Washington ? Would flipping a coin be an acceptable way to decide if someone is executed?

That question came from U.S. Supreme Court Justice John Paul Stevens during the court’s hearing Tuesday on the Kansas death penalty law.

To make a point, Stevens asked whether flipping a coin would be an acceptable way to decide a death sentence in a case where jurors found the mitigating and aggravating factors to be perfectly in balance.

“Absolutely not,” Rebecca Woodman, the attorney arguing the case for the Kansas Capital Appellate Defender’s Office, shot back emphatically.

Whether a jury facing such a dilemma should hand down a death sentence or a sentence of life in prison is the central issue in the state’s appeal that will decide whether the Kansas capital punishment law stands or falls.

Woodman and Kansas Atty. Gen. Phill Kline presented oral arguments on Kansas v. Marsh before the U.S. Supreme Court on Tuesday for the second time. They had presented arguments in December but were asked to reargue the case for the benefit of Justice Samuel Alito, who replaced Justice Sandra Day O’Connor in January.

Because O’Connor was viewed as a swing vote on the court concerning death penalty issues, attention is now focused on how Alito will approach such cases.

Arguing equipoise

The crux of the Kansas case is the instruction given to jurors as they prepare to sentence a person convicted of a capital crime.

They are asked to weigh the aggravating circumstances – factors such as the defendant’s criminal history or whether the murder was particularly cruel – against mitigating factors such as the defendant’s age or emotional state.

If the prosecution has proven that aggravating circumstances outweigh mitigating factors, the jurors must give a death sentence, according to the Kansas law that is before the nation’s highest court after being struck down by the Kansas Supreme Court.

If the mitigating circumstances outweigh the aggravating circumstances, a life sentence is called for.

But what if a jury views the two as exactly equal, a status described legally as “equipoise,” a word tossed around dozens of times during Tuesday’s hearing?

The way the Kansas law has been interpreted is that in such a situation, the tie goes against the defendant and a death sentence should be imposed.

This was no accident, Kline responded toward the end of the hearing when Alito asked whether the instruction was intentional or “a quirk” of the legislation creating the death penalty.

“In these narrow circumstances (defining capital murder) the state thinks a death penalty is appropriate,” Kline said.

Several justices questioned the likelihood of a true 50-50 tie between aggravating and mitigating factors, a situation Chief Justice John Roberts called “an unrealistic standard.”

For a juror, he said, “to say I want to show just enough mercy to make a perfect balance – I don’t get that.”

Justice Antonin Scalia agreed, saying “That’s so unlikely.”

But Justice David Souter agreed with Woodman’s argument, saying, “The possibility is remote, but the Kansas court has determined that situation is possible.”

By further determining that such a tie automatically should result in a death sentence, Woodman said, the law encourages juries “to believe that they don’t have to determine whether aggravators outweigh mitigators,” and may create a “danger of juries just abdicating their duty to reach a decision.”

Woodman also asserted that the Kansas law makes it impossible to tell whether a death sentence was a “default” decision reached as a result of equipoise.

Unique to Kansas?

The justices also picked up on a disagreement between Woodman and Kline over what effect their decision on the Kansas death penalty would have on other states with similar laws.

Kline had said death penalties in a number of other states might also fall if the Kansas law is found unconstitutional. When Woodman differed, saying “the Kansas law is unique,” Scalia noted the disagreement and asked, “How do we know that?”

When the question was asked Kline leaned over to confer with one of his colleagues and, during a short rebuttal at the end of the argument, offered justices citations to support his contention. On the steps of the Supreme Court after the hearing, however, Woodman told reporters, “I have no idea where he’s coming from on that.”

Asked after the argument about her impressions of Alito, Woodman said, “I think he asked interesting questions. I think he recognizes the problem : which is death by default.”

Other inmates on death row to be affected

The 1994 Kansas death penalty law says jurors must sentence a defendant to death if they find that factors for and against the death penalty are of equal weight. The state Supreme Court struck it down, invalidating the death sentences of seven convicted killers.

The case argued Tuesday before the U.S. Supreme Court involves Michael Lee Marsh II, who was sentenced to death for the 1996 killings of Marry Ane Pusch and her 19-month-old daughter. Pusch was shot, stabbed and her throat slit. Then she was doused with lighter fluid and set on fire. Her daughter died from severe burns.

There are seven people sentenced to death under the law being considered by the court. An eighth person had his death sentence overturned in 2001 and awaits resentencing.

Marsh’s case is already slated for a new trial on the capital murder charges because the trial judge did not allow evidence that Marry Ane’s husband might have been involved in the murders.

Fifteen states have filed a friend of the court brief supporting the Kansas statute. They predict a ruling against Kansas would force other states to redraft their own death penalty laws.

A decision is expected in the next few months.

Besides Marsh, those on Kansas’ death row whose sentences would be affected by a U.S. Supreme Court decision are:

¢ Reginald and Jonathan Carr. They were sentenced to death for killing three men and a woman on Dec. 15, 2000.

¢ 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.

¢ Douglas Belt was sentenced to death 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, in 2003 at a Topeka duplex.

¢ 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.