Oct. 30
TEXAS:
Texas on trial for using fictional character in death penalty cases----The US
state of Texas has come under fire for its use of a character from "Of Mice and
Men" in determining if defendants are mentally ill. The so-called "Lennie
Standard" has put several men on death row.
In November, the United States Supreme Court will hear a case that might shock
even those familiar with Texas' reputation for being hawkish when it comes to
capital punishment. Although the court outlawed execution of the mentally
incompetent in 2002, Texas has continued to use the murky legal definitions of
sanity and disability to execute mentally ill prisoners.
At the center of the upcoming "Moore versus Texas" is not only the state's
reliance on outdated medical parameters, but the use of the so-called "Lennie
Standard." This is the name Texas Court of Criminal Appeals Judge Cathy Cochran
gave "an unscientific seven-pronged test ... based on the character Lennie
Smalls from John Steinbeck's 'Of Mice and Men,'" according to the Death Penalty
Information Center.
In Steinbeck's 1937 novel, Lennie is the large, mentally disabled farmhand who
serves as the protagonist's constant companion. The climax of the novel hinges
on Lennie's unwitting murder of a woman as he goes to stroke her hair, unaware
of his own strength.
The "Lennie Standard" asks questions such as whether a defendant showed
forethought or an ability to act deceptively as determiners of mental
competency.
'Borderline intellectual functioning'
In the case now before the Supreme Court, the state of Texas has argued that
Bobby James Moore was mentally fit because he employed the use of a wig and hid
his weapon during the armed robbery of a grocery store that ended in the death
of the store's owner, Jim McCarble, in 1980. This is despite the fact that,
according to a piece from Adam Liptak of the New York Times, Moore "reached his
teenager years without understanding how to tell time" and had a psychiatrist
testify on his behalf that he "suffers from borderline intellectual
functioning."
Liptak, who follows the Supreme Court for the Times, told DW that the source of
the conundrum was in no small part due to the court "allowing states, within
broad limits, the ability to decide for themselves who was and wasn't mentally
disabled ... bringing about Texas' use of this, shall we say, unusual system."
This is what led Cochran to come up with the "Lennie Standard" in 2003 after
the state legislature failed to provide adequate parameters.
The definition dilemma
The case highlights not only the Lone Star State's history of executing
mentally ill patients - for example, Andre Thomas, a man who removed one his
eyes with his own hands and ate it, still sits on death row - but also the
legal conundrum of defining disability. There is no X-ray that reveals mental
illness, and the Supreme Court ruled in 2014 that relying soley on a low IQ, a
system which was employed by the state of Florida, was not a solid enough legal
basis to rule someone incompetent.
Even the Diagnostic and Statistical Manual of Mental Illness (DSM), the gold
standard for defining mental disability put out every few years by the American
Psychiatric Association, is subject to the changing interpretations of
medicine's perhaps most inexact branch.
The novelist Steinbeck's son Thomas had some very cutting words for the Texas
Court of Criminal Appeals, saying in 2012 that "I find the whole premise to be
insulting, outrageous, ridiculous and profoundly tragic ... I am certain that
if my father, John Steinbeck, were here, he would be deeply angry and ashamed."
Supreme Court 'unlikely to accept Texas standard'
Liptak, however, saw reason to believe the "Lennie Standard" will be struck
down. "If the Supreme Court wasn't willing to accept the Florida standard based
on a hard number, they are unlikely to accept the Texas standard."
He said, though, that this would likely have more to do with the state's
out-of-date medical criterion than "Of Mice and Men."
"In general, the trend at the Court is to cut back on the death penalty,"
Liptak added, though a nationwide ban is unlikely to follow, particularly in
the face of staunch public support for the practice in states like Texas.
Capital punishment in Texas accounts for about 1/3 of the national total, the
state having executed 538 inmates since the US brought back the death penalty
in 1976.
(source: Deutshce Welle)
ALABAMA----impending execution
Arthur's execution set for Thursday
Douglas Arthur and his sister, Sherrie Stone, have been on an emotional
rollercoaster for 40 years, and now they are preparing for what they believe
could be their last ride.
Their father, Tommy Arthur, is scheduled to be executed Nov. 3, for his
involvement in the 1982 murder-for-hire death of Muscle Shoals resident Troy
Wicker.
"I was 15 when my father went to prison (for the 1st time). I am now 55, and
been through 40 years of appeals and scheduled executions," said Stone. "This
is my father's 7th scheduled execution. I'm not sure if he will be executed.
The 6 previous scheduled executions, a few right up to just hours before, were
stayed."
Douglas Arthur, Stone's younger brother, believes his father's execution will
happen this time.
Like his sister, Arthur has endured 6 occasions when it appeared his father
would be executed.
Arthur, now 54, said he has visited his father numerous times in prison and
still keeps in contact through telephone calls. In a recent call, his father
said he would be moved to a holding cell early this week for inmates who are
about to be executed.
"I've been down there to see him a lot, but haven't lately," Arthur said. "I
haven't seen him in about 8 years."
Stone has never taken a stance "one way or the other" on the death penalty. But
this week she said the Antiterrorism and Effective Death Penalty Act of 1996
should be amended if the death penalty is going to be continued to be used.
"My stance now is the death penalty is cruel and inhumane. It should be
abolished," Stone said. "Not because it is cruel and inhumane to death row
inmates, because it is cruel and inhumane to the families of the victims and
the families of the convicted."
Speaking from experience, she said every time a death row inmate is scheduled
to die, families pack up and go to death row, get ready for the execution,
relive the crimes and trauma all over again.
"I still have the same suit I bought for the 1st (execution)," she said. "I've
made funeral arrangements 6 times; 40 years of this is not justice."
The Alabama Supreme Court set execution dates for Stone's father in 2011, twice
in 2007, in 2008, in 2012 and in 2015. Earlier this month the Nov. 3 date was
set.
Stone described the emotions of a death row experience as a combination of a
"poison and a terminal illness."
"It's like a slow poison robbing you of life and the ability to put it behind
you," she said. "At least life in prison without the possibility of parole
eliminates so many appeals and the scheduled executions.
"For the death penalty to be called justice is a lie to the American people,"
she said. "I wonder how many families feel closure after decades of this - the
answer may surprise all of us."
Arthur, who now lives in Florida, said he opposes any form of execution.
"I think it's unethical to kill anybody at 74 years old, whether it's my dad or
not," he said. "I just don't think it's ethical for anybody to kill anybody. In
the Bible, that's one of the commandments is thou shall not kill. I don't
believe Christ would want anybody to kill anybody."
The crime
Tommy Arthur was accused of having a relationship with Judy Wicker, and then
being paid $10,000 by her to kill her husband, Troy Wicker.
Reports indicate Arthur was on state work release when he shot and killed
Wicker while the victim was asleep in his bed in Muscle Shoals.
In October 1982, Judy Wicker was found guilty of murder in connection with her
husband's death. She was sentenced to life and received parole after serving 10
years in prison.
"I feel very strongly that our judicial system has serious flaws, especially in
death sentences," Stone said. "With that being said, I used that to justify
many of my actions when fighting for justice for my father, when deep down I
really felt he deserved being where he is.
"I spent so many years, decades, in a cycle of trying to free myself, thinking
if I could just prove he was innocent, or guilty for that matter, it would free
me of the cycle and set me free. Words cannot describe the emotional turmoil
and struggles within myself throughout most of my life. The relationship
issues, food struggles, excessive behavior to name a few."
She said she saw a few therapists, but that didn't help.
"They did not have a clue what to do, except try and prescribe drugs," she
said. "A few suggested support groups. There were not too many groups out there
where your father is on death row. I can tell you all the groups I tried. Mmy
stories were very different than all the others."
Lost childhoods
Douglas Arthur said he and his sister had a difficult childhood because of
their father's arrests. Their mother did not keep the children, so they lived
with their grandparents.
"We had a dysfunctional family for sure," he said. "Me and my sister took care
of each other growing up. I had to learn how to get out and mow yards and all
that to have something to eat.
"It was a hard life. We're OK now, but I have bad memories because I never got
to grow up with my dad."
Stone said their father was violent, beating their mother.
"He beat and shot my first stepmother. He beat my second stepmother, and shot
and killed her sister and almost killed her cousin," Stone said. "He went to
prison for that, got out and killed Troy Wicker while on work release. He went
to death row, got several new trials. While being held in county jail for one
of those trials, he escaped, shot a police officer, robbed a bank and took a
hostage.
"I was arrested (in connection to the escape) and almost went to prison.
Everyone thought I helped him escape. I stood trial and was acquitted," she
said.
She said her father beat her, her brother and their pets, and because of all
the violence, she said she can't remember large portions of her childhood.
She does remember a time when her father was on work release and would bring
Troy Wicker's wife, Judy, to her grandparents' house in Sheffield.
"Shortly after, Troy was dead," Stone said.
Stone described her father as "evil, violent and manipulative." She added his
actions have negatively affected so many people's lives and "left a wake of
destruction in his path."
"To most people it is hard to comprehend that one of your parents can be evil,"
she said. "It is unconceivable that a parent would prey on their daughter or
son's deep desire to have a parent that is normal and loving, and to use that
to their advantage at any cost - even to the point of risking their lives
and/or freedom."
Arthur said his father's capital murder conviction in the Troy Wicker case
crushed his hopes of his father's release from prison.
"All of a sudden, bam, they tried to pin this killing of Troy Wicker on him,"
Douglas Arthur said. "I was like, 'What? My dad was fixing to get out and now
they're having a trial?'"
Things spiraled from there for Arthur, who graduated from Sheffield High School
in 1981, but does not have pleasant memories of his school years.
"We just lost everything we had," he said. "When I was going to school, people
disowned me. I couldn't get friends, and nobody at Sheffield would date me. I
had a girlfriend from Muscle Shoals."
Trying to move on
Despite everything he has been through, Arthur said, "I love my dad and always
have."
Arthur and his sister both live in Florida, trying to move on with their lives.
He said he has undergone 8 knee surgeries. He married twice with both ending in
divorce.
He said his sister, who works in real estate, appears to have given up on the
case and is trying to move on with her life. "Sherrie's just like, there's
nothing else we can do."
Stone said she is ready to end the cycle that she has been in that revolves
around her father.
"I am curious how many of us have been in the viscious cycle created by his
actions," she said. "I am ending the cycle. The truth is what sets me free. It
is my gift to give myself, and I have the power.
"My heart goes out to the families of those he killed and to the families of
those he injured in some way. I am so sorry for your loss and pain. I pray you
find peace if you have not been able to. There are probably many others we do
not know about.
"The truth always finds you, no matter who you are. His truth has come full
circle. So has mine. One chapter closes, another chapter begins. Life for life
if you will."
Arthur and Stone have been to Holman Correctional Facility previous times when
they thought their father would be executed. They aren't planning on being
there this time.
Arthur said some members of the church he attends said they are praying for him
and will continue to on the scheduled execution day. A neighbor plans to stay
with him while it takes place, and so will his sister.
"The truth always finds you and at some point you either face it or continue a
vicious cycle," Stone said. "I have decided to face mine and end the cycle. I'm
pretty sure my father's truth has found him as well."
(source: Times Daily)
KANSAS:
Who's on death row in Kansas
Jurors have given 15 men death sentences since Kansas reinstated capital
punishment in 1994. They are listed chronologically by crime date. The county
and sentencing year are in parentheses.
--Gary Kleypas (Crawford County, 2008): For the March 30, 1996, rape and murder
of Pittsburg State University student Carrie Williams. The Kansas Supreme Court
overturned his sentence in 2001, but he was condemned again in 2008. His second
death sentence was upheld earlier this month.
--Michael Marsh (Sedgwick County, 1998): Convicted of killing Marry Ane Pusch
on June 17, 1996, and setting a fire that killed her toddler. He agreed to
plead guilty to 2 counts of 1st-degree murder after his capital conviction was
overturned. He is serving ` life prison sentences.
--Gavin Scott (Sedgwick County, 2010): For the Sept. 13, 1996, shooting deaths
of Doug and Beth Brittain in their rural Goddard home. He pleaded guilty to
amended charges and was sentenced to 2 life prison terms after his death
sentence was overturned.
--Stanley Elms (Sedgwick County, 2000): For 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.
--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 in 2000. The Kansas Supreme Court upheld his death
sentence in November 2015.
--Jonathan and Reginald Carr (Sedgwick County, 2002): For the Dec. 15, 2000,
shooting deaths of Jason Befort, Brad Heyka, Heather Muller and Aaron Sander.
The Kansas Supreme Court threw out their death sentences in 2014, but the
decision was later reversed by the U.S. Supreme Court. The cases are under
review.
--Douglas Belt (Sedgwick County, 2004): For the June 25, 2002, sexual assault
and decapitation of housekeeper Lucille Gallegos. Belt died in prison in April
2016, before his appeal could be heard. The Kansas Supreme Court upheld his
capital murder conviction earlier this month.
--Phillip Cheatham Jr. (Shawnee County, 2015): For the shooting deaths of
Annette Roberson and Gloria Jones at a Topeka duplex in December 2003. The
Kansas Supreme Court threw out Cheatham's convictions over incompetent counsel
claims. He avoided death by pleading no contest to the charges.
--Sidney Gleason (Barton County, 2006): For the shooting deaths of crime
witness Miki Martinez and her boyfriend, Darren Wornkey, on Feb. 24, 2004. The
Kansas Supreme Court threw out his death sentence in 2014 but was later
reversed by the U.S. Supreme Court. The cases are still under review.
--Scott Cheever (Greenwood County, 2007): For the January 2005 shooting death
of Sheriff Matt Samuels during a drug raid. The Kansas Supreme Court overturned
Cheever's conviction in 2012 but was later reversed by the U.S. Supreme Court.
Cheever's death sentence was upheld in July.
--Justin Thurber (Cowley County, 2009): For the January 2007 abduction, sexual
assault and killing of 19-year-old college student Jodi Sanderholm, whose body
was found in a wooded area near where her car had been sunk in a lake. His
appeal hasn't been heard yet by the Kansas Supreme Court.
--James Kraig Kahler (Osage County, 2011): For the November 2009 murders of his
estranged wife, Karen Kahler; her grandmother Dorothy Wight; and the Kahlers'
daughters, Emily, 18, and Lauren, 16. His appeal hasn't been heard yet by the
Kansas Supreme Court.
--Kyle Trevor Flack (Franklin County, 2016): For the May 1, 2013, shotgun
slayings of Kaylie Bailey and her toddler, Lana Bailey, at an Ottawa-area
farmhouse. Lana's body was found stuffed in a suitcase floating in a creek. His
appeal hasn't been heard yet by the Kansas Supreme Court.
--Frazier Glenn Miller Jr. (Johnson County, 2015): For the April 2014 shooting
deaths of 14-year-old Reat Underwood, William Corporon and Terri LaManno
outside Kansas City-area Jewish sites. His appeal hasn't been heard yet by the
Kansas Supreme Court.
*****************************
What courts did in the Carr brothers case; what's next
Jonathan and Reginald Carr's capital murder cases - and the overturning of
their death sentences by the Kansas Supreme Court in 2014 - have become the
focal point of one effort to oust 4 justices from the bench this November.
Kansans for Justice says it is dedicated to persuading voters to mark "No" on
the retention ballots for Lawton Nuss, Marla Luckert, Carol Beier and Dan
Biles. The group contends the justices failed to follow their oaths to uphold
Kansas law when they vacated death sentences for the Carrs and other Kansas
inmates only to have their rulings reversed by the U.S. Supreme Court.
Efforts to oust Kansas justices based on handful of cases
Others say overturned death sentences are common when capital punishment laws
are new and signal that the court system is functioning as intended.
The complex legal rulings - followed by statements and ads in the campaigns to
oust or keep the justices - have led to misconceptions about the case and the
Carrs.
4 misconceptions about the Carr cases, explained
The brothers remain in solitary confinement at El Dorado Correctional Facility,
where capital punishment inmates are housed. They've been imprisoned since they
were convicted in 2002. They remain convicted of most of their crimes.
Here's an explanation of what the courts did in the Carrs' criminal cases, as
well as some information about what's next.
The crimes
Brothers Jonathan and Reginald Carr were 20 and 23 years old when they murdered
5 Wichitans and terrorized 2 others during a 9-day crime spree in December
2000.
In the 1st of the assaults, Reginald Carr carjacked and robbed a 23-year-old
Wichita man at gunpoint on Dec. 7. 4 days later, both brothers followed Wichita
symphony cellist Linda Ann Walenta home and shot her when she tried to escape;
she died about a month later.
The most shocking of their crimes - and the ones that led to their death
sentences - were the repeated sexual assaults, robbery, torture and killings of
a group of friends on Dec. 14 and 15.
Jason Befort, 26; Brad Heyka, 27; Aaron Sander, 29; Heather Muller, 25; and a
woman known publicly by her initials H.G. were at 12727 Birchwood when the
Carrs burst in with handguns and a golf club late on Dec. 14. They demanded the
friends strip and perform sex acts on one another, raped the women and then
forced the friends to withdraw cash from several ATMs.
After 3 hours of assault, the Carrs drove the five friends to a snow-covered
soccer field near K-96 and Greenwich, ordered them to kneel and shot them all
execution-style. The Carrs ran over their bodies with a pickup truck when they
left.
H.G. survived because her hair clip deflected the bullet fired at her. She ran
naked for more than a mile to a house and called 911.
Authorities arrested the Carrs in Wichita not long after the bodies were found.
Muller was a Wichita State University student, Befort was an Augusta High
School teacher, Heyka worked for Koch Industries, and Sander planned to become
a priest, according to The Eagle's news archives.
Muller was a Wichita State University student, Befort was an Augusta High
School teacher, Heyka worked for Koch Industries, and Sander planned to become
a priest, according to The Eagle's news archives.
The trial
Prosecutors charged each of the Carrs with a litany of crimes - including 4
counts of capital murder for killing Befort, Heyka, Muller and Sander - and
sought the death penalty.
The brothers went on trial together before a Sedgwick County jury in the
2-phase format required in capital punishment trials. In the 1st part, the
jurors convicted the brothers of a total of 93 criminal counts.
In the second part - called the penalty or sentencing phase - jurors
unanimously voted to give each Carr 4 death sentences. They listened for weeks
as prosecutors argued and presented evidence in favor of execution. Defense
attorneys, meanwhile, asked jurors to be lenient and impose a more merciful
sentence of prison.
In addition to the death sentences, the brothers each received life prison
sentences plus more than 40 years for their other crimes. The Carrs had asked
the presiding judge, the late Paul Clark, to sentence them separately, but the
judge refused.
What the Kansas Supreme Court did
In Kansas, death penalty cases receive an automatic review from the Kansas
Supreme Court. It's the 1st of 3 types of appeals defendants can use to
overturn their convictions and sentences.
The Carrs raised dozens of issues over things they thought were unfair at their
trials. Among issues argued were that the brothers should be granted new,
separate trials. Attorneys claimed the brothers damaged each other's defenses
during the joint trial; Jonathan Carr's attorney also contended Reginald Carr's
courtroom "antics" turned jurors against her client.
The attorneys also speculated that jurors may have thrown out evidence favoring
a lenient sentence - called mitigating factors - because jury instructions
given by the judge were silent about what standard of proof to apply to them.
The instructions, however, did tell jurors that prosecutors' evidence in
support of a death sentences - called aggravated factors - must be proven
beyond a reasonable doubt.
The Kansas Supreme Court heard oral arguments in the Carrs' appeals in 2013. It
handed down its 6-1 ruling in July 2014.
Although the justices identified 11 errors made during the sentencing phase of
the Carr brothers' trial, a majority said that "pales in comparison to the
strength of evidence against the defendants."
The court upheld 32 of Reginald Carr's 50 convictions and 25 of Jonathan Carr's
43 convictions, including 1 capital murder conviction for each brother.
But it threw out the others, including 3 of the 4 capital murder convictions
for each, citing errors. Because the capital murder convictions were struck
down, the 3 death sentences tied to them were vacated, too.
The court ended up vacating the 4th death sentence given to each brother amid
concerns the Carrs' constitutional rights had been violated because they were
not sentenced by different juries. Justices also said juries should be told
what standard of proof to apply to a defendant's mitigating factors.
The Kansas Supreme Court sent both cases back to Sedgwick County District Court
with orders that the brothers be resentenced.
What the U.S. Supreme Court did
Kansas Attorney General Derek Schmidt asked the U.S. Supreme Court to review
the Kansas Supreme Court's decision in August 2014. The high court agreed to
look at 2 issues: whether a joint sentencing is constitutional and whether
judges have to tell juries specifically what standard of proof to apply to a
defendant's mitigating factors.
Both issues touch on the Eighth Amendment's prohibition against cruel and
unusual punishment.
In January, 3 months after hearing oral arguments, the U.S. Supreme Court said
the Carrs' death sentences were wrongly vacated. It reversed the Kansas Supreme
Court ruling 8-1.
3 months after hearing oral arguments, the U.S. Supreme Court said the Carrs'
death sentences were wrongly vacated. It reversed the Kansas Supreme Court
ruling 8-1.
In its opinion, penned by the late Antonin Scalia, the court rejected arguments
that co-defendants should be sentenced separately and said the Constitution
doesn't require a jury instruction that specifies the standard of proof for
mitigating factors.
Scalia added that directions given to the jury were not unclear, and that
individual jurors weighing evidence will accord mercy to a defendant if they
deem it appropriate and withhold it if they do not.
The U.S. Supreme Court sent the cases back to the Kansas Supreme Court for
further consideration.
What's next
At some point, the Kansas Supreme Court will again consider the Carrs' appeals
and issue another ruling.
That ruling can't go against the U.S. Supreme Court's decisions about the jury
instruction and joint sentencing. It's possible the justices could strike down
the Carrs' death sentences a 2nd time for other reasons.
If that happens, the U.S. Supreme Court could be asked to review the cases
again.
Or, the Kansas Supreme Court could decide to uphold the death sentences, which
would end the brothers' 1st round of appeals.
It's unclear when that will happen.
But whatever happens, Sedgwick County District Attorney Marc Bennett said, the
Carrs won't get out of prison.
"We're still before the Kansas Supreme Court resolving remaining issues," he
said in a recent phone interview.
"We might have to go redo the sentencing phase" for the brothers, which would
require empaneling a new jury and calling witnesses back to the stand to
testify. But, he said, "affirming the guilty verdicts basically ensured these
guys will never get out."
******************************
Death penalty cases a factor behind efforts to oust justices
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 1 of 5 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.
What the courts did in the Carr brothers case, and what's next
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.
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 of Carr brothers' victims seek to oust justices
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 4 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 4 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."
Vacated death sentences
Supreme Court justices, nominated by a commission and appointed by the
governor, face a retention election every 6 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.
The group points to Kansas Supreme Court rulings vacating death sentences in 5
capital punishment cases that were later reversed by the U.S. Supreme Court.
The Carrs are the defendants in 2 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 2 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 7.
5 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.
6 resulted in reversals.
3,200 written Kansas Supreme Court rulings since October 2002
103 petitions for review to U.S. Supreme Court
6 reversals
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 % 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.
8,466 U.S. death sentences handed down from 1973 to 2013
3,194cases overturned
1,359inmates 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.
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
15 men, including the Carrs, have been on death row since capital punishment
was reinstated in 1994. 4 are serving now serving life in prison. 1 died
waiting for his appeal to be heard.
So far the Kansas Supreme Court has upheld 3 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 4 cases.
The last state executions in Kansas, by hanging, were in 1965.
The next, by lethal injection, could come within the next 8 years or so now
that the Kansas Supreme Court is affirming death sentences, Jackson estimated.
(source for all: Wichita Eagle)
******************
Push to remake top Kansas court hits backlash over governor
A push to remake the Kansas Supreme Court in the upcoming election could falter
because of a political backlash against Republican Gov. Sam Brownback.
5 of the court's seven justices are on statewide ballots that ask voters
whether each justice should stay on the court for another six years. Four of
those justices, each appointed by a Democratic or moderate Republican governor,
are being aggressively targeted by GOP conservatives, abortion opponents and
critics of rulings that overturned death sentences.
Brownback publicly supported a similar ouster campaign in 2014 that nearly
removed the other 2 justices, amid anger over death penalty rulings. But the
conservative Republican governor - who is facing voter discontent over the
state's budget problems - has refused to endorse this year's effort, which is
likely fine with one group pushing to remove the justices.
"He's caused us a lot of headaches," said Amy James, a spokeswoman for Kansans
for Justice, a group of victims' families angered by court rulings that
overturned death sentences. "He's actually a hurdle that we continue to have to
overcome."
Brownback can't seek re-election because of term limits, but voters appear to
be are taking out frustrations on his allies: 14 conservative GOP legislators
lost their seats in the August primary, and Democrats hope to make significant
gains on Nov. 8.
A group supporting the justices called Kansans for Fair Courts is running a
television ad warning that removing the justices could leave the court with
"Brownback clones," because the governor could name replacements.
The groups criticizing the court are targeting Chief Justice Lawton Nuss, along
with Justices Marla Luckert, Carol Beier and Dan Biles. Nuss and Luckert were
appointed by moderate Republican Gov. Bill Graves, while Beier and Biles were
appointed by Democratic Gov. Kathleen Sebelius. The 5th justice on the ballot
is Caleb Stegall, Brownback's only appointee.
The justices said they decide cases based on laws, not their personal beliefs.
"The Kansas Supreme Court has done a very good job of deciding the important
legal disputes brought to it in a fair and impartial manner," Biles wrote in an
email responding to election-related questions from The Associated Press.
Voters have never removed a justice since Kansas ended partisan elections for
its highest court in 1960. In fact, past votes on the justices have received so
little attention that state campaign finance laws don't require any disclosures
by groups supporting or opposing them.
According to the Center for Public Integrity, which is monitoring ads in more
than 200 markets nationwide, Kansans for Justice had spent nearly $276,000 on
broadcast television spots as of last week. Kansans for Fair Courts had spent
almost $223,000.
The figures don't include money spent by Kansans for Life, an anti-abortion
group, to send mailers to thousands of households that tell voters they have "a
rare chance" to replace "activist" judges before major rulings on abortion and
school-funding cases. Another group it formed, Better Judges for Kansas, has
dropped packets that include cards with advice on voting to give to family and
friends.
But capital punishment rulings represent the ouster campaign's most potent
issue, particularly the court's 2014 decisions overturning death sentences for
Jonathan and Reginald Carr. The brothers were sentenced to die for sexually
torturing, robbing and killing 4 people in Wichita in December 2000. James, the
Kansans for Justice spokeswoman, was dating one of the victims when he was
killed.
Among the voters siding with the groups is Carol Tull, a 60-year-old unemployed
Wichita aircraft worker. She said the brothers "got what they deserved" in
their death sentences and voted this year to oust the targeted justices. But
contemplating their replacements, she said: "Brownback doesn't need to be in on
this."
The governor has become a political liability this year because Kansas has
struggled to balance its budget since Republican legislators slashed personal
income taxes at Brownback's urging in 2012 and 2013. The cuts were an effort to
stimulate the economy, but even some Republican voters don't think it worked as
promised.
Kansans for Fair Courts calls the campaign to oust justices a "power grab" for
Brownback, a description that resonates with some voters.
"That's his way of trying to pack the court," said Paul Dorsey, a 77-year-old
businessman, retired teacher and self-described liberal from Lansing. "It ain't
going to happen. We're going to block it."
(source: The Daily Progress)
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