John Val Wachtel, who is representing Phillip D. Cheatham Jr., argued during a motions hearing Friday that 37.5 percent of the men on death row are black, while black men comprise only 5.5 percent of the Kansas population, The Topeka Capital-Journal reported.

Cheatham, 41, is preparing for a retrial after his convictions and death sentence were overturned last year by the Kansas Supreme Court, which ruled he had received ineffective assistance from his attorney during his first trial.

He 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; and attempted first-degree murder and aggravated battery of Annetta D. Thomas.

He was sentenced on Oct. 28, 2005, to the “Hard 50” prison term for killing Jones and the death penalty for killing Roberson, both of whom were fatally shot Dec. 13, 2003, at a home in Topeka.

“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.

The state’s application of the death penalty is racist and at least one white woman was a victim in all Kansas death row cases, Wachtel said.

Nobody has been executed in the state since 1965.

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

“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.”

Spradling filed a motion seeking to admit evidence that someone stole drugs and drug proceeds from Cheatham’s safe. The prosecutor said she wants to present that evidence to show Cheatham’s motive to commit the crimes.

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