KANSAS V. MARSH, No. 04-1170

Decided: June 26, 2006

The U.S. Supreme Court held (5-4) that the Kansas’ death penalty statute, which requires that a death sentence be imposed when a jury finds that the aggravating and mitigating circumstances in a case have equal weight, is constitutional.

The jury in Marsh’s death sentencing hearing was instructed according to the Kansas’ death penalty statute and sentenced him to death. In 2001, after Marsh’s sentencing hearing, the Kansas Supreme Court ruled in State v. Kleypas that on its face, the language of the sentencing statute violates the Eighth and Fourteenth Amendments and that in order for the statute to be applied constitutionally, the jury must be instructed that the aggravating circumstances have to outweigh the mitigating circumstances before death may be imposed. When Marsh appealed his death sentence in 2004, the Kansas Supreme Court held that its attempt to rewrite the language of the statute to salvage the death penalty in the Kleypas case was in error and that Kansas’ entire death penalty is unconstitutional because the process used to select which defendants are sentenced to death does not comport with the fundamental respect for humanity underlying the Eighth Amendment. The court held that there was “no way” that Kansas’ weighing equation is permissible under the Eighth and Fourteenth Amendments.

The U.S. Supreme Court reversed the judgment of the Kansas Supreme Court and remanded the case for further proceedings. In upholding the Kansas statute, the Court cited Walton v. Arizona (1990). In Walton, the Court had held that a state death penalty statute may give the defendant the burden to prove that mitigating circumstances outweigh aggravating circumstances. Finding that Walton controls this case, the Court reasoned that the Kansas’ death penalty statute may constitutionally direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigating circumstances do not outweigh aggravating circumstances, even when they are of equal weight. Even if Walton does not directly control this case, the Court stated, a State has a range of discretion in imposing the death penalty, including how the aggravating and mitigating circumstances are weighed, as long as the state system satisfies the requirements of Furman v. Georgia and Gregg v. Georgia.

Justice Souter, with Justices Stevens, Ginsburg, and Breyer joining, issued a dissenting opinion, noting that the Kansas’ statute involving the “tie breaker” in favor of death fails because the statute operates merely on a jury’s finding of the equal weight of aggravating and mitigating factors instead of the details of the crime or the unique identity of the individual defendant. The tie breaker does not reserve the death penalty for the worst of the worst offenders since the jury’s decision is nothing more than a “tie,” which indicates that the jury does not see the evidence as heinous enough to require death.

The dissent also stated that “a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests. We cannot face up to these facts and still hold that the guarantee of morally justifiable sentencing is hollow enough to allow maximizing death sentences, by requiring them when juries fail to find the worst degree of culpability: when, by a State’s own standards and a State’s own characterization, the case for death is ‘doubtful.’” (emphasis added).

Justice Scalia concurred with the majority but wrote separately to challenge the dissent. Justice Scalia criticized the dissenters for using their policy views to criticize capital punishment for the condemnation of so many innocent people. Scalia asserted that the Kansas’ statute has nothing to do with the evaluation of guilt or innocence because this case is about challenging sentencing standards. Scalia also challenged the dissenters’ reference to DNA exonerations and their reliance on certain studies. According to Scalia, DNA testing is a “highly effective way to avoid conviction of the innocent,” not primarily a way to identify defendants erroneously convicted. Scalia emphasized that it is a “truism, not a revelation” that one has to accept the possibility that someone will be punished mistakenly in order to have a system of criminal punishment.

HILL V. MCDONOUGH, No. 05-8794 (formerly Hill v. Crosby)

Decided: June 12, 2006

Update: Clarence Hill was executed in Florida on Sept. 20, 2006. He never received an evidentiary hearing on his lethal injection challenge in federal court.

The Supreme Court ruled unanimously that death row inmates seeking to challenge lethal injection procedures may pursue the issue as a civil rights claim. The Court referred to its decision in Nelson v. Campbell (2004) in which it allowed an inmate who challenged a “cut down” procedure used in Alabama to proceed as a civil rights claim.

The Court in Hill held that Clarence Hill’s claim does not have to be brought in habeas but may proceed under Section 1983 because his claim is comparable in its essentials to the civil rights claim the Court allowed in Nelson. The Court concluded in Nelson that injunctive relief would not prevent the State from implementing the sentence of death since there was no finding that the procedure was necessary to the lethal injection. Similarly, Hill’s action, if successful, would not necessarily prevent the State from executing him by lethal injection. The Court emphasized that Hill did not challenge the lethal injection sentence as a general matter but seeks instead only to enjoin the respondents “from executing [Hill] in the manner they currently intend.” However, the Court also noted that finding an action that can proceed under Section 1983 does not entitle the complainant to an automatic stay of execution. Inmates seeking time to challenge the manner of their execution must satisfy all of the requirements for a stay.

The judgment was reversed and the case remanded for further proceedings.

The Court had granted a stay of execution to Hill in Florida just minutes before his execution was to take place on January 24, 2006. The next day, the Court made the stay permanent until they could hear Hill’s challenge to the lethal injection procedures in Florida. Hill raised a civil rights claim stating that the chemicals used in lethal injection could inflict severe and unnecessary pain. The U.S. Court of Appeals for the 11th Circuit rejected his use of the civil rights law and required that his claim be considered as part of his regular habeas corpus appeal. They then rejected the claim for noncompliance with the successive petition requirements.

HOUSE v. BELL, No. 04-8990

Decided: June 12, 2006

The Supreme Court reversed the U.S. Court of Appeals for the Sixth Circuit and held 5-3 that Tennessee death row inmate Paul House can challenge the constitutionality of his conviction. The ruling marks the first time that the Justices have considered the new evidentiary technology of DNA evidence when re-examining a death sentence. The Court held that new evidence, including DNA test results, raised sufficient doubt to merit a new hearing in federal court for Tennessee death row inmate Paul House, who was sentenced to death two decades ago for the rape and murder of his neighbor.

The Sixth Circuit Court denied habeas corpus relief on the ground that House failed to show actual innocence to preclude procedural default. House claimed that evidence of his actual innocence was sufficient to except his claims from procedural default. House asserted that the new evidence established that semen on the victim’s clothes was that of the victim’s husband and that the bloodstains on his clothes resulted from spillage from the samples of the victim’s blood.

The Court referred to the standard of Schup v. Delo and held that it was more likely than not that no reasonable juror viewing the record as a whole would find House guilty beyond a reasonable doubt. Writing for the majority, Justice Anthony M. Kennedy noted that “all the evidence, old and new, incriminating and exculpatory” must be taken into account. He stated that when an inmate comes to federal court with evidence of innocence, “the court’s function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors.”

The judgment upholding the denial of habeas corpus relief was reversed, and the case was remanded for consideration of House’s procedurally barred claims.


Decided: May 1, 2006

The U.S. Supreme Court, with Justice Samuel Alito writing his first opinion, unanimously ruled on May 1 that South Carolina had deprived Bobbie Lee Holmes of a fair trial when it prevented him from putting on evidence contradictory to the state’s case and that pointed to another possible suspect. South Carolina’s rule was that if the state had put on strong forensic evidence of the defendant’s guilt, the defendant could be prohibited from raising an alternative theory of a third party’s guilt. Justice Alito found this rule to be arbitrary and irrational, writing: “The point is that by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt.” A coalition of 18 states, led by Attorney General Phill Kline of Kansas, had filed a brief in support of South Carolina’s position. (NY Times, May 2, 2006).

OREGON V. GUZEK, No. 04-928.

Decided: February 22, 2006

The Supreme Court ruled (7-0, without Justice O’Connor and with Justice Alito not participating) that Oregon courts are not required to allow the defendant to introduce new alibi evidence pertaining to his innocence at the sentencing phase of the trial. The Court reasoned that states may put reasonable limits on the evidence a defendant may present. Particularly at the sentencing phase, when the question is not whether the defendant committed the crime but how, and since the issue of innocence had already been litigated, and since state law allows the defendant to present evidence of his innocence in the form of transcripts from his original trial to the jury, the Oregon court did not have to hear Guzek’s additional evidence of innocence.

BROWN V. SANDERS, No. 04-980.

Decided: January 11, 2006

The U.S. Supreme Court re-instated the death sentence of Ronald Sanders in a 5-4 ruling overturning a decision by the U.S. Court of Appeals for the Ninth Circuit. After Sanders had been sentenced to death in California, the state’s supreme court held that two of the aggravating factors used by the jury in its sentencing determination were invalid. The 9th Circuit had held that California is a “weighing state” and hence the use of these invalid aggravating factors rendered the death sentence unconstitutional because the lower court had not found that such use was harmless to the defendant.

The majority in the U.S. Supreme Court dispensed with the distinction between weighing and non-weighing states and announced a new way of evaluating the effect of invalid aggravating factors: “An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” The Court found that in this case there were other aggravating factors fitting this description and therefore Sanders’ death sentence was valid. (Brown v. Sanders, No. 04-980, decided Jan. 11, 2006; Associated Press, Jan. 11, 2006).


In a per curiam opinion issued without oral argument, the Court granted the State’s petition for a writ of certiorari, unanimously vacated the judgment of the U.S. Court of Appeals for the 6th Circuit, and remanded the case for further consideration. Kenneth Richey, a citizen of both the U.S. and Great Britain, had been convicted in 1987 in Ohio of aggravated murder in the course of a felony, namely setting fire to a house. The state had shown that although his intended victims escaped, another person was killed in the fire, and by the state doctrine of “transferred intent” he was guilty of capital murder and he was sentenced to death. The Sixth Circuit granted him habeas relief, holding that transferred intent was not a permissible theory for aggravated felony murder under Ohio law, and that he had been given inadequate representation. The Supreme Court held that the Sixth Circuit erred in interpreting the Ohio law of transferred intent, and that it failed to adequately consider whether Richey’s ineffectiveness of counsel claims were procedurally barred. (Decided Nov. 28, 2005) (Associated Press, Nov. 28, 2005).

SCHRIRO V. SMITH, No. 04-1475.

The Court issued an unsigned opinion holding that it was improper for the U.S. Court of Appeals for the Ninth Circuit to require Arizona to have a jury determine a defendant’s mental retardation status. The Court noted that Arizona’s legislature had not yet addressed whether this issue should be decided by a judge or a jury. (October 17, 2005). (Washington Post, Oct. 18, 2005).



The Court denied certiorari on May 22, 2006 to this lethal injection challenge from Tennessee. The state supreme court had ruled that the lethal injection process and chemicals used were not a violation of the cruel and unusual clause of the Eighth Amendment to the U.S. Constitution. Although this case was in the proper procedural position to be heard by the High Court, it appears that the Court will allow the merits of the lethal injection process to be considered more thoroughly by lower courts before, if ever, taking on this issue.

LOVITT V. TRUE, No. 05-5044.

The Court denied certiorari on October 3, 2005. Robin Lovitt had appealed on grounds that physical evidence, including DNA material, from his trial had been destroyed by the state and that he had been given ineffective counsel. The appeal was filed by Kenneth Starr, former Solicitor General of the U.S. The Court had granted a stay of execution to Lovitt from Virginia on July 11, 2005, pending consideration of his petition for cert. (See N.Y. Times, Oct. 4, 2005). Lovitt’s death sentence was commuted to life without parole by Governor Warner of Virginia.


The petition for a writ of certiorari was granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Miller-El v. Dretke, 545 U.S. _ (2005). The Chief Justice took no part in the consideration or decision of this motion and this petition. (Supreme Court Orders, Oct. 3, 2005).