Attorneys attempting to overturn the death penalty in Kansas argue capital juries are skewed toward conviction and disproportionately white
KANSAS CITY, Kan. — The death penalty creates racially biased juries, results in wrongful convictions and does not deter crime, attorneys seeking to overturn capital punishment in Kansas said in a court hearing Monday.
A coalition led by the American Civil Liberties Union filed a challenge earlier this month seeking to overturn Kansas’ death penalty. Hearings on the issue began Monday in Wyandotte County District Court.
In an opening statement and through witness testimony, attorneys made the case that capital punishment is unconstitutional, in part because of how it skews the makeup of juries. Testimony is expected to last the rest of the week and resume with one more witness in January.
“If you are charged with capital murder … you are less likely to get a fair trial,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in her opening statement.
The challenge comes in a pair of capital murder cases against Antoine Fielder and Hugo Villanueva-Morales. Fielder is accused of killing Wyandotte County sheriff’s deputies Patrick Rohrer and Theresa King in 2018 during an inmate transport. Villanueva-Morales is charged with capital murder in a 2019 mass shooting at a bar in Kansas City. He’s also charged with attempted murder, criminal possession of a weapon and several counts of aggravated battery.
Both are awaiting trial.
Wyandotte County District Attorney Mark Dupree argued in an opening statement that because neither defendant has been tried and convicted, the ACLU’s challenge is premature.
“At this point, the state stands by the law that neither of these arguments are ripe for hearing,” Dupree said.
Kansas is one of 27 states that still allows defendants to be sentenced to death and currently has nine inmates on death row. It hasn’t carried out an execution since 1965, and it was among the slowest to reinstate the death penalty after the U.S. Supreme Court allowed for new capital punishment laws in 1976 — four years after it struck down previous laws across the country. Kansas didn’t adopt a new death penalty statute until 1994.
While Kansas courts have considered challenges to the death penalty before, the ACLU is seeking a finding that capital punishment is unconstitutional as it’s applied in cases. One of the witnesses called by the coalition argued the death penalty is “irretrievably broken.”
Attorneys in the case are also challenging Kansas’ practice of “death qualification” for prospective jurors. During jury selection in capital cases, attorneys can disqualify prospective jurors based on their views of the death penalty, which the ACLU argues “disproportionately discriminates against jurors who are Black, women and/or religious,” violating defendants’ rights to an impartial jury and excluding jurors’ rights to participate in democratic functions.
Witnesses called by the ACLU argued historic — and ongoing — racism in the criminal justice system make Black prospective jurors less likely to support the death penalty, resulting in juries that are disproportionately white.
Stubbs said in her opening statement that there’s “no question that death qualification results in juries that are more likely to convict.”
“If you have two people … and one person is charged with a theft and one person is charged with capital murder, the person charged with the theft is going to get a much, much more diverse jury,” Stubbs said in an interview following the hearing.
Not only are death penalty juries more likely to convict, according to one of the witnesses the ACLU called, they’re more likely to wrongfully convict an innocent person. Carol Steiker, a Harvard Law School professor and researcher, said pressure to solve high-profile murder cases can lead to poor police work, which is then presented to juries she argues are racially biased and prone to convict defendants.
“Those juries are way skewed in a way that is not the case … in sentencing on the noncapital side,” Steiker said.
Following Steiker’s testimony, the ACLU called as witnesses two historians who argued racism and racial terror is inextricably tied to Kansas’ history, pointing to the prevalence of the Ku Klux Klan in the 19th and 20th centuries and high-profile lynchings across the state.
“Segregation, racism, discrimination is not a southern phenomenon,” said Shawn Alexander, a professor of African and African American studies at the University of Kansas. “… It’s a national phenomenon, and Kansas is part of that and part of that history.”
Stubbs said the testimony demonstrated why Black Kansans are less likely to trust law enforcement or support the death penalty, leading to skewed juries.
The ACLU’s filings argue the Kansas Supreme Court invited this challenge to the death penalty in a decision two years ago concerning Jonathan and Reginald Carr, who were convicted in a series of murders in Wichita.
In the case, the justices wrote that allegations that capital juries have higher levels of racial bias and are prone to convict defendants “warrant careful analysis and scrutiny.” But the issue wasn’t sufficiently argued in the court record and the justices wrote in the decision that they couldn’t conduct “any meaningful review” of the issue.
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.
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