Kansas Supreme Court reviews death sentence for murderer of Arkansas City teen

The Kansas Supreme Court sifted through nuances of evaluating intellectual disability and two dozen other alleged trial errors Friday in the appeal of a south-central Kansas man’s death sentence for kidnapping, raping and strangling a teenage college student.

Justices worked through two hours of argument by appellate counsel Reid Nelson and Kansas deputy solicitor general Kristafer Ailslieger, who argued divergent views of convicted killer Justin Eugene Thurber’s contention he should be spared execution because a Cowley County trial judge improperly denied a request for a hearing to determine whether he functioned at a “significantly sub-average” level.

Thurber was sentenced to death in 2009 for murdering Jodi Sanderholm, who was a 19-year-old student at Cowley College at the time of her abduction. Her body was found in January 2007 under brush in a remote area near Arkansas City.

“He graduated from high school. He went to college and passed courses,” said Justice Eric Rosen. “Wouldn’t that be an indication he wasn’t suffering from adaptive deficits that’s in question here?”

Nelson said the trial court should have relied on testimony of clinical professionals at a special hearing to determine Thurber’s intellectual capacity.

“There was testimony he was socially awkward throughout school. His dog was his best friend growing up,” Nelson said. “He had a sixth-grade reading level after two years of college. He had a hard time living on his own. He couldn’t handle money very well.”

However, Ailslieger countered the lower court was on solid ground proceeding to issuance of a death sentence after the defense’s own expert told the trial court Thurber wasn’t mentally disabled.

“What’s a district court to do?” he said. “Really, the discussion should stop there. That ship has sailed.”

Thurber, 34, is among 10 men convicted of murder and placed on Kansas’ death row. Kansas restored the death penalty law in 1994, but the state hasn’t executed anyone since 1965.

Other questions raised during oral argument hearing in Topeka centered on admissibility of a videotape of Thurber. The video was used by the prosecution in Cowley County to depict the spooky-calm demeanor of Thurber in aftermath of the murder.

“He didn’t really care,” Ailslieger said. “It showed, basically, he was a cold-blooded killer.”

The opposing attorneys waded into whether sufficient evidence existed to declare Sanderholm endured heinous, atrocious or cruel treatment warranting imposition of a sentence of death.

“There’s no evidence of conscious physical suffering,” Nelson said. “The prosecutor can’t pretend he’s there watching it happen.”

“She was beaten pretty severely,” replied Ailslieger, who reminded the justices Sanderholm was strangled, allowed to recover and strangled again during a period lasting up to 12 minutes. “She was suffering severe mental anguish. That’s a pretty logical inference.”

In addition, Nelson said, Kansas’ antiquated law related to handling of intellectually disabled defendants in capital cases reflected thinking prevalent in the 1700s when “idiots” were exempt from capital punishment. State law is unconstitutional given U.S. Supreme Court rulings that execution of someone with even a mild mental disability violated constitutional protections against cruel and unusual punishment, he said.

“We need a constitutional statute. The Legislature has got to fix it. If he’s a protected class, he can’t be executed,” Nelson said.

The alternative could be imposition of a life sentence without possibility for parole, he said.