Akin Gump summer associate Catherine Creely has this summary of today’s opinion:

What if you were on a jury charged with sentencing a double murderer in a capital case? What if the prosecution had proven beyond a reasonable doubt that this was not just any murder "“ that it was the most heinous kind of murder, in which a small child was knowingly burned to death? What if the defense presented mitigating circumstances and you were at least partially persuaded to grant mercy? What if you deliberated with the other jurors for a long time and decided it was a tie? If you were on a jury in Kansas, that tie would impose the death penalty on the defendant. The question then becomes whether it is a violation of the Constitution to impose the death penalty by statute when the jury decides that the aggravating and mitigating factors are in equipoise. Today, the Court held that it is not.

On the evening of June 17, 1996, Michael Marsh broke into Marry Ane Pusch's home and hid in her bedroom closet. Marsh needed money for a trip to Alaska and had planned to take Marry and her nineteen-month-old daughter hostage, using them to extort the money from Marry's husband Eric. Unfortunately, Marry came home early. Marsh panicked and his plan went awry. As soon as Marry walked into the bedroom, Marsh shot her in the head three times. He then stabbed her twice and doused her body in lighter fluid. He set fire to the body and ran from the house, leaving the baby inside. She suffered severe burns in the blaze and died six days later of multiple organ failure.

Marsh was charged with capital murder, first-degree premeditated murder, aggravated arson, and aggravated burglary. A Kansas jury convicted him of all charges and sentenced him to death for the capital murder of the child. Marsh appealed his conviction to the Kansas Supreme Court. In a 4-3 decision, the court held that the Kansas death penalty statute, Section 21-4624(e), was unconstitutional on its face because it required the jury to impose the death penalty if the aggravating factors were not outweighed by any mitigating factors. The majority found that this weighing equation violated the Eighth and Fourteenth Amendments to the Constitution, reasoning that the equation could result in a tie and the automatic sentence of death. The State of Kansas filed a petition for certiorari, which the Supreme Court granted in May 2005.


The Court heard oral argument on December 7, 2005 and re-argument, for the benefit of newly appointed Justice Samuel Alito, on April 25, 2006. Phill Kline, the Attorney General of Kansas, argued for the State and Rebecca Woodman, of the Capital Appellate Defender Office, argued for Mr. Marsh. Although the Court had directed the parties to brief and argue two additional issues "“ whether the Kansas Supreme Court's decision was sufficiently final to give the Court jurisdiction to review it and whether the Kansas Supreme Court's judgment was adequately supported by an independent state law ground "“ both oral arguments centered almost exclusively on the constitutionality of the Kansas death penalty statute. Both parties presented some argument on the jurisdictional issues in December but gave none during re-argument in April.

In a 5-4 decision handed down today, the Court found for the State on both jurisdictional questions and upheld Kansas's death penalty statute. Justice Thomas wrote for the majority and was joined by the Chief Justice and Justices Kennedy, Alito, and Scalia (writing separately). Justice Souter dissented, joined by Justices Ginsburg, Breyer, and Stevens (writing separately). The majority found that the Kansas Supreme Court's decision was sufficiently final for review and that review was appropriate because the state decision was not supported by adequate and independent state grounds.

Having dispensed with the jurisdictional issues, the majority relied on Walton v. Arizona to uphold the death penalty statute itself. In his majority opinion, Justice Thomas pointed out two parallels between the Arizona death penalty statute upheld in Walton and the statute at issue in Marsh. First, both statutes permit the imposition of the death penalty upon a finding that aggravating circumstances are not outweighed by mitigating circumstances. Second, both statutes place the burden of proving aggravating circumstances on the prosecution, allowing the defendant to proffer mitigating evidence. Justice Thomas then pointed out only one distinction between the two "“ a distinction that works in favor of Kansas defendants. Under the Arizona statute, the defendant has the burden of proving that the mitigating circumstances outweigh the aggravating circumstances. Conversely, the Kansas statute puts the burden of proof on the State, requiring the prosecution to prove that the mitigating circumstances presented by the defendant do not outweigh the aggravating circumstances. In Kansas, the defendant bears no additional evidentiary burden.

The majority also relied on its death penalty jurisprudence generally. Justice Thomas wrote that, even if Walton does not apply, the Court's earlier rulings permit the Kansas capital sentencing system. The Kansas statute rationally narrows the group of death-eligible defendants by allowing the death penalty only after the prosecution has proven one or more of the statutorily enumerated aggravating circumstances beyond a reasonable doubt. The Kansas statute also permits a jury to consider any relevant mitigating evidence, whether it was presented by the defendant or not. Additionally, the majority found that the Kansas statute does not create a presumption in favor of the death penalty just because it imposes death when the aggravating and mitigating factors are in equipoise. Instead, the majority characterized such an outcome as a reasoned decision by the jurors that the mitigating evidence does not warrant leniency. Kansas jury instructions explicitly state that a tie will result in the death penalty so the Court assumed the jury was aware of the consequences of an equipoise finding. Justice Thomas concluded with an outright dismissal of the dissenting opinions as "irrelevant," stating that the Court does not sit as a moral authority. It is not the Court's place, Thomas argued, to pass judgment on the entire capital punishment system.

Justice Souter's dissent stressed that the death penalty should be reserved for "the worst of the worst." He argued that, since the determining factor in an equipoise situation is not the nature of the crime or the characteristics of the individual defendant, the jury's decision is not connected to a particular crime or criminal. Subsequently, a tie breaker cannot identify the worst of the worst "or even purport to reflect any evidentiary showing that death must be the reasoned moral response." Souter characterized the Kansas statute as "morally absurd" because, in his view, it requires the death penalty when the prosecution has failed to convince the jury that the aggravating circumstances outweigh the mitigating circumstances. He further wrote that "the Court's holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States." Justice Souter relied on a small number of death penalty studies to support his contention that the Kansas law inappropriately maximizes death sentences. He specifically pointed to the advent of DNA testing and Illinois's death penalty moratorium to illustrate the number of false verdicts in the American justice system, alleging that the percentage is "disproportionately high in capital cases."

Justice Stevens joined Justice Souter but wrote a separate dissent to express his disagreement with the Court's use of Walton as controlling authority and with the Court's grant of certiorari in the first place. Justice Stevens drew attention to Justice Blackmun's dissent in Walton, which he joined, arguing that the Court did not actually address the equipoise situation presented in Marsh. Therefore, Walton should not control. Additionally, Justice Stevens disagreed with the Court's decision to grant certiorari in Marsh because he viewed the case as simply a review of a state court's interpretation of its own precedent and a state law. He encouraged judicial restraint, emphasizing that "[n]othing more than an interest in facilitating the imposition of the death penalty in [Kansas] justified this Court's exercise of its discretion to review the judgment of the [Kansas] Supreme Court."

Justice Scalia wrote a classically quotable concurring opinion that mocked Justice Stevens's characterization of the jurisdictional issues and likened all of the dissenters to a bunch of confused Martin Luthers, "nailing their policy agendato the door of the wrong church." Justice Scalia spent about one-third of his concurrence enlightening Justice Stevens on the certiorari process and the Court's role in the judicial system. He then chastised the dissenters for giving the impression that their views in Marsh were motivated by their personal views on the death penalty. He also devoted considerable space to discrediting the studies Justice Souter cited in his dissent. In shaming the dissenting view that the death penalty is an "undesirable situation," he pointed out that regardless of the Justices' opinions, thirty-eight states impose the death penalty. He also wrote that "as far as anyone can determine (and many are looking), none of the cases included in the .027% error rate for American verdicts involved a capital defendant erroneously executed."

Overall, the Justices behaved as expected in this case. The usual suspects hung together and Justice Alito broke the tie. The most notable thing about Kansas v. Marsh is how contentious it is. The Justices got pretty personal right off the bat. Maybe everyone just needs a vacation.

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