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A nearly unanimous Supreme Court has reinstated death sentences for three convicted murderers in Kansas. Today's decision casts doubt on the impression that justices might be willing to strike down capital punishment in its entirety. The story that we're going to hear about in this case includes, from the start, some disturbing descriptions of violence. NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Writing for the court, Justice Antonin Scalia described the gruesome details of the so-called Wichita Massacre in which two brothers broke into a home at Christmastime, tortured five young men and women, raped them repeatedly, forced them to commit sexual acts on one another, then drove them naked to a snowy field and shot them in the head execution style. Incredibly, one of the young women survived when a hairclip she was wearing deflected the bullet. She ran through the snow to a nearby house and live to testify against the men.
The Kansas Supreme Court reversed the brothers' death sentences plus another one on grounds that the trial judge's instructions to the jury had failed to make clear that jurors did not have to find mitigating circumstance beyond a reasonable doubt. In restoring the death sentences today, the court said that the Constitution does not require such an instruction.
On a second question - whether the brothers had to be sentenced in separate proceedings before separate juries - the court answered with an unequivocal no. All that's required is to clearly instruct the jury to consider each defendant individually as the trial judge did here.
Summing up from the bench this morning, Justice Scalia said that given the overwhelming evidence of the two brothers' cruelty and depravity, only the most extravagant speculation would lead one to conclude that the joint sentencing proceeding unfairly prejudiced either of the brothers. All but Justice Sonia Sotomayor joined Scalia's opinion in full, and even Sotomayor did not dispute much of what Scalia said. Rather, she said the court should not have even heard the case because it was based, in large part, on state law.
Just a week ago, the court reached a very different conclusion also by an 8 to 1 vote, this time ruling Florida's death penalty system unconstitutional because it charged the judge, not the jury, with making the decision on sentencing in capital cases. So in two weeks, there have been two death penalty decisions going in opposite directions and sending potentially opposite signals about whether there are five justices now willing to reconsider the constitutionality of the death penalty.
EVAN MANDERY: I would say it gives everyone pause.
TOTENBERG: Professor Evan Mandery of John Jay College of Criminal Justice has written extensively about the death penalty.
MANDERY: Clearly this is the sort of issue you get a once-in-50-year shot at.
TOTENBERG: And yet, as Mandery points out, the Florida and Kansas cases are procedural in nature. Neither presented a frontal assault on the death penalty. Nina Totenberg, NPR News, Washington.
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