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Greetings from the Kansas Supreme Court and the Kansas Bar Association. This is the last edition of Law Wise for 2003. The theme of the November edition of Law Wise is Capital Punishment in Kansas.
Calendar of Events
Capital Punishment in Kansas
In February of 1863, Carl Home was executed in Leavenworth, Kansas. Home was the first man in Kansas to be executed. Between February of 1863 and August of 1870, a total of nine men were executed under the then existing capital punishment statute. Then, in 1872, Governor James Harvey signed a law that required individuals facing the death penalty be held for one year at the Kansas State Penitentiary and that the Governor sign a death warrant before the execution. No governors signed such a warrant. Then, in 1907, the death penalty in Kansas was abolished. In its stead was a sentence of life in prison for those convicted of murder in the first degree.
Thereafter, in 1935, the Kansas legislature again enacted a provision for the death penalty. The first execution to take place under that law occurred on March 10, 1944. Between that time and June of 1965 a total of 15 men were executed under Kansas law.
In 1972, the United States Supreme Court held certain statutory death penalty schemes to be unconstitutional in Furman v. Georgia, 408 U.S. 238 (1972). Kansas followed suit the following year in State v. Randol, 212 Kan. 461, 513 P.2d 248 (1973). Thus, from 1973 until 1994, death was not a possible sentence in Kansas. Then, on July 1, 1994, the death penalty in Kansas was reinstated. Currently, there are seven circumstances which a murder conviction may give rise to death by lethal injection in Kansas. Each of the circumstances requires that the killing be done intentionally and with premeditation.
There are two limitations on who can be executed in Kansas. First, juvenile murderers are not subject to the death penalty. See K.S.A. 21-4622. Second, if an inmate is determined to be "mentally retarded," as defined by K.S.A. 21-4623, that inmate cannot be executed.
In December 2001, the Supreme Court made its first review of the 1994 death penalty law in State v. Kleypas.
Case Study: Summary of State v. Kleypas
On December 21, 2001, the Supreme Court affirmed the capital murder conviction of Gary W. Kleypas in the 1996 death of Carrie Williams, Pittsburg, but vacated his death sentence and remanded the case for resentencing before a newly impaneled jury, which could reinstate it.
The exhaustive 338-page decision was the first review and analysis of the state's death penalty law by the Kansas Supreme Court since it was re-enacted in 1994. Kleypas was convicted of capital murder, attempted rape, and aggravated burglary in the brutal death of Williams, which occurred in her Pittsburg apartment during the early morning hours of March 30, 1996. He was sentenced to death on March 11, 1998, following a two-part trial that was conducted between July 8 and August 5, 1997.
The Supreme Court in today's decision unanimously affirmed Kleypas' conviction and set aside his death sentence because of the faulty jury verdict form. The court split 4-3 on a second challenge to the death penalty, based on the manner in which jurors were told to weigh aggravating and mitigating circumstances in arriving at the penalty.
The decision upholds the constitutionality of the death penalty statute but ruled that the law prescribing how a jury is to weigh aggravating and mitigating circumstances in arriving at its sentence violated the Eighth Amendment as applied in the Kleypas case. Under Kansas law, the jury may consider evidence which supports certain statutorily defined aggravating factors. The jury must then decide which aggravating factors have been proven by the state. In Kleypas' case, the jury concluded that three aggravating circumstances existed:
The court held that under the death penalty statute the jury had to balance the aggravating circumstances found to exist against any mitigating circumstances. The weighing test is not based on a mere comparison of the number of aggravators and mitigators, but involves a qualitative as well as quantitative assessment by the jury, and requires that the jury return a sentence of death if the aggravating circumstances outweigh any mitigating circumstances found to exist.
The majority held it was improper for the jury to be instructed, as K. S. A. 21-4624(3) requires, that if aggravating circumstances were found but "not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death." This has the effect of requiring the death penalty even when the aggravating and mitigating circumstances are found by the jury to be in equal balance. Thus, the majority held, the so-called Kansas "weighing equation" which in essence allows a "tie" to go to the state violates the federal constitutional prohibitions against cruel and unusual punishment and the guarantee of due process. The court's majority ruled that "fundamental fairness" requires that a "tie" go to the defendant when life or death is at issue. The Supreme Court decision does not invalidate the Kansas death penalty statute, but holds that the weighing equation, as applied, is unconstitutional.
The majority opinion noted that the Kansas Attorney General had, without success, in 1995 recommended to the Kansas Legislature that the death penalty statute be amended to require that aggravating circumstances outweigh mitigating circumstances so that if circumstances are equal "tie goes to the defense."
In reaching the decision, the court reasoned that the Kansas legislature intended to enact a constitutional death penalty scheme and thus concluded that K.S.A. 21-4624(e) is not void on its face, but only in its application. The majority held that by requiring the "tie" to go to the defendant, the intent of the legislature may be carried out in a constitutional manner. So construed, the Supreme Court held that K.S.A. 21-4624 does not violate the Eighth Amendment prohibition against cruel and unusual punishment.
Kleypas now may be re-sentenced by a newly impaneled jury that is instructed that a defendant must be sentenced to death if the aggravating circumstances found to exist outweigh the mitigating circumstances, as opposed to an instruction that the death penalty may be imposed if the mitigating circumstances do not outweigh the aggravating circumstances.
The court was unanimous in its agreement that another reason existed to vacate Kleypas' death sentence based on a faulty verdict form, which the Court characterized as "seriously deficient." According to the death penalty statute, the jury is faced with two options: 1) unanimous agreement that the defendant must be sentenced to death; or 2) absent such unanimous agreement, the defendant will not be sentenced to death.
In Kleypas' case, the trial court properly instructed the jury as to its two options. And, the trial court provided a proper verdict form reflecting the first option: a unanimous decision for death. However, the verdict form meant to reflect the second option improperly characterized it as requiring a unanimous decision against death, the court ruled. The wording of the second verdict form made it appear that the jury, in order to spare Kleypas' life, was required to be unanimous in its decision against death, the court said.
The Supreme Court held that the second verdict form was confusing, misleading, and inconsistent with Kansas law. The court concluded the second verdict form prejudiced Kleypas' right to a fair trial, and absent the problem with the weighing equation, would have been grounds on its own to vacate the death sentence and remand for resentencing.
The court provided substitute language for the second verdict form to be used in all death penalty cases in Kansas. The revised verdict form, consistent with Kansas law, makes it clear that a single juror may block a death verdict, the court ruled.See the Kansas Supreme Court website at http://www.kscourts.org for links to the full text opinion and additional information as the resentencing unfolds.
Every spring, the Kansas Bar Association Young Lawyer's Section (KBA YLD) offers a statewide mock trial competition to high school students. This year's tournament will offer several regionals across the state, cumulating into a state tournament in which the winner will advance to the national tournament.
The National High School Mock Trial competition began in 1984, and offered students simulated courtroom experience with real lawyers available who will volunteer to help coach their teams. Additionally, lawyers and law professionals will act as the judge and jury during the tournaments. Students in your debate, forensics, government, speech, drama or gifted programs would find this tournament worthwhile and exciting. If you have never participated before, I encourage you to seriously considering entering at least one team from your school.
Teams for this competition consist of six to eight students and your school can enter as many teams as you would like. Registration fees are minimal, starting at $50.00 for the first team, with $25.00 for each additional team. However, in no event is any school required to pay more that $200.00, no matter the number of teams entered.
The regional tournaments will take place on March 5 - 6, 2004, and the state tournament will occur on April 2-3, 2004 in Wichita. The registration deadline for the competition is January 30, 2004. The case materials and rules will be available soon on the Internet at www.ksbar.org. A notice will be sent out to schools that register for the competition.
Eric Kraft is the coordinator for this year's tournament. Eric can be reached at (913) 451-5109 or by e-mail at email@example.com. You can also contact Btissam Touijer with the Kansas Bar Association at (785) 234-5696 or by email at firstname.lastname@example.org.
By Brett Fenton
While summertime is a chance for teachers to take a break and relax, it also is a time to get prepared for the next school year. This summer I was able to attend the Supreme Court Summer Institute which brings teachers, from all over the United States, together to learn about the Supreme Court and how to teach about it in the classroom.
Yes, most of you might be thinking, "Oh boy, you get the chance to spend a week in Washington D.C., but you're stuck in a classroom learning about the Supreme Court. How exciting!" The good news is the Supreme Court Summer Institute is not just sitting in a classroom listening to lectures. While in Washington, D.C. we were able to tour the old Supreme Court and the current Supreme Court. These tours are not for the general public. We got the chance to go beyond the ropes that keep the general public from seeing everything. In the old Supreme Court, we were able to walk around the room and take pictures, something the common person is unable to do. At the current Supreme Court we went on a tour and then were able to meet with one of the Supreme Court Fellows. Not only did we tour the Supreme Court, but we also had reserved seating to hear the decisions handed down on affirmative action in the Michigan cases. On the same day the cases were handed down, we were treated to a reception at the Supreme Court with Supreme Court Justice Ruth Bader Ginsburg as our special guest.
The Supreme Court Institute didn't just provide us with tours. They also provided us with information that we could use to make ourselves better teachers. We were able to discuss cases that had been brought before the court during the year and meet with people that argued the case or firms that were directly involved with the case. We also learned more about our current Supreme Court Justices by meeting with lawyers or judges that served as aids for them.
The Supreme Court Summer Institute provided me with vast information which has helped me to become a better teacher. It was also a great summer get-a-way in Washington, D.C. All of this was made possible with the help of Ron Keefover and the Kansas Bar Association. I would like to thank them for helping me attend the Supreme Court Summer Institute.
The ABA has a free newsletter that contains information on law-related education. Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is published three times each year (winter, summer, fall). For information on ordering, contact the ABA at (312) 988-5735 or email@example.com.
The Law-Related Education Inventory has the following items that might be useful in discussing Capital Punishment: Sentenced to Die. Videocassette. Library number 364.6/Se57.The Law-Related Education Inventory has many resources to help teach about law-related topics. To order a catalog, call Btissam Touijer at the Kansas Bar Association, (785) 234-5696 or email firstname.lastname@example.org. The Kansas Bar Association and the lawyers in your community sponsor the Law-Related Education Inventory. The clearinghouse will mail free copies of law-related posters, games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8:00 a.m. to 7:00 p.m., and Friday, 8:00 a.m. to 5:00 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education Inventory, Marla Darby, can be reached at Darbymar@esumail.emporia.edu/.
Grade: 6-8, 9-12
In this lesson, students will learn about various state laws concerning capital punishment and conduct a mock meeting of the United States Congress to set standards for the death penalty.
Review the Academic Content Standards related to this lesson.
Suggested Time Allowance: 1 hour
Resources / Materials:
Activities / Procedures:
Students should include any interesting information to help the class understand capital punishment laws in their state.
Further Questions for Discussion:
Evaluation / Assessment:
Students will be evaluated based on written journal entries, participation in class, thoughtful completion of research and presentation posters, and thoughtful completion of reflective essays.
Clarity, notably, deferential, excise, procedural, tinker, habeas corpus, consensus, inevitable, threshold, imposition, impose
Other Information on the Web:
Overview: Many people feel that the United States' use of the death penalty violates the Constitution's ban on cruel or unusual punishment and requirement of equal treatment of the laws. Students can explore problems in Florida's capital punishment system that lead to innocent people being sentenced to death.
Purpose: This lesson will aid students in being aware of errors that can occur during the death penalty process.
Students should be able to:
Tying it all together:
After the debates are finished, assign students a 1-2 page reaction paper. Papers should discuss whether their opinions changed, what facts or opinions they were surprised to learn, and what the death penalty means to them.
Law Wise is published by the Kansas Bar Association during the school year. The Kansas Bar Foundation, with Interest on Lawyers Trust Accounts funding, provides support for this publication. Published free, on request, for teachers or anyone interested in law-related education, it is edited by Crystal Marietta, Pittsburg, (620) 231-5620. For further information about any projects or articles, contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, Topeka, (785) 296-4872, or Btissam Touijer, Public Services Director of the Kansas Bar Association, Topeka (785) 234-5696. Law Wise is printed at the Kansas Bar Association, 1200 Southwest Harrison, P.O. Box 1037, Topeka, Kansas 66601-1037.