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Court upholds Kansas' death penalty

New justice casts tie-breaking vote

By Bill Mears
Justice Samuel Alito cast the tie-breaking vote.


Supreme Court
Capital Punishment

WASHINGTON (CNN) -- The Supreme Court upheld Kansas' death penalty law Monday with a 5-4 decision that offers further proof of how deeply at odds the justices remain over the issue.

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

At issue was 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.

Writing for the majority, Justice Clarence Thomas said the Kansas law was constitutional, "because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination. It does not interfere, in a constitutionally significant way, with a jury's ability to give independent weight to evidence offered in mitigation."

It was the second time the high court had heard this case. The court ordered the case 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.

Her replacement, Justice Samuel Alito, proved the deciding vote. He and the other conservative justices, John Roberts, Antonin Scalia, and Anthony Kennedy supported the ruling.

Factors weighed

In all capital cases, jurors first must convict the defendant, then look at separate "aggravating" factors the state presents that favor death, such as the manner of murder, the motive or the type of 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.

In dissent, Justice David Souter said a state law "that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd." He added that the majority's holding "that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States."

He was backed by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.

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

Marsh confessed he snuck into the Wichita family's home intending to kidnap and ransom the two victims. Prosecutors allege he then panicked when the mother and daughter arrived home early.

Pusch 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.

Decision affects 8 Kansas inmates

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.

That included the provision instructing 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.

Kansas officials said they were grateful the Supreme Court favored their position.

"I'm pleased this issue is resolved, and the status of our death penalty is settled," said Democratic Gov. Kathleen Sabelis. "Without this ruling, the decisions the juries made concerning the eight Kansas death-row inmates would be in jeopardy. I hope this will bring some closure to the families who have been waiting for this issue to be resolved."

There is disagreement over what far-reaching impact the Supreme Court ruling would have elsewhere in the United States. Fifteen states filed briefs supporting Kansas, and lawyers for the state said several of those jurisdictions were considering similar "weighing" statutes.

Marsh's attorney argued otherwise, saying that Kansas law was unique, and unfairly favored the prosecution.

Kansas has not executed anyone since it reinstated its death penalty. The last execution in the state was in 1965.

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