Crime & Courts

Death penalty cases a factor behind efforts to oust justices

Amy Scott James and other friends and family of the Carr brothers’ victims gather outside the Kansas Supreme Court in August in support of a campaign to oust four of the court’s justices from office.
Amy Scott James and other friends and family of the Carr brothers’ victims gather outside the Kansas Supreme Court in August in support of a campaign to oust four of the court’s justices from office. File photo

Family members of the Carr brothers’ victims came away stunned after listening to the Kansas Supreme Court justices dissect the appeals of their loved ones’ killers in 2013.

To them, the justices’ inquiries about the crimes seemed cold, callous and without regard for the integrity of the men and women who were sexually assaulted, robbed and killed by Jonathan and Reginald Carr in 2000.

“They gave a sense of arrogance. Like they were running the show,” said Amy Scott James, whose boyfriend Brad Heyka was one of five young people shot execution-style by the Carrs after being forced to kneel naked in a snowy Wichita soccer field on Dec. 15, 2000.

Heyka, Jason Befort, Aaron Sander and Heather Muller died. One woman, known publicly by her initials H.G., survived.

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When the Kansas Supreme Court ultimately overturned the brothers’ death sentences in 2014, it came as an additional blow – tipping off a campaign to oust the justices involved.

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Typically little-noticed and uncontroversial, Kansas judicial retention has become a focal point of this year’s general election, in part because of anti-retention efforts from Kansans for Justice, a nonpartisan group formed by family and friends of the Carrs’ victims.

The group says the justices failed to follow their oaths to uphold Kansas law when they struck down the sentences.

Family and friends of victims of Reginald and Jonathan Carr gathered outside the Kansas Supreme Court on Wednesday to begin their campaign to oust four justices from the court, which vacated the brothers' death sentences in 2014. The justices are

“If we don’t stand up and say something, nobody will,” James said.

If we don’t stand up and say something, nobody will.

Amy Scott James, Kansans for Justice

But law professors and others in the legal field say reversed rulings aren’t a sign that justices aren’t doing their jobs.

They say the justices are part of a judicial system that’s functioning as intended, giving lower courts guidance for handling future cases.

Reversing rulings “is what the United States Supreme Court is supposed to do,” University of Kansas School of Law professor Lumen Mulligan said. “That the system works is not a strike against the system.”

The four justices – Lawton Nuss, Marla Luckert, Carol Beier and Dan Biles – said they could not discuss specific cases, citing judicial ethics rules. But they provided written answers to questions from the Associated Press.

Nuss and Luckert noted that the court has upheld several death sentences, and all four said the court is fair and impartial.

“I can say that our court sees a great deal of human tragedy, and, as people, my colleagues and I feel enormous natural sympathy for those in pain,” Beier wrote Friday. “As judges, however, we have a duty not to be influenced by our feelings. This is one of the great challenges of our job.”

We have a duty not to be influenced by our feelings. This is one of the great challenges of our job.

Kansas Supreme Court Justice Carol Beier

Vacated death sentences

Supreme Court justices, nominated by a commission and appointed by the governor, face a retention election every six years. Each must receive a majority of positive votes to stay on the bench.

The outcome of the voting in this election could have broad consequences at a time when the court is considering key questions about school funding, abortion – and the death penalty.

Kansans for Justice is targeting four of the five justices up for retention – all but Caleb Stegall, who was not on the court at the time of the disputed rulings.

District Attorney Marc Bennett discusses the Supreme Court decision to uphold the death sentences of Jonathan and Reginald Carr. (Jan. 20, 2016)

The group points to Kansas Supreme Court rulings vacating death sentences in five capital punishment cases that were later reversed by the U.S. Supreme Court. The Carrs are the defendants in two of them.

The outcome of the retention voting in this election could have broad consequences at a time when the court is considering key questions about school funding, abortion – and the death penalty.

The other defendants are Michael Marsh, who murdered a woman and set a fire that killed her toddler in Sedgwick County in 1996; Sidney Gleason, who killed a crime witness and her boyfriend in Great Bend in 2004; and Scott Cheever, who fatally shot the Greenwood County sheriff during a 2005 drug raid.

Cheever’s death sentence has since been upheld by the Kansas Supreme Court. New decisions in the Carrs’ and Gleason’s cases are pending.

Marsh pleaded guilty to amended charges after the court ordered he receive a new trial. He now is serving two life prison sentences.

10,500 cases

The cases are among about 10,500 handled by the Kansas Supreme Court since Nuss — the chief justice — was appointed in October 2002, said Lisa Taylor, spokeswoman for the Kansas Office of Judicial Administration.

The court has released about 3,200 written rulings in that time, she said.

Of those, the U.S. Supreme Court was asked to review 103, Taylor said. It agreed to take up seven.

Five were the death penalty cases cited by Kansans for Justice. The others are a robbery case and a murder case with a Hard 50 prison sentence in question.

Six resulted in reversals.

3,200written Kansas Supreme Court rulings since October 2002

103petitions for review to U.S. Supreme Court

6reversals

Because the U.S. Supreme Court agrees to hear only a fraction of the 7,000 to 8,000 petitions for review it receives each term, it looks for and takes cases to reverse, said Mulligan, the KU law professor. “That’s how it does business.”

The high court hears oral arguments in about 80 cases annually, according to www.supremecourt.gov. It reverses rulings about 70 percent of the time, legal experts say.

Washburn University School of Law professor James Concannon said that when a lower court’s ruling gets overturned by the U.S. Supreme Court, that doesn’t mean it didn’t make “a good faith determination” in a case. When laws are relatively new, he said, trial courts and state appeals courts are left “walking through the forest blind, trying to figure out what to do.”

“Every one of these opinions that has come down gives guidance to the judges that are handling the next case,” he said.

Jeffrey Jackson, another Washburn University School of Law professor, agreed.

“It think it’s an indication that the lower courts are getting the process figured out,” he said, referring to overturned rulings. Kansas’ death penalty law is 22 years old. “It takes time and opportunity to get it right.”

Jackson said more than twice as many death row inmates nationwide had their sentences overturned as were executed between 1973 and 2013.

Of the 8,466 death sentences, 3,194 were overturned, he said. There were 1,359 executions in that time.

8,466U.S. death sentences handed down from 1973 to 2013

3,194 cases overturned

1,359 inmates executed

The ‘forgotten ones’

Mulligan characterized the number of Kansas cases taken up by the U.S. Supreme Court over the past 14 years as “not especially striking.”

“The federal courts of appeal are reversed at a much higher rate than the Kansas Supreme Court could ever hope to be, and we don’t think that they’re ill-staffed or ill-equipped,” Mulligan said.

James said she and other Kansans for Justice members “wholly believe” that appeals should play out in death penalty cases.

“The appeal process is absolutely what needs to happen,” she said.

The victims and survivors ... are the forgotten ones in all of this.

Amy Scott James, Kansans for Justice

But she disagrees that reversals are part of a well-functioning court system, especially when evidence presented during a defendant’s trial overwhelmingly points to guilt.

“If we were overturning because we thought a right somewhere was violated — a major one — or if they (the court) were overturning because they thought the person might have a chance at innocence, I think people can definitely accept that,” James said.

But having rulings repeatedly struck down by the U.S. Supreme Court “I think is a telling sign,” she said, adding that victims and their families are “the forgotten ones” as appeals play out, sometimes for years, in court.

Jackson said the long delays in resolving death penalty appeals are a byproduct of the care and scrutiny required. The cases require “almost a super due process. … You have to be very careful about the defendants’ rights” because execution is final, he said.

You have to be very careful about the defendants’ rights.

Law professor Jeffrey Jackson on death-penalty appeals

Fifteen men, including the Carrs, have been on death row since capital punishment was reinstated in 1994. Four are serving now serving life in prison. One died waiting for his appeal to be heard.

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So far the Kansas Supreme Court has upheld three death sentences; all were in the past year. It’s unclear when the court will release further rulings about the Carrs and Gleason. It has yet to hear appeals in four cases.

The last state executions in Kansas, by hanging, were in 1965.

The next, by lethal injection, could come within the next eight years or so now that the Kansas Supreme Court is affirming death sentences, Jackson estimated.

Contributing: Associated Press

Amy Renee Leiker: 316-268-6644, @amyreneeleiker

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