Supreme Court hears death penalty case in horrific Kansas killings

Fifteen years after two brothers terrorized the community of Wichita, Kan., in a gruesome crime spree, their death penalty case has made it to the Supreme Court. Last week, the court listened to two hours of oral arguments in a case that is as much about divisions on the court as it is about the facts of the case.

Justices Sonia Sotomayor and Stephen Breyer have been vocal opponents of capital punishment. In their view, no set of circumstances, no killing, no matter how cruel or cold-blooded, justifies the state taking a life.

Others on the Supreme Court, such as Justice Antonin Scalia, see it as justice for the worst of the worst criminals among us. Scalia read off the numerous crimes, ones that Justice Samuel Alito said were the worst he’d heard in his 10 years at the Supreme Court.

“Two men broke into a house where three men and two women lived, ordered them strip, forced them into a closet, demanded sexual acts at gunpoint multiple times, drove each to ATMs to withdraw cash, put the three men still naked in the trunk of their car, and drove all five to a soccer field and shot them execution style in the back of the head,” Scalia said.

A trial court found Reginald and Jonathan Carr guilty of the crimes and sentenced them to death. The state Supreme Court overturned the death penalty law in Kansas, removing the Carr brothers from death row. In turn, the state attorney general appealed to the high court. The justices upheld the death penalty as Kansas applied it, returning the Carr brothers to death row. Then last year, the Kansas Supreme Court again overturned their death sentences on the ground that each man should have had separate sentencing hearings, not one together.

The Supreme Court now has two questions to consider in deciding the fate of the Carr brothers: Were jury instructions proper? And did joint sentencing violate the brothers’ rights?

Instructions to the jury included nothing about mitigating circumstances or needing proof beyond a reasonable doubt. Mitigating circumstances are things that might explain a convict’s behavior, such as the abuse each of the men suffered as children. Lawyers for the Carr brothers say their clients’ lives might have been spared if jurors in the case knew about the reasonable doubt standard.

Their lawyers also said joint hearings meant certain evidence couldn’t come in, such as how the older brother instigated the crimes and influenced the younger one to go along.

“You truly think that this jury, but for the fact that your client was a corruptor, would not have imposed the death penalty?” an incredulous Scalia asked a defense attorney during oral arguments.

Despite the heinous nature of the crimes, Sotomayor worried about jury confusion over aggravating and mitigating factors and the burden of proof.

The stakes are high, as Kansas Attorney General Derek Schmidt warned. Six of the nine death row inmates in Kansas could get off if the Carr brothers’ sentences are overturned.

Neil Katyal, lawyer for one of the brothers, warned of arbitrary justice: “A man is being put to death under jury instructions that are so confusing that there is a reasonable likelihood that some juries would interpret those instructions to bar consideration of the mitigating circumstances and others would not. That ambiguity and inequity is impermissible under the Eighth Amendment.”

It seems a majority of the court is likely to return the brothers to death row and reverse the Kansas Supreme Court. Justices Elena Kagan, Anthony Kennedy, John Roberts, Ruth Bader Ginsburg, and Steven Breyer all mentioned that juror confusion was unlikely—that joint trials and sentencing in fact offer certain benefitsto criminal defendants.

But if the lower court is upheld, the brothers could be removed from death row along with others convicted of heinous crimes.

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Signing on the dotted line

Anyone who has ever guaranteed a loan will want to pay attention to this case.

Two wives signed personal guarantees on their husband’s loans. The spouses of Valerie Hawkins and Janice Pattersons developed subdivisions and borrowed about $2 million over three years from a Missouri bank.

The husbands defaulted on the loans, and the bank demanded payment. Their wives as guarantors are on the hook, but they argue the bank is discriminating against them based on marital status. The bank required their signatures based solely on marital status, and they want the guarantees voided.

“She was simply required to sign because she was the spouse of the husband,” their lawyer John Duggan said. The Equal Credit Opportunity Act makes it unlawful to discriminate against any “applicant” on the basis of marital status. But the womenweren’t loan “applicants,” their husbands were.

The Supreme Court spent time in oral arguments last week parsing the meaning of the word “applicant.”

The bank will probably win under the narrow law used in the case. But if the court rules in favor of the wives, banks likely will want more security before granting loans.