Death penalty in Kansas cop killing case gets aired before Supreme Court

McClatchy Washington BureauOctober 16, 2013 

Lethal injection is one method used to administer the death penalty.


— Supreme Court justices sounded deeply skeptical Wednesday about the constitutional claims made by a meth-addled cop killer from Kansas.

The killer, Scott D. Cheever, admits shooting Greenwood County Sheriff Matt Samuels in January 2005 but says methamphetamine use rendered him incapable of premeditation. He also says prosecutors should not have been able to counter a defense psychiatrist with a government psychiatrist who had examined Cheever under court order.

During an hour-long oral argument Wednesday morning, conservative and liberal justices alike effectively dismantled Cheever’s case.

“Assuming the incredulity of my colleagues continues with your argument,” Justice Sonia Sotomayor instructed Cheever’s attorney at one point, “which way would you rather lose?”

A broad court ruling could open the door for many more waivers of the Fifth Amendment protection against self-incrimination. More likely, a narrow ruling would return Cheever’s case to the Kansas Supreme Court for a determination of what limits should be placed on the testimony of the government psychiatrist.

Either type of decision would represent a victory for Kansas Attorney General Derek Schmidt, who was presenting his first oral argument before the high court.

“I felt comfortable with where the court took the inquiry,” Schmidt said afterward.

Schmidt and Assistant Solicitor General Nicole A. Saharsky, one of the Obama administration’s top lawyers, divvied up the argument against Cheever. Each made fundamentally the same point: A defendant who raises a mental status defense may be rebutted by an expert government witness, much as a defendant who takes the stand can be cross-examined by prosecutors.

“Once the defendant opened the door by putting his own expert on, the government can respond in kind,” Schmidt told the nine justices.

In response, Cheever’s appellate attorney, Neal Katyal, insisted that “the state is trying to use Scott Cheever’s words to execute him (and) that’s wrong for many reasons.”

Formerly the Obama administration’s acting solicitor general, Katyal by his presence underscored the potentially broader significance of the case called Kansas v. Cheever. He did not, however, demonstrably win over even some potential allies on the court.

“You can’t become a witness halfway,” Justice Elena Kagan said. “Once you’ve decided to become a witness, you have to subject yourself to all the things that every other witness is subjected to.”

From the left, Justice Ruth Bader Ginsburg noted that current procedural rules assert that “if the defendant is going to introduce evidence concerning his mental state, then the government has a right to have the government’s expert examine the defendant and rebut what the defendant’s experts say.”

From the right, Justice Antonin Scalia stated that if “the defendant does one thing, he has to accept what goes along with it, and that includes waiving or forfeiting his right not to incriminate himself.”

The murder of Samuels occurred Jan. 19, 2005, when the sheriff and two deputies arrived at a rural house to arrest Cheever on drug charges. An admitted addict who was 23 years old at the time, Cheever says he had been cranked up and essentially awake for eight or nine days prior to the arrival of the law enforcement officers. While Samuels was climbing the stairs, Cheever shot him twice with a .44-caliber pistol.

“I just see him and I just kinda reached out and I pull the trigger and shot him and, I don’t know, it just – I panicked, I guess,” Cheever subsequently testified, according to a trial transcript.

Cheever pleaded “voluntary intoxication” in an effort to defeat the capital murder charge. His defense psychiatrist, at trial, called Cheever “a sad but typical case of progressive methamphetamine use.” A government-hired psychiatrist, who examined Cheever for five and a half hours at the jail, countered that Cheever appeared capable of rational thought and willful choices.

“He made a decision not to try to flee, not to try to run. He made a decision to keep himself where he kept himself, as opposed to another part of the house,” Dr. Michael Welner testified, adding that Cheever “made a decision to shoot again. And then when he stopped shooting, he made a decision to stop shooting.”

The Kansas Supreme Court unanimously overturned Cheever’s murder conviction, reasoning that the testimony by the government psychiatrist who had examined the workings of Cheever’s mind violated the defendant’s rights against self-incrimination.

On Wednesday, seemingly tipping his hand, Chief Justice John Roberts Jr. likened the opportunity to rebut psychiatric testimony with the well accepted ability to rebut ballistics evidence.

“It seems to me unfair to say the defendant’s expert has access to that ballistics evidence but the state does not,” Roberts said.

Justice Clarence Thomas, as is his custom, stayed silent and was the only justice not to ask questions during the oral argument. A decision is expected in the case by June, when the court’s current term ends.

Email:; Twitter: @MichaelDoyle10

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