A major death penalty case? Maybe not

By Lyle Denniston
on May 31, 2005 at 11:39 am

The somewhat confused procedural history of Kansas’ death penalty law has followed it to the Supreme Court, so the Justices’ agreement on Tuesday to hear an appeal by the state may not lead to a significant pronouncement on a key constitutional question. That question is whether a “tie” in a jury’s death penalty findings goes to the state, or to the individual on trial. But that is not the only issue the Court will be hearing.

In another action on Tuesday, the Court made no new law as it struck down a court order issued in California in a libel lawsuit brought by the late attorney Johnnie L. Cochran, a widely known Los Angeles litigator (best known for his role in the successful defense of O.J. Simpson in that celebrated murder trial). The Court said the order had lost much of its significance since Cochran died (he passed away while the case was pending before the Justices). But what remains of the state court injunction, the Court said, swept too broadly as a “prior restraint” on free speech. The Court kept the case active by substituting Cochran’s widow for him. Justice Stephen G. Breyer wrote for the 7-2 majority, in a spare four-page opinion. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, arguing that the case should have been dismissed rather than decided. (The case is Tory, et al., v. Cochran, 03-1488).

The Court’s only order Tuesday granting review of a new case involves Kansas’ capital punishment law, enacted in 1994. It specifies that, if the jury finds aggravating and mitigating circumstances to be equally balanced, a death sentence must be imposed – in other words, a “tie” goes to the state.

The Kansas Supreme Court, in a 4-3 decision in 2001 in the case of State v. Kleypas, ruled that this weighing equation would violate the Eighth Amendment ban on cruel and unusual punishment (and the Fourteenth Amendment). “Fundamental fairness,” the state court said then, “requires that a tie goes to the defendant when life or death is at issue.”

However, the state court at that time did not strike down the law as written. Rather, it said, the law could be construed in such a way as to uphold the intent of the legislature to have a death sentence that would satisfy the Constitution. So, it construed the law at that time to mean that aggravating circumstances must outweigh mitigating factors for a death penalty to be imposed.

When a new case, involving convicted murderer Michael Lee Marsh II of Wichita, reached the state court last year, the tribunal – in another 4-3 vote – struck down the law. Rejecting an argument by the dissenters that the Supreme Court had already implicitly decided that such an “equipoise” provision would be valid, the majority said the Court had issued no such ruling.

The majority went on to say that it had been wrong in failing to strike down the law in 2001 in order to save its constitutionality. “The avoidance doctrine is applied appropriately only when a statute is ambiguous, vague, or overbroad…The court’s function is to interpret legislation, not rewrite.”

Taking the case on to the Supreme Court, the state of Kansas raised a single question: “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?”

But, in granting review, the Court added two questions of its own – and, depending upon the answers, either query could lead to a decision without the Justices resolving the “equipoise” question.

The two new issues are: “Does this Court have jurisdiction to review the judgment of the Kansas Supreme Court under 28 USC 1257, as construed by Cox Broadcasting Corp. v. Cohn (1975)?” and “Was the Kansas Supreme Court’s judgment adequately supported by a ground independent of federal law?”

On the central constitutional question, the state’s appeal argues that the ruling “resurrects a conflict in constitutional interpretation that this Court resolved in Walton v. Arizona [1990].” It argues that the state and federal courts are divided on the issue. (The Supreme Court itself overruled Walton in 2002, but on other grounds in Ring v. Arizona.)

The new case is Kansas v. Marsh (04-1170). It will come up for argument in the new Term starting in October.

The case involves a multiple murder in 1996, during a planned robbery. Michael Marsh was convicted of capital murder, first-degree murder, aggravated arson and aggravated burglary. In the capital sentencing phase, the jury was instructed that a tie between aggravating and mitigating circumstances must lead to a death sentence. The jury agreed unanimously on that sentence.