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'Wichita Massacre' Brothers Get Zero Sympathy From The Supreme Court

WASHINGTON -- When the U.S. Supreme Court heard an unusual two hours of arguments in October to consider Kansas' death penalty regime, Justice Antonin Scalia took a break from the legal specifics of the case.

"Let me put the crime to you. You tell me which of these descriptions of the crime are incorrect," Scalia said, as he began to recount the sins of Jonathan and Reginald Carr, the brothers at the center of what is now known as the Wichita Massacre, a horrific killing spree that stunned Kansas in 2000.

Scalia was only getting started.

"These two men broke into a house in which there were three men and two women," he said. "They ordered the five to remove their clothes, forced them into a closet. Over the course of three hours, they demanded that the two women perform various sexual acts on one another. They demanded at gunpoint that each of the three men have sexual intercourse with both women."

That was the opening salvo of a grisly recitation that went on for about 90 seconds -- wholly unrelated to the procedural issues in the case, but one that clearly illuminates how some justices feel about the death penalty.

Scalia once again took a starring role on Wednesday, as lead author of the 8-to-1 decision in Kansas v. Carr, in which the court sided with the state in ruling that the Constitution doesn't grant the brothers -- and a third capital defendant in unrelated murders -- a right to a sentencing procedure that treats evidence that mitigates their culpability more charitably than it does other evidence.

But before he got to the crux of the Supreme Court's legal holding and reasoning, Scalia once again described the horrors of Wichita in extreme detail -- a four-page screed that essentially paints the Carr brothers as the dregs of humanity that they probably are.

"Spotting a house with white Christmas lights in the distance, Holly started running toward it for help -- naked, skull shattered, and without shoes, through the snow and over barbed-wire fences," Scalia wrote, retelling the story of the lone survivor of the Carrs' carnage and the star witness at their trial.

And then, in so many words, Scalia said that nothing in the Eighth Amendment requires that jurors considering "mitigating evidence" that could spare a person's life be told how exactly to weigh that evidence.

The value of that evidence, he said, is "mostly a question of mercy."

"It would mean nothing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more-likely-than-not deserve it," Scalia wrote, and added that a more involved sentencing approach would "produce anything but jury confusion."

Elsewhere in the court's decision, Scalia rejected the Carr brothers' argument that a joint sentencing for the two meant that one brother's "mitigating evidence put a thumb on death’s scale for the other, in violation of the other’s Eighth Amendment rights."

Given the gravity of their crimes, the particulars of which brother was more evil than the other -- "the corrupter" versus "the corrupted" -- was of little importance.

"What these defendants did -- acts of almost inconceivable cruelty and depravity -- was described in excruciating detail" by Holly, who "relived with the jury, for two days, the Wichita Massacre," Scalia wrote. "The joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair."

Only one justice, Sonia Sotomayor, dissented from the Supreme Court's decision. But she, too, didn't necessarily agree that the brothers should be spared. She only noted that she wouldn't have heard the case in the first place, so as to not keep Kansas -- whose own supreme court in 2014 overturned the brothers' sentences -- from tinkering with its own death-sentencing schemes.

"I worry that cases like these prevent States from serving as necessary laboratories for experimenting with how best to guarantee defendants a fair trial," she wrote.

But Kansas hasn't executed anyone in 50 years. Now that the Carr brothers are back at the mercy of the state, will it finally follow through?

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