Kansas v. Marsh - Oral Reargument

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.]