The U.S. Supreme Court on Wednesday seemed to indicate it was unlikely to rule in favor of three men who challenged their Kansas death sentences – including two brothers convicted in a Wichita case that one justice called “some of the most horrendous murders” he has ever seen.
The justices were critical of the Kansas Supreme Court, which overturned the sentences of the men, including Jonathan and Reginald Carr who were sentenced to death for a quadruple murder in December 2000.
During two hours of oral arguments Wednesday, several liberal justices sounded doubtful about some arguments raised by attorneys for the Carrs, while conservative justices all but announced their support for the Kansas prosecutors who secured their death sentences.
A ruling in the cases is expected by the end of June.
Wednesday’s debate was over the sentencing process for Jonathan and Reginald Carr and for Sidney Gleason, who was convicted in a separate case of killing Great Bend couple Darren Wornkey and Miki Martinez in 2004 to stop them from implicating him in a robbery.
The Kansas Supreme Court overturned death sentences in both cases last summer, saying the juries should have been told that evidence that the men’s childhoods had been rife with physical, sexual and drug abuse, and other factors weighing against a death sentence did not have to be proven beyond a reasonable doubt.
In the Carrs’ appeals, the Kansas Supreme Court also ruled that the brothers should have had separate sentencing hearings instead of a joint one. They were tried together but asked unsuccessfully for separate proceedings.
Attorneys have said Reginald Carr’s sentence may have been unfairly tainted because Jonathan Carr blamed him for being a bad influence during their childhoods.
While the attorneys on both sides focused on the legal technicalities, several of the justices couldn’t help but dwell on the sordid facts of the Carr case during two hours of oral argument.
Justice Samuel Alito said it involves “some of the most horrendous murders that I have ever seen in my 10 years here. And we see practically every death penalty case that comes up anywhere in the country. These have to rank as among the worst.”
Underscoring the court’s apparent tilt, Justice Antonin Scalia took the unusual step of reading, at length, a detailed account of the Carrs’ December 2000 crimes: The brothers broke into a Wichita home on Dec. 15, where they forced the three men and two women inside to have sex with each other while they watched, then repeatedly raped the women over about three hours.
The brothers then forced the victims to withdraw money from ATMs before taking them to a soccer field at 29th Street North and Greenwich, making them kneel and shooting each one in the head.
Four of the victims died, but one woman survived a gunshot wound to the head because a plastic clip in her hair deflected the bullet. She ran naked through the snow for help and later testified against the brothers at trial.
Those killed were 29-year-old Aaron Sander, 27-year-old Brad Heyka, 26-year-old Jason Befort and 25-year-old Heather Muller.
“More than one family member from the Carr case commented as to how much it meant to them when Justice Scalia cut through all the legalese and recited the litany of brutal acts back to one of the attorneys for the defendants,” said Sedgwick County District Attorney Marc Bennett, who attended Wednesday’s hearing. He said nine family members of the Carrs’ victims also were present.
“Even though I was there that morning (after the crime was discovered) and knew by rote the facts he was reciting – it was still indescribably intense. A moment I will not forget.”
Reginald Carr was 23 and Jonathan was 20 at the time of the killings. The state never established which brother pulled the trigger, defense attorney Jeffrey Green noted Wednesday.
“You truly think that this jury, but for the fact that your client was the corruptor, would not have imposed the death penalty?” Scalia asked Frederick Liu, attorney for Reginald Carr, following the recitation of gruesome facts.
Liu countered that Scalia himself in an earlier decision noted that “the egregiousness” of an offense is just one factor considered when sentences are set.
“The crimes in this case were horrific,” Liu said, “but that is just one side of the scale.”
Both issues before the court touch on the Eighth Amendment’s prohibition on cruel and unusual punishment.
Liu argued that having both brothers in the same hearing could have led the jury to blame Reginald Carr for Jonathan’s conduct.
Kansas Solicitor General Stephen McAllister argued that requiring the state to conduct separate sentencing hearings would lead to inconsistent results and unfairly allow defendants to preview the state’s evidence.
“Joint proceedings can enhance fairness and accuracy,” said Rachel Kovner, assistant to the U.S. solicitor general.
Justice Stephen Breyer warned that requiring separate sentencing hearings in such cases could “throw a monkey wrench” into hundreds of other cases where gang members and other co-defendants are tried and sentenced at joint proceedings.
“Severance is very, very rare, and joint trials are common,” Breyer said.
On the other sentencing issue, Justice Sonia Sotomayor suggested some of the jurors may have been confused about how to consider the evidence that might favor leniency. The jury instructions said aggravating factors had to be proven beyond reasonable doubt, but made no specification for mitigating factors.
Defense attorneys say that raises the possibility that jurors mistakenly applied a higher standard of proof to the mitigating factors and so potentially threw some out.
Aggravating factors are presented by prosecutors to support a death sentence.
Mitigating factors are presented by defense attorneys to try to sway jurors into recommending a prison sentence instead.
“A man is being put to death under jury instructions that are so confusing that there is a reasonable likelihood that some juries would interpret those instructions to bar consideration of the mitigating circumstances and others would not,” defense attorney Neal Katyal said.
But Kansas Attorney General Derek Schmidt argued that the trial judge’s instructions to the jury about mitigating factors were sufficiently clear. He argued that the instructions included “an open-ended invitation” to consider any facts that might spare a death sentence, including pleas for mercy.
Schmidt also noted that since the Carr brothers were tried, Kansas now requires more specific jury instructions. The same instructions at issue in the Carrs’ cases also are at issue in Gleason’s case, though his did not get the same attention from justices Wednesday.
Sounding somewhat sympathetic to Schmidt’s argument, Justice Elena Kagan added that while some of the Carr jury instructions may have been “unfortunate,” other instructions concerning issues like “mercy” suggested the possibility that “that no juror was likely to be confused.”
Justice Clarence Thomas, a consistent death penalty supporter, was the only one of the nine justices not to speak or ask any questions.
The Kansas Supreme Court has overturned every death sentence that has come before it on appeal since the state brought back capital punishment in 1994.
Nine men currently sit on death row in Kansas, including the Carrs. The number could reach 10 later this year if a Johnson County judge imposes the death sentence recommended for 74-year-old Frazier Glenn Miller Jr., who was convicted of capital murder in the 2014 fatal shooting of three people outside of Kansas City-area Jewish sites.
The last executions in Kansas, by hanging, took place in 1965.
Contributing: Associated Press; Michael Doyle of McClatchy Washington Bureau; Amy Renee Leiker of The Eagle