The Supreme Court took about two hours on Wednesday to hear six lawyers (one of them twice), but at the end it appeared that an issue the Justices had declined to take up may have to be. Thus arose a question that maybe only a law professor — or an appellate lawyer — could love. Can the Court, after all, rule on an issue that it had indicated it wouldn’t? (The answer is: it can.)
Much of the entire argument in two Kansas murder cases, in fact, seemed odd, as Supreme Court hearings go. It created the dual perception that maybe this was a case that should not have been reviewed at all, but was just too hard to resist because of an emotional need to do something to right the dreadful wrong of the mass killings that created one of those cases.
On the first point, even if the Justices overturn the Kansas Supreme Court decision they are reviewing, it may make no real difference to the ultimate outcome on an issue that affects all three of the convicted individuals in the two cases. And, for two of them, the Kansas court may still be able to rule in their favor despite what the Justices have done — that is, unless the Supreme Court makes something of a fresh start.
On the second point, a blunt recital by Justice Antonin Scalia of the horrific crimes committed by two of the individuals, and a less detailed but rather disturbing summary by Justice Samuel A. Alito, Jr., added to the impression that there is no way the Kansas Supreme Court could avoid being rebuked for what it had done in overturning these death sentences.
But getting to that outcome, if that’s where a majority of Justices is actually headed, may be a very challenging judicial journey.
In a much over-simplified summary, the cases of the Carr brothers, Reginald and Jonathan, are before the
Court on two issues the Court accepted for review (but not a third question that now looks important, too). The case of a third individual, Sidney J. Gleason, overlaps on only one of the two granted issues, and his case seemed almost an after-thought. Nothing was heard at the hearing about his two murders, which do not have quite as gruesome an array of facts as the murder and rape spree that the Carr brothers carried out in what Kansans call “the Wichita massacre.”
For all three of these individuals, the state of Kansas’s appeals asked the Court to rule that it does not violate the Constitution’s Eighth Amendment if a jury in a death penalty case is not told explicitly by the judge that they do not have to apply the strict standard of “beyond a reasonable doubt” in order to decide factors that would help the convicted individual avoid a death sentence. That was the issue the Court took up in the first hour on Wednesday.
It turns out, however, that Kansas courts have made a change, and now do give the very jury instruction that was not given in any of these cases, and that the state’s highest court might well use that as a reason to give the three convicted murderers a right to a new sentencing — with a somewhat better chance of avoiding a death sentence — even if the Supreme Court overturned it on the Eighth Amendment issue and sent the case back to Kansas.
Several Justices suggested that a return of the case could be a way to handle that question, but that raised doubts about whether the Court should have granted review of that question at the outset: a ruling on the Eighth Amendment might make not alter the outcome that might favor for the Carrs and Gleason.
The Court is very sensitive these days to taking on cases that turn out, in the end, not to have been worthy of review, and they have a new and supposedly more rigorous case-selection process to try to avoid accepting such cases.
If this were not puzzling enough on Wednesday, there was more.
In the Court’s second hour, the Justices heard the state’s appeal in the Carr brothers’ cases asking the Court to rule that it does not violate the Constitution if two individuals who were convicted of the same murders are sentenced at a joint hearing instead of at separate proceedings. It appeared that a clear majority of the Court would, indeed, rule that way. Several Justices puzzled over how such a joint sentencing could be harmful to either Reginald Carr or his younger brother, Jonathan Carr, and reacted skeptically to what their lawyers claimed about supposed prejudice to either.
Thus, the Supreme Court might overturn the Kansas court on that point, too.
That, however, might not be the end of the matter. That’s because the Kansas Supreme Court ruled in favor of the Carr brothers on another constitutional point. And, on that point, the Justices had declined review in March when they agreed to hear the state of Kansas’s appeals.
The state court ruled that the Constitution’s Confrontation Clause, with its bar to criminal evidence from a witness who talked to police but did not actually take the stand in court, applies to out-of-court statements used by prosecutors at a death penalty hearing, to increase the chances of getting such a sentence.
The Justices, examining the Carr cases, opted not to review that question. If that option stands, then the Kansas Supreme Court, when the case returned to it, could simply reiterate that the Carrs have a right to a new sentencing hearing, without the out-of-court statements being used.
It is a fairly common practice for the Court, in taking on a case that has multiple issues, to pick and choose among them on what it will decide. While that has the practical effect of refusing to review the issues not so chosen, this is not a formal bar to the Court taking up that question or questions at a later point.
If the Court majority, in the Carrs’ case, is determined to try to head off a new sentencing hearing for them, it has a couple of options: it could go ahead and decide that question along with the others it is reviewing, it could call for new briefs from both sides on that question, or it could get new briefs and then hold a new hearing.
The Court could tip its hand on this within coming days. Inside the Court building, there could be some wringing of hands at having taken on the Kansas cases, with all the complications that have now emerged. The case-selection process, it turns out, may need a bit more tightening.