WASHINGTON — 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."
It was the first high court hearing on death penalty cases since a bitter clash over lethal injection procedures exposed deep divisions among the justices last term.
The debate this time was over the sentencing process for Jonathan and Reginald Carr and for Sidney Gleason, who was convicted in a separate case of killing a couple to stop them from implicating him in a robbery.
The Kansas Supreme Court overturned death sentences in both cases, saying the juries should have been told that evidence of the men's troubled childhoods and other factors weighing against a death sentence did not have to be proven beyond a reasonable doubt.
The state court also ruled that the Carr brothers should have had separate sentencing hearings instead of a joint one. It said Reginald Carr's sentence may have been unfairly tainted because Jonathan Carr blamed Reginald for being a bad influence during their childhoods.
While the attorneys on both sides focused on the legal technicalities, several of the justices couldn't help but dwell on the sordid facts of the Carr case during two hours of oral argument.
Justice Samuel Alito said it involves "some of the most horrendous murders that I have ever seen in my 10 years here. And we see practically every death penalty case that comes up anywhere in the country."
At one point, Justice Antonin Scalia recounted at length the brutal details. Authorities said the brothers broke into a Wichita, Kansas, home in December 2000, where they forced the three men and two women inside to have sex with each other while they watched, then repeatedly raped the women. The brothers then forced the victims to withdraw money from ATMs before taking them to a soccer field, forcing them to kneel, and shooting each one in the head.
Four of the victims died, but one woman survived a gunshot wound to the head because a plastic clip in her hair deflected the bullet. She ran naked through the snow for help and later testified against the brothers at trial.
"You truly think that this jury, but for the fact that your client was the corruptor, would not have imposed the death penalty," Scalia asked Frederick Liu, attorney for Reginald Carr.
Liu argued that having both brothers in the same hearing could have led the jury to blame Reginald Carr for Jonathan's conduct.
Kansas Solicitor General Stephen McAllister argued that requiring the state to conduct separate sentencing hearings would lead to inconsistent results and unfairly allow defendants to preview the state's evidence.
Justice Stephen Breyer warned that requiring separate sentencing hearings in such cases could "throw a monkey wrench" into hundreds of other cases where gang members and other co-defendants are tried and sentenced at joint proceedings.
Justice Sonia Sotomayor suggested some of the jurors may have been confused about how to consider mitigating factors that might favor leniency. The jury instructions said aggravating factors had to be proven beyond reasonable doubt, but made no specification for mitigating factors.
Kansas Attorney General Derek Schmidt argued that the instructions also included "an open-ended invitation" to consider any facts that might spare a death sentence, including pleas for mercy.
Even if some of there was some "unfortunate wording," Justice Elena Kagan wondered, "why doesn't all this other stuff indicate that no juror was likely to be confused."
A ruling in the cases is expected by the end of June.
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