Fact check: Kansas organization’s mailer on constitutional amendment ignores details of cases

TOPEKA — An organization seeking to convince Kansans to support a proposed amendment to the Kansas Constitution took liberties when crafting two-sided cards mailed to potential voters.

The amendment on Tuesday’s ballot would require Kansas Supreme Court justices to be elected rather than appointed.

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Kansans for Democracy, which backs the amendment, used the flier to portray members of the Supreme Court as “liberal justices” who put “Kansans in danger” by overturning murder convictions. Adjacent to the claim, the organization pointed to the case of Devonte Wash, who was charged in the 2018 death of Ashley Harlan and her unborn child in Olathe.

Wash was found guilty of capital murder in 2022 and sentenced by Johnson County District Judge James Droege to serve life in prison without the possibility of parole.

In June 2025, the Supreme Court unanimously vacated the conviction and remanded the case for possible retrial because of multiple instances of prosecutorial error that deprived Wash of a fair trial. The decision was affirmed by justices appointed by Republican and Democratic governors, including Justice Caleb Stegall, the court’s most conservative member who was appointed by GOP Gov. Sam Brownback.

“I concur with the result because I agree the state failed to prove beyond a reasonable doubt that the identified prosecutorial errors were harmless,” Stegall wrote at the time.

The Supreme Court found that assistant district attorney Jacob Gontesky, who prosecuted Wash at trial and argued for preservation of his conviction on appeal, stood before the jury and referenced firearm forensic evidence the district judge had excluded. In addition, the court found Gontesky improperly suggested during closing argument that certain disputed information was undisputed.

The Supreme Court concluded the prosecution sought to fill gaps in a largely circumstantial case against Wash by relying on flawed tactics.

“Once identified, prosecutorial error is harmless only if the state shows there is no reasonable possibility the error contributed to the verdict,” Justice Dan Biles said in a written opinion. “Here, the state fails to carry that burden because its circumstantial evidence contained meaningful gaps the prosecutor attempted to close with unfair tactics that cannot be dismissed as minor aberrations in a prolonged trial.”

Biles said the prosecution made mistakes that violated an obligation to safeguard Wash’s right to a fair trail while vigorously seeking a conviction.

Wash remains in custody while awaiting retrial for capitol murder.

Meanwhile, Kansans for Democracy contended on the mailer to voters that passage of the constitutional amendment Tuesday would “keep murderers off the street.” The claim was accompanied by photographs of Jonathan and Reginald Carr and a 2014 TV news headline noting the Supreme Court overturned a portion of the brothers’ death sentences.

The brothers were charged with multiple counts of murder, robbery, kidnapping and rape in the 2000 deaths of five people and wounding of two others in Wichita. In 2002, they were convicted of dozens of offenses and each received four death sentences.

A majority of the Supreme Court in 2016 overturned three death sentences because jury instructions on sex-crimes tied to capital murder were “fatally erroneous” and three capital murder charges duplicated the first. In addition, the Supreme Court said the trial judge failed to adequately separate the penalty proceedings for each defendant so the jury could show mercy to one defendant while refusing to show mercy to the other.

The U.S. Supreme Court reinstated the death sentences for the Carr brothers by concluding the jury instructions and combined proceedings didn’t violate the Constitution.

The state Supreme Court affirmed the death penalty for the brothers in 2022. At no point in the appellate process were the brothers released from state prison.