Topeka The state Supreme Court erred when it rejected Kansas' death penalty law as unconstitutional, Atty. Gen. Phill Kline argued in a filing with the U.S. Supreme Court.
In his 36-page brief, Kline basically restated what he has said before - the Kansas high court was mistaken and the death penalty should be upheld. The brief was filed Monday but wasn't announced by his office until Wednesday.
The Kansas case, which will be heard by the justices on Dec. 7, is among four death penalty cases the nation's highest court will take up in its next term.
At stake is the fate of seven men sentenced to death who still could face execution if the law is upheld. No one has been executed in Kansas since it reinstated the death penalty in 1994.
In December, the Kansas Supreme Court ruled the law was flawed because of how it said juries should consider the evidence for imposing a death sentence. At issue is the section that says if evidence for or against imposing capital punishment seems equal, the jury must choose death.
The Kansas court said that in such cases, the defendant should benefit. To do otherwise, it said, amounts to cruel and unusual punishment and violates defendants' right to due process.
The ruling came in the case of Michael Marsh II of Wichita, sentenced to die for the June 1996 deaths of Marry Ane Pusch, 21, and her 19-month-old daughter, Marry Elizabeth Pusch. The mother was repeatedly shot and stabbed, the house was set afire and the toddler left to burn to death.
Kline said in his brief the law isn't a one-way ride to death row.
"Without question the Kansas capital sentencing system begins with the presumption that life in prison - not death - is the appropriate sentence for capital murder," he wrote. "The death penalty becomes a possibility only if the state, after a capital conviction, goes forward with a separate sentencing hearing."
Kline also rejected previous arguments by defense attorneys.
"The picture painted by respondent of befuddled jurors struggling to decide which weighs more and ultimately throwing up their hands and saying, 'We can't decide, so we have to impose death,' is pure fancy," he wrote.
In addition to Marsh, the Kansas decision also invalidated the death sentences of brothers Reginald and Jonathan Carr, John Robinson Sr., Douglas Belt and Gavin Scott.
The Carrs were convicted for the 2000 shooting deaths of four Wichita residents; Robinson was convicted in 2002 of killing two women whose bodies were found in barrels on his farm; Belt was convicted in 2004 of killing 43-year-old Lucille Gallegos; and Scott was convicted in 1998 of killing Doug and Elizabeth Brittain in 1996.
Legislators could have fixed the flaw by rewriting the law earlier this year. But they felt doing that could discourage the nation's high court from accepting the appeal and would end any chance that those on death row would face execution by lethal injection.
The last executions in Kansas were in 1965 when serial killers George York and James Latham were hanged at Lansing State Penitentiary, where any future executions will be conducted. The death penalty law in all states was struck down in 1972 by the U.S. Supreme Court, which allowed executions to resume in 1976.