By Allison Kite, Kansas Reflector
KANSAS CITY, Kan. — Jury selection procedures in capital murder cases discriminate against Black communities and individuals who oppose the death penalty because of their religious beliefs, lawyers seeking to overturn capital punishment in Kansas argued Tuesday.
A coalition of attorneys led by the American Civil Liberties Union filed a challenge earlier this month to Kansas’ death penalty and began arguing their case Monday in Wyandotte County District Court.
They continued Tuesday to build their case that capital punishment violates both the Kansas and U.S. constitutions, in part because prospective jurors who are opposed to the death penalty can be removed from the pool, making juries 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 kicked off a capital murder jury in Kansas.
“It puts us in a very difficult position where the state is asking us to do one thing and our faith commands us to do another,” Swetland said.
The challenge comes in a pair of capital murder cases against Antoine Fielder and Hugo Villanueva-Morales. Fielder is accused of killing Wyandotte County sheriff’s deputies Patrick Rohrer and Theresa King in 2018 during an inmate transport. Villanueva-Morales is charged with capital murder in a 2019 mass shooting at a bar in Kansas City. He’s also charged with attempted murder, criminal possession of a weapon and several counts of aggravated battery.
Both are awaiting trial.
The ACLU on Tuesday also called professors from the University of Kansas and University of California, Berkeley, who testified about distrust of police among Black communities. The ACLU argues distrust makes them Black prospective jurors likely to support the death penalty and more likely to be excluded from capital juries.
Charles Epp, a distinguished professor at the University of Kansas, said his research showed negative interactions in traffic stops made Black residents of the Kansas City area, especially Black men, less likely to trust the police.
“The vast majority of the Black men we interviewed have had repeated, ongoing bad interactions with police officers,” Epp said.
Elisabeth Semel, a professor at Berkeley’s School of Law who has researched jury selection, said one of the primary procedures to limit racial discrimination in the process is “irretrievably broken.”
During jury selection, lawyers on each side of a case can reject a certain number of prospective jurors without stating a reason for their dismissal, called a peremptory challenge. But U.S. Supreme Court precedent set in Batson v. Kentucky allows the opposing attorney to challenge the removal of jurors based on race, sex or ethnicity.
Batson challenges, Semel said, are not effective in stopping prosecutors from eliminating Black jurors because prosecutors can state a “race neutral” decision for dismissing a prospective juror, making it difficult to prove a juror was removed based on race.
The court is expected to continue hearing expert witnesses through Friday.
Launched in July 2020, Kansas Reflector is an affiliate of States Newsroom, the nation’s largest state-focused nonprofit news organization, supported by grants and donations. Kansas Reflector retains full editorial independence.
