Court to rule in Carr brothers death penalty appeal

? The Kansas Supreme Court will hand down decisions Friday in the death penalty appeals of Reginald and Jonathan Carr, brothers who were convicted in the gruesome killings of four people and the attempted murder of a fifth victim in Wichita during a crime spree in December 2000.

The decisions come on the heels of two recent botched executions — one in Oklahoma and another this week in Arizona — that have raised new questions about the death penalty.

In the 20 years since Kansas reinstated the death penalty, the Kansas Supreme Court has overturned or remanded every death sentence appealed to it.

‘Wichita Massacre’

The Carr brothers were convicted of a brutal quadruple homicide that occurred Dec. 14, 2000, in Wichita that came to be known as the “Wichita Massacre.” Authorities said they broke into a home where three men and two women were gathered. The victims were Brad Heyka, Heather Muller, Aaron Sander, Jason Befort and Befort’s girlfriend, who was identified in court as “H.G.”

According to media accounts of the case, the Carrs stripped all of the victims naked, subjected them to sexual abuse, forced them to perform sex acts on one another and ransacked the house for valuables. It was during the course of the crime that H.G. learned that Befort was going to propose to her when the attackers found an engagement ring hidden in a can of popcorn.

After driving the victims to various ATM machines to empty out their bank accounts, the Carr brothers drove them to a soccer field on the outskirts of town and shot them execution-style in the back of the head, leaving them for dead. They then reportedly drove over the bodies with Befort’s truck.

H.G., however, survived the attack because the bullet meant for her was deflected by a hair clip she wore. After the attack, she ran through the frozen field to a nearby house to call for help. The bodies were discovered the next morning, and the Carr brothers were arrested shortly afterward.

The case was tinged with racial overtones because the Carr brothers are black and all of the victims were white. But then-District Attorney Nola Foulston determined there was no evidence of racial motivations and declined to prosecute the murders as hate crimes.

The brothers were tried together and convicted of a total of 113 counts, including capital murder, and they were sentenced to death.

On appeal, their attorneys argued that, among other things, they should have been tried separately because the joint trial prevented them from mounting an adequate defense. They also argued the trial should have been moved out of Sedgwick County because of pretrial publicity.

Attorneys for the state, however, argued that overwhelming evidence in the case supported their convictions and sentences and that any new trial would produce the same result.

Kansas Supreme Court

Kansas reinstated the death penalty in 1994 when the Kansas Legislature narrowly passed a bill and then-Gov. Joan Finney, a Democrat, allowed it to become law without her signature. Since then, the Supreme Court has ruled directly in three death penalty cases and has overturned the sentences each time.

The first was in 2001 when it overturned the sentence of Gary Kleypas, who was convicted in the 1996 rape and murder of Pittsburg State University student Carrie Williams. In a unanimous ruling, the court upheld the death penalty law as constitutional but found flaws in the way it was applied and remanded Kleypas for a new sentencing trial. In 2008, a Wyandotte County jury again sentenced him to die and he still awaits execution.

Three years later, in a 4-3 ruling the court declared the law unconstitutional because it required juries to impose the death penalty when aggravating factors and mitigating factors weighed equally.

That case involved Michael L. Marsh II, who was convicted of killing Marry Elizabeth Pusch, setting her home on fire and leaving her 19-month-old daughter, Marry Ane Pusch, to die in the fire.

The decision was later overturned by the U.S. Supreme Court. Marsh was to receive a new sentencing hearing, but he reached a plea agreement with prosecutors and was sentenced to life in prison.

Only two of the four Kansas justices who made up the majority in that case are still on the court: Marla Luckert and Carol Beier.

The most recent death penalty decision came in August 2012 when the court overturned the sentence of Scott Cheever, who was convicted in the 2005 killing of Greenwood County Sheriff Matthew Samuels during a drug raid.

The court ruled unanimously that the trial court erred when it ordered Cheever to undergo psychiatric evaluation by a state psychiatrist who later testified in court, even though Cheever had not waived his Fifth Amendment right against self-incrimination.

But in December 2013, the U.S. Supreme Court again reversed the Kansas court and upheld Cheever’s death sentence. He is now awaiting execution.

According to the Kansas Coalition Against the Death Penalty, a group that advocates repealing capital punishment, there are currently nine people awaiting execution in Kansas, including Cheever and the Carr brothers.

Kansas has not carried out an execution since 1965.

New controversies

Death penalties in the United States have come under growing criticism, both from opponents here and internationally, because of the methods used for lethal injection, the most common form of execution.

The European Union has banned the export of drugs used in lethal injections to the U.S. That has forced some states to seek other drugs made by unregulated domestic pharmacy compounding companies.

Oklahoma used such chemicals last month in the execution of Clayton Locket, who reportedly regained consciousness and writhed in pain for several minutes before the execution was halted. He died of a heart attack 43 minutes after the execution began.

And on Wednesday in Arizona, the execution of convicted murderer Joseph Rudolph Wood took nearly two hours to complete. Witnesses said he gasped more than 600 times during the procedure, although authorities said he was never conscious and was “snoring” rather than gasping.

“This case shows us again that the death penalty is fraught with risk, error and expense, and it does nothing to protect society from future crime,” Donna Schneweis, chair of the Kansas Coalition Against the Death Penalty, said of the Arizona case in a statement posted on the group’s website. “These botched executions call into question every citizen’s right to protection from cruel and unusual punishment.”