- Associated Press - Monday, December 14, 2015

TOPEKA, Kan. (AP) - An attorney for the first prisoner condemned to death in Kansas in more than three decades asked the state’s highest court Monday to throw out his sentence, alleging jurors should have been removed from the case after seeing the victim’s father lunge at the defendant in court.

During nearly two hours of arguments, an appellate attorney for Gary Kleypas insisted Larry Williams’ foiled attack on her 60-year-old client should have prompted a judge to disband that jury, which later sentenced Kleypas to death.

“When this happens, reasonable judges grant mistrials,” attorney Meryl Carver-Allmond told the justices. “That kind of put the thumb on the scale, and they pushed through.”

Justice Eric Rosen questioned whether the conduct really prejudiced the jury.

“I don’t think you can just assume this worked against your client,” Rosen said.

Kleypas, who was not brought in from prison to attend Monday’s hearing, was convicted of fatally stabbing 20-year-old Pittsburg (Kansas) State University student Carrie Williams in 1996. At the time of Williams’ death, Kleypas was on parole from a 1977 Missouri murder conviction for which he served 15 years in prison.

After the Kansas Supreme Court in 2001 overturned Kleypas’ death sentence, another jury restored it in 2008.

Kansas’ high court last month upheld a death sentence for the first time since the state reinstated capital punishment in 1994. That court’s past decisions overturning nine death sentences inspired a campaign that almost succeeded in ousting two justices in last year’s elections and handed Republican Gov. Sam Brownback a potent issue in the final weeks of his race for re-election.

Three other capital cases are before the justices.

Although Carver-Allmond said Kleypas’ culpability for Williams’ death is undeniable - “We’re not arguing my client is exempt form criminal responsibility. He’s guilty.” - an attorney for the state pressed Monday that Kleypas’ sentence should be upheld.

During Kleypas’ 2008 sentencing hearing, according to a Kansas City Star account at the time, Larry Williams rose from his seat in the courtroom’s gallery after the jury heard the 911 recording from when his daughter’s body was found. Larry Williams lurched toward Kleypas with his arms outstretched but was tackled by a former state investigator who had been waiting to testify.

Larry Williams never reached Kleypas, though the defense table was disrupted and water spilled, the Star reported. Williams was led away in handcuffs and was banished from the courtroom for the rest of the hearing but was not charged.

Kristafer Ailslieger, a deputy Kansas solicitor general, called the judge’s response to the would-be attack “reasonable and rational,” noting that jurors who witnessed the altercation were properly vetted by the judge about whether they could be impartial. The judge also admonished jurors to set aside the incident and not hold it against either side.

When it comes to the need to declare a mistrial, Ailslieger argued, deference goes to the trial judge, who “is in the best position to make that determination.”

Carver-Allmond also insisted that an attempt should have been made to reassemble Kleypas’ original 1997 jury for his 2008 resentencing. Ailslieger questioned whether that’s what Kleypas really would have wanted, given that the first jury already had condemned him.

Carver-Allmond also pressed that Kleypas’ mental illness mitigates his culpability, and that the jury was wrongly allowed to hear of Kleypas’ 1977 Missouri murder conviction because Kleypas alleges his defense attorney was ineffective, making the conviction suspect.

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