Kansas Supreme Court hears Carr brothers’ death penalty appeals

12/17/2013 6:48 AM

08/13/2014 10:46 AM

TOPEKA — Eleven years after Reginald and Jonathan Carr were sentenced to death in the brutal slayings of four people in a frozen field, lawyers for both brothers told the state Supreme Court they should get new, separate trials because they damaged each other’s defenses when they were tried together.

The lawyers also contended that a decision by the judge to seat a strongly pro-death-penalty juror – who later became foreman – tainted the trial.

Sedgwick County prosecutors countered that the evidence against the brothers was overwhelming in favor of conviction and the death sentence.

The allegations of trial errors are unfounded, said David Lowden, a Sedgwick County assistant district attorney who argued for the state in Jonathan Carr’s appeal.

“If you retry this case again, I think the outcome will be the same,” he said.

Debra J. Wilson, Reginald Carr’s appellate defender, also argued that he in particular should be retried because a ruling on evidence restrained him from mounting an effective defense.

And Jonathan Carr’s appellate lawyer, Sarah Ellen Johnson, argued that the case should have been moved out of Wichita because of the saturation media coverage of the horrific murders.

“All of these things start to pile on and we have to ask at the end of the day, was this a fair trial?” Johnson said.

The defense and prosecution lawyers squared off in back-to-back appeals hearings Tuesday in the case of the Carr brothers, who were convicted in 2002 in the slayings of four young people the night of Dec. 15, 2000.

The brothers were found guilty and sentenced to death in the killings of Jason Befort, 26; Brad Heyka, 27; Aaron Sander, 29; and Heather Muller, 25.

The four were terrorized, robbed, sexually assaulted and kidnapped before finally being gunned down execution-style after being forced to kneel in a frozen soccer field near 29th Street North and Greenwich.

A fifth victim, a 25-year-old woman left for dead after being shot in the head, survived and was able to make her way through the snow to get medical aid and start the manhunt for the killers.

The Carr brothers also were convicted of murdering Ann Walenta, 55, shot and mortally wounded Dec. 11, 2000, in an apparent carjacking and robbery.

In Reginald Carr’s hearing Tuesday morning, Wilson focused on three phases of a multi-part appeal:

• That he was denied a fair trial by a judge’s ruling against introduction of his claim that Jonathan Carr and another unidentified man committed the Dec. 15 slayings, and that he had only agreed to take and hide some of the stolen property after the fact.
• That trying the two brothers together prejudiced the jury against Reginald Carr, because his brother’s lawyers portrayed him as the lead actor in the crime.
• That the judge improperly denied a defense challenge to a juror who had expressed strong views in favor of the death penalty and whom defense lawyers allege answered their questions in a sarcastic manner. He later became the jury foreman.

Kim Parker, chief deputy district attorney in Sedgwick County, countered that Carr could have taken the stand and told his story.

“If Reginald Carr had wanted to take the stand and say all these things, he could have,” Parker said. “He made a strategic choice not to testify.”

Wilson argued, however, that the judge had closed off that option with a ruling that it was inadmissible “third party evidence.”

“Reginald wanted to explain why he possessed it (property stolen from the victims),” she said. “The court’s ruling restricted him to the extent he could not testify.”

On the issue of their joint trial, Wilson argued that Reginald Carr really faced two prosecutors, the state’s lawyer and his brother’s lawyer.

Jonathan’s defense was largely “Well, I’m guilty, but Reginald is more guilty,” Wilson argued.

In the afternoon hearing, Johnson claimed it was Reginald Carr who dragged Jonathan down during the trial.

She said Reginald’s defense painted Jonathan as the guilty one, influencing the jury against her client.

“It’s not proof, it’s not evidence, but it is a very powerful factor in the courtroom,” she said.

In addition, she said, Reginald engaged in courtroom “antics,” turning jurors against both the brothers.

She said Reginald at one point refused to come to court. Another time, he rolled his chair over and touched one of the prosecutors and, unlike Jonathan, he had to wear handcuffs to court.

In the minds of the jurors, “these two were treated as one entity,” she said.

Parker countered that the lawyer’s arguments didn’t change the evidence and that the jury “was instructed over and over” to decide the case on the evidence presented.

On the issue of the challenged juror, Wilson and Johnson both argued that the defense teams should have been allowed to exclude him.

The lawyers said the Carrs wanted to excuse the juror because he expressed strong views in favor of the death penalty and when asked by defense lawyers why that was, he sarcastically answered “Why not?”

Wilson argued that the judge improperly overruled the challenges because the man was one of the last African-Americans in the jury pool and he wanted a racially mixed panel to hear the case against the Carrs, who are black.

District Court Judge Paul Clark, who presided at the trial, died in 2011.

Parker said the juror was qualified and “made clear his civil obligation was important to him.”

And she questioned the defense claim that the man’s later status as jury foreman made him a leader who could have unduly influenced the others to find for the death penalty.

“Sometimes foremans get picked because they were the person in the bathroom,” she said.

Johnson also argued that the trial should have been moved out of Wichita because pretrial publicity turned virtually the whole community against the Carrs.

She said a defense survey had found 96 percent of Wichita-area residents knew of the case and that three-fourths believed the Carrs were guilty before the trial began.

“It’s asking too much of a human being” to set that aside and decide a case solely on the evidence presented in court, she said.

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