A Kansas judge on Monday denied a request for a resentencing hearing for two brothers awaiting execution for a quadruple killing known as the "Wichita massacre," ruling that he lacks jurisdiction to approve a reexamination of the sentences.
The legal setback was the latest for Jonathan Carr, 44, and Reginald Carr, 46. Last year, the US Supreme Court refused to request a formal resentencing hearing, a decision that came a little less than a year after the Kansas Supreme Court ruled that the two brothers had received fair trials and upheld their death sentences.
"I don't know that I can do anything about that sentence until somebody vacates it," Sedgewick County Chief Judge Jeff Goering said at the hearing. Attorneys for the Carr brothers said they planned to appeal.
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The brothers were convicted of breaking into a home in December 2000 and forcing three men and two women to have sex with one another and later to withdraw money from ATMs. Police said the women were repeatedly raped before all five victims were taken to a soccer field, where they were shot.
Aaron Sander, 29; Brad Heyka, 27; Jason Befort, 26; and Heather Muller, 25, all died. The woman who survived testified against the Carr brothers, who also were convicted of killing another person in a separate attack.
Each brother accused the other of carrying out the crimes. Kansas, which currently houses nine men on death row, has not carried out any executions since the infamous murderers James Latham and George York were hanged on the same day in June 1965.
In a recent hearing, lawyers for the brothers argued that due to some convictions being overturned in previous appeals, a new sentencing hearing would be appropriate. Julia Spainhower, representing Reginald Carr, told Judge Goering that this was an opportunity to rectify "what was an obvious error."
However, Sedgewick County District Attorney Marc Bennett insisted there was no "lack of clarity" in the Kansas Supreme Court's decision that the death penalty should remain. Bennett said: "What the defence wants to do is reopen the whole thing".
In the latest court filings, lawyers for both brothers expressed concerns about the effectiveness of the trial attorneys - with Reginald Carr's defence describing them as "egregiously" so - and their failure to push for a continuance to allow more time for preparation. They also agreed that potential jurors were not adequately questioned about racial biases. The brothers are Black, while their victims were white.
Reginald Carr's legal team also highlighted an investigation into members of the Wichita Police Department who were found to be exchanging racist, sexist and homophobic texts and images. Several officers were ultimately disciplined, and Carr's lawyer noted that one of those involved in the scandal had participated in the investigation of the brothers.
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The legal representatives for the brothers have diverged in their court submissions. Jonathan Carr's lawyers argued that the trial attorneys failed to investigate and present evidence that Reginald Carr, the elder brother, had a significant influence over his younger sibling and sexually abused him.
A Kansas Department of Correction evaluation conducted just days after Jonathan Carr was sentenced to death stated he "appears to idolize his brother," according to his lawyers. On the other hand, Reginald Carr's lawyers claimed that the trial attorneys were ill-prepared to counter Jonathan's defence, which they described as "largely consisting of family members prepped to promote saving Jonathan Carr's life over his older brother's life."
They further contended that DNA evidence and identification was actually stronger against Jonathan Carr. In 2014, the Kansas Supreme Court upheld their convictions but overturned their death sentences, concluding that not having separate hearings violated the US Constitution. However, the US Supreme Court reversed this decision in 2016, sending the case back to the Kansas Supreme Court.
When the Kansas Supreme Court revisited the brothers' cases, their lawyers raised questions about why their cases weren't conducted separately when jurors were considering whether the death penalty was warranted. Other issues they raised included the instructions given to jurors and how closing arguments were conducted. The majority of the Kansas court concluded that despite errors made by the lower-court judge and prosecutors, these mistakes did not justify overturning their death sentences again.