Death penalty cases moving forward

Kansas attorney general isn't waiting for high court decision

With the legality of Kansas’ death-penalty law in serious question, a handful of capital murder cases are still going forward around the state.

Is that a wise approach?

Atty. Gen. Phill Kline’s office, which is prosecuting the cases, says justice demands it.

Others aren’t so sure, given the legal cloud and the high financial costs: a typical Kansas death-penalty case costs $1.2 million, compared with $700,000 for a nondeath-penalty murder case.

“The fact is that millions of taxpayer dollars are being spent,” said Pat Scalia, director of the Kansas Board of Indigents’ Defense Services. “At least at this point, a sentence has not been carried out. It’s a huge concern.”

Kansas reinstated its death penalty law in 1994, and although six people have been sentenced to death, no one has been executed.

In 2004, the Kansas Supreme Court found the law was unconstitutional because of how it instructed jurors to weigh evidence. But the decision was put on hold shortly afterward, as Kline appealed to the U.S. Supreme Court in a case that was argued late last year.

In the meantime, a handful of death-penalty cases around the state went forward.

Trial got under way last week in Seward County in southwest Kansas for Bob Fox, a man charged with capital murder in the deaths of his two small children, though a mistrial was declared Friday because of a missing report; the court plans to reschedule the trial during a motion hearing that is set for March. Two other men facing death, Sidney Gleason in Barton County and Bob Moore in Harvey County, are scheduled to go to trial later this year.

“The attorney general made the decision that we would proceed as if Kansas still had the death penalty with the hope that the Supreme Court would overturn the Kansas Supreme Court’s ruling,” said Whitney Watson, a Kline spokesman.

If the death penalty isn’t allowed to stand, Watson said, defendants convicted and sentenced under the law would instead receive the maximum remaining penalty available.

“This is the most appropriate way to do it,” Watson said.

Donna Schneweis, coordinator of the Kansas Coalition Against the Death Penalty, takes a different view.

“We’re putting jurors through a process where we don’t even know that their work is going to be used at the end of the day,” she said. “We’re putting out a lot of bucks when we don’t even know whether a case is going to be eligible” for the death penalty.

A fourth defendant, Nathaniel Hill of Montgomery County, has already been convicted of capital murder, but the court has postponed sentencing until after the U.S. Supreme Court case is decided. Usually, a death-penalty case has two parts involving the same jury: the trial first, followed by a phase where jurors decide whether to put the person to death.

But because of the delay in Hill’s case, it’s likely that a new jury will need to be impaneled for his sentencing – something Scalia said would be costly and could be legally problematic.

“We don’t know how an appellate court will look at a situation where one jury heard the case regarding guilt and a different jury hears the case regarding sentencing,” she said.