Wichita judge will decide if death penalty jury process is racially biased

WICHITA, Kan. (KSNW) — After listening to three days of witnesses, a Sedgwick County District Court judge has agreed to consider if the way juries are chosen for capital murder trials is racially biased.

Death qualification

The same jury that convicts someone of capital murder may also be asked to determine if that person should be sentenced to death. So, before being chosen to serve on the jury, a potential juror must go through death qualification.

Potential jurors are asked if they could impose the death penalty. If the person says they never would, they are not chosen. Likewise, if they say they always would, they are not chosen.

“You have to have people who say, ‘I would be open-minded and consider it. I might not. I might,'” District Attorney Marc Bennett said. “In very broad terms, that’s what death qualification means.”

The American Civil Liberties Union has spent this week trying to convince Chief Judge Jeffrey Goering of the 18th Judicial District that death qualification is racially biased and unconstitutional.

The ACLU is using the case of a Black Wichita man charged with capital murder. The defendant, Kyle Young, is charged in the shooting deaths of George Kirksey, 27, and Alicia Roman, 22, at the Hotel at WaterWalk, 700 S. Main, on Jan. 2, 2020. Young’s trial is scheduled for October, but lawyers will start working on a questionnaire for the jury this summer.

Does it lead to racial bias?

The ACLU brought in death penalty experts who testified that Blacks are more likely to be excluded from serving on death penalty juries and are more at risk of being charged with capital murder than whites.

The ACLU submitted national studies and research specific to Kansas and Sedgwick County. Find links to the different reports by clicking here.

District Attorney Bennett represented the state during this week’s hearing. He objected to the proceeding and referred the judge to the 61-page response he filed in December.

He wrote that the issues raised “are not yet ripe.” Instead, he said it should wait until after the conclusion of Young’s capital murder trial.

Bennett did not call any witnesses but asked the ACLU’s witnesses a few questions.

ACLU closing argument

On Thursday morning, Judge Goering listened to closing arguments from both sides.

Henderson Hill, ACLU senior counsel, began with a message for the families of the murder victims.

“There’s nothing about these hearings we intended to cause any additional pain,” he said. “We’ve worked hard to limit that possibility, and we wish the very best for both families.”

Hill then went over the testimony, particularly of a Wichita man who told about his experience with how the Wichita Police Department treats Black residents.

On Monday, Kevin Harrison told the judge the WPD had pulled him over more than a dozen times in his younger days, often for no apparent reason. He talked about officers pulling guns on him as he tried to record a music video by railroad tracks. He said one of the officers recognized him from school, so the situation ended peacefully. Harrison said the officer apologized many years after leaving the WPD.

Hill referred to that former officer’s apology in his closing arguments.

“He says, ‘Let me tell you about what happened when I jumped out. You know, I wasn’t a racist in high school. I’m not a racist now. But I’ll tell you I was trained to be a racist,'” Hill said.

“What we’ve learned from Kevin’s experience is the Wichita Police — there’s an illness, there’s a sickness, there’s a training problem, there’s a culture problem there,” he said.

Hill said there’s a WPD culture that treats Black neighborhoods in northeast Wichita, where Harrison grew up, as occupied territory.

“Whether you talk about (Harrison’s) employment, whether you talk about his volunteer and civic responsibilities, he is all about community, and none of that got the respect of the Wichita Police Department,” Hill said.

He showed a graphic that he says explains the problem — racism leads to distrust which can lead to someone being disqualified from a jury, which is another form of racism.

He said Black residents might show their wariness toward police officers when they fill out the jury questionnaire.

“What bleeds out of the juror is, ‘Yeah, I had some difficult relations with officers. Yeah, I can be skeptical about whether an officer is telling the truth. I’ve got that in my background,'” Hill said.

He said the skepticism might disqualify the Black person from serving on the jury.

“What’s the effect of being disqualified and rejected and said you’re not good enough? That’s more discrimination,” Hill said. “How do you get out of that wormhole.”

During the closing argument, Hill repeated some of the expert testimony and death penalty studies the judge saw.

District attorney’s closing argument

Marc Bennett focused his closing on the expert witnesses’ testimony.

“Much has been made of the fact that only when women are killed has the death sentence, the death penalty been sought in Kansas as if some decision is being made by prosecutors not to go after people who kill men,” he said.

He said prosecutors must use the qualifying factors listed in the state statute to determine if a murder is a capital case. As he listed them, he pointed out that they are rarely committed by women.

“What qualifies as a death penalty case, a capital murder charge in Kansas?” he asked. “You rape or aggravated criminal sodomy and then kill somebody — not a lot of women doing those crimes. Kill a cop. Kill someone in prison. Kidnap somebody and then kill them. Walk into a room and kill everybody in the room.”

Bennett then asked the judge a question.

“You’ve been on the bench for what, 20 years? Ever had a woman defendant who raped and killed somebody, kidnapped a child and killed them, shot a cop, killed someone in prison, walked in and killed two, three, four people in a room?”

The judge did not answer the question.

“It’s by definition going to be geared toward women as victims,” Bennett said.

He then turned his focus to one of the cases the experts listed as having two white female victims.

“It was discussed that the Carr case from Sedgwick County, that was a female victim case, and that’s really the deciding factor. That’s the salient issue in that case? Really? Do I have to go through the facts of that case?” he asked.

Bennet said the aggravated factors are what the capital murder statute is supposed to be about.

He also took issue with words some of the experts used to describe the death penalty, such as ambivalence and arbitrary.

“One man’s arbitrary is somebody else’s reticence,” Bennett said.

He said that in the last 15 years, three cases have gone to a death verdict in Kansas. He said prosecutors realize how long a death penalty case can take going through the court system and what it means for victims’ families.

“When we make the decision to go forward on capital murder, what we’re doing is buying about 30 to 40 years of misery for the families,” Bennett said.

“Ambivalence? Arbitrary? Or is it a reticence on the part of prosecutors to put their communities and these victims through these cases?” he asked. “If that’s arbitrary, then the Supreme Court or the legislature can make a policy decision and get rid of the death penalty.”

ACLU rebuttal

After Bennett finished, Cassandra Stubbs, director of the Capital Punishment Project, ACLU, gave a rebuttal.

She spoke of the methods the experts used to reach their conclusions. She repeated witness testimony that Blacks are more likely to be charged with capital murder.

“The question is if you are Black and charged with the murder of a white person, are you at a higher risk, and there is no question that you are,” she said.

“Dr. Baumgartner testified that the risk ratio there was 1.49 if you are Black and kill a white person,” Stubbs said. “If you are Black and kill a Black person, the ratio is .22. This is an enormous disparity. The highest sentencing group in Kansas is for a Black man who kills a white female, and there the risk is 3.3. The risk for a white person who kills a Black person is zero because nobody has ever been sentenced to death in Kansas for that, never.”

She also reiterated testimony that Black jurors are more likely to be excluded from serving on death penalty juries.

“When you are on trial for your life, you will face a jury that is more conviction prone, more likely to return a death sentence, and much more likely to be whiter and male,” Stubbs said.

Judge’s decision

Judge Goering said that the ACLU’s challenge of the capital jury qualification process “is a ripe challenge” because the jury selection process in the Young trial will begin this summer.

“We’ll probably begin that process in the summertime as we get together and hash out the questionnaires,” he said. “So, I’m going to take that challenge under advisement, and I’ll resolve it with a written opinion prior to the time we start jury selection.”

Goering said two other ACLU challenges “aren’t ripe” and should wait until there is a verdict in the Young trial. So he said he would take those challenges under advisement until then.

Reaction

Stubbs said her goal is to see that death qualification never goes forward in another capital trial in Kansas.

“Whether that’s achieved through a court ruling, I understand there’s a bill in the legislature to end capital punishment. However that is achieved, I think what we’ve shown here is that death qualification is an unconstitutional process,” she said.

Bennett said defense teams questioning the death penalty’s constitutionality is not uncommon. He said that if he were defense counsel on a capital murder case, he would also challenge the constitutionality, probably before, during and after the trial.

If the judge decides death qualification is not constitutional, Bennett says he might consider appealing, or he could proceed with the capital case against Young without the death penalty as an option.

He said the judge’s opinion would not affect any other Kansas capital murder cases. That requires a higher court or the legislature.

Bennett also said it is essential for prosecutors to talk to victims’ families before pursuing a capital murder charge.

“They’re the ones who go through it,” he said. “They’re the ones who have to process all the way down, you know, for years, decades from now … So, before I go blithely making a decision that impacts a family or families, for decades to come, I need to make sure we have sat down and had long discussions about that.”

KSN News will continue to follow this story, including the judge’s opinion once it is issued and the murder trial.