State death penalty case going to Supreme Court

Topeka ? Seven men convicted of capital murder in Kansas might yet face execution because of a decision announced Tuesday by the U.S. Supreme Court.

The nation’s highest court said it would review a Kansas ruling that struck down the state’s capital punishment law as unconstitutional.

Had the U.S. Supreme Court refused to intervene, convicted serial killer John E. Robinson Sr. and multiple murderers Jonathan and Reginald Carr would have faced life in prison at most. So too, would have Gary W. Kleypas, whose conviction for the 1996 stabbing of Carrie Williams, a 20-year-old Pittsburg State University student, made him the first person sentenced to death under Kansas’ 1994 law.

“Obviously, that’s our only hope is for them to get involved,” said Larry Williams, of Parsons, father of Kleypas’ victim.

In December, the Kansas Supreme Court ruled in a 4-3 decision that the 1994 capital punishment law was flawed because of a single provision dealing with how juries weigh evidence imposing a death sentence. Atty. Gen. Phill Kline appealed.

That decision involved Michael Marsh II of Wichita, who was sentenced to die for the June 1996 deaths of 21-year-old Marry Ane Pusch and 19-month-old Marry Elizabeth Pusch.

State death penalty case

The decision: The U.S. Supreme Court announced Tuesday that it would review a ruling that struck down Kansas’ capital punishment law.

What it means: The law, enacted in 1994, could be reinstated by the U.S. Supreme Court, allowing seven former death row inmates to face execution again.

Earlier decision: In December, the Kansas Supreme Court struck down the death penalty law in a 4-3 decision. Attorney General Phill Kline appealed.

The key issue: The Kansas court’s majority cited a provision that said if the evidence for and against imposing a death sentence is about equal, a jury must recommend the death sentence.

Why it’s a flaw: A “tie” should be resolved in favor of the defendant, the Kansas court’s majority said. Otherwise, the law represents cruel and unusual punishment and violates a defendant’s constitutional right to due legal process, it said.

The case: The U.S. Supreme Court is considering the case of Michael Marsh II, of Wichita, who was sentenced to die for the June 1996 deaths of Marry Ane Pusch, 21, and Marry Elizabeth Pusch, who was 19 months old.

No fix: Legislators decided this year not to fix the flaw identified by the Kansas court because they worried it could discourage the U.S. Supreme Court from reviewing the case.

Five other men were also awaiting the death penalty, including the Carrs, convicted of killing five people in a December 2000 crime spree in Wichita, and Robinson, who was convicted of killing three women in Kansas and pleaded guilty to five other murders in Missouri.

Kleypas had his sentence overturned in 2001 and was awaiting resentencing, with death still an option.

The state’s last executions – by hanging – were in 1965, under a law that fell, like all states’ capital punishment statutes, under a later U.S. Supreme Court ruling. The high court began allowing executions again in 1976, but it took supporters of capital punishment nearly two decades to get a new law enacted in Kansas.

‘This can go on forever’

Bill Lucero, a death penalty opponent from Topeka, said there’s a good chance the U.S. Supreme Court will uphold the Kansas decision. He also predicted it would be the first of many legal challenges to the state law and individual capital murder convictions.

Lucero noted that the Kansas court ordered a new trial for Marsh on the capital murder charge, concluding the judge improperly limited the evidence Marsh could present.

“This can go on forever,” Lucero said. “If we ever have one execution in this state, it’s going to be at significant cost at however many cases get reversed.”

Williams expressed frustration that the state might not execute a convicted murderer for years.

“It hasn’t made a very good deterrent,” Williams said. “They’ve got to get one and make an example of him for it to be a deterrent.”

Will of the people?

The nation’s highest court didn’t announce which justices wanted to review the case.

“We’re hopeful that the Supreme Court will see that there was nothing wrong with our law in the first place,” said Kevin O’Connor, deputy Sedgwick County district attorney.

Kline said he believed most Kansans support capital punishment and, “The will of the people should be honored.” But he declined to speculate on why the nation’s highest court acted.

Capital crimes

Capital crimes in Kansas, all of which must be premeditated:

¢ Murder of a kidnapping victim, if that person was being held for ransom.

¢ Killing of a kidnapping victim under 14, if that victim was being held because the criminal intended to commit a sex crime, such as rape.

¢ Killing of a victim of rape, criminal sodomy and aggravated criminal sodomy, or a victim when such crimes are attempted.

¢ Murder for hire or participation in a murder-for-hire scheme.

¢ Killing of a prison or jail employee or inmate by a prison or jail inmate.

¢ Murder of a law enforcement officer.

¢ Two or more killings at once or killings “connected together or constituting parts of a common scheme.”

“I wouldn’t read anything into it, except that the court believes important legal issues are involved,” Kline told reporters during a telephone conference call from Colorado, where he and his family were vacationing.

Johnson County Dist. Atty. Paul Morrison, who obtained the death sentence for Robinson, said: “I’ve always felt like, that there was a good chance they’d want to hear it and right that wrong.”

More cases ahead

The Kansas court ruling also applied to other cases that haven’t gone to trial, such as the June 2002 beating and strangling of 19-year-old Ali Kemp in Leawood, the shooting in January of Greenwood County Sheriff Matt Samuels and the shooting in April of Harvey County Deputy Sheriff Kurt Ford.

The provision that led to the Kansas decision says if the evidence for and against imposing a sentence of death by injection seems equal, the jury must choose death instead of life in prison.

textState death penalty case going to Supreme CourttextSeven could again face execution

The Kansas court’s majority said when the evidence seems equal, the defendant should benefit. The current provision represents cruel and unusual punishment and violates defendants’ rights to due legal process, the majority said.

Legislators could have fixed the flaw easily but decided against it in this year’s session, which ended earlier this month. They had worried that passing legislation could discourage the U.S. Supreme Court from considering Kline’s appeal.

“Clearly, states need guidance on this important issue of law,” said Matt All, chief counsel for Gov. Kathleen Sebelius.