Kansas v. Marsh

Issues 

Did the Kansas Supreme Court err in deciding that the Kansas Death Penalty Statute, K.S.A. 21-4624(e) violated the Constitution by allowing a jury to impose the death penalty in a case where the aggravating evidence did not outweigh the mitigating evidence, but was simply equal to it?

Under Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), does the decision of the Kansas Supreme Court below constitute a “final” judgment because the state’s highest court has decided the federal question at issue and it cannot be reviewed regardless of the outcome of state proceedings, thereby granting the United States Supreme Court jurisdiction to review the decision under 28 U.S.C. § 1257?

Oral argument: 
December 7, 2005
Court below: 
Kansas Supreme Court

Michael Marsh was convicted and sentenced to death for the 1996 murders of Marry Ane Pusch and her 19-month-old daughter, M.P. Certain mitigating evidence was presented at his sentencing trial. The court weighed this mitigating evidence against the aggravating evidence and determined that the balance of the evidence was equal. Under the Kansas death penalty statute, K.S.A. 21-4624(e), in such a situation where the evidence is “in equipoise,” the tie goes to the State. Therefore, Marsh was sentenced to death. On appeal, the Kansas Supreme Court reversed Marsh’s death sentence, finding that K.S.A. 21-4624(e) was, on its face, unconstitutional and a violation of the Eighth Amendment due to the fact that it did not require a jury to find that aggravating circumstances outweigh mitigating circumstances in order to impose the death penalty.

Marsh seeks for the Supreme Court to uphold the Kansas Supreme Court ruling. He argues that the Kansas Supreme Court was correct in holding in State v. Kleypas, 272 Kan. 894 (2001), that the Kansas equipoise provision violates the Eighth Amendment because it removes a jury’s obligation to make a sentencing decision based on the individual characteristics of the defendant and the circumstances of the case. Brief for Respondent at 10. According to Marsh, this contradicts the Eighth Amendment’s requirement of individualized capital sentencing. However, the State argues that a case previously decided, Walton v. Arizona, 497 U.S. 639 (1990)controls the outcome. In that case, the equipoise concern was raised by the petitioner, but it was of no constitutional concern to the Court. Brief for Petitioner at 5. The State further argues that Kansas’ sentencing procedure does not offend the Eighth Amendment because the law narrows the class of death eligible defendants and places no restrictions on the admission of mitigating evidence. The State asserts that nothing in the Eighth or Fourteenth Amendments prevents Kansas from imposing the death penalty if aggravating evidence is not “affirmatively outweighed by mitigating evidence,” and that the decision of the Kansas Supreme Court should be reversed. Id. at 6.

Questions as Framed for the Court by the Parties 

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. § 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?

Facts 

On June 17, 1996, Marry Ane Pusch (“Marry”) and her 19-month-old daughter, Marry Elizabeth Pusch (“M.P.”), were murdered in their home in Wichita, Kansas. Marry was shot and stabbed and then doused in flammable liquid and her house was set on fire. M.P. died as a result of injuries sustained in the fire. At trial, the jury learned that Michael Marsh had waited in the Pusch home, intending to rob Marry and her husband. His plan changed when Marry and M.P. arrived home early, thereby causing Marsh to panic. Marsh was subsequently found guilty of the capital murder of M.P., first-degree murder of Marry, aggravated arson, and aggravated burglary. The State presented several aggravating factors at the penalty phase of Marsh’s trial in an effort to support a death sentence. The jury found that all three aggravating circumstances existed and were not outweighed by any mitigating circumstances, and the jury unanimously agreed to a death sentence. Marsh was also sentenced to 51 months for aggravated arson and aggravated burglary, with his sentences to be served consecutively.
At the penalty phase of trial, the district court’s jury instructions followed the language of K.S.A. 21-4624(e) by requiring a death sentence if the jury found aggravating circumstances were not outweighed by mitigating circumstances. Under this provision, the jury was instructed that if there was equal aggravating and mitigating evidence (“equipoise”), the tie must go to the State and Marsh must receive the death penalty. After Marsh’s sentencing, the Kansas Supreme Court decided State v. Kleypas, in which the court held that the weighing equation in K.S.A. 21-4624(e) as written was unconstitutional under the Eighth and Fourteenth Amendments. Kleypas, 272 Kan. 894 at 1015-16. Instead of striking down the statute at that time, the court construed the statute to mean that in order to impose the death penalty, aggravating circumstances had to outweigh mitigating circumstances. On Marsh’s appeal, the Kansas Supreme Court agreed that Kleypas required the court to reverse Marsh’s death sentence and the sentence was remanded for reconsideration of the death penalty sentence with proper instructions as to the weighing equation. The Kansas Supreme Court also agreed with Marsh that K.S.A 21-4624(e) is unconstitutional on its face and that the portion of Kleypas that saved the statute through the court’s interpretation must be overruled. Marsh’s convictions and sentences for aggravated burglary and the premeditated murder of Marry were affirmed. His convictions for the capital murder of M.P. and aggravated arson were reversed. The Kansas Supreme Court also held that the trial court had erred in excluding evidence that implicated the involvement of Marry’s husband, Eric Pusch, in the crimes.

The Supreme Court will decide whether the Kansas death penalty statute, K.S.A 21-4624(e), is unconstitutional because it allows a death sentence to be imposed in situations where the evidence is in equipoise – where the mitigating and aggravating evidence is equal. If the Supreme Court upholds the lower court’s decision, it will decide that the Kansas statute is in fact a violation of the Eighth and Fourteenth Amendments. If this is the case, the reversal of Marsh’s death penalty sentence will stand. When it granted certiorari, the Supreme Court also asked the parties to brief and argue the additional question of whether the Supreme Court has jurisdiction to review the Kansas Supreme Court decision. This question requires consideration of whether the judgment below is “final” and whether it is adequately supported by a ground independent of federal law.

Analysis 

I. Constitutionality of Kansas’ Death Penalty Weighing Equation

The Supreme Court will be reviewing the constitutionality of the equipoise provision in the Kansas death penalty statute, which requires imposition of the death sentence when a jury finds a tie between a crime’s

aggravating circumstances that would warrant death for the defendant and the crime’s mitigating circumstances that would warrant life. See K.S.A. § 21-4624(e). This weighing equation is unique because most states impose the death penalty only if the aggravating factors outweigh the mitigating factors. Thus, the main substantive question that the Supreme Court must decide is whether the Constitution permits the imposition of the death penalty when evidence of aggravating and mitigating circumstances is in equipoise, or whether the Constitution mandates that the aggravating circumstances always outweigh the mitigating circumstances to warrant a death sentence.

The Supreme Court may have already ruled on this very same issue. According to the State, the Kansas weighing equation is functionally the same as the weighing equation of Arizona’s capital sentencing law, which the Court held as constitutional in Walton v. Arizona, 497 U.S. 639 (1990). See Brief for Petitioner at 14–19. But according to Marsh, Arizona’s statute did not mandate a death sentence when the jury finds the evidence in equipoise between the mitigating and aggravating circumstances, and, therefore, the Arizona statute in Walton is unlike the Kansas statute in the present case. See Brief for Respondent at 42.

If the Supreme Court finds that the Walton analogy does not apply, it must then consider whether the Kansas weighing equation is constitutional in its own right. Marsh argues that the Kansas weighing formula violates the Eighth Amendment prohibition against cruel and unusual punishment. See Brief for Respondent at 34. The equipoise rule, according to Marsh, does not require a Kansas jury to make an individualized sentencing determination that the individual circumstances of the defendant’s case mark it as more deserving of death than any other generic death-eligible conviction; thus, it creates a risk of unreliability in capital punishment that the Eighth Amendment forbids. See Id. at 35–36.

But the Supreme Court may agree with the State, which contends that the Kansas statute does narrow the scope of death-eligible defendants. See Brief for Petitioner at 22–23. If the statute does so, and if it also allows the jury to consider mitigating evidence, then according to Lowenfield v. Phelps, 484 U.S. 231, 246 (1988),the Supreme Court must find that the statute does not violate the Eighth Amendment. See Brief Amicus Curiae of the Criminal Justice Legal Foundation at 14–15.

Another issue that the Supreme Court may consider is whether weighing provisions in death penalty statutes are solely within the discretion of the states. According to the State, the Court’s death penalty jurisprudence since its landmark decision in Furman v. Georgia, 408 U.S. 238 (1972), leaves the weighing of the aggravating and mitigating circumstances to the states. See Brief for Petitioner at 19–20.

Furthermore, the Court may consider other parts of the Kansas statute to determine the constitutionality of the equipoise equation. The State points to Kan. Stat. Ann. § 21-4706(c) and argues that Kansas’ capital sentencing system does not unconstitutionally create a presumption in favor of death, but instead begins with a presumption that life in prison is the appropriate sentence for capital murder. See Brief for Petitioner at 25. The Court may also consider Kan. Stat. Ann. § 21-4706(e), which requires the prosecution to prove beyond a reasonable doubt that aggravating circumstances are not outweighed by the mitigating circumstances, hence making the law favorable to capital defendants. See Brief Amicus Curiae of the Criminal Justice Legal Foundation at 20–21.

Alternatively, the Court may save the Kansas equipoise provision by construing it as the Kansas Supreme Court did in Kleypas. See Kleypas, 272 Kan. 894, 1016 (2001). In Kleypas, the Kansas Supreme Court acknowledged that Kansas’ weighing equation is impermissible under the Eighth and Fourteenth Amendments. See Id. at 1015–16. However, in order to save the statute, the court construed the weighing equation to mean that if the jury finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances, then the defendant shall receive the death sentence. See id. at 1018.

On the other hand, the Supreme Court may agree with the Kansas Supreme Court in State v. Marsh. In Marsh, the Kansas Supreme Court found that saving the Kansas statute through judicial interpretation as Kleypas did was an erroneous application of the avoidance doctrine. See State v. Marsh, 278 Kan. 520, 538–39 (2004). The avoidance doctrine allows courts to uphold the constitutionality of an ambiguous statute as long as the courts can construe the statute “to comport with constitutional limitations[,]” However, the court found that the Kansas’ equipoise provision was unambiguous. See Id. The court also opined that construing the Kansas statute as Kleypas did invades the province of the legislature. See Id. at 538–40.

II. Finality of Judgment

In the order granting certiorari, the Supreme Court added two procedural questions to the substantive question of constitutional law, one being the question of whether it has jurisdiction to review the judgment of the Kansas Supreme Court under 28 U.S.C. § 1257, as construed by Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). Section 1257 states that the Court has jurisdiction to review the judgment of a state court only if the decision constitutes a final judgment. See 28 U.S.C. § 1257. In Cox Broadcasting, the Court provided four categories in which the Court has jurisdiction under section 1257 to review cases “in which the highest court of a State has finally determined the federal issue present in [that] particular case, but in which there are further proceedings in the lower state courts to come.” 420 U.S. at 477. Of particular relevance is Cox Broadcasting’s third category for “those situations where the federal claim has been finally decided, with further proceedings on the merits yet to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case.” Cox Broadcasting, 420 U.S. at 481.

The State argues that the Kansas Supreme Court’s decision is final within the meaning of 28 U.S.C. § 1257, as construed by Cox Broadcasting. See Brief for Petitioner at 7. According to the State, the Kansas Supreme Court’s decision has entirely eliminated the death penalty in Kansas, so regardless of the ultimate outcome of the case, i.e., whether Marsh is eventually acquitted or convicted of capital murder, the State will be unable to raise the issue of the constitutionality of the Kansas death penalty statute in future proceedings. See Id. at 7–9.

In this case Marsh argues that whether the decision below was a final judgment depends upon the State’s appeal rights, which are unclear under Kansas law. See Brief for Respondent at 18–19. To clarify the State’s appeal rights, the Supreme Court would have to certify a question of state procedure with the guidance of the Kansas Supreme Court. Marsh argues that this is unnecessary because the Supreme Court lacks jurisdiction on the second procedural question that the Supreme Court posed to the parties, as discussed below. See Id. at 19.

III. Adequate and Independent State Ground

The second procedural question that the Supreme Court posed to the parties was the question of whether the Kansas Supreme Court's judgment was adequately supported by a ground independent of federal law. The Supreme Court does not have jurisdiction to review a state court’s decision if the decision of the court rests on an independent and adequate state ground. See Michigan v. Long, 463 U.S. 1032, 1040–41 (1983).

The State argues that there are no adequate and independent state grounds precluding review, and, thus, the Court has jurisdiction to review the lower court’s decision. See Brief for Petitioner at 12–14. That is, in declaring the Kansas death penalty statute facially invalid, the lower court based its decision squarely and solely on federal constitutional grounds, adopting the language from Kleypas. See Id. at 12.

In contrast, Marsh argues that the Supreme Court does not have jurisdiction to review the Kansas Supreme Court’s decision because the decision rests upon an adequate and independent state ground. See Brief for Respondent at 19. Specifically, Marsh claims that the Kansas Supreme Court decided only the severability of the Kansas death penalty statute—a state law question—and not the issue of the federal constitutionality of the statute, which the court had already resolved in Kleypas. See Id. at 22. Marsh explained that the Kansas Supreme Court reiterated and discussed the federal constitutional invalidation of the statute in Kleypas only as the predicate for an extended, intensive analysis of state law issues of severability and stare decisis. See Id. at 26.

Discussion 

The Supreme Court must decide whether to uphold the Kansas Supreme Court’s decision that Kansas’ death penalty statute is unconstitutional. If the Court reverses the decision, the Court would simply be restating the position the Kansas Supreme Court took in Kleypas. The Kansas Supreme Court’s decision in Kleypas did not totally invalidate K.S.A. 21-4624(e) or the death penalty in general. See Brief for Respondent at 5. The court did not find the statute unconstitutional on its face; the court merely found that the weighing equation “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” Kleypas, 272 Kan. at 1016. Therefore, the court found the statute does not violate the Eighth Amendment prohibition against cruel and unusual punishment.

In upholding the Kansas Supreme Court’s decision, the Supreme Court would invalidate Kansas’s death penalty statute. Such a decision could have implications for other states that have similar death penalty statutes, including Arizona and Idaho. This decision could also threaten the death penalty in Kansas and “frustrate the wishes of Kansas’ citizens in seeing their moral priorities vindicated through the criminal justice system.” Brief Amicus Curiae of the Criminal Justice Legal Foundationat 3. A reversal of the decision would be supported by Kansas citizens who have encouraged the use of the death penalty in Kansas because they worry that without the death penalty there is not a strong enough deterrent for those who might commit death-eligible crimes. In addition, a reversal would be supported by victim’s rights advocates who worry that without the death penalty there would be no appropriate punishment for the seriousness of certain crimes.

On the other hand, it is arguably most important, in imposing a death sentence, that there be clear evidence that the defendant is guilty. As the Kansas statute stood before the Kansas Supreme Court invalidated it, the death penalty could be imposed as long as the mitigating evidence did not outweigh the aggravating evidence. This may not produce evidence strong enough to support the imposition of the death penalty. Further, the Constitutional rights of the defendant must be considered, including the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s right to due process and equal protection. Both of these Amendments were addressed by the Kansas Supreme Court in its decision. Regardless of how the Court rules, there will be an effect on the way juries weigh evidence and a greater scrutiny of what constitutes mitigating and aggravating evidence.

In reversing the Kansas Supreme Court’s decision, the Supreme Court would endorse the Kansas death penalty statute the way it is written and would condone the imposition of the death penalty in situations where aggravating evidence did not necessarily outweigh mitigating evidence. In upholding the Kansas Supreme Court’s decision, the Supreme Court would not be doing away with the death penalty in Kansas. While a death penalty for Marsh and others sentenced under the arguably unconstitutional statute might be impossible, a death penalty for future offenders is not impossible. The Kansas legislature would simply have to rewrite the statute so that a death penalty could not be imposed unless the aggravating evidence outweighs the mitigating evidence. This emphasizes further what the Kansas Supreme Court was trying to achieve in ruling K.S.A. 21-4624(e) unconstitutional. In Kleypas, the court avoided ruling the statute unconstitutional by determining it was unconstitutional “as written” and giving the jury instructions that construed the statute differently. Kleypas, 272 Kan. at 1018. In overruling their decision in Kleypas, the court addressed their concern about bypassing the legislature’s function in drafting statutes, a function the court sought to protect in the Marsh decision.

Conclusion 

Because of its interesting mix of substantive and procedural questions, this case will not only reflect the Supreme Court’s view of the death penalty, but also the demarcation between federal and state court jurisdiction. If the Supreme Court affirms the Kansas Supreme Court’s decision in State v. Marsh and invalidates Kansas’ weighing equation, then Kansas will have to rewrite its death penalty statute and the decision may call into question the constitutionality of similar weighing equations in other states. Alternatively, a reversal of State v. Marsh by upholding the constitutionality of the weighing equation would mean that similar weighing equations in other states may be constitutional as well. Regardless, the fate of Kansas’ death row inmates, and possibly the fate of death row inmates in other states as well, hang in the balance. Of course, the Court may not even reach the substantive issue if it decides either that it does not have jurisdiction to review the judgment of the Kansas Supreme Court under 28 U.S.C. § 1257, or that the Kansas Supreme Court's judgment was adequately supported by a ground independent of federal law.

Written by:

Laura Chang

Kelly McRobie

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