SCOTUS Puts Convicted Kansas Killers Back on Death Row

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By Nicholas Datlowe

Jan. 20 — Three convicted killers are back on Kansas's death row, after the U.S. Supreme Court Jan. 20 reversed the Kansas Supreme Court's interpretation of the Eighth Amendment's ban on cruel and unusual punishments.

Writing for an 8-1 majority, Justice Antonin Scalia said that the Eighth Amendment does not require that capital sentencing juries be affirmatively instructed that mitigating factors need not be found beyond a reasonable doubt.

Neither does it require that penalty phases for joint defendants be severed when “one defendant's mitigating evidence put[s] a thumb on death's scale for the other,” the court said.

Justice Sonia Sotomayor was the lone dissenter, arguing that the court shouldn't have agreed to hear the cases in the first place.

“This is an excellent decision. The Kansas Supreme Court was clearly wrong,” Kent Scheidegger, legal director and general counsel for the Criminal Justice Legal Foundation, Sacramento, Calif., told Bloomberg BNA in a Jan. 20 call.

He suggested that the Kansas court had “bent over backwards” to arrive at its decision. The CJLF describes its purpose as assuring “that people who are guilty of committing crimes receive swift and certain punishment in an orderly and constitutional manner.”

Sarah Johnson of the Capital Appellate Defender Office, Topeka, Kan., who represented Sidney Gleason and Jonathan Carr at the U.S. Supreme Court, told Bloomberg BNA in a Jan. 20 e-mail that she was “not surprised” by the outcome.

‘Inconceivable Cruelty and Depravity.'

Gleason was convicted in the murder of a former criminal cohort and her boyfriend, as well as the robbery of an elderly man of between $10 and $35 and a box of cigarettes, according to the court.

Reginald and Jonathan Carr were convicted of a brutal string of crimes. In addition to carjacking, attempted carjacking and murder, this included what has since become known as the “Wichita Massacre.”

The brothers robbed, raped and otherwise sexually assaulted five friends, then killed four of them execution-style. They attempted to kill the fifth, but she was saved when a hair clip deflected the bullet. She later testified against the Carrs.

The court described the massacre as “acts of almost inconceivable cruelty and depravity,” and Justice Samuel A. Alito Jr. said at oral argument that their cases were “some of the most horrendous murders that I have seen in my 10 years here” (84 U.S.L.W. 3190, 10/13/15).

The Kansas Supreme Court reversed the unanimous death sentences in each case based on the failure to affirmatively instruct the juries that they didn't have to find mitigating circumstances beyond a reasonable doubt. In the case of the Carrs, it also held that it was constitutional error not to sever the penalty phases of the trial.

Scheidegger said that the Kansas court had “reached a lot” in coming to this decision, and that similar arguments before other state courts around the country had been “widely rejected.”

‘Mostly a Question of Mercy.'

The Supreme Court here reversed on both counts.

“We doubt whether it is even possible to apply a standard of proof to the mitigating-factor determination,” the court said. The determination is “mostly a question of mercy,” and the court doubted whether trying to separate out the fact of mitigating circumstances from the judgmental component of mercy “would produce anything but jury confusion.”

Even if it could, however, case law did not require courts to do so in general, and the particular facts here did not require them to do so either, the court said.

Any ambiguity in the jury instructions only created constitutional error if it created a reasonable likelihood of jury confusion.

Here, however, “no juror would reasonably have speculated that mitigating circumstances must be proved by any particular standard, let alone beyond a reasonable doubt,” the court said.

Johnson said that “mercy isn't the only mitigator in play,” and that “other offered mitigators are provable facts.”

“To me, this provides all the more reason to explain to jurors explicitly that Kansas law does not place any burden of proof on the defendant regarding any mitigating factors,” she said.

‘Beyond the Pale.'

Regarding severance, Reginald Carr argued that he had been prejudiced by evidence put on by Jonathan that he was a corrupting older brother and equivocal testimony about whether he was the shooter; Jonathan argued that he had in turn been prejudiced by evidence portraying him as an incurable psychopath.

The Kansas court decided that the competing evidence, which may have been inadmissible under Kansas law, “rendered it impossible for the jury to consider the Carrs' relative moral culpability” and make individualized sentencing decisions, the Supreme Court said.

Whatever the merits of their argument about admissibility of the evidence, that argument sounded in due process, not the Eighth Amendment, the court said.

The proper test was whether the sentencing proceedings had been “so infected” with “unfairness” as to render the sentence a denial of due process, the court said, quoting Romano v. Oklahoma, 512 U.S. 1 (1994). Here, the brothers' contention that it did was “beyond the pale,” it said.

The court noted that the jury had been instructed to consider each defendant individually, and had rendered separate verdicts as to each murder victim for each brother.

“There is no reason to think the jury could not follow its instruction to consider the defendants separately in this case,” the court said.

It also noted the advantages of a joint penalty proceeding, including the reliability and consistency of verdicts, as well as judicial efficiency.

“Judicial convenience is not an appropriate factor to consider when considering any Constitutional right,” Johnson replied.

‘Shocking Cases Make Too Much Law.'

Sotomayor argued that the Kansas Supreme Court had merely “overprotected its citizens based on its interpretation of state and federal law,” and worried that the ruling here would prevent states from experimenting with alternative sentencing procedures.

She argued that the opinion here “risks discouraging States from adopting valuable procedural protections,” and noted that several states actually do require affirmative mitigation burden instructions and allow for liberal severance of penalty-phase trials.

In addition, peculiarities of the Kansas criminal justice system and the history of these cases specifically made it seem “to me unlikely that the Kansas Supreme Court's opinion would have proven instructive in other States, even though it was couched in the language of the Federal Constitution.”

“Shocking cases make too much law,” she wrote—perhaps suggesting that she felt that the egregiousness of the Carrs' crime played a role in the willingness of the court to determine this case.

Johnson agreed, saying that the facts of Carrs' case were discussed at oral argument in “a way that is not typical,” and noting that “the facts of Sidney Gleason's case merited far less discussion” in the opinion.

Scheidegger pushed back on Sotomayor's assertion. The heinousness of the crimes may have played a role in deciding to take the case up in the first place, but “even if it was just the Gleason case, it would have come out the same,” he said.

He also pushed back on the assertion that Kansas was “overprotecting” its citizens. “Imagine how Holly”—the survivor of the Carrs' attack—“would have felt reading that. It's an atrocious thing to say.”

The majority also rejected Gleason's claim that the Kansas court's decision rested on an adequate and independent state ground. That court's opinion “leaves no room for doubt that it was relying on the Federal Constitution,” the court said.

It also expressed confidence that the Carrs' inability to cross-examine certain police records—an issue on which the court refused to grant certiorari—“would not have had the slightest effect upon the sentences.”

The cases will now return to the Kansas Supreme Court because there are unresolved issues in each, Johnson said.

She also said that the instructional issue will be litigated further because the Kansas court remains “free to require this instruction as a matter of state law.”

To contact the reporter on this story: Nicholas Datlowe in Washington at ndatlowe@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com