PRESS RELEASE

SUPREME COURT TO REVIEW RULING VOIDING
KANSAS DEATH PENALTY

The United States Supreme Court will hear oral argument for a second time on Tuesday in its review of a 2004 ruling by the Kansas Supreme Court.  That ruling voided that state’s death penalty law on federal constitutional grounds.  The case was first argued on December 7, 2005.  On March 24, after Justice Samuel Alito was confirmed to succeed retiring Justice Sandra Day O’Connor, the Court put the case back on the calendar for a second argument.  This action probably indicates the remaining Justices are divided 4-4, and Justice Alito will cast the deciding vote.

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 death penalty 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, the murderer could be sentenced to death in the event of a tie.  A bare majority of the state court concluded this would be a 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 that 1) the trial judge erred in denying the circumstantial evidence implicating Pusch, and that 2) the Kansas death penalty law was unconstitutional.  When the United States Supreme Court agreed to hear the state’s appeal of the second 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, its 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.