Washington — A Lawrence lawyer squared off against Kansas Atty. Gen. Phill Kline before the U.S. Supreme Court Wednesday in a case that considers whether Kansas' death penalty law unfairly directs jurors to choose death over a life sentence.
The state Supreme Court ruled 4-3 last year that the death penalty law was unconstitutional because it told jurors to impose a death sentence if they found that aggravating evidence of the crime's brutality and mitigating factors explaining a defendant's actions were of equal weight.
Kline argued that the state law met constitutional standards as long as it allowed a jury to consider mitigating factors.
"It is undisputed that the ... mitigating evidence was presented to the jury in full, and the jury was specifically instructed to give weight to all of that evidence," Kline said.
Lawrence resident Rebecca Woodman, of the Kansas Capital Appellate Defender's Office, told the justices that was not enough. She argued that the state law interfered with a jury's ability to reach a decision by requiring a sentence of death when aggravating and mitigating factors were equal.
"In other words, if the decision is too hard to make, the sentence must be death," Woodman said.
Kline faced tough questions from Justice David Souter, who said the law seemed to create "a presumption of death." Justice Stephen Breyer also raised concerns that the law might conflict with the Constitution's ban on cruel and unusual punishment.
"You do not sentence someone to death unless the jury decides that the circumstances have made the person somewhat worse ... than the typical person," Breyer said.
Kline said the law did not carry a presumption of death and argued that the burden remained on the state to show mitigating evidence did not outweigh the aggravating factors.
Chief Justice John Roberts wondered how likely it was that a juror who found the factors were perfectly balanced would conclude the state had made its case beyond a reasonable doubt.
Justice Antonin Scalia said jurors under the Kansas scheme always had a way out: They can grant mercy to a defendant in any case.
"I really don't know what complaint you have then," he told Woodman.
Woodman said the state law encouraged jurors "to abdicate their decision as to whether there should be a death sentence or not."
The case involves Michael Lee Marsh II, who was convicted in the June 1996 killings of Marry Ane Pusch and her 19-month-old daughter, M.P.
Pusch was shot, stabbed and her throat slit. Then she was doused with lighter fluid and set on fire. Her daughter, who suffered severe burns in the fire, died later.
Marsh confessed to shooting Marry Ane, but denied that he stabbed her or set the fire. He was eventually sentenced to death for killing M.P. and life in prison for killing Marry Ane.
His case is already headed for a new trial on the capital murder charges because the trial judge did not allow evidence that Marry Ane's husband may have been involved in the murders.
If the high court upholds the Kansas law, the sentences for seven men on death row will stand. If they affirm the state court's ruling, the seven will be resentenced and death will not be an option.
Fifteen states have filed a friend of the court brief supporting Kline's position. They argue a ruling against Kansas would call into question their own death penalty statutes.
The Kansas case is one of two death-penalty cases the Supreme Court heard Wednesday. The other, from Oregon, involves a convicted murderer's ability to present alibi testimony during the sentencing phase of a capital trial.
Kannon Shanmugam, a Lawrence High School graduate who works in the office of the U.S. Solicitor General, was scheduled to argue before the court in the Oregon case.
The high court is not expected to rule on either case until spring.
Kansas Death row
A list of the seven convicted killers on death row in Kansas whose sentences would be affected by a U.S. Supreme Court decision: ¢ Michael Marsh II, of Wichita. He was sentenced to die for the June 1996 deaths of his former best friend's wife, Marry Ane Pusch, 21, and child, Marry Elizabeth Pusch, who was 19 months old. ¢ Reginald and Jonathan Carr. They were sentenced to death for killing three men and a woman on Dec. 15, 2000, as the victims knelt side-by-side on a snow-covered soccer field. Another woman survived the execution-style shootings. ¢ John Robinson Sr. was sentenced to death for the murders of two women whose bodies were found in barrels on his property. He also was convicted in Johnson County of first-degree murder in the death of another woman whose body has never been found. Across the state line in Missouri, Robinson pleaded guilty to five counts of first-degree murder in exchange for sentences of life in prison without parole on each count. ¢ Douglas Belt was sentenced to death last month for killing a Wichita housekeeper whose decapitated body was found two years ago in an apartment where she worked. ¢ Gavin Scott was sentenced to death in August 1999 for shooting Doug and Beth Brittain as they slept in their home on Sept. 13, 1996. ¢ Phillip D. Cheatham was sentenced to death in October for killing Annette Roberson, 38, at a Topeka duplex in December 2003. He received a "hard 50" life sentence for killing Gloria Jones, 42, meaning he would not be eligible for parole for at least 50 years. A third victim played dead and survived with 19 gunshot wounds. ¢ Gary W. Kleypas had his sentence overturned in 2001 and was awaiting resentencing, with death still an option. It was his case in which the court first identified the problem. While his conviction was upheld, the court ordered that he be resentenced with revised jury instructions. That has not yet happened.