SUPREME COURT TO REVIEW RULING VOIDING KANSAS DEATH
PENALTY
Oral Argument in Kansas v. Marsh scheduled for Wednesday, December
7
The United States Supreme Court will hear oral argument on Wednesday
in its review of a December 17, 2004 ruling by the Kansas Supreme Court,
voiding that state’s death penalty law on federal constitutional
grounds. There is a question in this case if the Supreme Court has jurisdiction
to even review the state court’s ruling, but the substantive issue
is whether the lower court properly interpreted and applied precedent.
Earlier Supreme Court decisions have established that, in death penalty
cases, sentencing jurors must consider aggravating circumstances which
may support a death sentence and any mitigating circumstances which
may show that the defendant is more deserving of a life sentence.
In the case of Kansas v. Marsh the Kansas Supreme Court announced
that the Kansas law violates the Constitution’s Eighth Amendment
because it requires a death sentence when the jury finds that the
aggravating circumstances are not outweighed by the mitigating circumstances.
In previous decisions, the U. S. Supreme Court has upheld state laws
which find that a death sentence shall be imposed if the aggravating
circumstances outweigh the mitigating circumstances. The Kansas
Court determined that because of this difference, in the event of a
tie, the murderer could be sentenced to death in violation of the Constitution.
“This is a distinction without a difference,” said Kent Scheidegger.
“The mitigating and aggravating factors are rarely, if ever, exactly
equal, and the Supreme Court has never ruled that a death sentence is
prohibited in the event that they are,” he added. Scheidegger,
Legal Director of the California-based Criminal Justice Legal Foundation,
has filed an amicus curiae (friend of the court) brief in the
case to encourage a decision overturning the Kansas Court ruling.
The case involves the conviction of Michael Lee Marsh for the brutal
murder of a young mother and her 19-month-old daughter. On the evening
of June 17, 1995, the home of Eric and Marry Pusch was set on fire while
Eric was at work. Inside the house, police found the body of Mrs. Pusch.
The woman had been shot three times, stabbed through the heart and her
throat was slashed. The infant daughter was also found, still alive
but severely burned. She died in the hospital four days later.
During the investigation of the murders, Marsh, a friend of Eric Pusch,
admitted killing the woman but gave several conflicting statements regarding
the fire. He confessed that the murder was the result of his failed
plot to ransom Pusch’s wife and daughter for money he needed for
a trip to Alaska. When the mother and daughter arrived home before Marsh
was ready to tie them up, he panicked and shot the woman. He denied
that Eric Pusch had anything to do with the murders.
At trial, the prosecution introduced substantial evidence to corroborate
Marsh’s confession. Keys to the Pusch house were found discarded
near Marsh’s residence. Marsh’s tennis shoes were found spattered
with the victim’s blood. The gun used to kill Marry Pusch and a
makeshift silencer were found in his home. Forensic evidence also indicated
that there was lighter fluid on the clothing of both the mother and
the daughter. Prior to trial, Marsh attempted to introduce circumstantial
evidence suggesting that Eric Pusch participated in the crime, but the
court refused to allow it.
Marsh was convicted of both murders, and the sentencing jury found
three aggravating circumstances, voting unanimously to sentence him
to death. On direct appeal, the Kansas Supreme Court ruled to overturn
Marsh’s conviction announcing 1) that the trial judge erred in
denying the circumstantial evidence implicating Pusch and 2) that the
Kansas death penalty law was unconstitutional. When the United States
Supreme Court agreed to hear the state’s appeal of that ruling,
the Foundation joined the case at the request of the Kansas Attorney
General.
The Foundation brief argues that the Kansas court misinterpreted precedent
regarding the Eighth Amendment in death penalty cases, and that, if
upheld, it’s ruling could jeopardize death penalty laws in other
states.
“With this ruling the Kansas Supreme Court has, on a flimsy legal
basis, denied the people of Kansas the penalty they adopted for this
kind of depraved killer,” said Scheidegger.
CJLF Legal Director Kent Scheidegger is available
for comment at (916) 446-0345.
The Foundation helped win seven United States Supreme Court decisions
benefitting law enforcement and public safety during the Court’s
2004/05 term. The Foundation’s brief in this case is available
at:
http://www.cjlf.org/briefs/Marsh.pdf
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