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Judge denies new sentencing hearing for 2 brothers awaiting execution for 'Wichita massacre'

This combination of 2013 file photos provided by the Kansas Department of Corrections shows Reginald Carr, left, and Jonathan Carr. (Kansas Department of Corrections via AP) This combination of 2013 file photos provided by the Kansas Department of Corrections shows Reginald Carr, left, and Jonathan Carr. (Kansas Department of Corrections via AP)
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A Kansas judge on Monday denied a request for a resentencing hearing for two brothers awaiting execution for a quadruple killing known as the "Wichita massacre," ruling that he lacks jurisdiction to approve a reexamination of the sentences.

The legal setback was the latest for Jonathan Carr, 44, and Reginald Carr, 46. Last year, the U.S. Supreme Court refused to request a formal resentencing hearing, a decision that came a little less than a year after the Kansas Supreme Court ruled that the two brothers had received fair trials and upheld their death sentences.

"I don't know that I can do anything about that sentence until somebody vacates it," Sedgewick County Chief Judge Jeff Goering said at the hearing.

Attorneys for the Carr brothers said they planned to appeal.

The brothers were convicted of breaking into a home in December 2000 and forcing three men and two women to have sex with one another and later to withdraw money from ATMs. Police said the women were repeatedly raped before all five victims were taken to a soccer field, where they were shot.

Aaron Sander, 29; Brad Heyka, 27; Jason Befort, 26; and Heather Muller, 25, all died. The woman who survived testified against the Carr brothers, who also were convicted of killing another person in a separate attack. Each brother accused the other of carrying out the crimes.

Kansas has nine men on death row, but the state has not executed anyone since the murderous duo James Latham and George York were hanged on the same day in June 1965.

Attorneys for the brothers argued Monday that since some convictions were tossed out in previous appeals, a new sentencing hearing is appropriate. Julia Spainhower, the attorney for Reginald Carr, told Goering he had a chance to correct "what was an obvious error."

Sedgewick County District Attorney Marc Bennett said there was no "lack of clarity" in the Kansas Supreme Court ruling that the death penalty should stand.

"What the defence wants to do is reopen the whole thing," Bennett said.

Attorneys for both brothers raised concerns in the latest round of court filings that the trial attorneys were ineffective -- Reginald Carr's defence said they were "egregiously" so -- and failed to aggressively push for a continuance to give themselves more time to prepare. They also agreed that prospective jurors weren't properly questioned about racial biases. The brothers are Black, their victims white.

Reginald Carr's attorney's also brought up an investigation into members of the Wichita Police Department exchanging racist, sexist and homophobic texts and images. Several were ultimately disciplined, and Carr's attorney wrote that one of them was involved in the investigation of the brothers.

From there, the attorneys for the brothers deviate in their court filings. Jonathan Carr's attorneys argued that the trial attorneys failed to investigate and present evidence that Reginald Carr, who is older, had a powerful influence over his younger brother and sexually abused him. A Kansas Department of Correction evaluation conducted just days after Jonathan Carr was sentenced to death said he "appears to idolize his brother," his attorneys wrote.

Meanwhile, Reginald Carr's attorneys wrote that the trial attorneys were unprepared to rebut Jonathan's defence, which it described as "largely consisting of family members prepped to promote saving Jonathan Carr's life over his older brother's life." And they further argued that DNA evidence and identification was actually stronger against Jonathan Carr.

The Kansas Supreme Court upheld their convictions in 2014 but overturned their death sentences, concluding that not having separate hearings violated the U.S. Constitution. The U.S. Supreme Court reversed that decision in 2016, returning the case to the Kansas Supreme Court.

When the Kansas Supreme Court took up the brothers' cases again, their attorneys raised questions about how their cases weren't conducted separately when jurors were considering whether the death penalty was warranted. Other issues they raised included the instructions that were given to jurors and how closing arguments were conducted.

The Kansas court's majority concluded that while the lower-court judge and prosecutors made errors, those errors did not warrant overturning their death sentences again.

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