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Kansas Supreme Court Selected Opinion Summaries
State v. Marsh
December 17, 2004

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.


RE: Appeal No. 81,135: State v. Marsh

The Supreme Court today ruled 4-3 that the Kansas death penalty statute is unconstitutional because of its provision that a tie goes to the state when juries weigh aggravating and mitigating factors.

In today's decision in State v. Marsh, the majority agrees with the four justices who decided in 2001's State v. Kleypas that the statute as written violated the Eighth and Fourteenth Amendments. Kleypas ultimately upheld the death penalty only after the Court replaced the unconstitutional weighing provision with one having exactly the opposite effect.

Today's majority is composed of Justices Donald L. Allegrucci, Marla J. Luckert, Robert L. Gernon, and Carol A. Beier.

"[The statute's] express language was clearly intended to mandate the imposition of a death sentence when the existence of aggravating circumstances was not outweighed by any mitigating circumstances," the majority states. "The legislature chose this language over alternative wording recommended by the attorney general to avoid constitutional infirmity. As a result, the statute is unconstitutional on its face under the Eighth and Fourteenth Amendments."

The majority goes on to state: "The appropriate, limited judicial response to the problem identified for the first time in Kleypas was to hold [the statute] unconstitutional on its face and let the legislature take such further action as it deemed proper . . . . Our decision today to confine [judicial rewriting] to appropriate circumstances recognizes the separation of powers and the constitutional limitations of judicial review and rightfully looks to the legislature to resolve the issue of whether the statute should be rewritten to pass constitutional muster. This is the legislature's job, not ours. [This approach] does more in the long run to preserve separation of powers, enhance respect for judicial review, and further predictability in the law than all the indiscriminate adherence to [the previous decision] can ever hope to do."

Today's ruling came in an appeal brought on behalf of Michael L. Marsh II, who was charged in Sedgwick County with the June 1996 capital murder of Marry Elizabeth Pusch, the premeditated first-degree murder of Marry Ane Pusch, aggravated arson, and aggravated burglary. Marry Ane and her 19-month-old daughter, Marry Elizabeth, were murdered in their Wichita home. The mother had been shot and stabbed and the daughter left to burn to death in an ensuing fire.

On appeal, the defense raised 18 issues arising from the guilt phase of the trial and 16 issues from the penalty phase. The Court deemed five of the issues controlling. The decisive issues included whether there was sufficient evidence to support each conviction, whether evidence was improperly excluded by the trial court, whether the death penalty is unconstitutional, whether there was sufficient evidence to support the imposition of a hard-40 sentence for the mother's murder, and whether the hard-40 penalty is unconstitutional.

In addition to the 4-3 decision on the death penalty, the Court unanimously ordered a new trial of the capital murder and aggravated arson charges against Marsh because of an erroneous evidentiary ruling. The Court held the trial judge prejudiced Marsh's defense by refusing to admit evidence that Marry Ane's husband may have been involved in the murders.

The three justices dissenting on the death penalty ruling are Chief Justice Kay McFarland and Justices Robert E. Davis and Lawton R. Nuss. Each would have held there is no constitutional defect in the statute as written.

Chief Justice McFarland and Justice Nuss join the dissent of Justice Davis, who says the death penalty statute was constitutional when it was passed by the Legislature and remains constitutional today.

Justice Davis writes: "There seems to be a general feeling among the majority that the weighing equation which mandates death in the highly unlikely event that the jury finds the aggravating and mitigating factors to be exactly equal in weight is somehow 'unfair.' While it is certainly within the province of this court to interpret the Eight Amendment, we cannot do so in a vacuum. We cannot simply rely on our inchoate feelings, but instead have a duty to examine, analyze, and apply the United States Supreme Court's jurisprudence on the matter."

The majority states that the United States Supreme Court has never directly addressed the issue in Marsh.

Chief Justice McFarland says in her separate dissent that legally the Court should follow the Kleypas precedent: "[I]n Kleypas, in a 4 to 3 decision, all seven justices agreed the Kansas death penalty law was constitutional, either as construed in a very minor respect (majority) or as written (dissent). To now strike down the Kansas death penalty law, is, in my opinion, wholly inappropriate and unjustified."

Justice Nuss also writes separately and says the U.S. Supreme Court has already implicitly approved of the death penalty sentencing scheme adopted in Kansas. In his opinion, an Arizona weighing equation "functionally identical" to the Kansas equation was approved by the U.S. Supreme Court in its 1990 Walton v. Arizona decision, and Walton therefore controls the result in Marsh.

As a result of today's decision, Marsh remains convicted of aggravated burglary and premeditated first-degree murder of Marry Ane. The State may retry him on the capital murder of Marry Elizabeth and the aggravated arson. His sentences of life without parole for 40 years plus 24 months for aggravated burglary are affirmed.

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