Topeka ? It was a short-term decision that seemed prudent at the time, but came back to bite the people who made it.

The decision by legislators in 2002 was among the events that could now prevent the executions of seven men convicted of capital murder.

In December, the Kansas Supreme Court struck down the state’s capital punishment law in a 4-3 decision over a single provision on how juries weigh evidence for and against imposing a death sentence.

The U.S. Supreme Court has agreed to review the decision, and its intervention is the only way the men sentenced under the law will face death by lethal injection.

The flaw cited by the Kansas decision was well-known, having been identified by the Kansas court two years before. Legislators could have fixed it, but they didn’t think it was necessary, based on their reading of the court’s opinion and advice from the attorney general.

Perhaps that’s why many legislators and some relatives of capital murder victims were upset about the Kansas court’s decision in December. Now, of course, it appears obvious that fixing the flaw in 2002 would have been the wiser course.

“There was no crystal ball good enough in 2001 or 2002 to foresee that the court was going to do a 180 only two years later,” said Senate Majority Leader Derek Schmidt, R-Independence.

The Kansas court’s decision in December was over an appeal from Michael Marsh II, sentenced to die for the June 1996 slayings of 21-year-old Marry Ane Pusch and her 19-month-old daughter, Marry Elizabeth Pusch.

The court said the entire death penalty law was unconstitutional because of a provision that says when the evidence for and against imposing a death sentence appears equal, a jury must recommend death.

A technicality?

The issue strikes some victims’ relatives as a technicality, given that evidence hasn’t seemed equal so far to Kansas juries recommending death.

“It’s like they were hunting for a way to find something wrong with Kansas’ death penalty law,” said Charles Hobson, an attorney with the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif.

But the Kansas court’s majority said the provision violated defendants’ constitutional rights to due legal process and to be protected from cruel and unusual punishment. A tie, they said, must be resolved for the defendant and result in a life sentence.

Lawmakers’ plates full

Legislators understood the issue because the court raised it late in 2001 when it ruled on the appeal of Gary W. Kleypas, sentenced to die for the 1996 killing of Carrie Williams, a 20-year-old Pittsburg State University student.

While the court threw out Kleypas’ death sentence and ordered a new sentencing hearing, it kept most of the law intact and said the flaw could be corrected through new instructions to juries in capital cases.

Its decision led legislators and then-Atty. Gen. Carla Stovall to conclude no change in the law would be necessary.

And the 2002 session was a contentious mess. Legislators faced closing a huge budget shortfall by cutting programs, raising taxes or both. They also had to redraw congressional and legislative districts, a task that typically brings out the worst in legislators.

Death-penalty history

Reopening a debate over capital punishment in 2002 could have been tricky for supporters of the death penalty law, anyway.

Kansas has a tradition of ambiguity toward capital punishment, with legislators generally more reluctant to embrace it than their constituents.

The state abolished its death penalty in 1907, then reinstated it after a spate of bloody bank robberies. A 1972 U.S. Supreme Court decision struck down all states’ capital punishment laws, and it took death penalty supporters more than two decades to pass a new, constitutional statute in Kansas.

The state has executed only 24 convicted murderers in its 141-year history. The last executions, by hanging, were in 1965.

And the 1994 capital punishment law is narrow, applying to only seven capital crimes, because a broader law likely wouldn’t have passed.

So in 2002, legislators took what seemed to them a small gamble. They left the law alone and relied on what they saw as a solid legal precedent. Then, over the next two years, four new justices joined the seven-member court – leading it to rethink its previous decision.