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Justices spar in death penalty debate

Court's decision on weighing factors due in June

By Bill Mears
CNN

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Justice David Souter questioned applying the death penalty when jurors are "on the fence."

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WASHINGTON (CNN) -- The Supreme Court used a shocking decade-old Kansas murder Tuesday to examine the factors juries must weigh when deciding whether defendants deserve the death penalty.

At issue is a state law that says when juries find that the arguments for and against capital punishment carry equal weight, the automatic sentence must be death.

It is the second time the high court has heard this case. The court ordered it reargued after apparently deadlocking 4-4. Justice Sandra Day O'Connor was present when the case was first debated in December but had retired by the time it was originally decided, and her vote did not count.

So in a way, Tuesday's arguments were for the benefit of one, Justice Samuel Alito, O'Connor's replacement, who could prove to be the deciding vote. His measured questioning of the lawyers gave little indication of how he might vote.

But two members of the bench had little trepidation, engaging in a spirited debate over the apparent sticking point in the appeal.

Souter, Scalia debate

Justice David Souter told Kansas Attorney General Phill Kline to justify the state law over the various "weighing" factors leading to a sentence.

In all capital cases, jurors first must convict the defendant, then look at separate "aggravating" factors presented by the state that favor death -- such as the manner of murder, the motive and details about the victim. They also examine "mitigating" factors such as mental or physical abuse, where the burden of proof lies with the guilty party to show he or she is worthy of a lesser sentence.

"It doesn't seem to be a reasoned moral response," to automatically prescribe death when aggravating and mitigating factors are equal, Souter said. "The jury says, 'We're on the fence, but execute anyway.' That seems a total inconsistency."

Justice Antonin Scalia, sitting next to Souter, quickly jumped into the debate. "You have these horrible aggravating factors," he said. "There were no mitigating factors to outweigh. That seems to me to be a reasoned moral response."

"But that's not what the issue is here," said Souter, who pointed out the Kansas law left few options for juries divided equally on the sentencing question.

The two justices continued on point for several minutes with equal intensity, drawing smiles from several of their colleagues.

The case involves Michael Lee Marsh II, sentenced to death for killing Marry Ane Pusch and her 19-month-old daughter, M.P., in June 1996.

Marsh confessed he sneaked into the Wichita family's home intending to kidnap and ransom the two victims.

Prosecutors allege he panicked when the mother and daughter arrived home early. Marry Ane was shot and stabbed, and her throat was slit. She was then doused with lighter fluid and set afire. The resulting inferno inflicted severe burns to the little girl, who died of her injuries days later.

Verdict overturned

Marsh admitted to the shooting, but denied the stabbing and fire. He tried unsuccessfully at trial to introduce evidence implicating others in the crimes.

The Kansas Supreme Court eventually overturned the jury's verdict, and granted Marsh a new trial.

The state justices also used the case to throw out the state's entire death penalty statute, passed by the legislature in 1994. The statute included the instruction for jurors to impose death when concluding mitigating and aggravating evidence were evenly balanced.

The state high court concluded the death requirement violated Marsh's constitutional guarantees of due process and protection from cruel and unusual punishment.

Rebecca Woodman, Marsh's appellate attorney, said the Kansas guidelines left unclear whether the Marsh jury in fact was evenly divided over the aggravating and mitigating factors.

Also in dispute was what far-reaching impact a Supreme Court ruling would have elsewhere in the United States. Fifteen states filed briefs supporting Kansas, and Kline said several of those jurisdictions had similar "weighing" statutes.

Woodman argued otherwise, saying that Kansas' law is unique. And several justices suggested the high court need not issue a sweeping ruling. Justice John Paul Stevens asked whether the Kansas legislature would re-examine its death penalty laws to address what he called "this silly little problem" over aggravating and mitigating factors.

Justice Stephen Breyer twice suggested the dilemma of equal factors weighing on a jury's verdict is an "artificial situation" that might rarely occur.

A ruling is expected by late June.

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