Note: This is the final story in a series of three articles.
As Jonathan Carr sat in the back of a police vehicle Dec. 15, 2000, he asked a detective about a recent quadruple homicide in Wichita. He was told suspects in the case had been charged with capital murder.
Curious, Carr asked what capital murder was, how the death penalty was administered and whether death row inmates felt pain when receiving a lethal injection.
Carr, along with his brother, Reginald, had been arrested as suspects in a crime spree that included the abduction, sexual assault and murder of four people in an abandoned soccer field in Wichita. The brothers were charged, convicted and sentenced to die for the crimes.
Fifteen years later, the fate of the Carr brothers remains irresolute. On Wednesday, the U.S. Supreme Court will hear two hours of oral arguments in which the state of Kansas will attempt to convince the nation’s high court that the Kansas Supreme Court erred in vacating the brothers’ death sentences.
“I make it a practice not to predict what the court may do,” Kansas Attorney General Derek Schmidt said in a recent interview, “but I am comfortable the state has a very strong argument.”
Schmidt will argue on the state’s behalf for the first hour of oral arguments, which will center on whether a jury should have been instructed that mitigating evidence introduced by the defense during the sentencing phase didn’t need to be proven beyond a reasonable doubt.
“There’s no precedent exactly on this question from the Supreme Court,” said Rory Little, a law professor at the University of California-Hastings and former law clerk for five U.S. Supreme Court justices. “But there are cases that say you have to be more careful with jury instructions in the death penalty cases, and there are cases that say you can’t leave the jury confused.”
The Kansas Supreme Court ruled July 25, 2014, that a district judge must instruct a jury in a capital case that mitigating evidence need not be proved beyond a reasonable doubt, lest jury members become confused about the standard of proof for mitigating evidence.
“The reason that is a significant issue is juries understand that when they find fact they are supposed to find fact beyond a reasonable doubt,” said Robert Dunham, executive director of the Death Penalty Information Center, who has argued on behalf of death row inmates before the Supreme Court. “So their belief based on every other instruction they get is, if it’s a fact, you must decide beyond a reasonable doubt.”
Schmidt called the Kansas Supreme Court’s decision a “novel holding.”
“There’s no evidence of juror confusion in these records,” the attorney general said. “These jurors knew what they were doing and they did their job.”
The second hour of oral arguments will center on severance or, specifically, on the Kansas Supreme Court’s ruling that a judge’s decision to sentence the Carr brothers in tandem was a violation of their Eighth Amendment rights. The court ruled mitigating evidence was different for each brother — thus, juries should have heard the evidence separately, an argument the attorney general rejects.
“Throughout American history, the preference has been for joint sentencing,” Schmidt said. “It is the exception, not the rule, to have them split.”
Kansas Solicitor General Stephen McAllister will argue the state’s position on the severance question. Another defendant in the killings, Sidney Gleason, and Jonathan Carr are represented by attorneys with corporate law firm Sidley Austin LLP, public defender Sarah Johnson and Sarah O’Rourke Schrup with Northwestern University. Reginald Carr is represented by the multinational law firm Hogan Lovells and public defender Debra Wilson.
Attorneys for the defendants didn’t respond to requests for comment.
“If you’re arguing severance, you’re arguing the judge made an arbitrary decision,” Elizabeth Cateforis, an assistant professor at the University of Kansas School of Law and supervising attorney at the Project for Innocence & Post-Conviction Remedies, explained. “That’s basically the state’s point, that the district court judge didn’t abuse his discretion and that it didn’t prejudice either defendant enough to require severance.”
Oral arguments Wednesday will delve deep into legal precedents from decades of Eighth Amendment case law, but the heinous nature of the Carr brothers’ crimes won’t be lost on the court.
“This is a bad case on bad facts and that always helps the government,” said Stephen Bright, a Yale Law School lecturer who has defended death row inmates before the U.S. Supreme Court.
“I have to believe the horrific facts of the Carr case got it a hearing before the court,” Little said. “I think the attorney general goes in with a pretty strong hand.”
Little predicts a close vote when the high court announces its opinion in December or January 2016. Other court followers are less willing to wager a prediction.
“The short answer is you can never predict what the court is going to do,” Dunham said.