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The Kansas Death Penalty Arguments

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Three Kansas capital cases were argued in two parts in the U.S. Supreme Court today.  The cases are those of the Carr brothers (the Wichita Massacre case) and of another murderer named Gleason.  The first hour considered an issue common to all three cases, the Kansas Supreme Court's strange decision that the standard jury instruction in the case is unconstitutional because it imposes a burden of proof beyond a reasonable doubt on the prosecution for the aggravating circumstances but does not tell the jury there is any burden of proof on the defendant for the mitigating circumstances.  The second hour considered the issue of trying the Carr brothers together.  The transcripts are here and here.

One indication that a lower court decision is tripe is when the lawyer for a respondent spends most of his argument trying to convince the Supreme Court to duck the issue.  That is what Jeffrey Green tried to do representing Gleason and Jonathan Carr, claiming that the Kansas Supreme Court did not really decide this case under the Eighth Amendment but instead under state law, which the U.S. Supreme Court has no jurisdiction to review.  He did not make much headway.  The high court decided long ago in Michigan v. Long that if a state court decision is unclear on whether its basis is state or federal they will assume it is federal.  The Chief notes at page 34, with a note of exasperation, "The whole point of Michigan against Long was so that we wouldn't have to do what we've been doing for the last 10 minutes, which is to debate whether a decision that mentions both Federal and State law is based on Federal or State law."  Not a good sign for the defendants.

The Attorney General of Kansas argued this part personally for the people of that state.  Such personal appearances are sometimes criticized by people who say the office holders should step back and leave argument to the career pros, but they do send a message of the importance of the matter, and oral argument is mostly for show anyway.
From the argument as a whole, it seems likely that most of the justices believe the Kansas Supreme Court's decision is wrong on the merits.  Justice Sotomayor seems to have some sympathy with it (see, e.g., p. 20), but she seems to be alone in that.

Although predictions from argument are always dicey, I expect this case to result in a reversal, and I do not expect it to be close.

Will Haun's "courthouse steps" teleforum for the Fed Soc should be available in a day or two at the Multimedia page.

Adam Liptak notes in the NYT:

The exchanges had little of the bitter testiness of the arguments in April in Glossip v. Gross, the lethal injection case that gave rise to Justice Breyer's dissent. The muted tone may have been related to the nature of the crimes committed by two of the inmates, the brothers Reginald and Jonathan Carr.

Their cases "involve some of the most horrendous murders that I have seen in my 10 years here," Justice Samuel A. Alito Jr. said. "And we see practically every death penalty case that comes up anywhere in the country."

Justice Scalia recited the details of the brothers' crimes at length.

They broke into a Wichita home where five people were staying and forced their victims to strip naked and perform sex acts on each other. The brothers then raped the women in turn. Then they drove all five victims, still naked or partly clothed, to a snowy field where they shot them execution-style in the backs of their heads as they knelt.

One woman survived, spared when a bullet was deflected by her hair clip. "Oh, and they ran over her, too," Justice Scalia said. "After shooting her in the head, the car ran over her."
It gets much harder to argue against the death penalty when you have a crime that so clearly warrants it. 

The severance argument also went well for the state.  Kansas SG Stephen McAllister went almost two pages of transcript before getting a question, a good sign.  Liptak notes,

The brothers, who were tried together, also argued that their sentencing hearings should have been held separately, as mitigation evidence offered by one may have hurt the other. Jonathan, for instance, argued that he had acted under the corrupting influence of Reginald, who is his older brother.

Justice Elena Kagan did not seem persuaded. "The idea that somebody was a lousy big brother seems pretty small in the scale of things," she said.
If you are the defendant and Justice Kagan isn't buying your argument, chances of winning are slim.  This one looks to be headed for reversal by a lopsided vote as well.

Update:  Sam Hananel has this story for AP:

The Supreme Court on Wednesday seemed likely to rule against three Kansas men who challenged their death sentences in what one justice called "some of the most horrendous murders" he's ever seen from the bench.
The justices were critical of the Kansas Supreme Court, which overturned the sentences of the men, including two brothers convicted in a murderous crime spree known as the "Wichita massacre."

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One has to question the morality of these KS Supreme Court judges. That they were so willing to twist the law to favor these awful criminals. In a sane system of justice--there being no question of guilt, the executions should have taken place within weeks of the convictions.

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