Kansas Supreme Court throws out state's death penalty law because of technical flaw

Friday, December 17th 2004, 3:07 pm

By: News On 6

TOPEKA, Kan. (AP) _ The Kansas Supreme Court on Friday threw out the state's 1994 death penalty law, ruling that it was unfair because it gave prosecutors an advantage when jurors were asked to balance aggravating and mitigating circumstances at sentencing.

The court's 4-3 decision throws out the sentences of all six men on the state's death row, including a serial killer and two brothers convicted in a notorious mass shooting in Wichita.

According to the law, if jurors believe the arguments for and against putting a defendant to death are equal, the prosecution is deemed to have won the argument, and the defendant is sentenced to death.

The court urged state lawmakers to fix the problem in their next session, which begins Jan. 10.

Matt All, chief counsel for Gov. Kathleen Sebelius, said Attorney General Phill Kline should appeal the ruling. Kline said Friday his office has asked the state Supreme Court to stay the ruling and promises to appeal to the U.S. Supreme Court.

Even if lawmakers change the law, the maximum the six men on death row could face would be life in prison, court spokesman Ron Keefover said.

Kansas House Speaker Doug Mays predicted the Legislature would ``make whatever changes are necessary. ... The sooner we get back on track, the better.''

In a dissent, Chief Justice Kay McFarland noted all seven justices had previously found the law constitutional and to strike it down now is ``wholly inappropriate and unjustified.''

No one has been executed since the law took effect in 1994.

The cases in which death sentences were thrown out by the ruling include two notorious multiple killings. Robinson was sentenced to death for two killings and to life terms for six other killings in Kansas and Missouri. Most of the victims were found in barrels on his property or in storage lockers.

Brothers Reginald and Jonathan Carr were sent to death row for the 2000 deaths of four Wichita residents and the wounding of a fifth who were forced to engage in sexual acts and withdraw money from ATMs before they were shot as they knelt in the snow.

The appeal brought to the high court was in the case of Michael L. Marsh II, convicted of fatally shooting a friend's wife and setting a fire that killed her toddler daughter.