- Associated Press - Thursday, May 4, 2017

TOPEKA, Kan. (AP) - Kansas’ top court wrestled Thursday with whether it can mandate new, separate sentencings for two brothers facing execution for four notorious slayings that became known as “the Wichita massacre.”

Jonathan and Reginald Carr had a joint trial and sentencing hearing over dozens of crimes in Wichita in December 2000 that ended with three men and a woman shot to death in a snow-covered soccer field. The crimes were among the most notorious in the state since the 1959 slayings of a western Kansas family that inspired Truman Capote’s book “In Cold Blood.”

This is the second time the Kansas court is considering whether the brothers - who turned on each other at trial - should have been sentenced separately. The court in 2014 listed their being tried and sentenced together as among the most serious flaws that made the court proceedings so unfair that the men should be re-sentenced, but the U.S. Supreme Court ordered another review.

The Kansas court’s decision in the Carrs’ cases inspired vigorous but unsuccessful attempts to oust six of the seven justices in elections in 2014 and 2016. The U.S. Supreme Court declared in a sometimes scathing opinion by the late conservative Justice Antonin Scalia that the joint sentencing hearing didn’t violate the U.S. Constitution.

“They said that with some pretty strong language, that it would require ‘extravagant speculation’ to conclude that it was unfair and that it’s ‘beyond reason’ to think that it’s unfair,” Justice Caleb Stegall told Jonathan Carr’s attorney during Thursday’s arguments.

The brothers are among 10 men on Kansas’ death row, though the state has not executed anyone since hangings in 1965.

Prosecutors said the brothers broke into a home and forced the three men and two women there to have sex with each other and later to withdraw money from ATMs. The women were raped repeatedly before all five were taken to a soccer field and shot. Four victims died: Aaron Sander, 29; Brad Heyka, 27; Jason Befort, 26; and Heather Muller, 25. One of the women survived to testify against the Carr brothers.

Assistant Sedgwick County District Attorney David Lowden said the evidence against the brothers was so overwhelming that the alleged errors wouldn’t have changed the result.

“The unspoken thing is: If we tried this case tried this case again 100 times, are we going to reach the same result?” he said.

The Carrs’ attorneys are raising some of the same legal questions a second time, arguing that the Kansas Constitution requires the death sentences to be overturned even if the U.S. Constitution doesn’t. The Kansas court has the last word on state law issues.

Both Stegall, appointed by conservative Republican Gov. Sam Brownback after the first rulings, and Justice Carol Beier, an appointee of former Democratic Gov. Kathleen Sebelius, pressed the brothers’ state appellate defenders to address the logic of the U.S. Supreme Court decision.

Sarah Ellen Johnson, representing Jonathan Carr, said the decision was relatively narrow and didn’t deal with “the nitty gritty details” of the case. She said the Kansas court still has plenty of reasons to conclude that the joint sentencing hearing was so flawed as to be unfair.

“We have a duty to make sure death sentences are imposed properly,” she said.

Jonathan Carr argued that he was not as responsible as his brother for the crimes and that Reginald Carr had been a bad influence on him during their troubled childhoods.

But Debra Wilson, representing Reginald Carr, said both his brother and the state “ganged up” on him during the sentencing. Wilson said Reginald Carr wasn’t allowed to present his defense that an unnamed third person was more involved in the crimes - someone Johnson pointedly dismissed as a “mythical companion.”


Follow John Hanna on Twitter at https://twitter.com/apjdhanna .

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