Topeka Atty. Gen. Phill Kline said Thursday he may need U.S. Supreme Court nominee Samuel Alito on the court to successfully defend the Kansas death penalty.
"Quite honestly we are arguing to try to survive another day," Kline said.
Kline will defend the state's death penalty statute before the U.S. Supreme Court on Wednesday.
The Kansas Supreme Court struck down the law, saying it was unconstitutional because juries weighed evidence in the penalty phase of capital murder trials in a way that favored death sentences.
The complex legal issues have been made even more complicated by the situation on the U.S. Supreme Court.
Justice Sandra Day O'Connor announced her intention to retire, but when Chief Justice William Rehnquist died in September, she was forced to say on the court until another member was seated.
President Bush's nominee Alito, a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, is expected to face a rigorous Senate confirmation process.
O'Connor is often a swing vote in 5-4 decisions, but if she is off the court before a decision is handed down in the Kansas case, Kline may have a 4-4 tie, he said. Traditionally, ties made when a new justice is coming on board are re-argued, he said.
"If Justice O'Connor is the swing vote and the court does not announce its decision before Justice Alito is confirmed, her vote will not count," Kline said.
Others involved or observing the case confirmed that Kline may be right.
"The problems of Justice O'Connor's position are certainly significant on any close case," said Washburn University law professor Bill Rich.
Rich added, "The court on death penalty cases has frequently been divided 5-4, and Justice O'Connor has been a key swing vote, and more recently has been voting to limit the application of the death penalty."
He said the court's deliberations on the Kansas case could take months, certainly longer than it may take to get a replacement on the court.
If all tie cases are re-argued, Alito, or whoever is the new justice, will "really be put under the spotlight," he said.
Donna Schneweis, coordinator of the Kansas Coalition Against the Death Penalty, said there were numerous ways the case could be determined, including a ruling that the U.S. Supreme Court has no jurisdiction over the state issue.
"There are so many variables in this, it's really hard to know which way it will go," she said.
"It will just be another legal dilemma in our state's death penalty history. Depending on how the decision goes, it's entirely possible that there will continue to be litigation related to this case for some time," she said.