Despite ruling, executions still years away

A serial killer, two brothers tied to five deaths and other convicted Kansas murderers face execution again because of a U.S. Supreme Court ruling Monday, but the state isn’t likely to put anyone to death for at least a few years.

Several prosecutors and an attorney for a capital murder defendant said there’s no predicting exactly when the state will have its first executions under its 1994 capital punishment law. The state’s last executions, by hanging, were in June 1965.

And while the nation’s highest court declared the Kansas law constitutional, defendant Michael Lee Marsh II still will get a new trial because the Kansas Supreme Court previously found he had been denied the opportunity to present a full defense during his Sedgwick County trial.

The Kansas court also has six other capital cases before it, all of which could raise new issues.

More about the death penalty

“The state’s death penalty law suffers from other serious flaws,” said Rebecca Woodman, a state appellate defender who represents Marsh. “We will continue to forcefully litigate these issues in the many months and years ahead.”

While several prosecutors said Monday’s ruling shows the state has a well-crafted death penalty law, they acknowledged new challenges are inevitable.

“We believe the law is constitutional and will continue to defend it,” Atty. Gen. Phill Kline said during a news conference. “That does not preclude novel arguments presented by others in an effort to strike down the law.”

Weighing evidence

The issue before the U.S. Supreme Court was a provision in Kansas’ law on how juries weigh evidence for and against imposing a death sentence after finding a defendant guilty. The provision says if jurors are unanimous and have no reasonable doubts that the mitigating and aggravating circumstances are about equal, they must recommend death.

Case summary

The decision: The U.S. Supreme Court upheld Kansas’ death penalty law as constitutional in a 5-4 decision Monday.

What it means: Eight men who were sentenced to death under the 1994 statute still face possible execution. Also, the death penalty could be imposed in two other cases pending in state courts.

The key issue: In its December 2004 decision, the Kansas Supreme Court had cited a provision in the law that said if the evidence for and against imposing a death sentence is about equal, a jury must recommend the death sentence. The Kansas court said a “tie” should be resolved in favor of the defendant.

U.S. Supreme Court said: The law as written is not slanted in favor of imposing a death sentence, because the state still must prove beyond a reasonable doubt – with jurors required to reach a unanimous verdict – that there are circumstances favoring a death sentence.

The case: It involved Michael Lee 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.

The Kansas court, in a 4-3 ruling in December 2004, said the provision represented cruel and unusual punishment because such a “tie” should be resolved in the defendant’s favor. In its 5-4 decision Monday, the U.S. Supreme Court’s majority said the provision doesn’t tilt Kansas’ sentencing system toward death.

Kline said he wasn’t surprised by the decision. Nor were Sedgwick County Dist. Atty. Nola Foulston, who prosecuted Marsh, and Johnson County Dist. Atty. Paul Morrison, who prosecuted John E. Robinson Sr.

The attorney general said having a jury find that the factors in favor and against imposing a death sentence are equal is a “law school hypothetical.”

Kevin O’Connor, a deputy Sedgwick County district attorney who handles capital cases, said, “It’s something that the lawyers have made up. This is not likely to ever happen.”

Kansas University law professor Steve McAllister said, “I’m personally pleased to see the court vindicated the state’s view of the law. I think probably in this election and campaign season it’s an extremely important decision, as a practical matter, both because it keeps the people who were on death row on death row with valid sentences, and also because it’s a great victory for Atty. Gen. Kline, who’s been criticized some by his opponent, Mr. Morrison. It was by no means an easy case.”

No new law needed

The decision Monday also prevents legislators from having to pass a new death penalty law for executions to occur. Lawmakers considered doing so in 2005 but held off, fearing such an action would cause the U.S. Supreme Court not to hear Marsh’s case.

“I’m pleased this issue is resolved, and the status of our death penalty is settled,” Gov. Kathleen Sebelius said in a statement. “I hope this will bring some closure to the families who have been waiting for this issue to be resolved.”

But Bill Lucero, the leader of a Topeka-based anti-capital punishment group, Murder Victims’ Families for Reconciliation, said relatives of murder victims aren’t likely to see any real comfort from Monday’s ruling because it doesn’t end legal proceedings in capital cases.

“Those people are just made to suffer on and on and on, waiting for something that they’ve been told will bring closure to their lives, when it doesn’t,” said Lucero, whose father was murdered in the 1970s.

Both Lucero and Woodman said the high-profile nature of death penalty cases puts more pressure on prosecutors – creating a higher risk of error.

“There is a tendency toward prosecutorial overzealousness, and that creates a danger,” Woodman said.

Morrison countered that the law actually helps prevent error by narrowing the number of defendants who are eligible for a death sentence. Kansas has only seven capital crimes, including murdering a law enforcement officer, murder for hire and two or more killings at once.

“There are never any issues where people look at any of those folks and say, ‘Oh my gosh, this is unfair,'” Morrison said. “They’re literally poster boys for who ought to get executed.”