Is an unbiased jury possible in Kansas death penalty cases?

WICHITA, Kan. (KSNW) — For the third day in a row, a district judge in Wichita has heard testimony that the Kansas death penalty law is racially biased and unconstitutional.

The American Civil Liberties Union (ACLU) is trying to prove that it is impossible to get fair and impartial juries in capital murder cases in Kansas.

The ACLU of Kansas and the National ACLU’s Capital Punishment Project have taken up the case of a Wichita murder suspect. Kyle Young is charged with one count of capital murder in the deaths of two people at the Hotel at WaterWalk, 700 S. Main, on Jan. 2, 2020. George Kirksey, 27, and Alicia Roman, 22, were found shot to death. Young’s trial has been delayed until October.

Sedgwick County District Attorney Marc Bennett has objected to the hearing, saying it is all theoretical since there is no verdict in the case and, therefore, no sentence. He says the burden of proof falls on the ACLU.

On Wednesday, the ACLU lawyers called two more witnesses. Frank Baumgartner, professor of political science at the University of North Carolina at Chapel Hill, has made researching the death penalty his life’s work. He has written several books on the subject.

He analyzed Kansas homicides, capital prosecutions and death sentences that occurred between 1994 until 2021. He specifically looked at the race and gender of the victims and the offenders in cases that ended with a death sentence.

Baumgartner testified that when a Black male kills a white female, there’s a much higher rate of death sentences. Also, he said killing a Black male does not appear to get someone the death sentence in Kansas. He said that while Black males are the victims in more than 30% of Kansas homicides, none of their killers have been sentenced to death.

“There is strong reason to believe that the distinguishing features that separate the death-sentenced cases from those not leading to a death sentence are the racial and gender characteristics of the victims in the crime, as well as the combined race and gender of the offender and victim, considered together,” he wrote in a report for the ACLU.

Click here to read the report.

The district attorney cross-examined Baumgartner, asking if the research included how heinous some of the Kansas death penalty crimes were. Baumgartner said that was not part of his research.

The next witness for the ACLU was Carol Steiker, a law professor at Harvard Law School. She was on the committee that got the American Law Institute to change its stance on the death penalty.

She said the U.S. Supreme Court identified problems with the death penalty 50 years ago, and they still have not figured it out. She also pointed to racial inequities.

Steiker said Black defendants are more likely to get the death penalty, and prosecutors are more likely to seek the death penalty if the victim is white.

“So the race effects continue to this day,” she said.

She also said minority jurors are often kept from serving on capital cases. The Supreme Court case of Batson v. Kentucky was supposed to help, but she says it has not.

“It’s not just an opinion,” Steiker said. “There have been studies to see how pre- and post-Batson, how much Batson reduced, if it did at all, the disproportionate exclusion of minority jurors. And the answer is it did reduce … disproportionate exclusion of minority jurors, but only by a very, very small amount.”

She said there is a strong incentive for prosecutors in capital cases to consider a juror’s race.

“It’s a pretty safe bet to think that white people, especially white men are more likely to support the death penalty than Black people or women in general,” Steiker said. “If you’re going to exclude anyone, it just makes a lot of sense to exclude Black jurors, even if you don’t have a racist bone in your body.”

She said rational racism is an illegal trial strategy, but it is easy to strike certain people from the jury. She said prosecutors are even trained on explanations they can give.

“… that the prospective juror seemed hostile or bored or laughed inappropriately or didn’t make eye contact or made too much eye contact,” Steiker said. “It’s just very easy to come up with an explanation that appears to be race-neutral.”

She said it is tough for judges to determine if a person was removed because of their race.

“The judge has to determine that the prosecutor basically is not telling the truth about why they made the strike, and judges are understandably reluctant to call prosecutors, whom they see every day in their courtroom, to call them liars, and to basically call them racist, to call them racist liars,” Steiker said.

She said there are other reasons there are not enough minority jurors in capital cases. She said minority jurors are:

Disproportionately excludable because of criminal convictions

Less likely to receive their jury summons because Black communities experience disproportionate poverty, which leads to moving around

Less likely to respond to the summons because they cannot afford to serve as a juror or mistrust the justice system

“There’s no way that Batson is going to solve this problem,” Steiker said. “This is like, once again, baked into the system.”

She said her research found other problems with the American death penalty system. For example, she said jurors rarely understand legal terms.

“I know this as a professor. It’s hard for me to teach my Harvard Law students about aggravating and mitigating evidence and burdens of proof, so you can imagine how difficult that is for lay jurors to understand and apply in a capital trial,” Steiker said.

She said that the defense needs money for research, and legislatures are less likely to put money toward capital defense cases and appeals.

“I think any lawyer would tell you resources matter in terms of being able to put on the kind of evidence that juries find persuasive in capital cases,” Steiker said. “In capital cases, it really all comes down to mitigation, and mitigation is hugely expensive — investigating, doing a social history of the defendant, getting expert witnesses about mental health, among other things. It’s just tremendously resource-intensive.”

She pointed to a study by Baumgartner, the first witness on Wednesday. His study said the death penalty cost government agencies in Kansas over $2 million annually from 2014 through 2018. The study said that does not include the cost of processing death-penalty appeals.

“The death penalty is much, much more expensive than life imprisonment, even when you take into account possible imprisonment for life,” Steiker said.

She also spoke of the danger of wrongful convictions. She said 186 people sentenced to death have been exonerated since 1976.

Steiker said wrongful convictions are more likely in capital cases for these reasons:

The victim is dead and cannot be interviewed

Prosecutors and police are under a lot of pressure to solve heinous crimes quickly and are more likely to:

Use methods to induce a confession

Cut corners on identification procedures

Use of jailhouse informants

Rely on faulty or shoddy forensic evidence

She said that after the committee she was on presented its research to the American Law Institute, the ALI withdrew the death penalty from the penal code used by law schools and lawmakers around the country.

The ALI said, “In light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment, the Institute calls for the rejection of capital punishment as a penal option.”

Steiker said that when the committee wrote the report in 2008, 36 states had the death penalty. Since then, nine of those states have abolished it. She said the states cited part or all of the committee’s report in the reason to abolish capital punishment.

When it was the district attorney’s turn to cross-examine Steiker, he asked her if she felt the death penalty system is broken. She said yes.

“In your opinion … there’s no path forward to even a minimally capable, minimally adequate system for the death penalty?” Bennett asked.

“Correct,” Steiker said. “That was my view and the view of the American Law Institute as well.”

To see Steiker’s report for the ACLU, click here.

The court recessed until Thursday, when the ACLU said it was prepared to present its closing arguments.