlier this month.

"These are fairly substantial briefs that are nearly four times as big, or bigger, than the standard brief," Foulston said.

David Lowden, chief appeals attorney for Foulston, told the Kansas Supreme Court his office has spent more than 500 hours on the Carrs' appeal the past 18 months.

But Lowden told the court that illness, vacations and personal matters for him and his staff had limited their work on the Carr case to only 40 hours the past three months.

The office also had 20 other briefs due before the Carrs' deadlines, Lowden added.

"It's like the pipeline that never stops flowing," Foulston said. "But it has to clog somewhere. And it clogs there in court. They only take a certain amount of cases, and it takes eons to write these briefs."

Lowden also cited "the volume and complexity of the case, in general," as another reason for needing more time on the Carrs' case.

Foulston is asking the county to appoint Debra Peterson, a former appeals attorney for the district attorney, to work on the case.

Peterson has agreed to help part-time while continuing her job in the legal department at Cessna Aircraft. She worked on the case as a member of the DA's office when it was brought to trial in 2002.

"David Lowden just breathed a big sigh of relief," Foulston said. "I think he was in a panic over trying to get this done."

Peterson will be paid $45 an hour as a special prosecutor — a fraction of what an attorney in private practice would be paid, Foulston said. Peterson is expected to work 15 to 20 hours a week on the appeal.

The state's briefs in the case, Foulston anticipated, should be completed sometime next year.

"It's not going to be done overnight," Foulston said. "It's going to take a substantial amount of time and effort."

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