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LAW WISE    

November 2003

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
• Mock Trial
• Supreme Court Summer Institute
• Law Matters
• Resources at the Law-Related Education Inventory
• Technology for Teachers
• Lesson Plan #1: : Who Decides Who Dies? Exploring Death Penalty Laws in the United States
• Lesson Plan #2: The Death Penalty System
• Appellate Courts Welcome You

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. In the commission of a kidnapping; Pursuant to a contract or an agreement to kill; By a confined inmate; Of a rape or sodomy victim; Of a law enforcement officer; Of more than one person; or Of a child under the age of 14 years of age. See K.S.A. 21-3439. 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: Kleypas was previously convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment or death on another; Kleypas committed the crime to avoid or prevent a lawful arrest or prosecution; and Kleypas committed the crime in an especially heinous, atrocious or cruel manner. 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.

Mock Trial - Register Your School Today!

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 ekraft@lathropgage.com. You can also contact Btissam Touijer with the Kansas Bar Association at (785) 234-5696 or by email at btissam@ksbar.org.

Supreme Court Summer Institute - One Week in Washington, D.C.

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 abapubed@abanet.org.

Resources at the Law-Related Education Inventory

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.

Lesson Plan #1:  
Who Decides Who Dies? Exploring Death Penalty Laws in the United States

Grade: 6-8, 9-12

Overview:

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:

• student journals
• pens/pencils
• paper
• classroom blackboard
• copies of "Impact of Ruling Barring Execution of Retarded Unclear" (one per student)
• resources about the death penalty, juvenile crimes and mental retardation (periodicals, library resources, computers with Internet access)
• slips of paper, each with a different U.S. state written on it (one per student)

Activities / Procedures:

1. WARM-UP/DO NOW: Students respond to the following prompt in their journals (written on the board prior to class): "What do you know about the death penalty? For what types of crimes do convicted criminals receive the death penalty? Is everyone convicted of such a crime sentenced to die? Describe what you know about the age, mental state, and other social factors of convicted criminals eligible for the death penalty." After a few minutes, allow students to share their responses, and discuss the following questions: Why do state courts try and sentence children under different laws than adults? Do you think that mentally challenged adults should also be treated differently by the courts? Why or why not?
2. As a class, read and discuss the article "Impact of Ruling Barring Execution of Retarded is Unclear," focusing on the following questions:

   a. What decision has the Supreme Court made recently regarding the United States death penalty?

   b. What decision is still unclear, according to the article?

   c. What two possible directions could the Atkins v. Virginia ruling take the courts, according to the article?

   d. What is the world position on executing retarded people?

   e. According to Leon Friedman, what death penalty debates continue?

   f. When was the last time an outspoken opponent of the death penalty sat on the Supreme Court? Who was it?

   g. What is the next big debate in the United States surrounding the death penalty, according to the article?

   h. What did the court rule in 1988?

   i. How many people on death row committed crimes at age 16 or 17?

   j. Which countries allow juvenile defenders to be executed?

   k. What was the Supreme Court's earlier decision on the issue of retardation and the death penalty?

   l. What issue is at the center of the Ring v. Arizona case, according to the article?

   m. What is the Innocence Protection Act?

   n. What does Wayne F. Smith say about capital punishment?

   o. According to the article, how many death row inmates have recently been found innocent?

   p. What does Mr. Smith believe the court needs before it can settle the debates about the death penalty?

3. Divide the students into groups of three or four, and give each group a slip of paper with a different state on it. Explain that each group will be researching the history of the death penalty in this state for a future meeting of committees in the Senate and House of Representatives on the proposed Innocence Protection Act. Using all available resources, students will research the following questions (written on the board prior to class under the headings given):

   State Position:

   - What is the current population of this state?

   - What are the state's current capital punishment laws? (Be sure to look at age, type of crime, mental retardation and other mitigating factors.)

   - How many inmates are on death row in this state?

   - Who, if any, are the outspoken leaders in state legislation for or against the death penalty?

   State History:

   -In the past ten years, how many people have been executed under the death penalty in this state?

   -What are the landmark death penalty cases in this state? What makes each case significant?

   Students should include any interesting information to help the class understand capital punishment laws in their state.

4. WRAP-UP/HOMEWORK: Using the research gathered in class, groups will create informational posters to present at a mock meeting of committees in the Senate and House of Representatives on the proposed Innocence Protection Act. Posters should include (through symbols, charts, graphs or bulleted lists) the name of the state and the laws, issues and statistics researched in class. Individually students should write a reflective essay expressing their opinions about the death penalty that explores the mitigating factors mentioned in the article. Allow time in a future class for students to share their posters and conduct an open forum on whether or not the national government should set standards for state death penalty laws.

   Further Questions for Discussion:

   -Why do you think a mentally challenged person should or should not be able to receive the death penalty?

   - How does the Supreme Court's decision help or hurt those who want to abolish the death penalty in the United States?

   -Why does a judge, not a jury, decide whether or not to impose the death sentence?

   -Do you think the judicial process regarding capital punishment in the U.S. can be improved? Why or why not? What improvements, if any, would you propose?

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.

Vocabulary:

Clarity, notably, deferential, excise, procedural, tinker, habeas corpus, consensus, inevitable, threshold, imposition, impose

Extension Activities:

1. Create an historical timeline of the United States Supreme Court landmark death penalty cases and decisions. Write a short reaction to your timeline, explaining any patterns or trends that you notice.
2. Develop a news story chronicling the historic United States cases that shaped how minors are treated in criminal court. Include any decisions that affected how old a person must be to receive different types of punishment, including the death penalty. Be sure to look at types of crimes committed, social factors and age.
3. Research the opinions of the current Supreme Court Justices about capital punishment. Write a summary of the Justices opinions, and compare how their ideas or opinions compare with Justice Blackmun?

Interdisciplinary Connections:

Global Studies- Write a report explaining the current issues surrounding the death penalty in one of the countries mentioned in the article, such as Iran, Nigeria, Pakistan or Saudi Arabia. What are the mitigating factors to determine whether or not a convicted criminal receives the death penalty? How do these laws compare with those of the United States?

Media Studies- Watch a movie such as "I am Sam," "Rainman," or "Forrest Gump" that chronicles the experience of living the life of a mentally or physically challenged person. What made the main character's life unique? Do you, in any way, relate to this character? Were you surprised by any of the main character's behaviors?

Teaching With the Times- Read past articles regarding capital punishment and mental retardation. Write a letter to the editor of your local or school newspaper commenting on whether or not the national decision to ban executions of mentally challenged people is a leap forward in the capital punishment system or just a temporary bandage for a larger problem.

Other Information on the Web:

• The Justice Project (http://justice.policy.net/) campaigns for criminal justice reform.
• Capital Punishment: Life or Death? ( http://www.cwrl.utexas.edu/~tonya/spring/cap/group1.htm) is a school project covering both sides of the issue.
• The Death Penalty Information Center( http://www.deathpenaltyinfo.org/topics.html)provides state-by-state information regarding capital punishment.

Lesson Plan #2:     The Death Penalty System

Grades: 10-12

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.

Objectives:

Students should be able to:

1. Identify the Eighth Amendment that bans cruel and unusual punishment.
2. Identify errors in a death penalty case.
3. Understand the historical and contemporary context of the death penalty.
4. Provide support for an argument both for and against the death penalty.
5. Evaluate the evidence for and against that the death penalty serves as a deterrent.

Activities:

1. Divide students in to teams of two. Have each team list at least three reasons for and against the death penalty. Create a "master list" of pros and cons on the board, asking each team for one of their reasons. This initial activity will help assess overall student awareness of capital punishment.
2. Lead a discussion on errors in the death penalty system, concentrating on ineffective counsel, prosecutorial misconduct, and inaccurate testimony. Discussion should touch on what these errors are, why they happen, who is most likely to be affected by them, etc.
3. Divide the class in to four groups. Two groups will evaluate court case #3 and two groups will evaluate court case #4. Assign a pro-death penalty stance and an anti-death penalty stance to each case. (It will be interesting and more challenging to students who have a differing opinion than the one assigned). The students should then read through the cases, looking carefully for specific arguing points that support their stance. To help ensure participation, ask the group to assign individuals to specific roles such as "secretary," "group leader," "point #1," "point #2," etc.
4. Conduct a debate with each group stating an argument and then the opposing group having a chance to rebut. The students who are not debating should be observing the debate and taking down notes. After the debate has finished, ask the observing students what the strongest arguments were.

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.

Materials needed:

1. Write the Eighth Amendment on the board: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
2. Read "Systemic Errors That Sent 100 Innocent Prisoners to Death Row" by the ACLU Capital Punishment Project
3. Case Study #3 from the Death Penalty Information Center website
4. Case Study #4 from the Death Penalty Information Center website

   Terrific Technology for Teachers

1. For a high school curriculum on the death penalty to assist both teachers and students in an exploration of capital punishment, presenting arguments for and against its use, as well as issues of ethics and justice that surround it visit http://www.deathpenaltyinfo.msu.edu/index.html

2. The Death Penalty Information Center at http://www.deathpenaltyinfo.org/topics.html provides state-by-state information regarding capital punishment as well as many other issues regarding the death penalty.

3. The Cornell Death Penalty Project, found at http://www.lawschool.cornell.edu/lawlibrary/death/, provides state and federal statutes and case law.

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.