WICHITA, Kan. — The Kansas Supreme Court has affirmed the death sentences for Reginald and Jonathan Carr, the two brothers convicted in a Wichita crime spree that left five people dead. But Kansas Attorney General Derek Schmidt said this does not mean the brothers will be put to death.

Sedgwick County District Attorney Marc Bennett said the high court’s ruling took the brothers’ death penalty cases over a major hurdle. He said he spoke to some of the victims’ families and one of the survivors after getting the news Friday morning. He said they expressed relief and are ready to see the next legal stage of death penalty cases proceed.

THE CRIMES

(KSN file photo)

The Carr brothers’ week-long crime spree in December of 2000 involved the robbery of an assistant baseball coach and the attack of Ann Walenta, a local cellist, who was injured and later died in the hospital.

A few days later, the brothers broke into a home on Birchwood Drive, where they abused and terrorized five young adults for hours. Finally, after being forced to take money out of ATMs, the victims were taken to a field, shot in the head, run over, and left for dead. Brad Heyka, Heather Muller, Aaron Sander and Jason Befort were killed.

(KSN file photo)

One woman survived when a bullet hit a barrette in her hair. During the trial, she was referred to as H.G. Her testimony was critical.

The brothers were convicted in 2002 on four counts of capital murder, one count of murder, one count of attempted murder, and multiple counts of rape, kidnapping, and robbery.

Last May, both defense attorneys argued to the Kansas Supreme Court that the proceedings for the brothers should also have been separated in the penalty phase. They also claimed there were issues with jury instructions.

The defense for the State of Kansas argued none of that should impact the jury sentence of death.

After the Kansas Supreme Court issued its ruling Friday morning, Attorney General Derek Schmidt released this statement:

“The legal path to this day has been long and winding for the victims and their families, for the Wichita and Sedgwick County community, and for all of Kansas, but today’s decisions by the Kansas Supreme Court are welcome confirmations that although the wheels of justice may turn slowly they do ultimately propel us all forward.”

Derek Schmidt, Kansas Attorney General

This was not the first time Kansas’ highest court heard the case of the Carr brothers. In 2014, the two brothers appealed to the Kansas Supreme Court. Back then, the court vacated the death sentence, concluding the Carrs’ Eighth Amendment rights to individualized sentencing were violated by the Sedgwick County District Court judge’s refusal to sever the penalty phase.

But two years later, the United States Supreme Court said the Kansas Supreme Court was wrong to overturn the death sentences. The nation’s highest court said the joint sentencing proceeding neither implicated the Carrs’ Eighth Amendment rights nor violated their rights under the due process clause. As a result, the U.S. Supreme Court sent the case back to the Kansas court.

The Kansas Supreme Court reviewed more than 20 penalty phase issues the U.S. Supreme Court had not addressed, including two supplemental state constitutional issues raised after the U.S. Supreme Court’s decision.

A RIGHT TO LIFE?

Justice Kenyen Wall said in the state Supreme Court’s 160-page opinion the Sedgwick County District Court trial of the brothers was “less than perfect” but fair.

The opinion also waded into complexities of the state Supreme Court’s abortion opinion of 2019 in the controversial Hodes & Nauser v. Schmidt case. In that ruling, the justices held Section 1 of the Kansas Constitution’s Bill of Rights protected a broader range of rights than described in the U.S. Constitution. The Carr brothers and other capital murder appellants seized upon that decision to argue the state’s capital murder sentencing scheme unconstitutionally infringed upon that right to life.

Wall said the justices rejected the right-to-life argument as it related to capital punishment.

“The natural right to life is forfeitable, and the state’s imposition of the death penalty under Kansas’ capital sentencing scheme does not infringe upon the ‘inalienable’ right to life protected under Section 1,” Wall said in the opinion.

Justice Dan Biles concurred with the majority but wrote the issues of Section 1 were decided more than 20 years ago in a separate death penalty appeal by Gary Kleypas, who was sentenced to die for the 1996 murder of Carrie Williams, a 20-year-old student at Pittsburg State University.

“I appreciate the Carr defendants seized on the recent decision in Hodes & Nauser to animate what amounts to an old — previously decided — issue,” Biles said.

TRIAL: ‘SO MANY ERRORS’

Marla Luckert, chief justice of the state Supreme Court, agreed with the majority’s opinion as it related to Section 1 and affirmation of the death penalty law but dissented when it came to evaluating the fairness of the Carr brothers’ trial. She said her research failed to uncover another Kansas appellate case affirming a verdict in the face of so many errors. For example, she said, the trial judge should have granted the brothers’ request for separate trials.

“In this appeal, we review a trial riddled by error that led to a verdict imposing the death penalty,” she wrote. “Given the nature and volume of errors, I cannot eliminate the possibility that at least one juror would have decided mitigating factors or mercy outweighed the aggravating factors.”

Justice Caleb Stegall also agreed with the majority’s decision on the death penalty but renewed his belief the Hodes & Nauser decision by the state Supreme Court amounted to “gross constitutional error.”

He said the abortion decision abandoned the court’s interpretation of Section 1 as a limit on state police power and imposed judicially pronounced rights.

“It would be understandable if one felt ambivalent about this magnification of state power given that the impact today falls only on two of the most brutal and cold-blooded killers in the history of Kansas,” Stegall wrote. “But if substantive guarantees are not afforded to every single citizen, and rigorously defended no matter the circumstances, the people will not long be free.”

WHAT’S NEXT?

Some Kansans may wonder if the Kansas Supreme Court decision means a date will be set for the death sentences to be carried out. Schmidt said that is not how it works.

“This does not mean the litigation in these cases is concluded because the defendants now have the opportunity, under both state and federal law, to seek further judicial review of their cases,” he said. “But completing these direct appeals is an important milestone in the path toward justice for the horrific crimes these defendants committed and the innocent lives they took.”

Bennett, who serves Sedgwick County, said the Carrs’ attorneys could try to appeal to the U.S. Supreme Court over the Kansas Supreme Court’s latest ruling. They have 90 days to file if that is their intention. The state would then respond, and the U.S. Supreme Court would have to decide whether to rehear the case. Schmidt believes an appeal is unlikely.

Both Schmidt and Bennett pointed out that this would end the brothers’ direct appeals, but then the Carrs would have other judicial review options, such as collateral attack and habeas corpus.

Of the nine people currently under sentence of death in Kansas, seven have exhausted their direct appeals and are in various stages of collateral litigation. Schmidt said they are Gary Kleypas, John Robinson, Sydney Gleason, Scott Cheever, Craig Kahler, and now Jonathan and Reginald Carr.

Of the remaining two, Justin Thurber’s convictions were affirmed on appeal, but his sentence remains under appeal as the courts gather information relating to his claim of intellectual disability. The case of the other remaining defendant – Kyle Flack – will be argued before the Kansas Supreme Court next week.

The Kansas Supreme Court opinion in the Reginald Carr case is 160 pages long. Click here to read it. The opinion in the case of Jonathan Carr is 64 pages. Click here to read it.

To watch the oral arguments made to the court in May 2021, click here for the Reginald Carr case and click here for the Jonathan Carr case.

Both Carr brothers are being held in the El Dorado Correctional Facility, where they have been since Nov. 2002.

Kansas Reflector contributed to this report.