Kansas v. Marsh, Michael Lee II (06/26/2006)

Questions presented: (1) Does it violate the Constitution for a state capital sentencing statute to provide for the imposition of the death penalty when the sentencing jury determines that the mitigating and aggravating evidence is in equipoise? (2) Does this Court have jurisdiction to review the judgment of the Kansas Supreme Court under 28 U.S.C. Sec. 1257, as construed by Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)? (3) Was the Kansas Supreme Court's judgment adequately supported by a ground independent of federal law?

BY CHRISTOPHER KRIVA & GERRY SMITH, MEDILL NEWS SERVICE

The June 17, 1996, murders of Marry Pusch and her 19-month-old daughter, M.P., were the kind of murders that make people shudder.

They were the brutal, cold-blooded stuff of murder mysteries.

In both murders, a Kansas jury convicted and condemned Michael Lee Marsh II. The jury accepted prosecutors' assertion that Marsh came to the Pusch home with the intention of holding Marry and her daughter hostage in exchange for ransom, but panicked when the two arrived home earlier than expected. Marsh, said prosecutors, then shot Marry and set fire to the Pusch home, burning M.P. to death.

In the Marsh case, as in all capital cases in which juries sentence, jurors deliberated sentencing separately from guilt. In doing so, they weighed two sets of factors: aggravating and mitigating circumstances, or context offered by prosecutors and defense attorneys that makes the defendant's crime more or less heinous.

While the manner of the crime or the type of victim might be aggravating circumstances, a history of mental illness or abuse could be mitigating circumstances. In essence, the burden of proof shifts to the defendant in sentencing phases. With guilt established, the defendant must convince jurors he is worthy of a non-death sentence.

Marsh's jury made this evaluation in accordance with a Kansas statute requiring imposition of the death penalty in cases where the aggravating circumstances outweigh or equal the mitigating circumstances.

In its review of Marsh's case, the Kansas Supreme Court ordered a new trial for Marsh because it found the trial court had committed a reversible evidentiary error on the capital charges during the initial proceedings. More significantly, the 4-3 Kansas court majority also used the case to invalidate the entire Kansas death penalty statute. In its ruling, the Kansas court pointed to the portion of the statute requiring imposition of death where aggravating and mitigating circumstances balance as being in violation of the 8th Amendment to the U.S. Constitution, barring cruel and unusual punishment.

With executions in Kansas on hold, prosecutors appealed the ruling.

On May 31, 2005, the U.S. Supreme Court accepted review in the case and allowed Marsh to have his case heard without costs. In addition to the question presented in Kansas' petition, the Court directed the parties to brief and argue the following two questions: Does this Court have jurisdiction to review the judgment of the Kansas Supreme Court under 28 U.S.C. Sec. 1257, as construed by Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) and was the Kansas Supreme Court's judgment adequately supported by a ground independent of federal law?

The Marsh decision is the second of two recent 4-3 Kansas Supreme Court rulings addressing the death penalty. In 2001, a court majority ruled in State v. Kleypas that while the statute's balancing equation was unconstitutional, a rewritten version provided by the court allowed the statute to pass constitutional muster. In Marsh, the court agreed to go one step further, invalidating the entire statute by finding the Kleypas decision improperly contrived the remedial instruction that allowed the statute to stand.

"We agree . . . that the Kleypas majority erred in substituting a weighing equation with exactly the opposite effect of the equation provided by the legislature. The holding . . . overstepped the judiciary's authority to interpret legislation rather than make it," the majority wrote.

In three dissenting opinions, three Kansas court justices argued that the statute was constitutional as originally written. The dissent authored by Justice Lawton Nuss addressed the issue of the balancing test, arguing that the Marsh majority opinion ignored relevant guidance found within dissenting opinions to the 1990 U.S. Supreme Court decision in Walton v. Arizona.

"Not only did the four [Walton] dissenters acknowledge that death at equipoise was directly presented to them, but they also unequivocally interpreted Justice White's plurality opinion as having disposed of the issue," Nuss wrote, also going on to argue that shifting the evidentiary burden to defendants in penalty phases was "entirely consistent" with prior Court decisions.

The issue before the Court in Marsh is whether a perfect balance between aggravating and mitigating circumstances in capital cases can sustain a capital sentence. Marsh himself will receive a new trial regardless of what the Court decides because of the Kansas court's evidentiary ruling.

The Court has a history of involvement in death penalty issues. In 1972, the Court ruled capital punishment unconstitutional on 8th and 14th Amendment grounds – but allowed executions to resume after 1976 following state statutory modifications, including the institution of a separate penalty phase for capital cases, according to the University of Alaska-Anchorage Justice Center.

Charles Hobson of the California-based, pro-death penalty Criminal Justice Legal Foundation believes the statute is constitutional. His organization supports Kansas' appeal in this case. Hobson was sharply critical of the Kansas Supreme Court's ruling in this case, saying it was irresponsible for the court to strike down the entire statute because of a narrow provision.

"[The court] acted legislatively," he said.

Hobson also addressed the burden of proof question.

"It is perfectly appropriate to place the burden of proof on the defendant" in the capital phase of a trial, he said.

Rebecca Woodman, the federal appellate defender representing Marsh, says the life of her client hangs in the balance with this case. If the Court upholds the Kansas statute, Woodman said, Marsh could again face death, though the court cannot reinstate Marsh's original death sentence.

In their brief to the Court, attorneys for Marsh argue that because the Kansas court's decision rests on independent grounds of state law, the Court does not have jurisdiction in the matter. Attorneys for Kansas disagree, citing in their brief a provision of the U.S. Code under which the Supreme Court can review state court decisions when a federal constitutional issue is involved.

During the Court's oral arguments on Dec. 7, 2005, the justices first examined whether mitigating and aggravating evidence in equipoise can sustain a capital sentence, or whether the Kansas statute is in violation of the 8th Amendment.

The justices seemed to agree that weighing aggravating and mitigating factors is a juror's moral judgment. Justice Antonin Scalia added that the Kansas statute gave a jury the opportunity to grant mercy, and that mercy can always be considered a mitigating circumstance.

"The jury has to be given the opportunity to say this poor devil doesn't deserve the death penalty … and that clearly exists under this scheme, it seems to me," Justice Scalia said.

Justice Stephen Breyer said he thought the Kansas Supreme Court assumed the statute was based on a juror who had already made up his mind, and thus called it "artificial." He questioned whether a case with a balance of "molecules" could ever exist, and explained how the scenario contradicted his view of the 8th Amendment, which required a death sentence only if a case is "somewhat worse than the ordinary case."

"And given the evenness of the balance, I don't see how we can say that," Breyer said.

Woodman, Marsh's attorney, said the Kansas Supreme Court construed the statute to mean that death is mandated if the evidence is in equipoise, and that the mandate does not allow the jurors to determine if death is an appropriate sentence.

But Chief Justice John Roberts pointed out that a statutory equipoise provision does not exist, and agreed with Justice Scalia that the burden of proof rests on the state.

On the other hand, Justice David Souter said the equipoise is just another way of saying that the mitigation does not outweigh the aggravation, which requires a verdict of death, according to the statute.

Justice Anthony Kennedy agreed that the burden of proof is on the defendant to show that the mitigating circumstances outweigh the aggravating circumstances. And Justice John Paul Stevens cited the majority's opinion in Walton v. Arizona in concurring that the defendant must prove enough mitigating factors to justify something other than the death penalty.

"And conceivably one could have met that burden with substantial mitigating evidence that came out even," Justice Stevens said.

The justices also delved into the question of whether they had jurisdiction to review the judgment of the Kansas Supreme Court and if the Kansas Supreme Court's judgment was adequately supported by a ground independent of federal law.

"I don't see how we can divorce the judgment here with the earlier judgment, which the Kansas Supreme Court relied upon here, which was a federal ground," Justice Souter said.

Chief Justice Roberts pointed out that the Supreme Court takes jurisdiction on federal grounds only if it has been raised or decided in a lower court. But he questioned Woodman's reasoning that the state can't seek higher review of a decision made by the State Supreme Court voluntarily.

On June 26, 2006, a divided Court sided 5-4 with Kansas, finding its capital punishment scheme constitutional.

Writing the Court's majority opinion, Justice Clarence Thomas reasoned that Kansas' statute may direct imposition of the death penalty so long as the state has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the two are in equipoise.

In so holding, Thomas revisited the essence of the Court's seminal decisions in Furman v. Georgia in 1972 and in Gregg v. Georgia in 1976, and found that state systems must rationally narrow the class of death-eligible defendants and permit a jury to render a reasonable, individualized sentencing determination. Beyond that, states have discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are weighed.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented.