Tomorrow’s Argument: Kansas v. Marsh

On Wednesday the Court will hear oral arguments in Kansas v. Marsh, No. 04-1170. At issue in the case is whether Kansas’s death penalty statute, which asks the jury to sentence a defendant to death if one or more aggravating circumstances exist and are “not outweighed by any mitigating circumstances which are found to exist,” violates the Eighth and Fourteenth Amendments because it requires capital punishment when jurors find the aggravating and mitigating circumstances to be in equipoise. In other words, when the aggravating and mitigating circumstances are balanced and the jury cannot decide which deserves more weight, Kansas, unlike perhaps every other state, would impose a sentence of death. The Kansas Supreme Court held, in the 2001 case of State v. Kleypas, that the statute violates the U.S. Constitution because “fundamental fairness requires that a ‘tie goes to the defendant’ when life or death is at issue.”

The Court also asked the parties to brief two jurisdictional issues that may prevent the Court from reaching the merits: whether the Kansas Supreme Court’s decision was a final judgment for purposes of 28 U.S.C. 1257 and Cox Broadcasting Corp. v. Cohn; and whether the Kansas Supreme Court’s judgment was adequately supported by a ground independent of federal law.

Jared S. Maag will argue the case for petitioner state of Kansas. Rebecca E. Woodman will argue the case for respondent Michael Lee Marsh, II. The parties’ briefs are available here.

Respondent Marsh was convicted of capital murder, first-degree premeditated murder, and aggravated arson and burglary stemming from the deaths of a woman and her small child. The jury sentenced Marsh to death after finding the existence of three aggravating circumstances that were not outweighed by the mitigating circumstances. Marsh appealed his conviction, arguing that the trial court had erred in excluding, on state law grounds, his evidence connecting the woman’s husband to the crime.

While Marsh’s appeal was pending, the Kansas Supreme Court held in State v. Kleypas that Kansas’s death penalty statute — under which Marsh had been sentenced — was unconstitutional because it mandated a sentence of death when the aggravating and mitigating circumstances were in equipoise. The court held that the Supreme Court’s decision in Walton v. Arizona, upholding Arizona’s death penalty statute, was not controlling because Arizona did not impose the death penalty when there was a tie between the aggravating and mitigating circumstances. The Kansas Supreme Court saved the Kansas statute, however, by reconstructing it so that equipoise would not mandate the death penalty, construing it to mean that the aggravating circumstance(s) must “outweigh any mitigating circumstances found to exist” before capital punishment may be imposed.

In addition to appealing the trial court’s exclusion of evidence, respondent Marsh appealed his death sentence based on the Kleypas decision. He argued that under Kansas law, he should be re-sentenced to life in prison because a provision of the state’s death penalty law was held unconstitutional. He also argued that the court had violated separation of powers doctrine by reconstructing an unconstitutional statute, but that at the very least he should have a new penalty trial. In its briefs before the Kansas Supreme Court, the state conceded that Kleypas had rendered Kansas’s death penalty statute unconstitutional and that Marsh’s sentence should be set aside and the case remanded for resentencing.

The Kansas Supreme Court agreed, vacating Marsh’s death sentence and remanding for resentencing with proper instructions about the weighing of aggravating and mitigating circumstances. The court reaffirmed its belief, expressed in Kleypas, that the Kansas statute was unconstitutional, but also held that it had misapplied the constitutional avoidance and statutory construction doctrines when it reconstructed the death penalty statute. The court held that before reaching the avoidance doctrine in Kleypas it should have followed the rule of statutory construction stating that courts should not speculate as to the legislative intent behind a statute whose meaning is plain and unambiguous. Because it reconstructed a statute whose meaning was clear on its face, the Marsh court held that it had overstepped its bounds and that the proper response was to overrule that part of Kleypas, holding the statute unconstitutional and letting the legislature act accordingly. The Marsh court also held that the trial court had denied Marsh a fair trial when it excluded evidence of the husband’s involvement in the crime, ordering a new trial on the capital murder and aggravated arson charges.

It is this evidentiary holding that prompted the Supreme Court to ask the parties to brief the issue of whether the Kansas Supreme Court’s decision was a final judgment under 28 U.S.C. 1257. Petitioner Kansas argues that the decision is final and reviewable, despite the fact that further state proceedings remain, because the Kansas court has reached a final decision on the federal constitutional question and because, with the current death penalty statute thrown out, petitioner will be unable to seek review of the constitutional question if the Court does not address it now. Petitioner argues that this situation — further proceedings in state court but no opportunity for later review of the federal question — places the Court’s jurisdiction squarely within the third category of exceptions laid out in Cox Broadcasting. Respondent does a good job of muddying up Cox Broadcasting’s third category, arguing that its application would be limited to the situation in which Marsh is convicted of capital murder on retrial but the state is unable to obtain review of the court’s holding that Marsh cannot be sentenced to death. Petitioner maintains that it would not be able to obtain review of the constitutional question in this scenario, but respondent suggests that review might be possible under Kansas law and that as a result the Court should certify a question to the Kansas Supreme Court to determine if review could be had. This would allow the Court to determine with certainty whether it has jurisdiction.

Petitioner also argues that the Kansas Supreme Court’s decision does not rest on an adequate and independent state law ground. Petitioner asserts that the Marsh court explicitly and solely rested its holding on federal grounds, the Eighth and Fourteenth Amendments, just as the Kleypas court had done, and that as a result the Court has jurisdiction to review the Kansas court’s constitutional holding. By contrast, respondent argues that the Court lacks jurisdiction because the Kansas decision did not address the already-decided (in Kleypas) constitutional question but rather dealt solely with state law questions, primarily the severability question of whether the court had erred in construing the death penalty statute so as to leave it on the books without the unconstitutional equipoise provision. Respondent notes that the unconstitutionality of the statute was not even at issue in Marsh, as both parties agreed that Kleypas had settled the matter, and that any mention of the constitutionality of the statute was only a reiteration of the Kleypas holding.

As to the merits of the case, petitioner argues that Walton v. Arizona is controlling. There, the Court held that Arizona’s death penalty statute does not violate the Eighth Amendment. Petitioner contends that Arizona’s statute, though worded differently, is functionally the same as the Kansas statute because both would impose the death penalty when the aggravating and mitigating circumstances are in equipoise. According to petitioner, the Arizona Supreme Court and the Ninth Circuit have construed Arizona’s statute to mean that mitigating factors must outweigh aggravating factors if the defendant is to escape death. Respondent, meanwhile, argues that the term “equipoise” did not appear in the plurality opinion in Walton, and that the state of Arizona itself interpreted its statute to mean that aggravating circumstances must outweigh mitigating circumstances — a balancing in which a tie would go to the defendant — before a death sentence can be imposed. Thus, respondent argues that Walton did not decide the constitutionality of mandating capital punishment when the jury finds the factors on both sides of the equation to be in balance.

Respondent’s primary argument is that the Kansas statute violates the Eighth Amendment and the Furman v. Georgia line of cases, which require the jury to examine the unique characteristics of the individual defendant and to make a reliable determination that death is appropriate by giving effect to mitigating evidence. Whereas petitioner argues that the Court’s Eighth Amendment requirements are met so long as the jury’s ability to consider the mitigating evidence is not limited, respondent claims that a state’s procedures must assure that a jury can arrive at a collective judgment that leads to a reliable individualized sentencing decision. Kansas’s statute, according to respondent, relieves juries of this responsibility by allowing the imposition of capital punishment when jurors are unable to reach a collective judgment that an individual’s mitigating evidence outweighs the state’s aggravating evidence, or vice versa. While petitioner argues that such findings of equipoise will be rare, respondent argues that in reality, jurors will all too often avoid this difficult weighing by “seiz[ing] upon the legal comfort” and finding that the circumstances are in balance and that death is therefore the necessary sentence. Respondent contends that such a finding of equipoise is in fact the absence of a decision by the jury that death is the appropriate sentence.

Petitioner, on the other hand, argues that the Court has never interfered with a state’s chosen method and formula of weighing mitigating and aggravating evidence. Because Kansas does not restrict the admission of relevant mitigating evidence, petitioner explains, its statute is constitutional. Moreover, petitioner argues that when the jury decides that the aggravating and mitigating circumstances are in equipoise, it makes the decision that the death penalty is appropriate. According to petitioner, the only time the jury cannot come to a decision is when it lacks unanimity, in which case it must impose a life sentence rather than death.