WASHINGTON (Reuters) - Hearing a death penalty case for the first time since their divisive lethal-injection ruling in June, the nine justices of U.S. Supreme Court on Wednesday appeared poised to rule against two brothers challenging their sentences for a Kansas crime spree known as the “Wichita Massacre.”
Jonathan and Reginald Carr were sentenced to death after being convicted of the crimes committed in December 2000 in Wichita, including the execution-style murders of one woman and three men on a snowy soccer field.
But the Kansas Supreme Court threw out their sentences last year, faulting the trial judge’s instructions to the jury and saying the brothers should have been sentenced in separate proceedings rather than together. Kansas appealed to the U.S. Supreme Court, seeking to have the death sentences restored.
The appeal does not directly address the constitutionality of the death penalty, and there was little sign of the tensions over capital punishment that flared among the justices when they ruled 5-4 in June that Oklahoma’s lethal-injection procedure did not violate the U.S. Constitution’s ban on cruel and unusual punishment.
Liberal Justices Stephen Breyer and Ruth Bader Ginsburg, dissenting in that ruling, suggested it could be time for the court to rule that the death penalty is unconstitutional.
The Carr brothers’ crimes included the kidnapping of three men and two women in a home invasion. The brothers raped the women, forced the men to have intercourse with the women and ordered the women to perform sex acts on each other.
The five victims were driven to ATM machines and told to withdraw money. Then they were lined up on a soccer field and shot in the head. One of those kidnapped, a woman named in court papers as Holly G., managed to survive because a bullet deflected off a hair-clip she was wearing. She testified against the brothers during their trial.
The gruesome nature of the “Wichita Massacre” was not lost on the justices.
“We see practically every death penalty case that comes up anywhere in the country. These have to rank as among the worst,” Justice Samuel Alito said.
The only reference to the court’s sparring over the Oklahoma death penalty case came from Justice Antonin Scalia, who has a history of backing capital punishment. Scalia said the fact that Kansas has nine prisoners on death row “could suggest that Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it.”
Breyer did not respond.
The justices appeared likely to rule against the brothers on both legal issues raised.
The first was whether the Constitution requires trial judges to tell the jury that mitigating evidence introduced during the sentencing phase of the trial does not need to be proven beyond a reasonable doubt. The trial judge made no such statement in this case.
The second question was whether the brothers should have had separate sentencing proceedings. Lawyers for the younger brother, Jonathan, 20 at the time of the murders, attempted to show that Reginald, three years older, was a “corrupting influence.”
The court heard the Carr cases along with another appeal from Kansas, which involved a man named Sidney Gleason convicted of a 2004 double murder, that also raised the jury instruction issue.
Due to legal complexities in the cases, the Carrs and Gleason could win new sentencing hearings based on state law even if the high court rules against them.
The state appeals court left various convictions in place for the Carrs including one murder count per brother, meaning both still would eligible for the death penalty if they get new hearings.
A ruling is due by the end of June.