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A history of Kansas death penalty cases

County’s first capital murder trial in decades begins on Monday

By Katherine Wartell

The first capital murder trial in Riley County in decades begins Monday when opening statements are heard in the case against Luis Aguirre, the man accused of murdering his ex-girlfriend and their 13-month-old son in 2009.

The case, historic for Riley County, sheds light on the death penalty in Kansas and, depending on its outcome, could have greater implications in a state where execution is relatively rare. 

Though nine men face execution in Kansas, the state has not executed an inmate since 1965 when serial killers George York and James Latham were hanged at Lansing Correctional Facility. The infamous Clutter family murderers, Perry Smith and Richard Hickock, were hanged earlier that same year. And since 1950, a total of 10 men have been executed in Kansas.

The state’s death penalty was first abolished in 1907, then reinstated in 1935 before it was once again abolished in 1972 following a U.S. Supreme Court ruling. Though the Supreme Court determined the constitutionality of the death penalty in 1976, opening the doors for states to bring back the penalty, it wasn’t until 1994 that Kansas once again reinstated it when Gov. Joan Finney allowed it to become law without her signature.

As established by Kansas law, the death penalty can be sentenced in capital murder cases that involved eight aggravating circumstances, including especially heinous murder (like the use of torture), murder for monetary gain and murder that involved more than one victim.

Since 1994, 13 men have been sentenced to death, though three of those men were spared the penalty by state officials and the Kansas Supreme Court, while another man has been scheduled for resentencing.

The nine men now awaiting execution are James Kahler, Justin Thurber, Gary Kleypas, Scott Cheever, Sidney Gleason, Douglas Stephen Belt, John Robinson Jr., Johnathan Carr and Reginald Carr. No women are on death row in Kansas.

According to The Kansas Coalition Against the Death Penalty, 85 capital cases have been filed in 31 counties since 1994, with the highest numbers in Wyandotte, Sedgwick, Johnson and Shawnee counties, and 26 capital trials have taken place. According to their numbers, 13 men have undergone a capital trial and not been sentenced to death.

Since the reinstatement, the law has also proved to be contentious and dogged by court cases questioning its constitutionality, with two particularly important cases being those of Kleypas and Michael Marsh, a man whose death sentence has since been commuted to life without parole following a plea deal.

Kleypas, whose capital trial for the 1996 rape and murder of Carrie Williams in Pittsburg, has the distinction of the being the first man since 1994 to be sentenced to death in Kansas.

(Barry Disney, one of the prosecuting attorneys for the Aguirre trial, was also involved in the Kleypas case.)

Kleypas was sentenced to death by jury in 1998, but in 2001 the Kansas Supreme Court, in a 4-3 decision, ordered that he be resentenced because of what they believed had been an error in how jurors were told to decide whether Kleypas should live or die.

Similarly, in 2004, the Kansas Supreme Court ruled that the death penalty was unconstitutional for Marsh, a man convicted for the 1996 murders of Marry Ane Pusch and her 19-month-old daughter, Marry Elizabeth.

They decided in a 4-3 decision to strike down the death penalty law in Kansas, ruling that it violated the U.S. Constitution because it had a flawed provision about how jurors should weigh the aggravating and mitigating factors for death during sentencing, arguing that jurors were told by Kansas law to favor death penalty when the arguments for and against the death penalty were equal.

Though this decision placed all death penalty cases on hold, the U.S. Supreme Court in 2006 overturned the decision by ruling that the death penalty law in Kansas was constitutional, returning convicted killers like the Carr brothers to Kansas’ unofficial death row. 

Another jury sentenced Kleypas once again to death in 2008. With the exception of Cheever, who is held at Lansing Correctional Facility, Kleypas and the seven others awaiting execution have been held at El Dorado Correctional Facility since their sentencing.

In 2010, a bill that would have abolished the death penalty lost to a tie vote of 20 to 20.

The bill had been sponsored by Sen. Carolyn McGinn, who had argued for repeal citing the high court costs associated with death penalty cases due to lengthy appeals.

In Kansas, death penalty cases receive an automatic appeal made to the Kansas Supreme Court, and even following that appeal, defendants still have several options for overturning their sentence, including appealing to the U.S. Supreme Court.

2010 numbers from the Bureau of Justice indicate that the average time between initial sentencing and actual execution is 178 months, or about 15 years.

Of the nine men awaiting execution by lethal injection, two — the Carr brothers — were sentenced 10 years ago, while the latest to receive the sentence was Kahler in October 2011. All nine are in the process of appeals.

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