WICHITA, Kan. (KSNW) — The American Civil Liberties Union (ACLU) is using a Wichita murder case to fight the Kansas death penalty law, which it believes is unconstitutional. On Monday, Feb. 6, a Sedgwick County District Court judge will begin hearing the case.

The ACLU of Kansas and the National ACLU’s Capital Punishment Project are using the case of Kyle Young as the basis for their arguments. Young is charged with one count of capital murder in the deaths of two people at the Hotel at WaterWalk, 700 S. Main, on Jan. 2, 2020. George Kirksey, 27, and Alicia Roman, 22, were found shot to death.

Young has not been convicted. His trial has been delayed while the ACLU fights against the death penalty. Sedgwick County District Attorney Marc Bennett will present the opposition to the ACLU’s arguments.

ACLU’s claims

One of the ACLU’s complaints about the death penalty in Kansas is the death qualification process of choosing a jury. It says that people against the death penalty are excluded from serving as jurors in Kansas’ capital murder cases.

According to the ACLU, research has found that this leads to racially-biased juries that are more prone to convict defendants. Young is Black.

The ACLU also claims that a survey by a national expert found that death qualification in Sedgwick County is likely to disproportionately exclude Black citizens, especially Black women, from serving on the jury of capital murder trials.

“Black citizens disproportionately oppose the death penalty, a punishment that has long been linked to lynching and racism,” a video on the ACLU Kansas’ Facebook page says.

The video also claims death-qualified juries won’t represent the community’s feelings on the death penalty. The ACLU says by excluding people who don’t believe in the death penalty, the jury no longer represents the community.

Lawyers against the death penalty will claim it violates the state and federal Constitution in three ways. It listed these points on its website:

  • White-washed and biased capital juries violate capital defendants’ rights to fair and impartial juries.
  • The arbitrary and discriminatory imposition of the death penalty violates the prohibition on cruel or unusual punishment.
  • The death penalty doesn’t deter crime and is extremely costly.

DA Marc Bennett’s response

In December, District Attorney Bennett filed a 61-page response to the death penalty challenge. He wrote that the issues raised “are not yet ripe.” He said it should wait until after the conclusion of Young’s capital murder trial.

Jurors in capital murder cases must first decide if a defendant is guilty or not guilty. If a trial ends in a guilty verdict, then the jury must go through the sentencing phase, where they hear testimony for and against a sentence of death. They can also sentence a person convicted of capital murder to life in prison.

In Bennett’s filing, he wrote, “… The issues raised by Defendant are prospective and may or may not ever be applied to this defendant.”

Bennett also says the unconstitutionality claims have already been argued many times, including by lawyers for several people on Kansas’ death row, and have consistently failed. He says that when faced with such clear, established law, the defense bears the burden of proof.

“In the instant matter, the defendant has the burden of proof to establish that the Kansas death penalty does not serve the State’s interest in prohibiting and punishing the specific criminal behavior proscribed in K.S.A. 21-5401(a),” he said.

K.S.A. 21-5401 is the state’s capital punishment statute.

Bennett said the issue of death-qualified juries has also been heard and rejected before.

“In Lockhart (v. McCree), the United States Supreme Court rejected findings made in the lower court that the process of selecting ‘death qualifed’ jurors lead to jurors who were predisposed to convict in violation of the defendant’s 6th Amendment rights,” Bennett wrote.

Hearing begins Monday

The judge hearing the case is Chief Judge Jeffrey Goering of the 18th Judicial District. He will begin hearing the case at 9:30 a.m. Monday.

The district attorney’s office says two weeks have been set aside for the hearing. KSN News plans to cover the proceeding. Look for updates on air and KSN.com.