Challenge to Kansas death penalty argues jury selection in capital cases is discriminatory • Kansas Reflector

KANSAS CITY, Kan. – Jury selection processes in death cases discriminate against black communities and individuals who oppose the death penalty because of their religious beliefs, lawyers seeking to overturn the death penalty in Kansas argued Tuesday.

A coalition of lawyers led by the American Civil Liberties Union filed suit earlier this month on the death penalty in Kansas and began arguing their case Monday in Wyandotte County Circuit Court.

They continued their arguments Tuesday that the death penalty violates both the Kansas and U.S. Constitutions, including because potential jurors who oppose the death penalty can be removed from the pool, resulting in the Juries are disproportionately white and more prone to convict. The practice, the ACLU argues, violates defendants' rights to an impartial jury.

The ACLU's first witness, Monsignor Stuart Swetland – a priest and president of Donnelly College in Kansas City – said the Catholic Church's opposition to the death penalty could get him released from a Kansas death court.

“It puts us in a very difficult position when the state requires us to do one thing and our faith tells us to do another,” Swetland said.

The challenge is two counts of capital murder Antoine Fielder And Hugo Villanueva Morales. Fielder is accused of killing Wyandotte County sheriff's deputies Patrick Rohrer and Theresa King during an inmate transport in 2018. Villanueva-Morales is charged with murder in a mass shooting at a Kansas City bar in 2019. He is also charged with attempted murder, criminal possession of a weapon and several counts of aggravated assault.

Both are awaiting trial.

The ACLU also called professors from the University of Kansas and the University of California, Berkeley on Tuesday to testify about black communities' distrust of police. The ACLU argues that distrust makes black potential jurors more likely to support the death penalty and more likely to be excluded from death sentences.

Charles Epp, a distinguished professor at the University of Kansas, said his research showed that negative interactions during traffic stops caused black residents of the Kansas City area, particularly black men, to trust the police less.

“The vast majority of black men we interviewed had repeated and persistent bad interactions with police officers,” Epp said.

Elisabeth Semel, a professor at Berkeley School of Law who has studied jury selection, said one of the key ways to limit racial discrimination in the trial is “irretrievably broken.”

During jury selection, attorneys on both sides of a case can reject a certain number of potential jurors without providing a reason for their dismissal, called a peremptory challenge. But U.S. Supreme Court precedent in Batson v. Kentucky allows opposing counsel to challenge the removal of jurors based on race, gender or ethnicity.

Semel said Batson challenges are not effective in stopping prosecutors from eliminating Black jurors because prosecutors can make a “race-neutral” decision to dismiss a potential juror, making it difficult to prove that a juror was removed because of his or her race became.

The court is expected to continue hearing from experts until Friday.