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Witness in Wichita hearing says death penalty is random

A law professor told a Wichita judge that the way juries are chosen in death penalty cases and then reach the verdict is unreliable. The American Civil Liberties Union (ACLU) had Scott Sundby, professor of law at the University of Miami School of Law, testify on Tuesday.

February 10, 2023

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Witness in Wichita death penalty hearing says death sentences are random
by: Laura McMillan

Posted: Feb 7, 2023 / 06:28 PM CST

Updated: Feb 7, 2023 / 06:28 PM CST

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WICHITA, Kan. (KSNW) — A law professor told a Wichita judge that the way juries are chosen in death penalty cases and then reach the verdict is unreliable.

The American Civil Liberties Union (ACLU) had Scott Sundby, professor of law at the University of Miami School of Law, testify on Tuesday. The ACLU is trying to convince a Sedgwick County District Court judge that the Kansas death penalty law is racially biased and unconstitutional.

Sundby has studied capital punishment law for 37 years. He said some states require judges to take his course before presiding over death penalty cases. He is also an investigator with the Capital Jury Project.

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The ACLU has taken on the case of a 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 has been delayed while the ACLU argues against capital punishment in Kansas.

The hearing is taking place in Chief Judge Jeffrey Goering’s courtroom. District Attorney Marc Bennett is representing the state.

Sundby does not think it is possible for the death penalty to be applied in a “non-arbitrary and consistent fashion.” He said there are a variety of reasons.

There is the jury’s understanding or lack of understanding of legal terms, such as mitigating and aggravating circumstances. But that is just one of the problems.

“The wild card factor is that we aren’t asking them to decide, you know, ‘Did the defendant intend to kill?’ — A historical fact question. We are saying, ‘Use your moral judgment to decide does this person deserve to die,'” Sundby said.

He said putting that moral judgment to 12 individuals on the jury is an impossible question.

“It’s that aspect, the fact that it is an inescapably moral judgment, that makes it invariably arbitrary and capricious,” Sundby said.

He said it often depends on the juror’s worldview. He pointed to the findings of the Capital Jury Project.

“If you have a jury that does not have a Black male juror, juries were returning death sentences in those cases in about 72% of the cases,” Sundby said. “If you had a single Black male juror, it dropped to 43%.”

He said that is because the Black male juror has a different worldview which they inject into jury deliberations.

“In many of these cases, as you know, we have a defendant who has suffered sexual abuse as a child, or intense poverty, or lead poisoning … and Black male jurors on whole were more likely to view that as something that really would have shaped the defendant’s life in a way that argued for a sentence of life,” Sundby said. “They were less likely to see a Black defendant as posing a future danger.”

He said Black jurors also tended to have more lingering doubts as to a defendant’s role in the murder. He said it was not that they thought the defendant was innocent, just that they wondered about intent or whether the defendant was the primary person responsible in cases where there are multiple suspects.

“What that really drives home, and it isn’t just Black male jurors … is how each juror goes into the jury box with their own moral compass, their own worldview, and they bring it into the jury room,” Sundby said.

He also testified about the randomness of jury selection. For example, he said if just one person who is strongly for life in prison instead of death is chosen for the jury over someone who is more death-leaning, it can change the outcome to a life sentence.

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“I can change that life juror out for a different juror who might have been next up into the jury box who is very strongly death-oriented based on their moral compass, and that life case would have come back death,” Sundby said. “Likewise, I can give you death cases where you take out one juror who did not believe at all in the mitigation, didn’t believe in mental illness as a genuine mitigation, put the next juror up in the box who was open to that mitigation, that very same case with that very same lawyer, with the very same evidence, would have come out as a life sentence.”

He said it is not a difference over a juror’s historical past. Instead, it’s a difference because of their moral, religious, and spiritual viewpoint.

“So there is just this inevitable randomness which is going to come in as to whether any one case is going to go death or life based on who is next up in the jury box,” Sundby said.

He also said other factors at a trial could affect the outcome. For example, he said if the defendant is medicated for mental health reasons, the defendant may not be able to show remorse or other emotions a jury wants to see. He said that could anger the jury against the defendant.

Sundby also said the trial strategy could derail a case. He first called it problematic, then changed it.

“Problematic is too kind a word,” he said. “It frustrates the abilities, it further frustrates the ability to get consistent and reliable verdicts out of the jury pool.”

He gave the example of a lawyer who claims the defendant is innocent during the trial phase of capital cases. However, if the defendant is found guilty, the innocence defense ends up hampering the defense’s ability to prove mitigating circumstances.

When District Attorney Bennett had a chance to cross-examine, he asked the law professor if he understood that just one juror could decide Kansas death penalty cases.

“It takes one vote on the jury. One person can say, ‘I grant mercy, I’m not convinced,’ and then it’s a life verdict,” Bennett said.

Sundby said that is the prevailing law across the nation.

Bennett also asked about voir dire, the process used to select a fair and impartial jury.

“Extensive and full voir dire is a very important step to try to make it more fair, but you’re not going to cure by any stretch all of the issues which I’ve talked about because you’re still going to have within that realm of death-qualified jurors, a randomness as to whose worldview is going to prevail,” Sundby said.

Bennett asked if the Capital Jury Project included any Kansas cases. Sundby said it did not.

The district attorney said the U.S. Supreme Court knows of the Capital Jury Project but has not acted on its findings.

“The Supreme Court of the United States to date has not adopted this concern and found the death penalty unconstitutional based on concerns about moral value judgments and the inability to scrub those from capital murder cases,” Bennett said.

“That is correct,” Sundby said.

To read Sundby’s report to the ACLU, click here.

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The ACLU’s next witness was Jeffrey Fagan, a law professor at Columbia Law School. He testified about how the victim’s race could affect whether a jury chooses a death sentence over a life sentence. Click here for the research he submitted.

He also testified that his research has found that capital punishment is not a deterrent for murder. Click here to read the findings he provided to the ACLU.

The hearing continues Wednesday morning in Goering’s courtroom.

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Witness in Wichita hearing says death penalty is random

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