The Kansas Supreme on Friday upheld the convictions of a Cowley County man who raped, strangled and murdered a community college dance team member more than a decade ago — but said it would postpone ruling on his death sentence until it knows whether he's considered intellectually disabled under current legal standards.
A Cowley County jury gave Justin Thurber the death sentence for abducting and killing 19-year-old college student Jodi Sanderholm in January 2007. Sanderholm was reported missing after a late morning practice with the Cowley Community College dance team.
Her body was found in a wood pile in the Kaw Wildlife Area several days after she went missing. Authorities discovered her car submerged in Cowley County State Fishing Lake.
The day before he was sentenced for capital murder and aggravated kidnapping, Thurber asked a Cowley County judge to find that he suffered from an intellectual disability.
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His attorney argued that some evidence presented at trial pointed to Thurber having "low mental functioning" and an IQ score in the 70s. Thurber also claimed a history of mental illness and behavior control problems.
Prosecutors, meanwhile, characterized Thurber as intelligent enough to finish 64 credit hours worth of college courses and as having an average IQ.
Ultimately, the judge refused to consider Thurber's request, saying there wasn't enough reason to think he was intellectually disabled.
In making the ruling, the judge pointed to Thurber graduating from high school with a 2.5 GPA, successfully testing for a driver's license, holding jobs at Kentucky Fried Chicken and Subway, and evaluations from mental professionals who labeled him as smart.
His sentence, to die by lethal injection, was imposed March 20, 2009.
Federal and state laws prohibit executing a person with an intellectual disability.
The Kansas Supreme Court noted in Friday's 126-page ruling that the criteria for determining whether someone is intellectually disabled has "changed so profoundly" since Thurber's conviction. That includes 2016 revisions that required the changes be applied retroactively.
"We feel compelled to point out the problems we identify on the intellectual disability determination were not of the district court's making. That court was operating under now outdated state statutes and federal caselaw," Justice Dan Biles wrote in the court's majority opinion.
If a court decides there's sufficient reason to think a defendant is intellectually disabled, the court has to appoint medical professionals, order an exam and hold a hearing where evidence is presented.
"Although the district court seems to have considered Thurber's evidence unimpeded by any barriers regarding IQ test scores or the capacity to appreciate the criminality of one's conduct, the court necessarily was applying an invalid statutory definition for 'intellectual disability' when determining if Thurber can be executed," Biles wrote.
"We have no choice but to reverse the district court's reason-to-believe determination and remand for reconsideration based on current constitutional parameters."
Justices Eric Rosen and Lee A. Johnson disagreed with the decision to remand the case. Both wrote dissenting opinions.
Rosen argued that the the questions raised "are neither so unique nor the facts so limited" that the court couldn't predict how the trial judge would rule on the intellectual disability issue. He said it was "clear the district judge has little choice but to make the same finding again."
"I would uphold the district judge's determination and proceed to the important penalty phase issues that, by this decision, will be unnecessarily delayed," Rosen wrote.
Johnson said in his dissent that the majority's order to send the case back to Cowley County District Court "is both unnecessary and faulty" because the death penalty violates the Kansas' constitution's prohibition against cruel or unusual punishment.
The state's definition of intellectual disability is also unconstitutionally narrow, he wrote.
"I would simply reverse Thurber's death sentence and remand for resentencing to life in prison without possibility of parole," Johnson said in his dissent.
Thurber is one of 10 men currently on death row in Kansas.
The last executions, by hanging, were in 1965. Kansas brought back capital punishment in 1994.