The incident was so shocking it has its own Wikipedia entry: The Wichita Massacre. Justice Samuel A. Alito Jr. said it involved “some of the most horrendous murders that I have seen in my 10 years here. And we see practically every death penalty case that comes up anywhere in the country.”
So the Supreme Court spent two hours Wednesday not very successfully trying to separate the brutality of the murder rampage carried out by brothers Reginald and Jonathan Carr in 2000 from the somewhat antiseptic legal issues that caused the Kansas Supreme Court to overturn their death sentences.
The Supreme Court was reviewing two issues from the Kansas court’s decision: whether the jury received adequate instructions on how to weigh evidence that might lead it to show mercy, and whether the men should have had separate sentencing trials.
The justices through their questions seemed inclined to disagree with the Kansas court that the sentencing was tainted.
The case was one of several death penalty cases the court has accepted for its term that began Monday, and it comes at a time of increased focus on capital punishment.
The nine justices had an acrimonious split on the validity of lethal injection procedures at the end of the last term.
Two of them — Justices Stephen G. Breyer and Ruth Bader Ginsburg — called for taking a case that would allow a look at whether the death penalty can be carried out in a way that satisfies the Constitution. The court has not yet taken such a case.
The only reference to that came when Kansas Attorney General Derek L. Schmidt said in answer to Justice Antonin Scalia that there were nine people on the state’s death row.
That would indicate “that Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it,” Scalia said.
That popularity for capital punishment “might suggest that a retention election that goes before such people would not come out favorably for those justices who create Kansas law that would reverse these convictions,” Scalia said, adding “I am just speculating, of course.”
Scalia also spent nearly a minute and a half reading a description of the Carr brothers’ crime, beginning: “These two men broke into a house in which there were three men and two women. They ordered the five to remove their clothes, forced them into a closet. Over the course of three hours, they demanded that the two women perform various sexual acts on one another. They demanded at gunpoint that each of the three men have sexual intercourse with both women.”
The Carrs drove to ATMs to steal money from their victims, and they raped the women. They took all five to a soccer field, shot them execution-style and drove over them with a truck. Brad Heyka, Heather Muller, Aaron Sander and Jason Befort were killed. Befort’s fiancee, a woman identified in court papers as Holly G., miraculously survived when the bullet glanced off a plastic hairclip, fracturing her skull but not entering her brain.
She walked naked through snow to the nearest residence, and she testified at the trial of Reginald and Jonathan Carr, who were 22 and 20, respectively, at the time of the incident.
Even with such gruesome details, a jury contemplating whether to impose the death penalty must weigh aggravating circumstances — which must be proved beyond a reasonable doubt by prosecutors — with mitigating factors offered by the defense, such as a troubled childhood or personality disorder.
Those do not have to be proved beyond a reasonable doubt. The Kansas Supreme Court said because the jury was not explicitly informed of that lesser burden, the death sentences were invalid.
“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,” said Neal Katyal, a Washington attorney representing Reginald Carr.
But Schmidt said that jurors were instructed that they could consider “any other aspect of the defendant’s character, background, or record, and any other aspect of the offense” that would suggest leniency was warranted.
“We bent over backwards to make clear to these jurors the heavy burden borne by the state,” Schmidt said.
Justice Sonia Sotomayor was Schmidt’s most skeptical questioner. She noted that Kansas courts now employ the implicit mitigating-factors language that the Carrs — and an unrelated defendant whose case the court is also considering, double-murderer Sidney Gleason — request.
“Whether the Constitution requires it or not, [the Kansas court] has said the better practice is to give this instruction,” she said.
The other issue is whether Reginald and Jonathan Carr were deprived of their right to individualized sentencing when the same jury sentenced them at the same time.
Washington lawyer Frederick Liu said it was unfair to Reginald that Jonathan presented evidence during the sentencing phase that Reginald “had a corrupting influence on him while they were growing up.”
Justice Elena Kagan doubted the importance of that. “I mean, given the kind of evidence that was presented in this case, the idea that somebody was a lousy big brother seems pretty small in the scale of things,” she said.
Breyer questioned the wisdom of requiring separate sentencing trials. He said he worried about throwing “a huge monkey wrench into the ordinary cases of gangs, drugs, et cetera” where it often makes more sense to try defendants together.
The cases are Kansas v. Carr and Kansas v. Gleason.