When Christine Kenney first ran for Douglas County district attorney six years ago, she said she would be willing to seek the death penalty if a case warranted it.
"I hoped that I would never be faced with that decision," Kenney said Friday, one day after she filed a capital murder charge against a man accused of killing an elderly Lawrence couple. "However, it is a decision I was willing to make in 1996 and, now faced with it, it is a decision I will be able to make in this case."
The capital murder case against Damien C. Lewis, 22, Lawrence, is the first for Douglas County since Kansas reinstated the death penalty in 1994. It was unclear Friday whether there had been other death-penalty cases prosecuted here.
More clear was that if Kenney decides to seek the death penalty in the case against Lewis, the trial will be unlike any seen in Douglas County.
Stephen Maxwell, an assistant Kansas attorney general, said the process of prosecuting capital murder was long and complex much more so than first-degree murder cases.
"It's time-intensive," Maxwell said. "There are a lot of motions filed and a lot more legal issues to determine."
Thursday, Lewis was charged with capital murder for allegedly shooting to death George "Pete" Wallace and Wyona Chandlee, both 71, in their home at 1530 Learnard Ave. Their bodies were found July 11. Police said the couple was shot to death when they interrupted a burglary.
There are several other charges against Lewis, as well.
Kansas law allows capital murder to be filed under seven circumstances of first-degree murder. One of those is killing more than one person in the same act.
Kenney said she had talked to prosecutors in the Kansas Attorney General's Office, as well as in Crawford, Sedgwick and Johnson counties, where there have been capital murder cases.
"It's not a decision to be taken lightly," Kenney said of filing such charges. "I think anytime prosecutors seek the death penalty, you need to be mindful of the effects it has on the community, not just locally but the country as a whole."
Under Kansas law, Kenney has until five days after Lewis' arraignment to make a decision about whether to seek the death penalty. The arraignment generally takes place immediately after a defendant's preliminary hearing. It is the proceeding where the defendant enters a formal plea to charges.
Kenney said she would make a decision about filing notice to seek the death penalty after reviewing all evidence, witness accounts and police reports.
"I don't expect any surprises," she said.
A preliminary hearing for Lewis was set by Douglas County District Judge Michael Malone for 2 p.m. Wednesday. The purpose of the preliminary hearing is to allow the judge to determine whether there is enough evidence to order a trial be held.
On Friday, Ron Evans, who heads the Kansas Capital Murder Defense Unit, filed a motion seeking to delay the preliminary hearing.
If they don't have their own attorney, suspects charged with capital murder have an attorney from the unit assigned to represent them.
Evans, who has been on the defense unit for four years, is one of three attorneys on the unit. A fourth will be added in August, he said.
Currently, there are three other capital murder cases pending in district courts in Kansas. Two in Wyandotte and Sedgwick counties are being handled by the state's defense unit. A case in Johnson county is being handled by a private attorney. The Sedgwick County case involves two defendants.
Evans estimated there had been about 100 capital murder cases filed in Kansas since 1994. All but 10 of those have been resolved short of a trial. So far, four people have been found guilty of capital murder, he said. The appeals process is continuing in those cases, and no one has been executed.
Stephen McAllister, dean of Kansas University's School of Law, has researched constitutional issues on death-penalty cases for the attorney general. He described such cases as a huge undertaking for both the prosecution and defense.
The defense unit will file motions challenging everything from whether Kansas should even have the death penalty to technical questions involving jury selection, he said.
"Those people are very good," McAllister said of the defense unit attorneys.
Ron Wurtz, who headed the defense unit from 1994 until he resigned in 1997, noted that defense attorneys had the responsibility of testing every legal aspect involved with the death penalty.
"The responsibility of having someone's life literally in your hands is tremendous," he said.
Now a public defender in the federal court system, Wurtz said four years under that kind of pressure was enough for him.
Neither prosecutors nor defenders were willing to estimate the cost of death-penalty cases in Kansas. In other states it has typically taken from five to 10 years for a case to be handled from start of prosecution to execution, they said.
Douglas County first?
A Douglas County death penalty case would be historic, according to records gathered Friday.
A list of military, federal and state prisoners executed in Kansas since the first in 1862 does not list any from Douglas County. The list shows there were three state executions in Lawrence in the 1860s, but none of the three prisoners was convicted of crimes in Douglas County, according to information provided by the Kansas Department of Corrections.
Ralph King, a Douglas County attorney in the early 1960s and a retired district court judge, said he couldn't recall any death-sentence cases. Neither could retired District Judge Bill Pendleton.
"I remember handling three death cases my first year as prosecutor, but they didn't involve the death sentence," said King, who was county attorney from 1963 to 1966.