Crime & Courts

Death penalty: ‘This is how it’s supposed to work’

The death chamber at Lansing State Prison.
The death chamber at Lansing State Prison. Eagle file photo

Twenty-one years after Kansas re-enacted capital punishment for perpetrators of the state’s most heinous crimes, the state has yet to execute anyone. It is unclear when an execution will take place and which – if any – of the nine men sitting on “death row” will be the first to die.

Since 1994, Kansas juries have recommended death for 13 men convicted of capital murder.

Four have had their sentences changed – most in the wake of appellate court rulings that had a broader impact on the Kansas death penalty law. To date, the Kansas Supreme Court has not upheld any death sentences.

On Wednesday, for the third time, the U.S. Supreme Court will review Kansas Supreme Court decisions to throw out death sentences. Two of the three cases under question are those of Jonathan and Reginald Carr, brothers who nearly 15 years ago carried out one of the state’s most notorious multiple murders.

Uncertainty over how long death-penalty sentences will take to carry out has left many wondering whether the law is working as intended.

Those in legal circles acknowledge the concern. But they say the law, even at two decades old, is still too new and is too rarely used to have worked out all of the intricacies of getting a capital punishment inmate from conviction to the death chamber.

“When the state first enacts a death penalty, it takes a long time for them to get it right,” said Jeffrey Jackson, Washburn University School of Law professor and former death penalty attorney for the Kansas Supreme Court.

“There’s nothing broken about the Kansas system other than it’s definitely not moving as fast as probably people envisioned. … The Kansas statute is probably as good a death penalty that you’re going to find.”

The first case

Kansas is one of 31 states that have the death penalty, according to the Death Penalty Information Center. Since 1976 – the year the U.S. Supreme Court allowed capital punishment nationwide after striking it down four years earlier – 1,416 people have been executed nationwide.

In Kansas, death is a possible punishment for capital murder. Prosecutors decide whether to seek it, but its imposition must be unanimously recommended by a jury. If it isn’t, the defendant is sentenced to prison.

Every death sentence receives an automatic review by the Kansas Supreme Court.

The legal issues that have halted Kansas from carrying out an execution under its third incarnation of a capital punishment law started not long after the first capital murder case was appealed. Since then, decisions in at least three other capital murder cases have influenced or changed the way death penalty trials are handled in Kansas.

Gary Kleypas received a death sentence for the 1996 rape and murder of Pittsburg State University student Carrie Williams. His appeal was heard and decided in 2001.

The question that arose from the Kleypas case centers on the same issue that has plagued most other death penalty cases in Kansas so far: whether the equation juries used to determine whether to recommend execution violated cruel and unusual punishment protections afforded under the Eighth Amendment to the U.S. Constitution.

The Kansas Supreme Court, in reviewing the Kleypas case, ruled 4-3 that the equation was flawed because it gave an unfair advantage to prosecutors, rather than favoring the defendant. They threw out his death sentence.

Death penalty cases essentially require two trials for a defendant.

In the first, a jury decides whether the defendant is guilty of capital murder.

In the second, called the penalty phase, jurors are asked to weigh evidence for and against a death sentence. Evidence in support of death is called aggravating factors. Evidence that calls for leniency is called mitigating factors.

Jackson, the law professor, explained that in the Kleypas decision, “the big problem was over this weighing equation, because, in a tie, you get death.”

“And it wasn’t entirely clear whether or not that was constitutional.”

The court suggested the remedy would be giving juries different instructions rather than rewriting the death penalty law. It sent Kleypas’ case back to Crawford County District Court for a new sentencing proceeding.

Prosecutors, meanwhile, followed the court’s direction and changed the instructions given to juries, Jackson said.

In 2008, Kleypas was again sentenced to death. He’s now awaiting another appeal.

‘Marathon, not a sprint’

Three years after the Kleypas decision, the Kansas Supreme Court scrutinized the weighing equation again – this time in an appeal of the death penalty case of Michael Marsh.

Marsh was convicted of fatally shooting a friend’s wife and then setting a fire that also killed her toddler in 1996. It was a Sedgwick County case.

In a 4-3 decision delivered in 2004, the Kansas Supreme Court said its ruling in Kleypas had been wrong. State legislators should have rewritten the state death penalty law, it said, rather than the courts giving juries different instructions.

The death penalty in Kansas was struck down.

“You had a situation then where you know all of a sudden all of the death penalty cases were theoretically not valid,” Jackson said.

The state attorney general’s office, in response, asked the U.S. Supreme Court to review the case.

In the meantime, appeals in other death penalty cases stopped, Sedgwick County District Attorney Marc Bennett said.

Then, in 2006, the U.S. Supreme Court in a 5-4 decision upheld the Kansas death penalty law and ordered the Kansas Supreme Court to review Marsh’s appeal again.

Marsh’s case was eventually sent to Sedgwick County District Court for a new trial.

Before it got underway, he agreed to plead guilty to two counts of first-degree murder and was ordered to serve two consecutive life prison sentences.

Death penalty cases are “a marathon, not a sprint,” Bennett said.

They require more time and intense legal scrutiny to resolve, he said, because, as the U.S. Supreme Court has held, “death is different” from other consequences.

Cases on hold again

In 2010, the Kansas Supreme Court made another decision that affected the future of the state’s death penalty cases.

In response to an appeal by Gavin Scott, who was given a death sentence for the September 1996 shootings of a Goddard couple, the court said juries didn’t have to unanimously agree on mitigating factors – the evidence against a death sentence – in a death penalty case.

The existence of aggravating factors, by contrast, has to be unanimously agreed upon by juries. That is the evidence prosecutors use to argue for a death sentence.

The decision, Jackson said, was influenced by an earlier U.S. Supreme Court decision delivered in a case from Maryland.

The justices tossed out Scott’s death sentence and ordered a new sentencing proceeding.

Like Marsh, Scott pleaded guilty to two counts of first-degree murder after reaching a plea agreement with prosecutors.

Then, in 2012, the Kansas Supreme Court threw out the capital murder conviction and death sentence of Scott Cheever, who shot and killed Greenwood County Sheriff Matt Samuels in 2005. It held in its decision that a court-ordered mental evaluation of Cheever used during the penalty phase of his trial violated his Fifth Amendment right against self-incrimination.

Kansas death cases were on hold again when the Kansas attorney general asked the U.S. Supreme Court to review the decision.

The Cheever ruling came in 2013.

“The United States Supreme Court decided that, in fact, you could use it (the mental evaluation), and so they sent that case back,” Jackson said.

“Which kinds of brings us to 2014.”

Carr, Gleason appeals

Last summer, in two separate rulings, the Kansas Supreme Court threw out the death sentences of Jonathan and Reginald Carr of Wichita and of Sidney Gleason, who was convicted of murdering a Barton County woman and her boyfriend in 2004 to keep her from testifying against him in another criminal case.

The Carrs were convicted in 2002 of sexually assaulting, robbing and shooting five Wichitans execution-style in a snow-covered soccer field at 29th Street North and Greenwich in December 2000.

Four of them – 29-year-old Aaron Sander, 27-year-old Brad Heyka, 26-year-old Jason Befort and 25-year-old Heather Muller – died. One woman survived and ran for help.

The Kansas Supreme Court’s decision in Gleason’s appeal, Jackson said, centered on the court’s failure to tell jurors that mitigating factors don’t have to be proven beyond a reasonable doubt, as aggravating factors do.

In the Carr decision, the Kansas Supreme Court held the same.

Justices also said the brothers’ trials should have been separated during the penalty phase. They were tried together.

At the request of Kansas Attorney General Derek Schmidt, the U.S. Supreme Court agreed to review the decisions in all three cases. Schmidt is asking for reinstatement of their death sentences.

Oral arguments are scheduled for Wednesday morning.

Like twice before, the opinions ultimately handed down by the U.S. Supreme Court in Gleason’s and the Carr brothers’ cases are expected to cause a ripple effect.

The Kansas Supreme Court has already announced it was halting further action in the appeal of Cheever.

“My guess is, right now, there’s not a lot of ink being pushed or spent on” appeals in death penalty cases, Bennett said.

“What happens in Carr and Gleason could affect the other cases in the state.”

Death penalty’s future

In 2012, death row inmates across the nation spent an average of 15.8 years awaiting execution, according to the Death Penalty Information Center.

Jonathan Carr, 35, and Reginald Carr, 37, have been on death row for nearly 13 years.

They, like all of Kansas’ death-row inmates, are still working through the first of three categories of appeals they can pursue.

Each new appellate ruling gives attorneys and judges a better idea of what to do when faced with a death-penalty case.

Attorneys say it’s something of a trial-and-error process to find a workable formula for Kansas, which has one of the country’s most restrictive death-penalty laws.

“The death penalty is unique in its finality,” Bennett said. “There’s an interest in getting it (the trial) as close to perfect as possible.”

In addition to the Carrs and Gleason, the Kansas Supreme Court has heard oral arguments in the appeal of 71-year-old John Robinson Sr., who killed women in Johnson County in 2000 and stored their bodies in barrels on his property. Arguments took place on March 24. An opinion is pending, said Lisa Taylor, court spokeswoman.

It has yet to hear oral arguments in appeals from:

▪ Douglas Belt, 53, who was convicted of decapitating a housekeeper in Sedgwick County in 2002

▪ Gary Kleypas, 59, for the second death sentence that was imposed in 2008 for the Pittsburg State University student rape and murder

▪ Justin Thurber, 32, who sexually assaulted and killed a Cowley County college student in 2007

▪ James Kraig Kahler, 59, who killed four members of his family in Osage County in 2009

Bennett said he expects the pace to quicken as appeals in more cases are heard by the Kansas Supreme Court.

In the meantime, the amount of time it has taken doesn’t mean the system isn’t working, he said.

“Just because something is not getting through doesn’t mean we’re not getting closer or we’re not making progress,” Bennett said.

“This is how it’s supposed to work. It’s not supposed to be an express lane to the death chamber.”

Reach Amy Renee Leiker at 316-268-6644 or Follow her on Twitter: @amyreneeleiker.

Who is on Kansas’ death row?

These inmates are facing death sentences in Kansas (with county and year of sentencing in parentheses). They are listed chronologically in order of when their crimes were committed.

▪ Gary Kleypas (Crawford County, 2008): For the March 30, 1996, rape and murder of 20-year-old Carrie Williams, a Pittsburg State University student. The Kansas Supreme Court overturned his sentence in 2001, but another jury condemned him to death again in 2008.

▪ John E. Robinson Sr. (Johnson County, 2002): For the murders of Izabel Lewicka and Suzette Trouten, whose bodies were found in barrels on his property in rural Linn County. He was also sentenced to life in prison for killing Lisa Stasi, who disappeared in 1985 and was never found. Robinson pleaded guilty in Missouri to five killings, receiving sentences of life without parole for each.

▪ Jonathan and Reginald Carr (Sedgwick County, 2002): For four shooting deaths in Wichita during a crime spree in December 2000. Found guilty of invading a home, sexually abusing the five residents, forcing them to withdraw money from ATMs, then shooting them in a soccer field. Killed were Jason Befort, Brad Heyka, Heather Muller and Aaron Sander. One woman survived to testify. They also were convicted of the first-degree murder of Ann Walenta four days earlier during an attempted robbery.

▪ Douglas Belt (Sedgwick County, 2004): For the June 25, 2002, sexual assault and decapitation of Lucille Gallegos in a vacant west Wichita apartment, where she was a housekeeper. Also convicted of attempted rape and aggravated arson.

▪ Sidney Gleason (Barton County, 2006): For the shooting deaths of Miki Martinez and her boyfriend, Darren Wornkey, on Feb. 24, 2004. Prosecutors said Gleason and his cousin Damian Thompson worried that Martinez would tell police about their involvement in the stabbing and robbery of a 76-year-old man.

▪ Scott Cheever (Greenwood County, 2007): For the January 2005 shooting of Sheriff Matt Samuels at a home near Virgil, where authorities also found a suspected methamphetamine lab. The Kansas Supreme Court overturned Cheever’s conviction in 2012, saying his right against self-incrimination was violated by prosecutors who used a court-ordered mental evaluation from a different trial against him. A year later, the U.S. Supreme Court overturned the decision, noting that Cheever’s own expert raised the issue of whether methamphetamine use had damaged his brain. It ordered the Kansas court to review the case again.

▪ Justin Thurber (Cowley County, 2009): For the January 2007 abduction, sexual assault and killing of 19-year-old college student Jodi Sanderholm. Her body was found in a wooded area near where her car had been sunk in a lake.

▪ James Kraig Kahler (Osage County, 2011): For the November 2009 murders of his estranged wife, Karen Kahler; her grandmother, 89-year-old Dorothy Wight; and the Kahlers’ daughters, Emily, 18, and Lauren, 16. Kahler was reportedly upset that his wife had allegedly taken a female lover and filed for divorce.

Sources: Wichita Eagle news archives; Kansas Department of Corrections

Former Kansas death-row inmates

Since Kansas brought back capital punishment in July 1994, juries have condemned 13 men to death. Four later had their sentences changed. They are (with county and year of sentencing in parentheses):

▪ Michael Marsh (Sedgwick County, 1998): Convicted of shooting and killing Marry Ane Pusch on June 17, 1996, and setting a fire that killed her 18-month-old daughter. The Kansas Supreme Court overturned Marsh’s capital murder conviction and later ordered a new trial after the U.S. Supreme Court heard an appeal in the case. He agreed to plead guilty to two counts of first-degree murder and is serving two life prison sentences. Now 40, he’s incarcerated at El Dorado Correctional Facility.

▪ Gavin Scott (Sedgwick County, 2010): Convicted of the Sept. 13, 1996, shooting deaths of Doug and Beth Brittain in their rural Goddard home. The Kansas Supreme Court overturned Scott’s death sentence, and he was resentenced to two life prison terms for two counts of first-degree murder after reaching a plea agreement with prosecutors. Now 37, he’s incarcerated at Lansing Correctional Facility.

▪ Stanley Elms (Sedgwick County, 2000): Convicted of capital murder in the May 4, 1998, rape and killing of his neighbor Regina Gray. In 2004, Sedgwick County District Attorney Nola Foulston dropped his death penalty and agreed to let Elms serve life in prison if he halted an appeal accusing prosecutors of misconduct at his trial. He was resentenced to a “Hard 40” life in prison – no parole eligibility for 40 years. Now 39, he’s in solitary confinement at the prison in Lansing.

▪ Phillip Cheatham Jr. (Shawnee County, 2015): Convicted of capital murder in the shooting deaths of Annette Roberson and Gloria Jones after he opened fire on a Topeka duplex in December 2003. A third woman played dead and survived 19 gunshot wounds. In 2013, the Kansas Supreme Court threw out Cheatham’s convictions over incompetent counsel and ordered a new trial. In his case, the constitutionality of the death penalty wasn’t at issue. Cheatham avoided a death sentence a second time by pleading no contest earlier this year as jury selection was beginning for his second trial. Now 42, he is incarcerated at the prison in Hutchinson and will be eligible for parole in 2028.

Sources: Wichita Eagle news archives, Kansas Department of Corrections

Kansas death penalty and the U.S. Supreme Court

The Kansas Attorney General’s Office has asked the U.S. Supreme Court to review lower court decisions in death penalty cases five times, including the three scheduled for oral arguments Wednesday.

▪ Kansas v. Michael Lee Marsh II (Sedgwick County, U.S. Supreme Court Case No. 04-1170). The state petitioned the U.S. Supreme Court to review this case in 2005 after the Kansas Supreme Court found the Kansas death penalty was unconstitutional. The court agreed and in 2006 reversed, finding the death penalty law did not violate the Eighth Amendment, which prohibits cruel and unusual punishment. On remand, the Kansas Supreme Court ordered a new trial based on evidence excluded in the first trial. Before the second trial, Marsh agreed to plead guilty and serve life in prison.

▪ Kansas v. Scott D. Cheever (Greenwood County, U.S. Supreme Court Case No. 12-609). The state petitioned the U.S. Supreme Court to review this case in 2012 after the Kansas Supreme Court reversed Cheever’s conviction. The court agreed and in 2013 reversed the decision, finding the use of a court-ordered psychological exam did not violate Cheever’s Fifth Amendment right against self-incrimination. The case was remanded to the Kansas Supreme Court. It is on hold pending an opinion in the Gleason and Carr cases.

▪ Kansas v. Sidney J. Gleason (Barton County, U.S. Supreme Court Case No. 14-452). The state petitioned the U.S. Supreme Court to review this case in 2014 after the Kansas Supreme Court vacated Gleason’s death sentence. The court agreed, and oral arguments are scheduled for Wednesday.

▪ Kansas v. Jonathan D. Carr (Sedgwick County, U.S. Supreme Court Case No. 14-449) and Kansas v. Reginald Dexter Carr Jr. (Sedgwick County, U.S. Supreme Court Case No. 14-450). The state petitioned the U.S. Supreme Court to review these cases in 2014 after the Kansas Supreme Court vacated the death sentences for the Carrs, brothers who had a joint trial. The U.S. Supreme Court agreed to review the cases, and oral arguments are scheduled for Wednesday.

Source: Kansas Attorney General’s Office

Capital crimes in Kansas

Here’s a list of death penalty-eligible crimes in Kansas. Murder must be intentional and premeditated.

▪ Murder of a kidnapping victim held for ransom

▪ Killing of a kidnapping victim under 14 held for a sex crime

▪ Killing of a victim of rape, criminal sodomy and aggravated criminal sodomy or those attempted crimes

▪ Murder for hire or participation in a murder-for-hire scheme

▪ Killing of a prison or jail employee or inmate by a prison or jail inmate

▪ Murder of a law enforcement officer

▪ Two or more killings at once or killings “connected together or constituting parts of a common scheme”

In addition to returning a unanimous capital murder verdict, jurors must also unanimously find beyond a reasonable doubt that the defendant did at least one of the following things (called aggravating circumstances) to impose a death sentence:

▪ Prior felony conviction where great bodily harm, disfigurement, dismemberment or death was inflicted on a victim

▪ Knowingly or purposely killed or created a great risk of death for two or more people

▪ Killed to receive money or valuables for self or another

▪ Authorized or hired another to kill

▪ Killed to avoid or prevent arrest or prosecution

▪ Killed in an especially heinous, atrocious or cruel manner, including stalking or criminal threats of a victim, torture, desecration of a victim’s body indicating depravity, mental anguish or physical abuse of a victim

▪ Killed while serving a prison sentence for a felony at the time of the crime

▪ Murdered a witness in a criminal proceeding

Jurors can refuse to recommend a death penalty for, but not limited to, these reasons (called mitigating circumstances):

▪ The defendant has no or little prior criminal history

▪ The defendant was influenced by extreme mental or emotional disturbances or acted under extreme distress or was forced by another person

▪ A crime victim consented to or willingly participated in the conduct

▪ The defendant was an accomplice in the crime or had a minor role

▪ The defendant’s age or mental capacity, or whether he or she was suffering from post-traumatic stress disorder

▪ Whether imprisonment would protect public safety

Source: 2014 Kansas statutes

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