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Kansas High Court on Thurber Death Sentence: New Rules Require Second Look at Disability

The Kansas Judicial Center, which houses the Supreme Court. (Photo by Stephen Koranda)

The Kansas Supreme Court has upheld the murder conviction of Justin Thurber. Yet the justices delayed a decision on his death sentence and said a lower court must reconsider whether he has a developmental disability.

A jury sentenced Thurber to death for the 2007 killing of 19-year-old Jodi Sanderholm, a college student in Cowley County.

The court said new guidelines for determining whether someone has an intellectual disability came after Thurber was originally convicted. The death sentence hinges on that because state and federal rules bar executing someone who is intellectually disabled.

Justices joining the majority opinion said they had no choice but to send the issue back to the district court, and that court must reconsider whether Thurber has a disability using the new rules.

“We feel compelled to point out the problems we identify on the intellectual disability determination were not of the district court's making,” Justice Dan Biles wrote. “That court was operating under now-outdated state statutes and federal case law.”

Thurber’s attorneys have argued he does have a disability and should not be executed.

Justice Eric Rosen dissented, saying there was enough evidence originally presented to determine Thurber’s status.

“I would uphold the district judge's determination and proceed to the important penalty phase issues that, by this decision, will be unnecessarily delayed,” Rosen said.

In a second dissenting opinion, Justice Lee Johnson said there are problems with a state law regarding how courts should determination if someone has an intellectual disability, meaning the death sentence should be overturned.

“I would simply reverse Thurber's death sentence and remand for resentencing to life in prison without possibility of parole,”  Johnson said.

Johnson added that sending the case back to the lower court should mean gathering new evidence to determine if Thurber has a disability.

Kansas reinstated capital punishment in the 1990s, although no one has been executed since then. Ten men sit on the state’s death row.

Stephen Koranda is Statehouse reporter for Kansas Public Radio, a partner in the Kansas News Service. Follow him on Twitter @kprkoranda. Kansas News Service stories and photos may be republished at no cost with proper attribution and a link back to the original post.

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