TOPEKA — The Kansas Supreme Court on Friday upheld the capital murder conviction of a south-central Kansas man convicted of murdering a college student in 2007, but remanded the case back to district court for a hearing to determine whether he is mentally competent to face the death penalty.

Justin Eugene Thurber was sentenced to death for the January 2007 rape and murder of Jodi Sanderholm, a 19-year-old Cowley Community College student. Thurber was 23 at the time.

Sanderholm, a member of the school’s Tigerette dance team, was reported missing the morning of Jan. 5, 2007, shortly after the dance team’s practice that day. Four days later, investigators found her car submerged in the Cowley County State Fishing Lake, and eventually found her body in a wood pile in the nearby Kaw Wildlife Area. Campus security video showed Thurber had been on the college campus around the time of Sanderholm’s disappearance. Investigators also found DNA evidence connecting Thurber to Sanderholm’s car and to her body.

photo by: Kansas Department of Corrections

Justin Eugene Thurber

Thurber’s attorney claimed that his constitutional rights were violated during the trial because the court refused to allow a hearing to determine whether he was intellectually disabled. Prosecutors countered that even the defense’s own expert witness reported that he did not have a disability, under legal standards at that time, pointing out that he had graduated from high school and attended college-level classes.

The trial court ruled that Thurber’s attorneys had failed to present evidence that his functioning was “significantly subaverage” at the time. The U.S. Supreme Court, however, has since ruled that executing people with even mild intellectual disabilities is unconstitutional.

In addition, the Kansas Legislature changed the state’s own death penalty laws in 2016 to allow defendants to present additional evidence beyond standardized testing to demonstrate an intellectual disability. The new law also states that a trial court must conduct a hearing if there is “reason to believe” the defendant has an intellectual disability. Those changes applied retroactively.

Still, Kansas law requires that the defendant be disabled “to an extent which substantially impairs one’s capacity to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law.”

Writing for a 5-2 majority, Justice Dan Biles said that because of recent changes in federal case law, that standard is too restrictive and violates the Eighth Amendment to the U.S. Constitution’s prohibition against cruel and unusual punishment. The opinion also noted, however, that the trial court was acting under legal standards that existed at the time of Thurber’s sentencing, and it was not the trial court’s fault that legal standards have changed since then.

In sending the case back to Cowley County District Court for a new hearing, the Supreme Court said the question to be decided is whether Thurber was intellectually disabled, under the current legal standard, at the time he was sentenced in March 2009.

Justice Eric Rosen dissented from the opinion, saying he believed there was sufficient evidence on the record to conclude Thurber has no disability that would preclude him from facing the death penalty, and there is no reason to believe that a new hearing will result in a different result.

Justice Lee Johnson issued a separate dissenting opinion, arguing that the conviction itself should have been overturned because of procedural errors at the trial, including a decision not to move the trial to another jurisdiction because of excessive pretrial publicity. He also argued that because Thurber was sentenced under an unconstitutional statute, he should only be sentenced to life in prison.

Thurber is now one of 10 inmates on death row in Kansas. The state has not carried out an execution since 1965, when murderers George York and James Latham were hanged.

Ed. note: This story was updated at 11:50 a.m.