Kansas Supreme Court affirms death sentences for brothers in vicious Wichita murder spree

Capital punishment survives challenge; previous abortion decision comes into focus

By: - January 21, 2022 12:29 pm
The Kansas Supreme Court issued an opinion Friday clarifying two points of state law in a case challenging ouster of the Kansas Highway Patrol superintendent in 2019. The former KHP leader filed a lawsuit in U.S. District Court, but a federal judge asked the state Supreme Court for help interpreting state employment law. (Kansas Reflector screen capture of Kansas Supreme Court image)

The Kansas Supreme Court issued an opinion Friday clarifying two points of state law in a case challenging ouster of the Kansas Highway Patrol superintendent in 2019. The former KHP leader filed a lawsuit in U.S. District Court, but a federal judge asked the state Supreme Court for help interpreting state employment law. (Kansas Reflector screen capture of Kansas Supreme Court image)

TOPEKA — The Kansas Supreme Court issued a pair of companion decisions Friday affirming death sentences of Jonathan and Reginald Carr for a series of brutal Wichita murders and concluding framers of the Kansas Constitution didn’t mean the inalienable right to life and liberty could never be forfeited.

The Carr brothers shot and killed five people in December 2000 and were convicted of murder, kidnapping, rape and robbery charges two years later. They were sentenced to die for their crimes, but in 2014 the state Supreme Court affirmed capital murder convictions for both men while vacating their death sentences because the trial judge didn’t order separate proceedings in the sentencing phase of the case.

The U.S. Supreme Court overturned the state Supreme Court in 2016. That initiated a process in which the state Supreme Court reviewed more than 20 penalty-phase issues and examined two constitutional questions.

In the long-awaited decision Friday, the state Supreme Court held capital punishment didn’t infringe on rights encompassed by the section that says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness.”

While framers of the Kansas Constitution intended the right to be inalienable, the Kansas justices said, they didn’t view it as nonforfeitable.

The Carr brothers were convicted of capital murder by a jury that reached that determination beyond a reasonable doubt and through their criminal actions surrendered a foundational right to life, the state Supreme Court said. The justices said the state was free to impose death sentences against the Carr brothers, who have been held at El Dorado Correctional Facility for two decades.

Gov. Laura Kelly was asked during a bill-signing event whether she would allow an execution to proceed. “The death penalty is legal in the state of Kansas,” she said, “and there’s nothing I can do about that at this point.”

Kansas statute allows death sentences to be carried out by lethal injection, but the state hasn’t executed anyone since 1965. Currently, nine people are under sentence of death in Kansas.

“The legal path to this day has been long and winding for the victims and their families, for the Wichita and Sedgwick County community, and for all of Kansas,” said Kansas Attorney General Derek Schmidt, “but today’s decisions by the Kansas Supreme Court are welcome confirmations that although the wheels of justice may turn slowly they do ultimately propel us all forward.”


A right to life?

Justice Kenyen Wall said in the state Supreme Court’s 160-page opinion the Sedgwick County District Court trial of the brothers was “less than perfect” but fair.

The opinion also waded into complexities of the state Supreme Court’s abortion opinion of 2019 in the controversial Hodes & Nauser v. Schmidt case. In that ruling, the justices held Section 1 of the Kansas Constitution’s Bill of Rights protected a broader range of rights than described in the U.S. Constitution. The Carr brothers and other capital murder appellants seized upon that decision to argue the state’s capital murder sentencing scheme unconstitutionally infringed upon that right to life.

Wall said the justices rejected the right-to-life argument as it related to capital punishment.

“The natural right to life is forfeitable and the state’s imposition of the death penalty under Kansas’ capital sentencing scheme does not infringe upon the ‘inalienable’ right to life protected under Section 1,” Wall said in the opinion.

Justice Dan Biles concurred with the majority, but wrote the issues of Section 1 were decided more than 20 years ago in a separate death penalty appeal by Gary Kleypas, who was sentenced to die for the 1996 murder of Carrie Williams, a 20-year-old student at Pittsburg State University.

“I appreciate the Carr defendants seized on the recent decision in Hodes & Nauser to animate what amounts to an old — previously decided — issue,” Biles said.


Excessive trial error

Marla Luckert, chief justice of the state Supreme Court, agreed with the majority’s opinion as it related to Section 1 and affirmation of the death penalty law, but dissented when it came to evaluating fairness of the Carr brothers’ trial. She said her research failed to uncover another Kansas appellate case affirming a verdict in the face of so many errors. For example, she said, the trial judge should have granted the brothers’ request for separate trials.

“In this appeal, we review a trial riddled by error that led to a verdict imposing the death penalty,” she wrote. “Given the nature and volume of errors, I cannot eliminate the possibility that at least one juror would have decided mitigating factors or mercy outweighed the aggravating factors.”

Justice Caleb Stegall also agreed with the majority’s decision on the death penalty, but renewed his belief the Hodes & Nauser decision by the state Supreme Court amounted to “gross constitutional error.”

He said the abortion decision abandoned the court’s interpretation of Section 1 as a limit on state police power and imposed judicially pronounced rights.

“It would be understandable if one felt ambivalent about this magnification of state power given that the impact today falls only on two of the most brutal and cold-blooded killers in the history of Kansas,” Stegall wrote. “But if substantive guarantees are not afforded to every single citizen, and rigorously defended no matter the circumstances, the people will not long be free.”

Schmidt, the attorney general, said the Carr brothers were unlikely to seek review of their case from the U.S. Supreme Court. If so, he said, the state Supreme Court’s decisions would conclude their direct appeals.

He said it didn’t mean litigation in their cases would end because the defendants could, under both state and federal law, seek further judicial review of their cases. Completing direct appeals is a milestone “in the path toward justice for the horrific crimes these defendants committed and the innocent lives they took,” he said.

Schmidt said the seven men sentenced to death who exhausted direct appeals included Kleypas, John Robinson, Sydney Gleason, Scott Cheever, Kraig Kahler and the Carr brothers. Of the remaining two, Justin Thurber’s convictions were affirmed, but his sentence remained under appeal as the courts gather information relating to his claim of intellectual disability. The case of the other remaining defendant — Kyle Flack — is scheduled for argument next week before the state Supreme Court.

Correction: Kraig Kahler’s name was misspelled in an earlier version of this story.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.