Kan. court's approval of death sentence not seen as shift
Kansas isn't likely to see executions anytime soon or a shift in how the justices handle capital murder cases
By John Hanna
TOPEKA, Kan. — Even though the state Supreme Court recently upheld a death sentence for the first time under the state's 1994 capital punishment law, Kansas isn't likely to see executions anytime soon or a shift in how the justices handle capital murder cases.
"Symbolically, there is something different," said Robert Dunham, head of the anti-capital punishment, nonprofit Death Penalty Information Center. "But I wouldn't read too much into it."
Several prosecutors are encouraged by this month's decision in the case of John E. Robinson Sr. — who was sentenced to die for killing two women in 1999 and 2000 and tied by evidence or his own admission to six other deaths, including a teenage girl, in Kansas and Missouri — saying it showed its possible to preserve a death sentence on appeal in Kansas.
Two Kansas law professors said the 415-page decision in John E. Robinson's case issued earlier this month suggests the Supreme Court's examination of future capital cases will remain as thorough as it has been.
The high court's past decisions overturning death sentences inspired a campaign that almost succeeded in ousting two justices in last year's elections and handed Republican Gov. Sam Brownback a potent issue in the final weeks of his race for re-election. And there are more capital cases before the justices.
Only four days after the Robinson decision, Frazier Glenn Miller Jr., an avowed anti-Semite, was sentenced to death for the fatal shootings of three people at Jewish sites in the Kansas City suburbs.
The court also will hear arguments Dec. 14 in the case of Gary Kleypas, sentenced to death a second time for the 1996 sexual assault and stabbing of a college student after the high court overturned the punishment in 2001. Three other capital cases are before the justices.
Before the Robinson ruling, the justices had struck down nine death sentences. Four are serving lengthyprison sentences instead; two, including Kleypas, are back before the justices, and the state is asking the U.S. Supreme Court to reinstate three other death sentences.
Dunham said it was inevitable that the Kansas Supreme Court would uphold a death sentence. He said Robinson still can file additional legal challenges in state and federal courts, forestalling an execution date.
But Attorney General Derek Schmidt, whose office defends death sentences on appeal, said, "It shows that there is a path that allows the statute to operate as it was intended."
Senate Judiciary Committee Chairman Jeff King said he was "perplexed" by the state high court's previous decisions, arguing that it struck down death sentences over mistakes by judges in handling cases that were harmless, given "mountains" of evidence against the defendants.
"My concern has always been that the Supreme Court requires near perfection by a trial judge in order to uphold a death penalty case," said King, an Independence Republican.
Schmidt and Johnson County District Attorney Steve Howe, whose office prosecuted Robinson and Miller, said two decades of rulings in capital cases have left guidance for prosecutors and judges on legal issues.
Prosecutors also now know, thanks to the high court, that if a defendant is deemed eligible for the death penalty for multiple killings during a "common scheme or course of conduct," they file a single capital murder charge, not one for each death.
But Kansas still has had relatively few capital cases reviewed compared to others, such as Texas, Oklahoma and Florida, according to Elizabeth Cateforis, a University of Kansas law professor who teaches a capital punishment course.
"Eventually, you get a system in place that does what it is supposed to," she said.
A clue as to why Robinson's death sentence was upheld is the unusual "effusive praise" for how Johnson County District Judge John Anderson III handled the case, Sedgwick County District Attorney Marc Bennett said, noting it's a message to other judges to follow his example.
The Supreme Court didn't change its legal standards so much as it decided a case free of questionable rulings by a trial judge, said Bill Rich, a constitutional law professor at Washburn University.
"If the judge had not been so meticulous, it would have been a different opinion," Rich said.