Should two brothers who were convicted of a horrific murderous crime spree be tried in court together and sentenced to death in one combined sentencing hearing? Alternatively, does justice mandate erecting a wall between their two cases and holding separate individualized hearings? It has been nearly fourteen years since the 2000 crime spree referred to in Kansas as the "Wichita Massacre" that left five victims dead and another seriously injured. This week the case of the two brothers, Reginald and Jonathan Carr, was back in court again and this time it was before the highest court in the land, the U.S. Supreme Court.
Kansas State attorneys, arguing the case on behalf of the county prosecutors, have described the offenses of the Carr brothers as "an incredibly brutal crime spree of rapes, robberies and violence." Justice Antonin Scalia, at Wednesday's argument, went to great lengths to remind everyone of the scale of the brothers' brutality. After a combined trial in 2002 the brothers were sentenced to death. Last year, however, the Kansas State Supreme Court reversed the death sentences. The State of Kansas appealed to the Supreme Court and on Wednesday the nine justices heard legal arguments. Capital punishment keeps the Supreme Court busy; the Carrs' case is one of four death penalty cases set for argument this session.
In an unusual twist of fate, the strategy of county prosecutors to try and sentence the two brothers together pitted the two brothers against each other as their lawyers fight to spare their lives. Jonathan, the younger brother, was 20 at the time of the murders. In an attempt to save his life, lawyers for the younger brother have argued that Reginald, 3 years older, was a destructive influence on the younger brother. They have referred to Reginald as a "second prosecutor" of Jonathan because Reginald introduced evidence and testimony used to convict his brother. They pointed to Reginald's courtroom conduct and dangerous propensities as working against Jonathan. Reginald's lawyers also claim the combined joint death penalty sentencing hearings tainted the older brother's sentencing. In trial court filings Reginald's lawyer argued that DNA evidence proved Jonathan, acting with a third black male, committed most, if not all of the crimes the brothers were accused of.
The combining of the trials and sentencing hearings was an important aspect of the weighty subjects presented to the justices for a decision in this case, but not the only issue. Another subject argued was whether the trial judge properly instructed the jury of the law controlling mitigation of death sentences that justify a life sentence instead. Mitigation evidence was presented that Jonathan suffered from brain damage and Reginald was diagnosed with an antisocial personality disorder. The brothers' conditions and dysfunction were not enough to convince the jury that they outweighed the depravity of their crimes.
Tensions are mounting among the Supreme Court Justices on capital punishment, and sparks between Justices Stephen Breyer and Antonin Scalia sizzled again Wednesday. The tensions started this summer in an Oklahoma lethal injection case (Glossip v. Gross). In that case Justice Breyer caused ripples in the legal community by publicly inviting the Court to "reopen the question" whether capital punishment should be abolished as an unconstitutional cruel and unusual punishment. In that case Justice Scalia referred to Justice Breyer's dissenting arguments as "nonsense." On Wednesday Justice Scalia pointed out that Kansas has nine inmates on death row. "Kansans," said Scalia, "unlike Justice Breyer, do not think the death penalty is unconstitutional."
Interestingly though, on Wednesday, as Justice Breyer listened to the arguments made by the lawyers for the Carr bothers he was troubled by something other than the constitutionality of the death penalty. Breyer questioned whether a ruling from the Court mandating separate trials and sentencing hearings would "open the floodgates" to criminal defendants in potentially hundreds of (what he called) "ordinary" criminal cases like gang cases or drug cases who would all demand separate proceedings from their co-defendants. In an attempt to save money, joint trials for criminal defendants arrested together are common, unless there is a good legal reason to separate them. Appellate Courts like the Supreme Court go to great lengths to decide cases narrowly so to avoid slipping down a "slippery slope" and set the stage for future far reaching consequences.
Despite Justice Scalia's swipe at Justice Breyer about Kansans supporting capital punishment, executions are unusual in Kansas. Kansas has not executed anyone since 1965. If Kansas executes the Carr Brothers they will share a history of rare and notorious Kansas executions. Among the last state executions in Kansas were the hangings in 1965 of Richard "Dick" Hickock and Perry Smith. Hickock and Smith were the two ex-cons who, after being released from prison on parole committed the farmhouse murders of four members of the Clutter family. Their crimes were made famous by Truman Capote's shocking bestseller, In Cold Blood.
The Carr Brothers, like Hickock and Smith, have achieved a level of notoriety. A 2003 Law and Order Specials Victim Unit episode "Dominance" was based on the Wichita Massacre. And just like the Carr brothers, Hickock and Smith tried to deflect responsibility by blaming each other. Unlike the Carrs, though, the Clutter murderers may have been partners in crime but they were not brothers. In death penalty litigation, however, if prosecutors are successful, siblings take family dysfunction to their graves.