Two lawyers who live in Lawrence will go before the U.S. Supreme Court next month to argue that Kansas’ death-penalty law is unconstitutional.

“At this stage, I am totally immersed in this case. It’s all I think about,” said Rebecca Woodman, an attorney with the Kansas Capital Appellate Defender’s Office who has lived in Lawrence since 1998. “Most of my time is spent thinking, reading, reflecting and preparing arguments.”

Woodman is the lead attorney representing Michael Lee Marsh II, a Wichita man sentenced to death after being convicted of the 1996 murders of a woman and her 19-month-old daughter. Last year, the Kansas Supreme Court found in Marsh’s case that the state’s death penalty was unconstitutional because of the instructions it gives to jurors in deciding how to weigh evidence.

The U.S. Supreme Court agreed earlier this year to take the case at the request of Kansas Atty. Gen. Phill Kline, who will appear on behalf of the state. Arguments are scheduled for the morning of Dec. 7.

Woodman will be accompanied by Janine Cox, another attorney in the Capital Appellate Defender’s Office who has lived in Lawrence since 1984.

Lawrence residents Janine Cox, left, and Rebecca Woodman, attorneys with the Kansas Capital Appellate Defender's Office in Topeka, will argue a case involving the constitutionality of the state's death penalty before the U.S. Supreme Court next month.

“My job is to make (Woodman) as comfortable as possible,” Cox said. “I try to take care of the little details of things so that she doesn’t have to worry about anything except the case itself.”

Six on death row

No one has been executed since the death penalty was reinstated in Kansas in 1994. There are six people awaiting the death sentence, including repeat murderers such as John E. Robinson Sr., of Johnson County, and brothers Jonathan and Reginald Carr, of Wichita.

When deciding whether to give the death penalty, Kansas jurors have been required to weigh a list of aggravating factors – for example if it was a murder for hire – against a list of mitigating factors, such as the person’s age or criminal history.

The problem with the law, the Kansas Supreme Court ruled last year in Marsh’s case, was that it directed jurors to give the death sentence if the aggravating factors and mitigating factors were equal. In essence, a tie went to the prosecutors – not to the defendant.

It’s something no other state does. In her brief to the U.S. Supreme Court, Woodman wrote that the practice “flouts the Eighth Amendment requirement of individualized capital sentencing.”

• See more stories about the state’s death penalty

“This is a death sentence rendered without the jury’s having made a collective decision that the individual circumstances of the defendant’s case mark it as more deserving of death than any other generic death-eligible conviction,” she wrote.

No one can say that someone sentenced to death under that scenario, she wrote, “was actually found by the jury to deserve that punishment.”

State’s position

Kline, however, is arguing that such a scenario is constitutional, saying that all that’s required by the constitution is that the jury “be allowed to consider any relevant evidence.”

But there’s a possibility the Supreme Court won’t even get to the question of whether that formula is constitutional. Woodman is asking the Supreme Court to find that it doesn’t have jurisdiction over Marsh’s case, in part because the state didn’t challenge whether the scenario was unconstitutional when arguing the Marsh case at the state level.

In fact, that issue had been addressed three years earlier.

The Kansas court found it was unconstitutional in a 2001 case, State v. Kleypas. But instead of striking down the death penalty as a whole, the court tried to fix the problem by ordering the language to be interpreted to mean that aggravating factors must outweigh mitigating factors for someone to be put to death.

Kline has been a vocal critic of the court, saying the sequence of decisions has caused “confusion and uncertainty.”

Kline spokesman Whitney Watson said that regardless of the outcome of this case, he anticipates lawmakers will find a way to pass a constitutional death-penalty law.

“The attorney general believes that justice demands we have the death penalty in the state,” he said. “It’s become a priority for the office.”

What’s at stake next month before the U.S. Supreme Court, he said, is the fate of the six people now awaiting execution.

“If the High Court doesn’t overturn this state’s Supreme-Court decision, those people will never face the death penalty,” Watson predicted.