KANSAS v. MARSH

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Argument of Phill Kline

Chief Justice Roberts: We'll hear argument next in Kansas v. Marsh.

General Kline.

Mr. Kline: Mr. Chief Justice, and may it please the Court--

The Court has never held that a specific structure for weighing aggravating and mitigating factors is required by the Eighth Amendment.

Yet, this Court has consistently held that all that is required by the Eighth Amendment is for States to afford an opportunity to jurors to consider all mitigating evidence relevant to determination of a sentence other than death.

The Kansas statute, it is undisputed in this case, allowed the respondent to introduce all such evidence and that the jurors, under Kansas law, are specifically instructed to consider all such mitigating evidence on an individualized basis.

Justice Souter: General, may... may I... I'd like to pose a question which at least gets to the nub of the issue, as I see it, and... and get your response to it.

The premise of my question is this.

We... we generally regard mitigation evidence as favoring life, aggravation evidence as favoring death.

We've got a case in which the... the assumption is that they are evenly balanced.

The... the pans of the scale are exactly even on that.

Kansas says in that case the jury shall return the verdict of death.

If we are going to demand, as we have said that we're going to demand, that the determination... that the death penalty determination would be one of what we have called reasoned moral judgment, then what has to be supplied in order to make the Kansas provision consistent with reasoned moral justice, it seems to me, is a presumption in favor of death.

Other things being equal, there is a presumption in favor of death.

And my question is, am I correct in saying that in order to hold your way, we have to hold that the Eighth Amendment... it is consistent with the Eighth Amendment to presume the appropriateness of death, other things being equal?

Mr. Kline: As the Court... yes.

As the Court has done in Walton, the standard in the--

Justice Souter: You... you agree that's... that's a proper way to look at the issue then.

Mr. Kline: --Well, to take the issue in its total context and refer to the instructions and the totality of what the jury is instructed, I would disagree that there is a presumption of death--

Justice Souter: Then how do you get off the dime?

Mr. Kline: --The jury is given in the instruction, instruction number 4 and instruction number 5, a direction as to the effect of their reasoned moral judgment.

Justice Souter: Yes, but the... the direction, as I understand it, is that if mitigation and aggravation are even, then the only way to come to a conclusion is to say, as the statute does, because the mitigation does not outweigh the aggravation, you should return a verdict of death.

And that seems to me another way of saying there is a presumption that if aggravation and mitigation are equal, that the penalty should be death.

Mr. Kline: Instruction number 5 does instruct the juror, Justice Souter, that if the State meets the burden of proving beyond a reasonable doubt that the mitigating factors do not outweigh the aggravating factors, then the jury shall sentence the defendant to death.

Justice Scalia: The State has made a judgment that this particular offense... what's it called?

Aggravated murder, you know, whatever--

Mr. Kline: First, they have to be convicted, Justice Scalia, of capital murder.

Justice Scalia: --Capital murder, as its name implies, warrants a judgment of death unless there are mitigating factors that... which indicate that that is not proper.

Mr. Kline: That is correct, Justice Scalia.

Justice Scalia: That's a moral judgment, isn't it?

Mr. Kline: That certainly is, and--

Justice Scalia: And even if the State had said the opposite, it... it is a... still a State prescribed moral judgment.

If the State had said capital murder warrants a judgment of death only if the mitigating factors outweigh the aggravating factors, that's still a State prescribed moral judgment, isn't it?

Mr. Kline: --That is correct.

Justice Breyer: And can... can you go back to Justice Souter's question for a minute?

Because the way I'm thinking about this, I'm making two assumptions that I'd like you to make, first, that there could be such a case, which I very much doubt, but... but this is a lawyer's hypothetical, this whole thing, in a sense.

But I'll make the assumption there could be such a case.

Second, I will assume that our case law leaves this open, a matter that can be argued.

But suppose that we do make that assumption for the moment.

Then what I'm thinking of is this made up case is the case of the following.

We have aggravating factors and break them down into molecules on a scale, and for every molecule of aggravation here, there is a molecule of mitigation there, so that the juror who is very conscientious ends up with the same number of molecules of equal weight on this scale.

And in our made up instance, Kansas says, if that's the situation, you must say death.

Now, if that's the case, how would you reconcile that with a view of the Eighth Amendment that says if you're going to sentence someone to death, there has to be something special about his case that means it's somewhat worse than the ordinary case because, after all, for every molecule of specialness that warranted death, we have a molecule of mitigation that doesn't?

So that's where I am, trying to get the cases out of it and trying to take very seriously the hypothetical that is before us.

Mr. Kline: There... thank you, Justice Breyer.

There are several considerations and steps that must be approached and proven by the State before we get to that actual equation.

First of all, the State follows the guided discretion standard of this Court, as laid out in Furman and its progeny, to a very narrow definition of what capital murder is.

In fact, the Kansas death penalty statute is one of the most narrow in the Nation.

And then past that point to the sentencing jury, the State must prove beyond a reasonable doubt at least one of eight specific aggravating factors exist with jury unanimity.

And then past that point, Kansas has complied with this Court's requirement under the Eighth Amendment for a juror to consider and give effect to all mitigating evidence relevant to a sentence other than death and that instruction is specifically pointed out in your appendix, pages 23 through 28.

Furthermore, the juror is--

Justice Scalia: Well, the Furman... the... it's hard to tell where the voice is coming from, I know.

We ought to get that fixed.

[Laughter]

The Furman narrowing is produced by the very first part of subsection (e).

If, by a unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in... in section 24-4625 and amendments thereto exist... that's the Furman.

Mr. Kline: --That is correct, and--

Justice Scalia: And then beyond that you say if that is found, then the jury has to find that the existence of such aggravating does not outweigh.

Mr. Kline: --That is correct.

And that... that is how it complies with your hypothetical, Justice Breyer.

Justice Breyer: Well, you see, my hypothetical is designed to cut free of the language of the cases.

I have no doubt you can go through the language and show that.

And it's designed to say, but the very point of those cases is you do not send someone to death unless the jury decides that the circumstances here make him somewhat worse, at least one molecule worth of worse, than the typical person.

And given the evenness of the balance, I don't see how we can say that, though I grant you, when you go back to those words in the cases, you're right.

Mr. Kline: Well, the guided discretion of this Court has indicated that the State must be able to... and a juror... differentiate between a defendant who is convicted of the same crime as to the... and sentenced to life as the defendant who is sentenced to the same crime and sentenced to death.

And that is laid out, as Justice Scalia pointed out, in the definition of capital murder and the requirement of aggravated factors.

Chief Justice Roberts: Of course, the... the instructions don't tell the jury to weigh the molecules.

They tell the jury that the State has to prove beyond a reasonable doubt that the mitigating molecules do not outweigh the aggravating molecules.

Mr. Kline: That is correct.

Chief Justice Roberts: And how likely is it, if you have a jury who thinks the... a juror, who thinks the molecules are precisely balanced, is going to conclude that the State has carried its burden of proving beyond a reasonable doubt that the 50 here don't outweigh the 50 here?

Mr. Kline: Mr. Chief Justice--

Chief Justice Roberts: It's a theoretical proposition--

Mr. Kline: --Mr. Chief Justice, we are dealing with a hypothetical that we believe does not exist in jury deliberations.

A juror steps back and decides whether they can live with the decision that is before them and then decides whether the death penalty is warranted.

And in fact, Kansas law leads them to that reasoned moral decision.

In Kansas law, in instruction number 4, which again is laid out in your appendix, instructs the juror that mercy, in and of itself, is sufficient to determine a sentence other than death.

Justice Kennedy: Well, let me ask... ask you this.

As a... rather than presumptions, can we look at this case as a matter of shifting burdens of proof?

I... I take it the Constitution does not require the State to introduce mitigating evidence.

That's... that's the responsibility of the accused.

Mr. Kline: That is correct.

Justice Kennedy: And so what we're saying here is that when a State shows that the mitigators do not outweigh the aggravators, then it's the defendant's/accused's burden to go forward and show that they do.

Mr. Kline: Except... you're correct, Justice Kennedy, except that the burden on the State is beyond a reasonable doubt to demonstrate that, the highest burden allowed by law.

And beyond that burden that was in the Arizona statute, which was functionally identical to the Kansas law, that was presented in this... to this Court in Walton v. Arizona, and this Court rejected that very argument in that case.

As you may recall, the Arizona law was that there was a responsibility for the defendant to demonstrate that mitigating factors were sufficiently substantial to call for leniency.

The Arizona Supreme Court had decided that that meant that the mitigating factors must outweigh the aggravating factors.

And this Court accepted that case because of a conflict between the Ninth Circuit which held, as the Kansas Supreme Court did, in Adamson v. Ricketts, that that was an unconstitutional violation of the Eighth Amendment.

This Court resolved that conflict, and in fact, States relied on that resolution, as did the Kansas legislature, in articulating the very standard except Kansas goes further and keeps the burden on the State.

Justice O'Connor: Yes.

In Arizona, the burden was placed on the defendant, was it not--

Mr. Kline: That is correct, Justice O'Connor.

Justice O'Connor: --to... to prove the mitigation?

And yet, the Court upheld that even in the equipoise situation.

Mr. Kline: That is correct, Justice O'Connor.

Justice O'Connor: Over a dissent.

Mr. Kline: Correct.

Justice Blackmun's dissent.

Justice O'Connor: So Kansas does not put the burden on the defendant.

Mr. Kline: Not at any stage of the proceeding.

The burden remains on the State to prove beyond a reasonable doubt.

Justice Kennedy: Well, but... but I take it the State has no duty to adduce mitigating factors.

Mr. Kline: It is incumbent upon the defendant, Justice Kennedy, to bring forth factors in mitigation.

The standard, though, in introduction is relevancy, and Kansas has met the... the requirements of this Court, as it relates to the specific sentencing or individualized sentencing structure, by allowing the juror to consider all evidence relevant to the determination of a sentence other than death.

Justice Stevens: Of course, that means they comply with Lockett.

I want to ask you one question that goes back to your colloquy with Justice Souter and Justice Scalia.

Justice Scalia pointed out that the State has made a moral judgment on a certain state of facts, the death penalty shall be imposed and which you agreed with.

And that was true in the cases back in 1975 and '6.

There were some State statutes that mandated death based on the moral judgment of the State in certain circumstances.

I think one was a North Carolina statute.

Do you ask us to reexamine those cases?

Mr. Kline: No, Justice Stevens.

Actually the State's position is consistent with the previous decisions of this Court in this fashion.

Justice Stevens: It... it does not rely on the proposition that there's a situation in which there's a mandated death penalty which is perfectly okay.

Mr. Kline: No, because there is a requirement upon the State in the sentencing phase to prove factors in aggravation with jury unanimity beyond a reasonable doubt that set aside this particular act in a different framework than those who commit capital murder and are convicted of capital murder.

If the State does not meet that burden--

Justice Stevens: Of course, the aggravators... it would be permissible for a State to include the aggravators necessary to narrow the category in the definition of the crime itself.

Mr. Kline: --This Court has held that it does.

And Kansas has a very narrow death penalty in the definition of capital murder and also the specified aggravators that the State must prove.

Justice Stevens: But you would say that if the State met that burden and there was no mitigating or no substantial mitigating evidence, it would be permissible to... for the State to mandate the death penalty.

Mr. Kline: Just as it is in Walton v. Arizona.

Justice Stevens: The answer is yes.

Mr. Kline: Yes.

The answer is yes, Justice Stevens.

Justice Stevens: And you think that's fully consistent with the North Carolina case.

Mr. Kline: It is not fully consistent, I don't believe.

It is consistent with the Walton case in that this Court said a mandatory death penalty is not unconstitutional, as long as the State differentiates between those convicted of the same crime and who are sentenced to life and those who are convicted of the same crime and sentenced to death.

Kansas clearly does that in the requirement that the State prove beyond a reasonable doubt that one of at least eight specific statutory aggravating factors exist in the case.

But Kansas goes further.

Unlike in Walton v. Arizona, the burden remains on the State to also prove that the mitigating evidence proffered by the defendant who has the lowest threshold allowed by law, and all that is required by this Court... that is relevancy... that all of that evidence does not outweigh--

Justice Stevens: Well, it... that's the way Justice Blackmun interpreted the majority, but the majority didn't quite say that because it said the burden on the defendant was to prove sufficient mitigation to justify something other than the death penalty.

And conceivably one could have met that burden with substantial mitigating evidence that came out even.

Mr. Kline: --Well, the--

Justice Stevens: Under the majority's opinion... now, you're dead right about what Justice Blackmun said, but--

Mr. Kline: --Justice Stevens, you are correct.

The majority didn't specifically address that, but they also analyzed the case, much as Justice Kennedy just did, in saying that really what we're talking about is whether the State eventually at some point, once it has met the requirement of the individualized sentencing requirements of this Court, can say that death is appropriate.

And the answer in this Court's jurisprudence has been clearly yes once we are able to set aside this defendant from other defendants convicted of the same crime.

Justice Stevens: --But you would agree that it would be consistent with the... the text of the majority opinion to say it really meant they have to prove enough mitigating evidence to make death the inappropriate sentence, which could be less than... even a 50/50 balance.

Mr. Kline: Arguably, yes, Justice Stevens.

And that is the language of the Arizona statute, but it would fly in the face of the interpretation of the Arizona Supreme Court, as well as the Ninth Circuit Court of appeals in Adamson v. Ricketts which, subsequent to the Walton decision, held that Walton controlled and allowed the potentiality of equipoise to be constitutional.

Now, one thing I would like to--

Justice O'Connor: Are you going to address the other questions?

I think we've added a question about whether the Kansas Supreme Court's judgment was adequately supported by an independent State ground.

And I'm not sure that this has been adequately addressed.

Do we have jurisdiction here?

The... the Kansas Supreme Court vacated the capital murder judgment and remanded it and said it would have done it anyway because of the State law evidentiary error concerning admission of third party guilt evidence.

So does that independent ground mean we don't have jurisdiction here on this thing?

Mr. Kline: --No, Justice O'Connor, there is not an independent and adequate State ground for this decision.

It is undisputed that the Kansas Supreme Court relies on this Court's interpretation of the Eighth Amendment for the interpretation of the cruel or unusual punishment clause of the Kansas constitution.

Justice O'Connor: But there was another ground.

Mr. Kline: Yes, but it is not adequate and independent.

The argument of the respondent is that the constitutional savings doctrine and severability arguments are independent and adequate, and by their very nature, they are dependent rather than independent.

The Kansas Supreme Court engaged in a... and I quote from the decision... a full reexamination of the Eighth Amendment jurisprudence in coming to the conclusion in paragraph 25 of the syllabus, which is the law of the case in Kansas under Kansas law, that the Kansas death penalty statute is unconstitutional on its face.

That was the first such holding in Kansas jurisprudence history finding that determination.

Previously, 3 years earlier, the court had found the death penalty statute constitutional as construed, and as this Court knows, you will not accept jurisdiction of a State court's interpretation or construction of a State law.

So, therefore, this is the first opportunity that the State has had and I would say the last.

Justice O'Connor: Well, but was this... was this case remanded for a new trial?

Mr. Kline: It is, Your Honor.

Justice O'Connor: And presumably, if there is a conviction and a sentence, you could come back here again by way of a cross appeal.

Mr. Kline: That would be incorrect, Justice O'Connor.

Kansas is prohibited.

The prosecutors are prohibited and limited of the right of appeal in Kansas law as in most States.

And... and this Court had a similar case in Neville v. South Dakota in which you construed South Dakota law as it relates to limiting the prosecution's ability to appeal and, through that construction, identified in an interlocutory basis, when the lower court passes on a constitutional measure that has import for this Court, that the inability of the State to be able to pursue that case renders jurisdiction under 28, section 1257.

So--

Justice Ginsburg: If I... if I understand what the situation is, there is no death penalty in Kansas as a result of this decision.

Mr. Kline: --That is correct, Justice Ginsburg.

There is no death penalty.

The highest court of our State has spoken and stricken it down as unconstitutional on its face.

Justice Ginsburg: Has there been any movement in the legislature to change the law so you won't be in this situation where there is no death penalty?

Mr. Kline: Justice Ginsburg, there's significant discussion in the legislature, but that discussion is somewhat mixed, as you might imagine, and some were concerned that action might moot this case.

Right now there are 12 pending capital murder cases in Kansas which, if this Court does not reverse the Kansas Supreme Court, the State will not be able to seek capital murder charges and the death sentence in those cases.

Justice Stevens: Well, that wouldn't be true if you amended the statute, would it?

If you... if they amended the statute to take the 50/50 problem out of it, which wouldn't seem to me all that difficult, you could still impose the death penalty on these other 12 people who haven't been tried.

Mr. Kline: It is our position, Justice Stevens, since their crimes were committed prior to any act of the legislature, we would be prohibited from seeking the death penalty.

Justice Stevens: Because of an ameliorating amendment to the death penalty statute?

Mr. Kline: That is... that is our... our position.

It would have to take an entire--

Justice Stevens: I doubt if you'd take that position if they did it.

[Laughter]

Mr. Kline: --Well, Justice Stevens, if you put me in that position, I will be an advocate for the State.

However, it is our position, as Justice Ginsburg alluded to, that the State has no death penalty and it would take a complete reenactment of the death penalty for the State to have one.

And that is borne out in case law.

There is no uncertainty as it relates to the ability of the State to seek appeal in charging death once there is no death statute that is available.

The references in Kansas law to KSA section 22-3602(b) are a very settled area of the law.

The respondent argues that subsection (1) of that statute would allow us an opportunity to preserve this issue below.

However, that only relates to the State being able to appeal charging documents, and the definitions of those documents are very specific in Kansas law.

Furthermore, subsection (3) states that a prosecutor can reserve an issue, but case law is very clear, and that is only if the Kansas Supreme Court sees that issue as important for the administration of justice, the uniform administration of justice, in the State, and has interpreted that to mean only where guidance of the supreme court is necessary.

It is not a method for moving for rehearing.

The Kansas Supreme Court rejects that.

We moved for reconsideration and reconsideration was not granted.

If this Court embarks, as the respondent asks it to, it will put in jeopardy 12 capital murder cases and prevent 12 capital murder cases from being pursued in Kansas.

It will effectively strike down the laws of seven other States that have functionally identical statutes as Kansas.

And furthermore, it would effectively call into question the laws of five other States that do not even require any weighing mechanism whatsoever.

This Court has never gone further and required a specific mechanism of weighing aggravating and mitigating circumstances and has relegated that duty, as it should, to the States as long as the juror has the opportunity to make the reasoned moral decision based on the consideration of all mitigating evidence relevant to a decision other than death that relates to the character, the background of the defendant, or the circumstances of the offense.

And if you would look in your joint appendix on pages 25 and 26, you will see the instructions that the State of Kansas gave in this case, and it is undisputed that the respondent's presentation of mitigating evidence was presented to the jury in full, and additionally, the jury was specifically instructed to consider and give weight... I'm sorry.

It's pages 24 and 25... specifically instructed to give weight to all of that evidence.

Pages 24 and 25.

I am referring to instruction number 4.

And you will see the delineation beginning on page 25 of all the mitigating evidence that was admitted as relevant in this case.

And I would also say that Kansas continues to bear a greater burden in its consideration... for the juror's consideration in that the juror is instructed on paragraph 2 of instruction 4 that mercy in and of itself is sufficient... is sufficient... to outweigh the aggravating evidence presented by the State.

So contrary to the--

Justice Scalia: I have no idea what that means.

I mean, you... you go into this very elaborate system, you know, molecules on one side, molecules on the other.

[Laughter]

And then you throw the whole thing up in the air and say mercy alone is enough.

I mean--

Mr. Kline: --Justice Scalia, I think it is... it is a default for a life sentence.

And I believe it is certainly an acknowledgement that what really happens here is a juror steps back, after the consideration of all the evidence that this Court requires under the Eighth Amendment, and decides what they can live with, a sentence of death or a sentence of life.

And one juror who has doubt can extend mercy.

And, Mr. Chief Justice, if it may please the Court, I'd like to reserve the remainder of my time.

Argument of Rebecca E. Woodman

Chief Justice Roberts: --Thank you, General.

Ms. Woodman, we'll hear now from you.

Mr. Woodman: Mr. Chief Justice, and may it please the Court--

I'd like to devote the bulk of my time to answering the State's arguments on the merits because the constitutional issue presented by the Kansas capital sentencing statute is actually quite different than the State and its amici would have it appear.

Their arguments rest on an erroneous assumption about the way the statute operates and the real issues that its operation raises.

Under the Kansas formula, prosecutors can and do urge jurors not to persevere in their decision making if they are undecided regarding the balance of aggravating and mitigating circumstances.

In other words, if the decision is too hard to make, the sentence must be death.

The formula--

Chief Justice Roberts: But is it reasonable to suppose that one of those cases where it's too hard to decide is when there are 50 molecules on one side and 50 on the other?

In other words, it would seem to me that that's an easy case to say that the State has not met its burden of proving beyond a reasonable doubt that the mitigating factors don't outweigh the aggravating ones when the evidence is evenly balanced.

Mr. Woodman: --No, Your Honor.

I think that it's not right to think of this in terms of mathematical formulas, molecules on one side or the other.

This is a subjective, qualitative determination that the jury makes, and whatever capital sentencing statute a State chooses, States are free to choose whatever structure they see fit to determine whether death is an appropriate sentence.

However, States are not free to enact a statute that doesn't ensure a reliable determination that death is an appropriate sentence, and that's what we're dealing with here.

It's a qualitative judgment and one can imagine, very easily I think, a scenario where jurors are deliberating.

They take their jobs very seriously and they cannot make a determination whether aggravators outweigh mitigators, or vice versa.

Justice Kennedy: Well, that's because the defendant hasn't introduced enough evidence of mitigation and that's the duty of the defendant to come forward with it.

Mr. Woodman: Well, in... in a situation of equipoise, by which I mean a state of indecision on whether the relative balance between aggravating and mitigating circumstances, burden of proof is not the sticking point there.

Justice Kennedy: Well, you say it's a state of indecision.

The jury has decided that aggravating factors have been established.

Mr. Woodman: But that... that's... that's the problem because that's not a reliable determination.

It's no determination that based upon the individual--

Justice Kennedy: Why isn't it a reliable determination that, number one, it's a death qualified accused in... in any event, and there have been specific aggravators proved?

That has been determined.

It's now for the defendant, in effect, to show that the mitigating circumstances outweigh this.

The... and you have the bonus that the State has to prove beyond a reasonable doubt that the mitigators have not outweighed the aggravators.

Mr. Woodman: --But the jury is specifically instructed under this formula that they have a third option, and that is where they can't make a decision, whether aggravators outweigh mitigators, or vice versa--

Justice Kennedy: They have made the decision.

They have made the decision that the aggravators are there and have not been outweighed.

They have made that decision.

Mr. Woodman: --But the jury is required to impose death at that point, and it is a decision that aggravators are not outweighed by mitigators.

But this Court's Eighth Amendment jurisprudence requires--

Justice Kennedy: That's because the mitigation case hasn't been made.

Mr. Woodman: --The Eighth Amendment requires jurors to make a determination, based upon individual characteristics, whether death is an appropriate sentence, whether the defendant deserves death.

And when the jury is in a situation of equipoise and is required to impose death, they're imposing death without having made that determination that death is an appropriate--

Justice Breyer: No, no.

They're... they're saying it is appropriate.

They're saying it is appropriate.

We have the people put in the box.

The box is are they in a situation that is different from the average murderer.

Yes.

And they're making the determination that although they're in that box, that morally they're no different.

Morally they're the same--

Mr. Woodman: --Well, there's no--

Justice Breyer: --because for every factor that makes them morally one way, there's a factor that makes them morally the other way.

So they're different, but they're not morally different.

Now, that's... that's what I think this case presents.

And I... I mean, I imagine a juror who's thinking just what I said.

I don't know if there ever was such a juror, but if there was such a juror, the statute in this instant tells him what to do.

Mr. Woodman: --The statute does tell them what to do.

It tells--

Justice Breyer: It says where you think there is an equivalent, but not a moral difference, death.

Mr. Woodman: --Well, but if... if you think... if you look at the prosecutorial arguments, for example, that have been made in both the Kleypas and Marsh cases, those prosecutorial arguments have urged the jurors to do exactly what I described, and that is to abdicate their decision to make a... a determination based on the... on the individual characteristics on the question of whether death is an appropriate punishment for this individual offender based on the specific circumstances of this crime, and that if they're in equipoise, they have to impose a death sentence.

That is encouraging the jurors to abdicate their decision to determine whether death is an appropriate sentence or not.

Then--

Justice Scalia: Ms.... Ms. Woodman, you know, I... I have not, you know, gone along with... with most of our Walton jurisprudence anyway, but... but what I have really always thought it demanded was really nothing more precise than that a jury has to be given the opportunity to grant mercy.

I... I'm not sure I would describe any of it as any more precise than that.

Mr. Woodman: --Well--

Justice Scalia: The jury has to be given the opportunity to say this poor devil doesn't deserve the death penalty.

However you want to put that, you know, you can put the burdens here, the burdens there.

You can talk about equipoise or not.

Does the jury have a chance to say this... this fellow does not deserve the death penalty?

That--

Mr. Woodman: --Well--

Justice Scalia: --and that clearly exists under this scheme, it seems to me.

Any jury that... that really thinks this person should not go to death can... can do it.

In fact, you know, I guess the statute does not demand that instruction, but that instruction that says... what is it?

The appropriateness of the exercise of mercy can itself be a mitigating factor.

I mean, gee, what... what else... what else do you have to do?

Mr. Woodman: --But that's one factor among many that the jury has to consider.

And the problem here is that the jury could have all of the information that a defendant has proffered as a basis for a sentence less than death, and a jury could still be unable to decide whether aggravation or mitigation is the weightier in a closely balanced case.

And that is the problem here.

Justice Scalia: Any jury that thought this... this person did not deserve death would have ample opportunity to give expression to that determination under this scheme.

Mr. Woodman: Only if they persevere in that decision making, and prosecutors urge them not to by telling them that they must impose death when they cannot decide the balance between aggravating and mitigating circumstances.

Justice Stevens: Ms. Woodman, you said that they didn't make such an argument in this case and in some other case, but you did not include the argument in the joint appendix, did you?

Mr. Woodman: No, I did... we did not include the prosecutorial closing arguments.

They are in--

Justice Ginsburg: Are you... are you... the... the argument--

Mr. Woodman: --They are in the brief.

Justice Ginsburg: --There is a brief from the Kansas law professors, and this is the instruction from the Kleypas case?

Mr. Woodman: Yes.

Justice Ginsburg: If the aggravators are not outweighed by the mitigators, you shall impose the death penalty, not that you may, not that you can, but that you shall impose the death penalty.

This is the duty you were sworn to uphold.

Shows command.

It means must.

That's... is that the type of instruction--

Mr. Woodman: That's correct.

Justice Ginsburg: --the type of argument?

Mr. Woodman: That's correct, and then in Mr. Marsh's case, which is part of the record in this case... and I've cited to the record for that argument, which is at... I apologize.

It's at volume 54 at pages 54 and 55 of the record of the Kansas Supreme Court in the Marsh case.

And in that case, the prosecutorial arguments told the jury that they can't even consider mitigating evidence unless they find that mitigating circumstances outweigh aggravating circumstances because the law has told you and the judge has told you that the law says that if the aggravating circumstances are not outweighed by mitigating circumstances, you shall return a verdict of death.

Justice Scalia: And therefore, they shouldn't consider mitigating at all, he told them?

Mr. Woodman: No.

This is not a question of not being able to consider mitigating circumstances.

And as I said--

Justice Scalia: Is... is this mercy instruction always given?

Is that standard?

Is it... is it, in effect, that... that mercy is... is always one of the mitigating circumstances?

Mr. Woodman: --Yes.

That's part of the jury instructions in capital cases.

Justice Scalia: Gee, I... I really don't see what... what complaint you have then.

Any jury that... that thinks this person deserves mercy says, I think he deserves mercy, and that's... that's a... a mitigating circumstance that outweighs whatever aggravating circumstances there are.

Mr. Woodman: But when you think about the difficulty of the individualized sentencing decision that the jury has to make, the... one juror might feel that way, but it's only if they persevere in that decision making.

This statutory equipoise provision encourages jurors not to persevere in their decision making.

They're... they're sitting around in the jury room.

One juror--

Chief Justice Roberts: What... what is the statutory equipoise provision?

Mr. Woodman: --It says that if the jury finds the existence of at least one aggravating factor and determines further that any aggravating circumstances that exist are not outweighed by any mitigating circumstances found to exist, the sentence shall be death.

Chief Justice Roberts: Well, that's my question.

There is no--

Justice Scalia: If the State is--

Chief Justice Roberts: --There is no statutory equipoise provision.

The State has a burden of proof to prove beyond a reasonable doubt that the mitigating factors don't outweigh the aggravating.

That's what you mean by the statutory equipoise provision?

Mr. Woodman: The statutory equipoise provision, as the Kansas Supreme Court found... they construed this statute.

They construed it to mean that it requires death when jurors are undecided about the balance between aggravating and mitigating circumstances.

That construction of the statute is entitled to respect.

And under--

Justice Scalia: --Who said that?

Excuse me.

That... that description of the statute.

Mr. Woodman: --The Kansas Supreme Court in the Kleypas case in holding it unconstitutional.

Justice Scalia: Yes, but it seems to me the statute doesn't really say that, does it?

But I mean, what the statute says is that if it's in perfect equipoise, the State loses because the State has the burden of proving beyond a reasonable doubt that the... that the mitigators do not outweigh the aggravators.

It seems to me if a jury sees them in perfect equipoise, the jury would have to say the State has not proven beyond a reasonable doubt that the mitigators do not outweigh the aggravators.

Isn't that what a jury would have to say?

Mr. Woodman: No. Under the statute, the State's burden of proof, which is beyond a reasonable doubt... I'll grant that, but it's to prove beyond a reasonable doubt that the aggravators are not outweighed by the mitigators.

Justice Scalia: That's right.

Okay.

And... and if the jury cannot decide whether the aggravators are outweighed by the mitigators, if they're in perfect equipoise, who loses?

Mr. Woodman: The defendant.

Justice Scalia: No.

The State loses.

It's the State that has the burden of proving beyond a reasonable doubt that they are--

Justice Stevens: Well, the Kansas Supreme Court thought that--

Mr. Woodman: The Kansas Supreme Court construed it to mean that a tie goes to the... to the State.

Justice Breyer: That's different from saying not decided.

I thought the Kansas Supreme Court didn't speak of not decided.

I thought it didn't speak in Kleypas about a jury who... a juror who can't make up its... his mind.

I thought it said the jury has made... it assumed the juror has made up his mind.

That's why I think it's artificial.

It says where the jury finds.

It finds equipoise as to the mitigating and aggravating circumstance, then death, that the jury has to find that.

Mr. Woodman: But this is not about structuring decision making.

This is about terminating decision making on the issue that is central to the Eighth Amendment requirements at the selection stage--

Justice Kennedy: Well, it's terminating it because there's not enough mitigating evidence.

Justice Breyer: That's true I... I think, isn't it?

And then the question is, does a State have a right not to do with burden of proof, not to do with anything else, but to have perhaps the artificial situation where the jury finds that the evidence is in equipoise whoever has the burden of proof.

Put it all on you, whoever had it.

That was their final conclusion.

I find it is in equipoise.

Next question, what happens?

Mr. Woodman: --Well, the statute hasn't assigned a burden of proof, but still that's not the problem here.

Justice Breyer: Oh, I agree with you.

That's not the problem.

Mr. Woodman: Because what the individualization requirement means, in this Court's own jurisprudence, is that mere consideration of mitigating circumstances is not enough.

The Court said so in Tennard and in many other cases, Penry v. Johnson, that it's not enough that the sentencer be allowed to consider mitigating circumstances.

It must be allowed to consider and give effect to those mitigating circumstances.

And when a jury cannot decide between aggravating and mitigating circumstances, when that jury is, nevertheless, required under this... that situation to impose a sentence of death, the sentence of death has been imposed without the jury having made the requisite individualized sentencing decision under the Eighth Amendment at the selection stage.

Justice Stevens: --I might point out... I just looked at the question presented.

It does assume... and I guess is drafted by the Kansas Attorney General.

The question is what happens when mitigating and aggravating evidence is in equipoise.

So the assumption on which we took the case is that there will be cases in which there's equipoise.

Mr. Woodman: That's right.

And the Kansas Supreme Court found that that was a real possibility.

And the Kansas Supreme Court found this statute unconstitutional in Kleypas because it violates the individualized sentencing requirement, and the court specifically found that it requires death when jurors are unable to decide the balance between aggravating and mitigating circumstances.

That's how the statute was construed in Kleypas.

I would like to address the jurisdictional issue for a few moments, unless there are any further questions from the Court on the equipoise issue, which I'd be happy to answer.

But one of the things I want to discuss today is the jurisdictional issue on the adequate and independent State law ground, which this Court asked the parties to brief.

I feel that the State misstates the issue there as well because in the Kansas Supreme Court, the State conceded the Federal unconstitutionality of the Kansas equipoise formula, as decided by the court in the Kleypas case 4 years ago, and defended in this case only on the contested State law ground of severability and bypassed raising a Federal question in a motion for a rehearing, which again relied solely on State law severability grounds.

Justice Souter: No, but the... the Attorney General said that the... the fact that in this particular case the issue was focused on, in effect, sort of remedy, severance, and so on, was dependent upon the assumption about what Federal law required.

It was dependent upon the earlier case which so held.

So I don't... and... and what he seem... says seems plausible to me.

I... I don't see how we can divorce the judgment here with the earlier judgment, which Kansas... which the Kansas Supreme Court relied upon here, which was a Federal ground.

Mr. Woodman: Well, it's clear that the Kansas Supreme Court's decision relies on severability as a basis for its decision, and it's true that the Kansas Supreme Court, in doing so, reiterated the Kleypas holding.

Justice Souter: It wouldn't have even raised the issue had it not been for the earlier Federal holding.

Isn't that correct?

Mr. Woodman: That's right, but Mr. Marsh raised the issue on State law severability grounds.

The State conceded that Mr. Marsh was entitled to have his death sentence vacated because of the unconstitutional equipoise provision.

Justice Souter: Well, do you... do you... I... I take it this is the implication of your position.

Do you take this position that in any instance in which a State supreme court decides a case on a Federal... decides an issue on a Federal ground in case A, and for whatever reason, case A is not brought to this Court for review, that in every subsequent case in the State system, which depends upon State A, the State is totally without the... or this Court is... is totally without jurisdiction to review it?

Mr. Woodman: Where the issue has not been pressed by a party in the State court, no, I don't--

Justice Scalia: --Well, how could the issue be pressed?

I mean, it had already been decided by the supreme court.

I mean, what... what could the State say to the trial court?

Mr. Woodman: --Well, we asked the court to overrule the severability decision in Kleypas.

There was absolutely nothing preventing the State from arguing that the constitutional decision in Kleypas should be overruled.

Absolutely nothing preventing that.

Justice Scalia: You think this... you think the State has to challenge as unconstitutional a decision of the State supreme court in... in the lower court, lower State court.

Mr. Woodman: I think that they--

Justice Scalia: How do you expect the lower State court to come out on that?

Mr. Woodman: --Well, but futility is never a reason for not raising an issue.

Criminal defendants are required to raise issues all the time in order to preserve them for later review.

In Engle v. Isaacs, this... this Court said futility is no excuse.

And what is good for criminal defendants, very respectfully, is good for the State.

And Justice Rehnquist said as much for the Court in the Court's decision in Illinois v. Gates, that... that States are not exempt from the ordinary rules of procedure which govern this Court's jurisdiction.

And the fact of the matter is that the State not only did not raise the Federal issue in the Kansas Supreme Court below, which it could have, but it conceded the Federal unconstitutionality of the statute.

Justice Scalia: That's a little different from an adequate and independent State ground argument.

You're... you're now making a... a waiver argument.

Mr. Woodman: Well, there's a... there's a relationship between the adequate and independent State law cases and the not pressed or passed upon cases because, for example, in Michigan v. Long, this Court has said where an issue is pressed... a Federal issue is pressed in the State courts, then this Court on review will resolve any ambiguity in the Court's opinion in favor of a presumption that the issue was passed upon by the State court.

But conversely, in Coleman v. Thompson, this Court held that where an issue is not pressed in the State courts, then the presumption will be the opposite.

The presumption will be that the State court has not passed upon--

Justice Scalia: We... we don't need a presumption here.

I mean, the... the only basis for inquiring into severability is the presumed unconstitutionality of the statute.

I mean, that's the only basis why severability comes up.

We don't have to presume anything.

Mr. Woodman: --But the Kansas Supreme Court didn't redecide that issue in the Marsh case.

Justice Scalia: It doesn't matter whether it redecided it.

It... it was the postulate of... of its... necessary postulate of... of its decision in this case, it seems to me.

Mr. Woodman: There... well, under Article III and under section 1257(a), there has to be a case or controversy for this Court to review.

There was no live case or controversy in the Kansas Supreme Court on the Federal question of whether the equipoise provision in the Kansas statute was constitutional.

It was conceded that it was unconstitutional and the parties agreed on that.

It was treated as settled.

And all the Kansas Supreme Court did, before overruling the Kleypas severability decision, which is a matter of State law, was to reiterate that holding, and mere reiteration, as this Court knows from the Morrison v. Watson case, approved in Illinois v. Gates, that is not the decision of a Federal question.

Justice Souter: If you're... if you're right, I take it, we would not have jurisdiction to review a Federal ground that was raised by a State court, even though it had not been raised by the parties.

If they get... you know, they get the opinion from the court and there's a big surprise... the... the State court decided to go off on... on a Federal ground, which had not been pressed... I take it on your view we would not have jurisdiction to review that.

Mr. Woodman: I don't believe the Court would, and I think that's what the Court's original jurisdictional rules were intended to be.

Now, I do understand that the Court has taken jurisdiction over such issues, and it's usually--

Chief Justice Roberts: Well, that's because the... the formula is that the issue has to either have been raised or decided.

Mr. Woodman: --Well, the only issue that I could find that says that... that really enforces that rule is the Cohen v. Cowles Media case.

And if you look at the provenance of that decision, that's the only case where the Court actually considered a question for the first time in... in this Court.

And what happened in that case is that the Federal issue that was presented to this Court was actually discussed at oral argument.

It wasn't raised by either of the parties in their briefs in the State court, but it was discussed at oral argument.

And the Court decided a First Amendment issue on the basis of that discussion at oral argument.

And so this Court took jurisdiction and stated that as long as it's been passed upon, it's not necessary that it was pressed upon.

And the decision, which the Court relied on in that case, if I'm remembering it correctly, was a decision involving a Federal question which was raised too late to comply with the procedural requirements in State court.

And so it's really not the case that this Court routinely takes cases where the issue was not pressed by the parties in the State courts.

And that's the situation we have in this case.

Chief Justice Roberts: But I don't... I don't... excuse me.

I don't understand how that makes any sense.

If you had an... a... a case that's litigated entirely on State law grounds and in the State supreme court opinion, they announce we are sua sponte deciding this on the basis of the Federal Constitution and you, State, lose, your argument is that the State is just out of luck.

They can't seek review of that decision?

Mr. Woodman: I think where the issue is decided sua sponte and affects the parties in that case, then maybe.

But that didn't happen here.

What happened here was that the court merely reiterated a holding from 4 years ago, and the State law severability decision, which was the issue in contest in this case and the issue that was decided in this case, was a matter of State law, and it was sufficient to support the judgment of the Kansas Supreme Court.

And really, what... what the State is trying to do here is to... I mean, these issues were decided in the Kleypas case, and if we were here on the Kleypas case, there wouldn't be any argument as to whether the Kansas Supreme Court's decision rested on an adequate and independent State law ground because the Federal issue was clearly decided and it was interwoven with the State law determination.

But that's not the case here.

Justice Scalia: Kleypas didn't hold that the whole statute was bad.

Kleypas gave a savings construction of the statute, as I recall.

Mr. Woodman: Yes, they did.

But the State is misconstruing their decision by saying they didn't decide the constitutional question in Kleypas.

It was merely construction of the statute to avoid the constitutional issue and therefore--

Justice Kennedy: Well, but in the case before us, the court... the Kansas court said... I think it's 24 or 25 of the... of the headnote... we are reconsidering the issue.

Mr. Woodman: --The... that language in the court's opinion was, after full reconsideration, we're declining to revisit the issue at the dissenter's invitation.

We're declining that invitation to revisit the issue.

And there's no question that the court discussed it and thought about it, and the dissenters were clearly inviting them--

Justice Kennedy: And made a reasoned judgment about it.

Mr. Woodman: --But they didn't reopen the issue.

They said there's nothing new here.

We don't need to reopen this decision, and--

Justice Kennedy: Well, they reopened it to the extent as Justice Scalia has indicated, but they now take a different view of the validity of the State statute.

Mr. Woodman: --They're taking a--

Justice Kennedy: That's... that's a decision following a reason, and the reason is a Federal reason.

Mr. Woodman: --Well, no, because the... what they were saying was that the appropriate remedy in Kleypas was to return the subject to the legislature because the statute was ambiguous and the court had no authority, under separation of powers grounds and under State law statutory interpretation grounds, to construe this statute to mean the opposite of what it said.

And that's the decision that they overruled in this case, and that's a State law decision.

Justice Scalia: So... so the State can get mouse trapped in this way.

In... in the first case, it doesn't take the case up because not too much has been lost, and then in the second case, the court says, oh, by the way, everything has been lost.

And you say that we can't review that because... because the... the State didn't... didn't challenge Kleypas at the time.

Mr. Woodman: Or challenge that decision in this case.

Justice Scalia: Well, but that decision in this... they had no reason to challenge it until the State decided to... to change it.

Mr. Woodman: But if they wanted to raise the issue, they could have raised it in either case, and we wouldn't have this problem here.

But they didn't raise it, and that presents a jurisdictional problem for this Court.

What they're trying to do in this case is yoke a live horse to a dead one to form a plowing team, and it doesn't work.

Justice Scalia: I like that.

[Laughter]

Mr. Woodman: I looked... as a matter of fact, I looked at our Kansas State seal because it has a plowing... a horse drawn plow on it, and I looked at it again this morning before I came in here because I couldn't remember whether it was one horse or two, and it's two horses.

And I was thinking about how the meaning of that State seal would be fundamentally altered if one of those horses was dead.

[Laughter]

Thank you.

Rebuttal of Phill Kline

Chief Justice Roberts: Thank you, Ms. Woodman.

General Kline, you have 4 minutes remaining.

Mr. Kline: Thank you, Mr. Chief Justice, and may it please the Court--

The State is here on a final court decision wrongfully... the State supreme court wrongfully interpreting this Court's Eighth Amendment jurisprudence.

And just as Justice Souter and the Chief Justice's hypotheticals, as it relates to this case, were articulated, it is actually true that in this case the State was not aware that this issue would be raised again and only conceded... and waiver is truly not an issue because a lower court did not rely upon it.

And we have some confusion between the terms here.

It only conceded that Kleypas, a decision by the Kansas Supreme Court, was the law of the case in another case subsequently reaching the Kansas Supreme Court.

And the Kansas Supreme Court, on its own motion, engaged in a full reconsideration and the respondent in their brief argues that the primary reliance of the court was not on Eighth Amendment jurisprudence but other grounds.

There is no requirement for jurisdiction under 28-1257 that the primary reliance be on a Federal issue.

There is a requirement to deny jurisdiction that there be an independent and adequate State ground on which the decision would rest regardless of the outcome of the Federal issue.

Clearly that's not the case here.

Justice Stevens: Wouldn't they have come out the same way if they never mentioned the Federal issue?

Mr. Kline: This case come out... no, it would not because the Kleypas court found that the Kansas... or the Kansas death penalty was constitutional as construed.

And the Kansas court in this case found it unconstitutional on its face.

And there is a significant difference, and the court raised the issue again.

I would like to point out to the Court that there are five ways that a juror can, after their reasoned moral decision, give effect to the belief that the mitigating evidence does not warrant the death penalty.

The juror can state that they have a reasonable doubt as to whether the State has met its burden of proving that the mitigating factors do not outweigh the aggravating factors.

The juror can simply delay.

Kansas law has a default for life in its sentence or in its structure, and I would encourage you to read on page 28 of your appendix instruction number 12 in which the jury is told that if, after a reasonable time, you are unable to make a decision... in other words, in a doubtful case... the judge is required by law to dismiss the jury and sentence the defendant to life.

And so there is a default for life, and that is another way that a juror can give effect to their reasoned moral decision that death is not appropriate.

The juror can give effect to their reasoned moral decision that is not appropriate by determining that the mitigating factors outweigh the aggravating factors.

And the juror under instruction number 5--

Justice Stevens: But it cannot do that by determining that they're in equipoise.

Mr. Kline: --That is correct, Justice Stevens.

Justice Stevens: Which is the very issue your... your petition presents us with.

Mr. Kline: It is, but the juror does know what the effect of that decision is and, therefore, is able to engage in a reasoned moral choice.

What truly happens... and... and Justice Breyer alluded to it, I believe, as it relates to this hypothetical about weighing molecules... is that a juror essentially steps back and decides what is the appropriate sentence--

Justice Breyer: No, no.

Do it.

Do it.

Make the reasoned moral choice.

And the facts are that we have, because of the balancing, molecules or not... we have by the balancing made a determination that anything for the bad that distinguishes this person from the ordinary is... is equally balanced by the good.

Now, make the moral choice.

Mr. Kline: --I think the moral--

Justice Breyer: What is the reason?

Mr. Kline: --I think the moral decision, Justice Breyer, is determined in all the variables of the introduction of the evidence, and as this Court has required under the Eighth Amendment, that it allow the jury to consider and give effect to all mitigating evidence relevant.

And that's in Kansas law.

I would state this in closing, and that is that the Kansas legislature reenacted the death penalty for the first time since this Court struck it down in Furman in the spring of 1994.

And in doing so, it gave great deference to this Court's role as final arbiter of the meaning of the Constitution.

And if you read the instructions and the law that is provided to you in this case, you will see this Court's words mirrored back to you in the scheme of the Kansas law as it relates to the death penalty.

Thank you.

Chief Justice Roberts: Thank you, General Kline.

Print this transcript Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

1 KANSAS, Petitioner, v. MICHAEL LEE MARSH, II.

No. 04-1170

April 25, 2006

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 p.m.

APPEARANCES: PHILL KLINE, ESQ., Attorney General, Topeka, Kansas; on behalf of the Petitioner.

REBECCA E. WOODMAN, ESQ., Topeka, Kansas; on behalf of the Respondent.

PROCEEDINGS

CHIEF JUSTICE ROBERTS: We'll hear argument next in 04-1170, Kansas versus Marsh.

General Kline.

ORAL ARGUMENT OF PHILL KLINE

ON BEHALF OF PETITIONER

MR. KLINE: Mr. Chief Justice, and may it please the Court:

This Court has never held that a specific method of weighing aggravating and mitigating evidence is required, yet in its individualized sentencing line of cases this Court has consistently said that all the eighth amendment requires is that a juror consider and give effect to all relevant mitigating evidence. In pages 23 through 28 of your appendix, you will find that Kansas jury instructions and Kansas law clearly, on four occasions, instruct individual jurors that they must individually consider all mitigating evidence that they find. Furthermore, the jurors are instructed in five different methods in which they can give that mitigating evidence the effect of a life sentence, and only one manner in which, acting unanimously and after the State has met the highest burden allowed by law in three separate measurements, beyond a reasonable doubt demonstrated that the death sentence is appropriate.

Specifically, instruction number 4, paragraph 2 on page 24 of the joint appendix, will show the jurors are instructed that mercy, in and of itself, is a mitigating piece of evidence, and later, in the instruction that lays out the mitigating evidence presented in this specific case, they are told, in paragraph 18 on page 26 of your joint appendix, that mercy, by itself, can be sufficient to warrant a sentence other than death.

JUSTICE SCALIA: I -- I'm sorry, what instruction is that?

MR. KLINE: Justice Scalia, you will find it -- first of all, mercy is referred to in paragraph -- in instruction number 4 --

JUSTICE SCALIA: I got --

MR. KLINE: -- paragraph 2 -- okay.

JUSTICE SCALIA: -- that one. It's the other one. It was instruction number --

MR. KLINE: The instruction, again, is number 4 in paragraph 18 on page --

JUSTICE SCALIA: I gotcha.

MR. KLINE: -- 26.

JUSTICE SCALIA: All the way at the end of 4, okay.

MR. KLINE: You will see the instruction for mercy again.

JUSTICE KENNEDY: Well, you began by saying that there's three different measures, I think -- I think was the word you used. And the State, I take it, must prove, beyond a reasonable doubt, (a) that it was an aggravated -- or, (a) that it was an aggravated murder, (b) that there was another crime involved --

MR. KLINE: Justice --

JUSTICE KENNEDY: -- sort of --

MR. KLINE: -- Kennedy --

JUSTICE KENNEDY: -- if you could just walk me through that.

MR. KLINE: Certainly. First of all, the State has to prove, beyond a reasonable doubt, with jury unanimity, that the defendant is guilty of capital murder. And Kansas has one of the most narrow death- penalty statutes in the Nation. And then, past that time, we then engage in a sentencing --

JUSTICE KENNEDY: And --

MR. KLINE: -- phase 5.

JUSTICE KENNEDY: -- capital murder includes, in this case --

MR. KLINE: Capital murder includes, in this case, that the homicide involved more than one person in a single act.

JUSTICE KENNEDY: Involved more than one person. Then, second?

MR. KLINE: Then we go to the sentencing phase, in which the State has to prove one of eight statutorily defined aggravating factors beyond a reasonable doubt with jury unanimity. There were three specific aggravating factors that were found by the jury in this instance. And then, the defendant introduces all mitigating evidence, and the standard of introduction is relevancy. But, unlike the Walton case, which has a functionally identical provision that is at issue here, the State maintains the burden, while, in Walton, the burden was provided to the defendant to demonstrate that the mitigating factors were so substantial to call for leniency.

JUSTICE KENNEDY: You had to prove, beyond a reasonable doubt, the mitigating factors do not outweigh the aggravating factors that have already been established.

MR. KLINE: That is correct. And that is found in instruction number 10. And as we go through this process, you see that the Kansas death-penalty law has a default to life in virtually every stage of the prosecution of the case. And then, instruction number 10 is a determination by the legislature consistent with this Court's precedent, because we have narrowed the class of defendants who are eligible for death, consistent with Furman and the concern for guided discretion. And then, we have allowed the introduction and consideration of all mitigating evidence. The juror is then told how to give the effect that they desire, after the reasoned moral decision, to that mitigating evidence. As defense counsel for Mr. Marsh, in the transcript of the sentencing phase, on page 66, volume 4 -- it is not in your joint appendix, but it is part of the record before the Court -- stated to the jury in closing, "The practical fact is that each of you will decide whether or not you believe death is the appropriate sentence. And if you decide that death is not the appropriate sentence, you have decided that the mitigators outweigh the aggravators."

What instruction number 10, which is before you today, which states that the State must prove beyond a reasonable doubt that the mitigators do not outweigh the aggravating factors, is, is guidance to the jury on how they can give the --

JUSTICE STEVENS: May I just ask --

MR. KLINE: -- effect --

JUSTICE STEVENS: -- this question and kind of cut through -- is it a correct interpretation of the instructions, as a whole, to say, in effect, "If you find the aggravating and mitigating circumstances are equally balanced, you shall impose the death sentence"?

MR. KLINE: If a juror finds -- that is correct, Justice Stevens -- if the juror's decided conclusion and reasoned moral judgment is that the mitigating factors and the aggravating factors are in balance, and finds that beyond a reasonable doubt, instruction number 10 clearly indicates that death is the appropriate sentence. So, it --

JUSTICE SOUTER: The difficulty I have is in the phrase that you have mentioned in the course of your argument a couple of times referring to the "reasoned moral response." And the difficulty I have in squaring "reasoned moral response" with the construction that the Kansas Court and we all agree is the proper construction of the -- of the -- of the equipoise kind of provision, is this. Kansas has a right, as I understand it, to define what it regards as the aggravating circumstances, those that support a death verdict. And Kansas has done so. Kansas is also saying that if a jury cannot find that the aggravators, as we've defined them, outweigh the mitigators -- i.e., if the jury is in equipoise -- the result must be death, anyway. And that does not seem to be a reasoned moral response. I'm assuming that a reasoned moral response would be: the death penalty should be imposed because the aggravators do outweigh -- i.e., it's not equipoise -- the aggravators are heavier. And because Kansas is saying, "Even though they're not, death is the result, anyway," it doesn't seem like a reasoned moral response. What is your answer to that?

MR. KLINE: Justice Souter, of course the State believes that it is. It is, first of all, consistent with this Court's precedent as what is required --

JUSTICE SOUTER: Well, that's the issue.

MR. KLINE: And in the -- in the Walton case, this Court found that a functionally identical provision in Arizona, even though the burden remained on the defendant, was appropriate after the State had met the requirements of guided discretion, as well as the individualized sentencing requirement, in setting about a -- proving that, "This defendant is more deserving of death than anybody else convicted of the same crime."

JUSTICE SOUTER: But here we have, it seems to me, to be a stark finding that it has not been proven. That is what "equipoise" means. If aggravators are the basis for a death sentence, the equipoise finding is, "Aggravators don't predominate. We cannot make that conclusion. We're right on the fence." And it seems to me that to call that a reasoned moral response -- "We're on the fence, but execute anyway" -- seems a total inconsistency.

MR. KLINE: The State maintains, Justice Souter, that the decision that the mitigating factors do not outweigh the aggravating factors is a decision, and it is a --

JUSTICE SOUTER: But it's a decision that says, "We don't know what should be done." If aggravators define the basis for execution, and mitigators define the basis for life, the equipoise verdict says, in so many words, "We don't know which is more important." And Kansas says, when the jury comes back and says, "We don't know," that the result should be death. And that is what seems to me inconsistent with the notion of a reasoned moral response.

MR. KLINE: The distinction, Justice Souter, that I believe, from your analogy, is that the Kansas Legislature has said they do know, and that death is appropriate once a defendant has been found guilty of capital murder, in a very narrow definition. And then, once the --

JUSTICE SCALIA: It seems to me it sounds different if you put it differently. Surely, it's a reasoned moral response to say, "We have found these horrible aggravating factors in this murder. It's not even your usual murder. There are these terrible aggravating factors. Three of them, we found. And we further find that there is no mitigating evidence to outweigh those aggravating factors." That seems to me a perfectly valid moral response.

MR. KLINE: That is correct, Justice Scalia.

JUSTICE SOUTER: But that is not our case, is it? Because our case is not, "We don't find that the mitigators outweigh." Our case is, "We find the mitigators are of equal weight." That's why you get to equipoise. It's not a question of the failure of mitigators to predominate.

JUSTICE SCALIA: No.

JUSTICE SOUTER: It is the sufficiency of mitigators to equal in weight. And that's what poses the problem, it seems to me.

JUSTICE SCALIA: But it seems to me that to be equal in weight is not to predominate. And that's all the jury is saying --

MR. KLINE: I would agree, Justice Scalia --

JUSTICE SCALIA: -- if there's nothing to outweigh the aggravating factors.

JUSTICE SOUTER: Of course it is not to predominate, but it is something more precise than merely not predominating. It is a fact, in effect, that you don't know, if all you know is that they don't predominate. The fact that you know, here, is that they equal, and --

CHIEF JUSTICE ROBERTS: Do we know that as a fact?

MR. KLINE: Justice Roberts, I believe that there are a couple of things which might help illuminate a little bit more what the jury faces in this instance. First of all, the statement --

CHIEF JUSTICE ROBERTS: Do we have a return of a verdict saying, "We find these factors in equipoise"?

MR. KLINE: There is a verdict form that requires the jury, with unanimity, if the sentence is death, to indicate that the State has met the burden beyond a reasonable doubt of demonstrating --

CHIEF JUSTICE ROBERTS: So, what we have is a situation where this is a theoretical possibility under the statute.

MR. KLINE: Correct.

CHIEF JUSTICE ROBERTS: Not a situation where this is what the jury has said.

MR. KLINE: The jury does not find in that fashion.

JUSTICE SOUTER: That's right. We don't -- we don't know whether that was the case here or not.

MR. KLINE: How --

JUSTICE SOUTER: As I understand it, our question is, If a jury could return the death verdict in the equipoise situation, as the Kansas Supreme Court has defined it, is that -- is that statute allowing for that possibility constitutional? Isn't that --

MR. KLINE: That is the issue, just --

JUSTICE SOUTER: Yes.

MR. KLINE: -- as it was in Walton, which had --

JUSTICE SOUTER: Yes.

MR. KLINE: -- a functionally identical provision that required that the defendant demonstrate that there were mitigating factors substantial enough to call for leniency, which --

CHIEF JUSTICE ROBERTS: We're not talking, just -- we're not talking about a numerical equipoise. I -- there's three aggravators and three mitigators, in equipoise. And the -- presumably, the individual jurors can give what weight they think is appropriate to the mitigating factors. They can find all three aggravators met, and say, "Well, I still think, under factor 18, that mercy ought to outweigh death."

MR. KLINE: That is correct, Justice Roberts. And, in fact, they are informed that it is not a numerical equation.

JUSTICE GINSBURG: But is it -- is it like in a -- in a -- take a civil case where the judge gives the standard charge about, "Imagine two plates and a scale, and if they are in equipoise, then you find against the party who has the burden of proof" -- if we make that comparison, then it's pretty clear that the burden of proof is on the defendant if the answer is -- to the equipoise question is, "Then you must come in with a death verdict."

MR. KLINE: Justice Ginsburg, unlike in Arizona, there is a specific instruction to the jury that they must decide beyond a reasonable doubt that the mitigating factors do not outweigh the aggravating factors before the death sentence is imposed. And it is analogous to instructing the jury on how to give the effect they desire to the mitigating and aggravating factors that have been presented. I would possibly agree that we would have a constitutional issue if it was similar to instructing a jury, "You either mark blue or red on the jury verdict form, and we will not tell you the effect of that decision." However, this instruction clearly lets them know that a decision beyond a reasonable doubt that the State has met its burden, that the mitigators do not outweigh the aggravating factors, that the effect is death. And --

JUSTICE ALITO: Is there a difference in the moral burden on the jurors, or the psychological burden on the jurors, in the situation where they have to find that the aggravators outweigh the mitigators, and, therefore, make an affirmative finding that leads to the sentence of death, as opposed to the situation where they can say, "We can't decide, under the applicable burden of proof, which side is weightier," and, therefore, they allow a default rule to dictate what the sentence is going to be?

MR. KLINE: Justice Alito, I do not believe that that is what occurs, because, indecision, under Kansas law, is clearly indicative of a life sentence. In fact, if the jury does not, with unanimity, come together and make an affirmative decision, and indicate such on the verdict form within a reasonable time, they are told and instructed, "the judge shall dismiss the jury." And the State's --

JUSTICE ALITO: No, but if they find -- if they agree, beyond a reasonable doubt, that the aggravators and the mitigators are in equipoise, then they allow the default rule to dictate the sentence of death. Isn't that right?

MR. KLINE: That is correct, at some point. I wouldn't term it a "default rule" in every statutory scheme involving the death penalty. There is a point in time when the jury is informed that the result of their deliberations is a death sentence. So, you can call something a default rule in virtually any State. And, in fact, relying on the Walton decision, many States have functionally identical statutes to Kansas, and courts have interpreted the Walton decision as resolving this issue. In Adamson v. Lewis, the Ninth Circuit said that the issue of the potential, the hypothetical, of equipoise was resolved in Walton. Furthermore, the Idaho -- the Seventh Circuit, relating to the Idaho scheme relating to the death penalty, found that this Court resolved the issue in Walton, as did the Illinois Court. So, there have been several findings based on Walton. And, in fact, the Kansas Legislature enacted this death penalty statute soon after Walton --

JUSTICE STEVENS: General Kline, can I ask you this question? Supposing the law was that you're supposed to be instructed that, "Unless the mitigating factors substantially outweigh the aggravating factors, the sentence shall be death." Would that be permissible?

MR. KLINE: Justice Stevens, as you're aware, that's the Blackmun dissent in Walton, in the hypothetical that he posed with his concern about Walton. I believe that there could come a point in time, based on the instruction, that the jury was not able to give full effect to the mitigating evidence that they desired.

JUSTICE STEVENS: Well, what about my hypothetical?

MR. KLINE: That's -- that there -- it would approach a time, possibly, where --

JUSTICE STEVENS: Would it --

MR. KLINE: -- this Court would find --

JUSTICE STEVENS: Would it be constitutional or unconstitutional?

MR. KLINE: This Court, under --

JUSTICE STEVENS: In your view.

MR. KLINE: On my view? It would approach a problem with this Court's --

JUSTICE STEVENS: I know it approaches the problem. I'm wondering if it gets there.

[Laughter.]

MR. KLINE: I'd defer to the wisdom of this Court.

[Laughter.]

JUSTICE BREYER: Leaving law out, which I'd like to do, just for the sake of argument, imagine you're a juror, and this is a totally contrived situation, which I think we're deciding -- I don't know if there's ever been such a situation -- but you're a juror, and you're told the following by a fellow juror, "The reason that we have these aggravating circumstances, which are hard to understand here, is, we want to be sure this fellow is, morally speaking, somewhat more deserving of death, in the average."

And then he says, "And the reason that we have these mitigating circumstances here is because everyone of them means that he's somewhat less moral -- he's not as morally undeserving, cuts the other way, it reduces -- it makes him less deserving of death, morally speaking."

Now, you're the juror, how do you feel about this?"

And you say, "They're absolutely in balance, absolutely in balance. For every fact here on the aggravating side that puts me thinking, morally speaking, he's more deserving of death, there is a mitigating factor which makes me think, morally speaking, he's less deserving of death. So, I'm in perfect balance."

And your fellow juror says, "Now, will you please give me, then, one moral reason why he should be executed?"

And what's your answer?

MR. KLINE: My answer would be that the law clearly provides that if that is the finding --

JUSTICE BREYER: No, but if the law says, "You have to be able to give, morally speaking, reason -- you have to reason your way towards the moral conclusion that he's deserving of death" -- that's why I tried to take the law out of it. I don't want you to be a lawyer. I want you to be a juror. And I want you to give a moral reason --

MR. KLINE: The moral reason would be --

JUSTICE BREYER: -- why, when this is in equipoise, he is more deserving of death than the average.

MR. KLINE: Justice Breyer, I would say that the moral reason is, "I know the effect of that deliberation, and I know that, if I make that finding, that the death sentence will be warranted."

JUSTICE SCALIA: Well, and of course --

JUSTICE BREYER: Well --

JUSTICE SCALIA: -- the jury doesn't have a free-falling moral judgment to make. It accepts the judgment of the majority of the people in Kansas that certain aggravators, and only those aggravators, shall be counted against the defendant --

MR. KLINE: And --

JUSTICE SCALIA: -- and that all of them shall be -- even if the juror himself does not believe, morally, that this particular aggravator ought to be there. So, it's not as though our law says that somehow the jury has to -- each juror has to be able to make, like Solomon, his own moral judgment on this fellow. And one of the things that the -- that the Kansas law prescribes is that when they're in equipoise, the people of Kansas think that the aggravators that they have specified are serious enough that unless there is something to overcome them, the death penalty is appropriate. That seems to me a moral judgment within the limited range of moral judgment that the jury is accorded.

MR. KLINE: That is correct, Justice Scalia. And the concern about unfettered moral judgment of a jury calls into question the original purpose for Furman. And so, there is guided discretion --

CHIEF JUSTICE ROBERTS: Of course, they have unfettered discretion with respect to the mitigating factors, don't they? Under --

MR. KLINE: That is correct.

CHIEF JUSTICE ROBERTS: -- under factor 18, any other circumstance which they find serves as a basis for a sentence other than death.

MR. KLINE: That is correct, Justice --

JUSTICE KENNEDY: And I take it --

MR. KLINE: -- Mr. Chief Justice.

JUSTICE KENNEDY: -- the moral answer is also, "He stands before us with the scales already tipped. He stands before us having been shown, beyond a reasonable doubt, to have committed aggravated murder. He has the obligation to show us why he should be excused from that penalty. He has not done so. We can take anything that he came -- brought to our attention, and we can say that this outweighs." It does not.

MR. KLINE: And, Justice Kennedy, that is the decision in the holding in Walton. And --

JUSTICE SOUTER: Is that the law in Kansas? I mean, I thought -- correct me if I'm wrong, because I may have made a wrong assumption here -- I thought the finding of guilt to an aggravated murder is the preface to a determination as to whether aggravators or mitigators predominate. And, based upon that determination, there will be a decision as to whether the sentence should be death or life.

MR. KLINE: The first determination that a jury engages in is whether the defendant has been proven, beyond a reasonable doubt, guilty of capital murder --

JUSTICE SOUTER: Right.

MR. KLINE: -- which is defined in a very narrow statute. Kansas --

JUSTICE SOUTER: And, at that point, we don't have any way of knowing, I take it, whether the penalty should be life or death.

MR. KLINE: Then we have -- you're correct.

JUSTICE SOUTER: Okay.

MR. KLINE: And then we have a separate sentencing phase in which the State first bears the burden of demonstrating one -- eight -- of eight aggravating factors is present. And that burden is beyond a reasonable doubt --

JUSTICE SOUTER: Okay. But --

MR. KLINE: -- with jury unanimity.

JUSTICE SOUTER: But --

MR. KLINE: And --

JUSTICE SOUTER: -- what I'm -- what I'm -- what I'm getting at is, I don't -- I -- as I understand the Kansas scheme, the determination of guilt, to aggravated murder, does not create a presumption in favor of the death penalty.

MR. KLINE: No, the --

JUSTICE SOUTER: Okay.

MR. KLINE: -- that is correct. That is correct. There are several --

JUSTICE SCALIA: It depends on what you mean by "presumption." It certainly -- it certainly says that unless you find something that outweighs this, the death penalty is the proper penalty.

MR. KLINE: Justice Scalia --

JUSTICE SCALIA: The burden is on the jury to find something to outweigh it. And, in the absence of a finding of something that outweighs it, when these aggravators are found, the death penalty is the proper penalty.

MR. KLINE: Justice Scalia, that is correct. Once the State has met the burden of proving that one of the eight statutory aggravators is present --

JUSTICE SOUTER: Right. But the fact of -- let me -- I think we've got a terminological problem -- the fact that there has been a finding of guilt of aggravated murder is not tantamount, as I understand it, to a finding that aggravating factors to be considered at the penalty phase have also been found. Is that --

MR. KLINE: That is --

JUSTICE SOUTER: -- correct?

MR. KLINE: -- correct.

JUSTICE SOUTER: Okay.

MR. KLINE: There is a separate burden there --

JUSTICE SOUTER: Okay.

MR. KLINE: -- Justice Souter. And as it relates to the "give effect" language, the cases that this Court has considered regarding that are dramatically different. In those cases, such as the Penry cases and other cases, the concern was, the jury was affirmatively instructed that they could not use evidence that was introduced and relevant in a manner which would lead to mitigation, such as the defendant's youthfulness. And the special instruction in Texas said that they could only utilize that evidence to determine whether there was a likelihood of re-offense. And this Court reasoned that it is possible to look at youthfulness as mitigating factor which diminishes the moral culpability of the defendant. There is no claim in this case that the jurors were unable to take the mitigating evidence and give it whatever effect they desired in mitigation. In fact, they are instructed that they must individually consider all such evidence. And then they are instructed to make their decision based upon what effect that they would give it.

JUSTICE SCALIA: Can --

MR. KLINE: So --

JUSTICE SCALIA: Can I ask you a question that goes to your response to Justice Souter's last question? As I understand the scheme -- maybe my understanding is wrong -- once they have found the existence of those aggravating factors that justify the death penalty, and then you move into the penalty phase for them to decide whether, in fact, the death penalty would be imposed, it's not up to them to -- they can't eliminate one of those aggravating factors that has been found. They have to take into account all of the aggravating factors that have been found. Isn't that right?

MR. KLINE: That's correct, Justice Scalia. I think the confusion is the use of the term "aggravated murder," which would be not quite correct under Kansas law. There is a statutory requirement of a finding of guilt of capital murder, and that is in very narrow circumstances. Kansas has one of the most narrow death penalties in the Nation. Then once that guilt is determined, we then move to the phase where the State must prove an aggravating factor in addition to having proved that the defendant is guilty of capital murder.

JUSTICE SCALIA: Right.

MR. KLINE: Once that is achieved, then the jurors are instructed to give way to a consideration to all aggravating factors that they find, with unanimity, to exist, and to consider all mitigating evidence which they find, individually, to exist, with the only burden on the defendant being relevancy for introduction. And then, they are instructed to consider whether the State has proven, beyond a reasonable doubt, that the mitigating factors do not outweigh the aggravating factors.

And, Mr. Chief Justice, if it may please the Court, I'd like to reserve the remainder of my time.

CHIEF JUSTICE ROBERTS: Thank you, General Kline.

Ms. Woodman.

ORAL ARGUMENT OF REBECCA E. WOODMAN

ON BEHALF OF RESPONDENT

MS. WOODMAN: Mr. Chief Justice, and may it please the Court:

Since the argument of the attorney general was addressed exclusively to the question of the constitutionality of the Kansas statute, I will devote all of my argument to that subject, as well, although I am sure that the Court, in deliberations, will be considering the several jurisdictional issues which were briefed and argued earlier in the term. And if there are no questions on those jurisdictional issues, I will proceed to the merits.

To pick up on some of the things that were said during Attorney General Kline's argument, the eighth amendment requires reliability in the determination that death is an appropriate sentence. And at the selection stage, the question is whether the jury has made a reliable, collective, responsible decision based upon the unique circumstances of the individual defendant that death is an appropriate sentence and that this defendant is particularly culpable in a way that distinguishes him from the mass of death-eligible defendants. And the problem with the equipoise provision here, which the State agrees can occur under the Kansas statute, is that we don't know from a death verdict pronounced by a jury in Kansas whether the jury did decree death by equipoise or not. Death sentences must be rationally reviewable. And when we look at the -- at a death sentence that's been pronounced in Kansas, we can't determine whether the jury decreed death by equipoise.

JUSTICE KENNEDY: We are confident that the jury found aggravating factors. We know that.

MS. WOODMAN: Yes.

JUSTICE KENNEDY: And we know --

MS. WOODMAN: Yes, and I agree --

JUSTICE KENNEDY: -- that they found them beyond a reasonable doubt.

MS. WOODMAN: Yes. The jury did find an aggravating factor beyond --

JUSTICE KENNEDY: And we know --

MS. WOODMAN: -- a reasonable --

JUSTICE KENNEDY: -- we --

MS. WOODMAN: -- doubt.

JUSTICE KENNEDY: -- and we know that they found that the defendant had not shown that mitigating factors outweighed those aggravating factors.

MS. WOODMAN: That's right. But the Kansas Supreme Court, in the Kleypas case, examined the Kansas statute -- which, by the way, is unique to Kansas; no other State in the country has a statute like this, and this will affect no State outside of Kansas -- they examined this statute in great detail, and they --

JUSTICE SCALIA: You disagree from your -- with your friend on the other side on that point.

MS. WOODMAN: Whether it's unique?

JUSTICE SCALIA: How can we check on that? No, he said that a number of other State statutes would be affected by our coming out the way you would like us, on this.

MS. WOODMAN: I don't see how, because --

JUSTICE SCALIA: Because he said --

MS. WOODMAN: -- Kansas --

JUSTICE SCALIA: -- he said it would change Walton, and that would impair those other State statutes.

MS. WOODMAN: As we argue in our brief, Walton simply did not speak to this --

JUSTICE SCALIA: Yes.

MS. WOODMAN: -- issue. And, in fact, the Arizona Supreme Court, in Walton, interpreted the Arizona statute to require that aggravators outweigh mitigators.

JUSTICE SCALIA: Okay. I didn't mean to interrupt your argument, but presumably the attorney general will tell us, in his rebuttal.

MS. WOODMAN: Sure. And the Montana statute, which reads precisely the way Arizona's is, they've decided the equipoise issue and said that the language of that statute does not mandate death by equipoise. So, those statutes are distinguishable, and there's simply no other State that has a statute which mandates death by equipoise.

In any event, the Kansas Supreme Court did interpret the statute to contain a mandatory death-by- equipoise provision, which the State's question presented assumes is the case. And the court, familiar with the way the statute has operated, and is likely to operate it in Kansas, found that equipoise can happen, and that it risks unreliability in capital sentencing in a way that's forbidden by the eighth amendment. And I think one of the problems here is that the terminology of "weighing" conveys a false impression of predefined weights. And the attorney general conceded that that's not how juries consider the balancing of aggravating and mitigating circumstances. And we agree with that. And that's why it is wrong to view this as principally a burden-of-proof issue. It's not. The issue, at the selection stage -- the State certainly has the burden to prove an aggravating circumstance beyond a reasonable doubt, but, at the selection stage, the issue is not meeting some particular burden of proof, it's whether the jury has made a reliable, responsible, collective decision that this unique defendant deserves the death penalty that distinguishes him --

JUSTICE KENNEDY: It seems to me that --

MS. WOODMAN: -- from other death-eligible --

JUSTICE KENNEDY: -- that that --

MS. WOODMAN: -- defendants.

JUSTICE KENNEDY: -- that that hurts you somewhat. If you want to give us this visual metaphor of a scale, or a football field, where you move it beyond the 50 yardline, whatever visual metaphor you want, and you weigh, you balance where the scales of justice balances, it seems to me that that's a stronger case than saying the jurors can establish their aggravation, then they can take any mitigating factor they want, for any reason, and apply it. And they can't do that, because the defendant hasn't shown it. It seems to me that that's -- that that's a weaker argument than if you had this balancing mechanism that was our controlling metaphor.

MS. WOODMAN: Well, let's look at the way that equipoise can happen under the Kansas statute -- and I think Justice Alito alluded to it -- that if the jurors can't decide between aggravated and mitigating circumstances, the sentence is death. The statute decrees death, and --

JUSTICE KENNEDY: They already decided aggravating -- you can't say they can't decide it. They've already decided aggravating circumstances.

MS. WOODMAN: They've decided --

JUSTICE KENNEDY: And what they're deciding is that there's no mitigating circumstances to outweigh it.

MS. WOODMAN: What they've decided is that, in looking at aggravating and mitigating circumstances together, they can't determine, one way or the other, whether aggravators outweigh mitigators or mitigators --

CHIEF JUSTICE ROBERTS: But --

MS. WOODMAN: -- outweigh aggravators.

CHIEF JUSTICE ROBERTS: But how realistic is that as a possibility when you're talking about abstract concepts as mitigating factors, like how much mercy should be shown? I mean, do you really think there's any juror who's going to say, "All right, I'm giving -- I've found the aggravating circumstance that he killed two people, and I've found the aggravating circumstance that it was particularly heinous to slash the throat and leave the toddler to burn. But I also think that mercy ought to be shown. But, you know, it just happens to come up to exactly the level of the aggravating circumstances. So, I'm stuck. I don't know what to do." I don't think that's the way jurors would react. They either think that the need to show mercy or, the one before that, that he's a talented artist, outweighs the fact of the aggravating circumstances, or it doesn't. I just think it's an unrealistic supposition. And there's nothing in the statute -- they don't get an equipoise instruction. So, how -- I mean, is there any reason to think that jurors do come to that balance between such inchoate concepts in the first place?

MS. WOODMAN: Yes. I think it can occur in close cases. And, after all, those are the only cases where equipoise would even be relevant. And let me give you an example. Suppose there's a woman who wants to donate a million dollars to Yale Law School, and, as part of that donation, she's going to -- she has --

JUSTICE SCALIA: Is that an aggravating circumstance?

[Laughter.]

MS. WOODMAN: Well, bear with me for a minute, Your Honor. She has to choose a portrait of her beloved husband to hang in the law school. These portraits were taken at different times, they have different qualities, different features. And she has to choose one. And this decision proves extraordinarily difficult for her to make. And she compares the relative qualities of the two portraits. They're both good. She loved her husband. And she simply cannot choose between the two. And so, she does one of two things. One is that she just can't bear to debate with herself anymore about which one is the better-quality portrait; and so, she becomes agnostic about it and says, "I give up. Pick one." And so, she picks one. The other is that the decision is simply too difficult for her to make; and so, she abdicates that decision and says, "Let the dean pick."

And you can analogize that to the ways in which this statute can operate. And the jury can arrive at equipoise by becoming agnostic about the decision on whether -- on the balance between aggravating/mitigating --

CHIEF JUSTICE ROBERTS: I think your --

MS. WOODMAN: -- circumstances.

CHIEF JUSTICE ROBERTS: I think your analogy took away what I would have regarded as the basis for my question. I think it may well be true that people have difficulty deciding between two portraits. I'm not sure people come to the sense that someone who's guilty of allowing a 19-month-old to burn to death and slashing the throat of her mother thinks it's equally balanced when they're inclined to show mercy, for whatever reason. It seems to me they either make a determination that the circumstances of his upbringing, emotional instability outweigh the responsibility for what they have found to be aggravating factors, or they determine that the aggravating factors outweigh the fact that they may show mercy for other basis. I just -- I can see thinking two portraits are indistinguishable. I just don't see a juror functioning and saying, "I just can't decide whether to show mercy or to convict for death." And they're equally balanced. I understand the idea they may debate it with the other jurors, but, to come and say, "You know, I just can't decide," it seems to me that the -- particularly since they can put as much weight into the mitigating factors as they want -- they can say, "I want to show a lot of mercy," they can say, "I want to show a little bit of mercy" -- but to say that, "I want to show just enough mercy that is exactly balanced," I don't understand that.

MS. WOODMAN: Well, you see, individual jurors, in the course of deliberations -- this is a qualitative judgment, after all, and individual jurors, in the course of deliberations, might be leaning one way or the other at different times during deliberations. But what this equipoise provision does is that it allows the jurors to compromise on equipoise when they simply cannot deliberate anymore, or if they simply just want to avoid making the hard decision.

JUSTICE ALITO: Would it be constitutional if the Kansas statute said that, "The jury must find, by a preponderance, that the aggravating factors outweigh the mitigating factors"?

MS. WOODMAN: Yes.

JUSTICE ALITO: And wouldn't a defendant be better off under the current Kansas statute than under a statute like that, where, under the current statute, the jury has to find, beyond a reasonable doubt, that the aggravating factors and the mitigating factors are at least in equipoise?

MS. WOODMAN: Well, the jury does have to find equipoise beyond a reasonable doubt. But the fact remains that the jury is making that decision of equipoise, which requires the death sentence, without having made the individualized sentencing determination required at the selection stage under the eighth amendment. And that's the problem with the equipoise provision, because it allows the jury to avoid making that decision, which is --

JUSTICE ALITO: Well, I mean --

MS. WOODMAN: -- required.

JUSTICE ALITO: -- suppose the jury thinks that the aggravating factors outweigh the mitigating factors 51-49. Now, under the first statute that I hypothesized, that would result in a verdict of death, would it not? What would the result be under the -- under the current Kansas statute, where the aggravators have to be shown, beyond a reasonable doubt, to outweigh the mitigators?

MS. WOODMAN: Well, I think if the statute requires that the aggravators outweigh mitigators, this Court has upheld that formula. That is a decision that the jury has made. And the legislature can make that decision. And so, when you look -- that's why I'm trying to -- I mean, the State agrees that this is not a quantitative determination. And I will grant you, if the jury is -- if it were a quantitative determination, which is totally unrealistic, and we agree with the State's reasoning on that -- then if the jury is precisely exactly equivalent, 50-50, on aggravating and mitigating circumstances, that might be said to constitute a decision. But, as even the State argues, that's not how jury deliberations work. And under this equipoise provision, the jury can decree death without having made the individualized sentencing decision required at the selection stage. And it's because, on the one hand, if the decision is too close to call, the equipoise provision allows the jurors to simply give up and settle on equipoise as a group. This is a group decision, after all. They have to be unanimous on the question of whether aggravators --

JUSTICE STEVENS: May I ask you --

MS. WOODMAN: -- are not --

JUSTICE STEVENS: -- this question?

MS. WOODMAN: -- outweighed by mitigators.

JUSTICE STEVENS: Suppose the jurors are deadlocked, six to six, and you're not -- you don't know, maybe some are a little stronger there, but there's a deadlock. And what if the judge told them, "Well, in the event of a deadlock, you resolve it by flipping a coin." Would that be constitutional?

MS. WOODMAN: Absolutely not, because they're not making the decision that's required at the selection stage.

And to follow up on something that General Kline said during his argument, that the provision is for a hung jury, there's no provision for a hung jury in the event the jury finds itself in equipoise. The only provision for a hung jury, under the Kansas statute, is if the jury is unable to reach a verdict. But equipoise, does not prevent a death verdict. In fact, the statute requires a death verdict if the jurors are in equipoise.

CHIEF JUSTICE ROBERTS: But the verdict that the jury returns is a verdict of death. They do not return a verdict saying, "We're in equipoise," and then the death sentence is imposed by operation of law. The verdict imposed is, "We do not find -- we find these aggravating circumstances. We find they're not outweighed. And, therefore, we sentence the defendant to death."

MS. WOODMAN: Well, a determination of equipoise -- the jury has to find equipoise beyond a reasonable doubt, and that, necessarily, means that the aggravators are not outweighed my mitigators.

JUSTICE SCALIA: No, but --

MS. WOODMAN: That's how this statute was interpreted by the Kansas Supreme Court.

JUSTICE SCALIA: Yes, but I think -- I think the Chief Justice's point is that you're -- you're really not being accurate when you say, "The jurors can thereby avoid the difficult choice." They don't avoid the difficult choice. They're fully aware, under this statutory scheme, that if they don't find that the mitigators outweigh, they are condemning this person to death. That's the moral choice they're faced with. And when they come in with that verdict, they know what they're doing. And I consider that a moral -- a moral judgment on their part.

MS. WOODMAN: Well, the jury certainly knows that they are imposing a death sentence. But what this instruction and the prosecutorial arguments given in the cases tell them is that they can fulfill their responsibilities as jurors without coming to a final judgment about whether aggravators outweigh mitigators, or vice versa.

JUSTICE SCALIA: And you think that a juror who believes that this person shouldn't be -- shouldn't be sent to death -- that is to say, who believes that the mitigators outweigh the aggravators -- would join a jury verdict which produces the result that he's sentenced to death, right? I think that is so unlikely --

MS. WOODMAN: But in --

JUSTICE SCALIA: -- that he's going to say, "Well, I -- you know, I think he shouldn't go to death, but the aggravators and mitigators are absolutely evenly balanced, so I guess I've got to send him to death," I don't think any juror's going to do that.

MS. WOODMAN: But the fact that this is a group decision leads to even a greater risk of abdication of --

JUSTICE SCALIA: It takes only one --

MS. WOODMAN: -- that decision.

JUSTICE SCALIA: It takes only one to disagree.

MS. WOODMAN: But it's a group decision, and jurors are encouraged and forced to compromise to come to a verdict. And in close cases, with jurors leaning slightly one way or another, they, being forced to come to a consensus, are even more likely to compromise on equipoise, rather than engage in the draining task of persuading each person leaning one way or the other to come together.

JUSTICE SOUTER: But regardless of the likelihood of that situation in any given case -- and I happen to agree with Justice Scalia; I mean, I don't think the likelihood of that in a given case is great -- we're, nonetheless, I think, faced with the fact that the Supreme Court of Kansas says, "That can happen."

MS. WOODMAN: Absolutely.

JUSTICE SOUTER: "And if it does happen, the result is death." And I think we've --

MS. WOODMAN: That's right.

JUSTICE SOUTER: -- we've got to take that as a given. I mean --

MS. WOODMAN: That's right.

JUSTICE SOUTER: -- do you see any way out of it? I --

MS. WOODMAN: That's right. This Court is bound by the Kansas Supreme Court's interpretation of the statute. And what's happening here is, when the jurors do settle on equipoise, in whatever way they settle on equipoise, the fact of the matter that -- is that in either of -- either of the two cases I've -- well, either in -- in three cases I've described, the jurors are following their instructions, and, in either of these situations, the defendant is being sentenced to death only as a death-eligible defendant, because that's the only constitutionally required decision that's actually been made by the jury in that situation. And to go back to Justice Breyer's hypothetical about the box from the last argument, the legislature has determined that the individuals will be separated out as a result of equipoise, but there is nothing about that situation, them being in that box, that separates them from any other generic death- eligible defendant. And that's the problem with this equipoise provision. And, yes, the Kansas Supreme Court found that it can happen. This Court is bound by that interpretation. The State concedes that. And, therefore --

JUSTICE STEVENS: You mentioned the --

MS. WOODMAN: The --

JUSTICE STEVENS: -- Kansas Legislature. Has there been any suggestion the statute ought to be amended to get rid of this silly little problem?

MS. WOODMAN: Yes.

JUSTICE STEVENS: I don't mean to call it --

MS. WOODMAN: Yes.

JUSTICE STEVENS: -- silly little problem, but --

MS. WOODMAN: Yes, and I think --

JUSTICE STEVENS: -- the very narrow --

MS. WOODMAN: -- the Legislature is going to take that up again. And there's simply no consequence to anyone else by affirming the Kansas Supreme Court's decision in this case. The Legislature is going to take the matter up again. There's no question about that.

JUSTICE BREYER: Is there --

CHIEF JUSTICE ROBERTS: So, how is it --

JUSTICE BREYER: -- anything --

CHIEF JUSTICE ROBERTS: -- how is it -- is there any question about how it's going to come out when they take it up again?

[Laughter.]

MS. WOODMAN: Well, I wouldn't want to speculate on that. There are going to be arguments on both sides, certainly.

JUSTICE SCALIA: What if they still conclude, as they did before, that when these aggravating factors are found, unless there is mitigation to overcome them, it is the judgment of the people of Kansas that this person is deserving of death? What if they come to that conclusion again? You want us to tell them, "No, the people of Kansas cannot come to that, what seems to me, quite rational decision"?

MS. WOODMAN: Well, but there is no moral judgment, as has been stated here. There's no moral judgment. The State can -- the Legislature can determine that death is an appropriate sentence. The Legislature -- this Court upheld a legislative determination, when aggravators outweigh mitigators, in Blystone, that --

JUSTICE SCALIA: It's so silly to say that Kansas can circumscribe the moral judgment of the -- of the jury by saying, "You can take into account 18 aggravators, or else only two aggravators." That is a -- you know, a significant control on their moral judgment. But then to say that Kansas cannot circumscribe their moral judgment to the very limited degree of saying, "Unless you find that the mitigators outweigh the aggravators, the proper response is the death penalty."

MS. WOODMAN: But you cannot divorce the weighing process enacted by the legislature from the individualized sentencing decision required under the eighth amendment at the selection stage. And the equipoise --

JUSTICE SOUTER: But I --

MS. WOODMAN: -- provision.

JUSTICE SOUTER: If I -- if I may interrupt you, I -- your point, I take it, is, the jurors are going to make this decision, not the Legislature of Kansas.

MS. WOODMAN: That's right.

JUSTICE SOUTER: Okay.

MS. WOODMAN: And if the Legislature --

JUSTICE KENNEDY: But haven't the jurors made the decision that, "We have looked at all of the moral arguments that he has presented. Each of one of the -- of us has individually weighed them. Each one of us know that if we have any moral reason not to impose the death penalty, we can do it. And we make the moral judgment that we cannot make that determination."

MS. WOODMAN: But the --

JUSTICE KENNEDY: Moral judgment, from beginning to end.

MS. WOODMAN: This statute allows a third option of equipoise, which allows a jury to impose death without making that judgment.

JUSTICE BREYER: Okay, well, what do you say to --

JUSTICE KENNEDY: No, but that's -- your term is "equipoise." You say the jury has done nothing --

MS. WOODMAN: The Kansas Supreme Court's --

JUSTICE KENNEDY: -- you say the jury has done nothing. What the jury has done is, it's weighed all the evidence with great care, and it's said that, "Beyond a reasonable doubt, the mitigating circumstances do not overcome." That is a moral judgment.

MS. WOODMAN: But the --

JUSTICE KENNEDY: And you label it "equipoise."

MS. WOODMAN: The other possibilities are that the jury has found that, "We can't decide whether aggravators outweigh mitigators, or vice versa. And the statute tells -- the instructions tell us to impose death."

JUSTICE SOUTER: But I think Justice Kennedy is saying, when they make that determination, "We can't tell whether one outweighs the other," that they are making a moral judgment there. And what's your -- what's your answer to that?

MS. WOODMAN: That is --

JUSTICE SOUTER: He's saying they are making a moral judgment.

MS. WOODMAN: That is not a moral --

JUSTICE SOUTER: And they know what its consequence is.

MS. WOODMAN: That is not a moral judgment, because it says nothing about the personal culpability --

JUSTICE SOUTER: In other words you're --

MS. WOODMAN: -- of the --

JUSTICE SOUTER: -- saying moral --

MS. WOODMAN: -- defendants.

JUSTICE SOUTER: -- judgment has got to be an either/or judgment, not a "we can't figure it out" judgment.

MS. WOODMAN: Absolutely.

JUSTICE SOUTER: Okay.

JUSTICE BREYER: But the difficulty, I think, in the case is, it's artificial. I think it is. We're in an artificial situation, and we're imagining those 12 jurors saying they're in equipoise between mitigating and aggravating. We don't know. They -- even. All right. Now, you could look at this as saying, "You have to have a reason for thinking these people are -- this person is morally worse than the average." And then we imagine some fungible commodity, like moral badness units. And for every one we go up on the aggravating side, we go down on the mitigating side, so we're back to zero. And then, some people, like you, are looking at this and saying, "See, you're at zero. You went up, you went down, so they're no worse than the average." But other people can look at it and say, "We'll tell you about -- one thing about this individual. This is an individual who did do the aggravating things, and he has counterbalancing mitigating things, and that's good enough to separate him out, morally speaking, from somebody who doesn't.

Now, my problem is, you either look at it the one way or you look at the other way, and you -- and I'm trying to find a reasoned -- if you -- can -- do you want to add anything?

MS. WOODMAN: Well, I mean, the Kansas Supreme Court determined that equipoise can happen. And in the situations that I've described, there is a real risk under this statute that the jury can either become agnostic and just pick, and the statute requires them to pick death, or the jury, encouraged by prosecutorial arguments to abdicate the decision, do abdicate, simply cop out and impose death, because it allows them to avoid making the tough choice. And I think those are very real possibilities under this statute. The statute requires death in those situations, and it's the risk that this procedure poses that presents the problem. And this Court has always held that these kinds of risks of unconstitutional results are intolerable in capital cases. And we simply cannot look at a death sentence in Kansas and say, with any reliability at all, that this jury did not decree death by equipoise, that this jury made the reliable sentencing judgment required under the eighth amendment at the selection stage. We just can't say that under this statute.

JUSTICE KENNEDY: You think that under this instruction, a Kansas juror could say, "You know, I'm not interested in deliberating more. I'm not going to participate"? That's what you're want -- that's what you want us to believe, right, based on this argument? I -- that's just -- any juror -- any jury can ignore its instructions. There's nothing I can do about that.

MS. WOODMAN: Well, they're not --

JUSTICE KENNEDY: Here, they are instructed to consider every mitigating circumstance that's presented and determine whether or not that should be a factor in their decision.

MS. WOODMAN: They're not -- they're not ignoring their instructions at all. They're following their instructions if they arrive at equipoise. And the instructions and the prosecutorial arguments tell them to impose death. The prosecutorial --

JUSTICE KENNEDY: Well --

MS. WOODMAN: -- arguments are --

JUSTICE KENNEDY: Well, but you're suggesting that they kind of --

MS. WOODMAN: -- perfectly in line.

JUSTICE KENNEDY: -- that they can tune out.

MS. WOODMAN: It's not that they're tuning out. They take their jobs very seriously. But what they are encouraged to believe by the instructions and the prosecutorial arguments is that they will fulfill their responsibilities as jurors without coming to a final judgment on whether aggravators outweigh mitigators or vice versa. And it's the risk that they will do that, that makes this statute unconstitutional. And the Kansas Supreme Court determined that there is such a risk of equipoise under this statute that it cannot comply with the eighth amendment.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you, Ms. Woodman.

General Kline, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF PHILL KLINE

ON BEHALF OF PETITIONER

MR. KLINE: Thank you, Mr. Chief Justice.

First, referring to Justice Scalia's question as it relates to other States that are affected, in the joint appendix, pages 98 through 107, you have a summary, and, additionally, in the amici brief that was filed by several States, on page 23, it identifies Arizona, Florida, Nevada, North Carolina, Oklahoma, and Missouri as having similar provisions. And, additionally, the cases that have relied on Walton to determine that the equipoise issue has been resolved are the Eleventh Circuit, in Jones v. Dugger, the Arizona Supreme Court. And in State v. Gretzler, they found that the provision provided for equipoise, as well as in Idaho, in State v. Hoffman.

As it relates to a juror somehow imposing death when they are undecided, I would direct you to page 26 of the joint appendix, at instruction number 9, which reads, "The Defendant is entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict. Each of you must decide the case for yourself."

Furthermore, the jury is instructed, in instruction number 12 in the second paragraph on page 28 of the joint appendix, that, "In order to reach a verdict in the case, your decision must be unanimous. And then, after reasonable deliberation, if you are unable to reach a unanimous verdict, you shall notify the Court, and the result is a life sentence."

Kansas law is very clear that death is only appropriate in the singular instance in which a jury has found beyond a reasonable doubt with unanimity that the defendant is guilty of capital murder, that an aggravating factor exists, and then that the mitigating factors do not outweigh the aggravating factors.

It was in 1994 that the Kansas Legislature passed the death penalty in Kansas, a few years after the Walton decision. And I was there for the debate, as a legislator. It was a compelling moment, not just because of the result, but the solemnity and seriousness of the debate in which they were seeking to define, through their reasoned moral judgment, what justice demands in instances such as this.

And recognizing this Court as the final arbiter of the meaning of the eighth amendment, you will see, through pages 23 through 28 of your appendix, your words mirrored back to you. The Legislature has respected your judgment and made the reasoned moral decision that death is appropriate in the instances --

JUSTICE ALITO: Was there a particular --

MR. KLINE: -- that we are discussing.

JUSTICE ALITO: -- was there a reason why they provided that, in the case of equipoise, the sentence would be death? Or is that just a quirk of the way the provision was written?

MR. KLINE: In the debate, all of these decisions were discussed through committee as well as on the legislative floor. And the belief was, in these various aggravated and narrow circumstances, that the State believes death is appropriate. And if we followed the individualized sentencing line of these cases and allowed a jury to consider all of the mitigating evidence that is relevant, that the State could make that decision.

Thank you, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Thank you, General Kline.

The case is submitted.

[Whereupon, at 1:54 p.m., the case in the above-entitled matter was submitted.]

Print this transcript Transcript: 

Argument of Speaker

Mr. Kline: The first opinion I have to announce is No. 04-1170, Kansas versus Marsh.

This case comes to us on a writ of certiorari to the Supreme Court of Kansas.

A Kansas jury convicted Michael Lee Marsh of capital murder and sentenced him to death under the Kansas death-penalty statute.

That statute provides that if a unanimous jury finds beyond a reasonable doubt one or more aggravating circumstances, and that those circumstances are not outweighed by any mitigating circumstances, the death penalty shall be imposed.

The Kansas Supreme Court held that the State’s death-penalty statute violated the Eighth and Fourteenth Amendments of the United States Constitution, because, quote, “in the event of equipoise, that is, the jury’s determination that the balance of any aggravating circumstances and any mitigating circumstances weighed equal, the death penalty would be required”.

In an opinion filed with the Clerk today, we reverse the judgment of the Kansas Supreme Court.

This Court’s decision in Walton versus Arizona controls the outcome of this case.

In Walton, the Court held that a state death-penalty statute may place on the defendant the burden to prove that mitigating circumstances outweigh aggravating circumstances, and that a sentence less than death is therefore warranted.

Thus, Kansas may direct imposition of the death penalty when the State has proven beyond a reasonable doubt that mitigating evidence does not outweigh aggravating evidence, including where the two are balanced.

Even if Walton does not control the outcome here, general principles of our death-penalty jurisprudence lead to the same conclusion.

Consistent with this Court’s decision in Furman versus Georgia and Gregg versus Georgia and their progeny, Kansas’ death-penalty statute rationally narrows the class of death-eligible defendants and permits the jury to render a reasonable, individualized sentencing determination by allowing a capital defendant to present any relevant mitigating evidence and obliging a Kansas jury to consider that evidence in determining an appropriate sentence.

As this Court explained in Franklin versus Lynaugh, we have never held that the Constitution requires a specific method for balancing aggravating and mitigating factors.

Rather, as we pointedly observed in Blystone versus Pennsylvania, the states enjoy a Constitutionally permissible range of discretion in imposing the death penalty.

Providing the type of guided discretion we have sanctioned in Walton and Blystone, Kansas’ weighing equation merely channels the jury’s discretion by providing criteria by which the jury may determine whether life or death is an appropriate sentence.

Kansas’ jury instructions clearly inform the jury that a determination that the evidence is in equipoise is a decision for, not a presumption in favor of, the death penalty.

So informed, a jury’s conclusion that aggravating and mitigating circumstances are in equipoise is a decision for death and is indicative of the type of measured process in which a jury is constitutionally tasked to engage when deciding the appropriate sentence for a capital defendant.

Justice Scalia has filed a concurring opinion; Justice Stevens has filed a dissenting opinion; and Justice Souter has filed a dissenting opinion, in which Justices Stevens, Ginsburg and Breyer have joined.