A defense attorney for capital murder defendant Phillip D. Cheatham Jr. said Friday that Cheatham’s case should be dismissed because capital punishment in Kansas is unconstitutional due to it being racially discriminatory.

In Kansas, 37.5 percent of the men on death row are black, while black men make up 5.5 percent of the Kansas population, John Val Wachtel argued during a motions hearing in the Cheatham case. The motions hearing is a precede to the retrial of Cheatham, 41, who is charged with killing two women and severely wounding a third.

“Kansas has become what Georgia was when Furman (v. Georgia) was handed down,” Wachtel said, referring to the 1972 U.S. Supreme Court decision overturning the death penalty based on a finding it was cruel and unusual punishment. Part of the decision focused on the arbitrary nature of imposition of the death penalty, often indicating a racial bias against black defendants.

In Kansas, application of the death penalty is discriminatory, Wachtel said, and in all Kansas death row cases, at least one white woman was a victim.

The death penalty “is racist in Kansas as applied,” Wachtel said.

Kansas hasn’t executed an inmate since 1965.

Jacqie Spradling, chief deputy district attorney for Shawnee County, countered that Cheatham can’t show the capital murder charge is unconstitutional. That fails because the district attorney doesn’t charge a defendant based on the race of the defendant or the victim.

“We don’t pick our victims, we don’t pick our defendants,” Spradling said. “But we do prosecute defendants. What I hear is noise of no value.”

Cheatham is charged with capital murder in the killings of Annette Roberson and Gloria A. Jones; two alternative premeditated first-degree murder counts in the slayings of Roberson and Jones; attempted first-degree murder of Annetta D. Thomas; and aggravated battery of Thomas.

Following his first trial, Cheatham was sentenced on Oct. 28, 2005, to the “Hard 50” prison term for the killing of Jones, as  well as the death penalty for the slaying of Roberson. Both were shot to death Dec. 13, 2003, at a southeast Topeka home.

Cheatham’s convictions and death penalty sentence were overturned in 2013 after the Kansas Supreme Court ruled he received ineffective assistance of his attorney during his first trial.

In another motion, Spradling sought to admit evidence of theft of drugs from Cheatham and theft of drug proceeds, both from his safe. Spradling said she wanted to present that evidence to show Cheatham’s motive to commit these crimes.

The theft of money and drugs from Cheatham, in turn, left him in debt to his drug supplier, Tracy Smith, who had placed a gun to his head and told him he was dead if he didn’t pay her back, a prosecution filing said. Cheatham was obligated to Smith to kill the women to show he was an honorable and reliable drug dealer, Spradling said.

Wachtel also objected to anticipated testimony by Thomas about her crack cocaine use and the impact the death of Roberson had on her. Spradling said she wouldn’t seek Thomas’ comments about the impact on her but would question her about her drug use and what she did to support her drug use.

District Court Judge Mark Braun took the motions under advisement. Cheatham next will appear in court May 9 for another motions hearing.