kansas
marsh
argued
december
decided
june
finding
three
aggravating
circumstances
outweighed
mitigating
circumstances
kansas
jury
convicted
respondent
marsh
inter
alia
capital
murder
sentenced
death
marsh
claimed
direct
appeal
stat
ann
establishes
unconstitutional
presumption
favor
death
directing
imposition
death
penalty
aggravating
mitigating
circumstances
equipoise
agreeing
kansas
concluded
weighing
equation
violated
eighth
fourteenth
amendments
remanded
new
trial
held
jurisdiction
review
kansas
judgment
provision
authorizes
review
state
final
judgment
state
statute
validity
questioned
federal
constitutional
grounds
permits
review
even
proceedings
complete
federal
claim
finally
decided
later
review
federal
issue
whatever
case
outcome
cox
broadcasting
cohn
although
marsh
retried
state
determination
death
penalty
statute
unconstitutional
final
binding
lower
state
courts
thus
state
unable
obtain
review
law
case
deemed
lower
decisions
final
purposes
like
circumstances
see
florida
meyers
per
curiam
pp
state
judgment
supported
adequate
independent
state
grounds
marsh
maintains
judgment
based
state
law
state
previously
reviewed
statute
state
kleypas
however
kleypas
rested
federal
law
case
state
chastised
kleypas
avoiding
constitutional
issue
squarely
found
unconstitutional
face
overruled
kleypas
relevant
part
pp
kansas
capital
sentencing
statute
constitutional
pp
walton
arizona
requires
approval
kansas
statute
held
state
death
penalty
statute
may
give
defendant
burden
prove
mitigating
circumstances
outweigh
aggravating
circumstances
fortiori
kansas
death
penalty
statute
consistent
constitution
may
direct
imposition
death
penalty
state
proved
beyond
reasonable
doubt
mitigators
outweigh
aggravators
including
two
equipoise
pp
even
marsh
contends
walton
directly
control
general
principles
death
penalty
jurisprudence
lead
conclusion
long
state
system
satisfies
requirements
furman
georgia
gregg
georgia
system
must
rationally
narrow
class
defendants
must
permit
jury
render
reasonable
individualized
sentencing
determination
state
range
discretion
imposing
death
penalty
including
manner
aggravating
mitigating
circumstances
weighed
use
mitigation
evidence
product
requirement
defendants
right
present
sentencers
information
relevant
sentencing
decision
sentencers
obliged
consider
information
determining
appropriate
sentence
thrust
mitigation
jurisprudence
ends
never
held
constitution
requires
specific
method
balancing
aggravating
mitigating
factors
pp
kansas
death
penalty
statute
satisfies
constitutional
mandates
furman
progeny
rationally
narrows
class
defendants
permits
jury
consider
mitigating
evidence
relevant
sentencing
determination
state
weighing
equation
merely
channels
jury
discretion
providing
criteria
jury
may
determine
whether
life
death
appropriate
system
provides
kind
guided
discretion
sanctioned
walton
supra
contrary
marsh
argument
create
general
presumption
favor
death
penalty
life
sentence
must
imposed
state
fails
demonstrate
existence
aggravating
circumstance
beyond
reasonable
doubt
state
prove
beyond
reasonable
doubt
aggravating
circumstances
outweighed
mitigating
circumstances
jury
unable
reach
unanimous
decision
respect
marsh
contentions
equipoise
determination
reflects
juror
confusion
inability
decide
life
death
jury
may
use
equipoise
loophole
shirk
constitutional
duty
render
reasoned
moral
sentencing
decision
rest
implausible
characterization
kansas
statute
jury
determination
aggravators
mitigators
equipoise
decision
much
less
decision
death
weighing
end
means
reaching
decision
kansas
instructions
clearly
inform
jury
determination
evidence
equipoise
decision
death
pp
reversed
remanded
thomas
delivered
opinion
roberts
scalia
kennedy
alito
joined
scalia
filed
concurring
opinion
stevens
filed
dissenting
opinion
souter
filed
dissenting
opinion
stevens
ginsburg
breyer
joined
kansas
petitioner
michael
lee
marsh
ii
writ
certiorari
kansas
june
justice
thomas
delivered
opinion
kansas
law
provides
unanimous
jury
finds
aggravating
circumstances
outweighed
mitigating
circumstances
death
penalty
shall
imposed
stat
ann
must
decide
whether
statute
requires
imposition
death
penalty
sentencing
jury
determines
aggravating
evidence
mitigating
evidence
equipoise
violates
constitution
hold
respondent
michael
lee
marsh
ii
broke
home
marry
ane
pusch
lay
wait
return
marry
ane
entered
home
daughter
marsh
repeatedly
shot
marry
ane
stabbed
slashed
throat
home
set
fire
toddler
inside
burned
death
jury
convicted
marsh
capital
murder
premeditated
murder
marry
ane
aggravated
arson
aggravated
burglary
jury
found
beyond
reasonable
doubt
existence
three
aggravating
circumstances
circumstances
outweighed
mitigating
circumstances
basis
findings
jury
sentenced
marsh
death
capital
murder
jury
also
sentenced
marsh
life
imprisonment
without
possibility
parole
years
murder
marry
ane
consecutive
sentences
months
imprisonment
aggravated
arson
months
imprisonment
aggravated
burglary
direct
appeal
marsh
challenged
reads
unanimous
vote
jury
finds
beyond
reasonable
doubt
one
aggravating
circumstances
enumerated
exist
existence
aggravating
circumstances
outweighed
mitigating
circumstances
found
exist
defendant
shall
sentenced
death
otherwise
defendant
shall
sentenced
provided
law
focusing
phrase
shall
sentenced
death
marsh
argued
establishes
unconstitutional
presumption
favor
death
directs
imposition
death
penalty
aggravating
mitigating
circumstances
equipoise
kansas
agreed
held
kansas
death
penalty
statute
facially
unconstitutional
concluded
statute
weighing
equation
violated
eighth
fourteenth
amendments
constitution
event
equipoise
jury
determination
balance
aggravating
circumstances
mitigating
circumstances
weighed
equal
death
penalty
required
kansas
affirmed
marsh
conviction
sentence
aggravated
burglary
premeditated
murder
marry
ane
reversed
remanded
new
trial
marsh
convictions
capital
murder
aggravated
granted
certiorari
reverse
kansas
judgment
kansas
capital
sentencing
statute
stat
ann
facially
unconstitutional
ii
addition
granting
certiorari
review
constitutionality
kansas
capital
sentencing
statute
also
directed
parties
brief
argue
whether
jurisdiction
review
judgment
kansas
construed
cox
broadcasting
cohn
whether
kansas
judgment
supported
adequate
state
grounds
independent
federal
law
considered
parties
arguments
conclude
jurisdiction
case
constitutional
issue
properly
title
authorizes
review
writ
certiorari
final
judgment
highest
state
validity
state
statute
questioned
federal
constitutional
grounds
determined
foregoing
authorization
permits
review
judgment
highest
state
even
though
proceedings
yet
complete
federal
claim
finally
decided
proceedings
merits
state
courts
come
later
review
federal
issue
whatever
ultimate
outcome
case
cox
broadcasting
supra
although
marsh
retried
capital
murder
aggravated
arson
charges
kansas
determination
kansas
death
penalty
statute
facially
unconstitutional
final
binding
lower
state
courts
thus
state
unable
obtain
review
death
penalty
law
later
case
marsh
acquitted
capital
murder
double
jeopardy
state
law
preclude
state
appealing
reconvicted
state
prohibited
kansas
decision
seeking
death
penalty
opportunity
state
seek
review
prohibition
although
marsh
argues
provision
kansas
criminal
appeals
statute
stat
ann
cum
supp
permit
state
appeal
invalidation
kansas
death
penalty
statute
contention
meritless
statute
provides
limited
appeal
four
enumerated
circumstances
none
apply
deemed
lower
decisions
final
purposes
like
circumstances
see
florida
meyers
per
curiam
south
dakota
neville
new
york
quarles
kansas
decision
supported
adequate
independent
state
grounds
marsh
maintains
kansas
decision
based
severability
state
law
constitutionality
provision
federal
law
latter
issue
resolved
kansas
state
kleypas
marsh
argument
fails
kleypas
rested
federal
law
see
rendering
determination
kansas
observed
kleypas
held
weighing
equation
written
unconstitutional
eighth
fourteenth
amendments
applied
cases
aggravating
evidence
mitigating
evidence
equally
balanced
case
kansas
chastised
kleypas
avoiding
constitutional
issue
statute
facial
validity
squarely
held
unconstitutional
face
overruled
portion
kleypas
upholding
statute
constitutional
avoidance
doctrine
judicial
revision
kleypas
kansas
clearly
rested
decision
eighth
fourteenth
amendments
constitution
therefore
jurisdiction
review
decision
see
michigan
long
iii
case
controlled
walton
arizona
overruled
grounds
ring
arizona
case
jury
convicted
walton
capital
offense
sentencing
trial
judge
found
existence
two
aggravating
circumstances
mitigating
circumstances
call
leniency
sentenced
walton
death
arizona
affirmed
granted
certiorari
resolve
conflict
arizona
decision
state
walton
en
banc
holding
arizona
death
penalty
statute
constitutional
ninth
circuit
decision
adamson
ricketts
en
banc
finding
arizona
death
penalty
statute
unconstitutional
situations
mitigating
aggravating
circumstances
balance
mitigating
circumstances
give
reservation
still
fall
weight
aggravating
circumstances
statute
bars
imposing
sentence
less
death
see
walton
consistent
ninth
circuit
conclusion
adamson
walton
argued
arizona
capital
sentencing
system
created
unconstitutional
presumption
favor
death
tells
arizona
sentencing
judge
finds
even
single
aggravating
factor
death
must
imposed
unless
arizona
put
petitioner
case
mitigating
factors
brief
petitioner
walton
arizona
see
also
arguing
statute
unconstitutional
defendant
bear
risk
nonpersuasion
mitigating
circumstance
outweigh
aggravating
alteration
omitted
rejecting
walton
argument
see
stated
long
state
method
allocating
burdens
proof
lessen
state
burden
prove
every
element
offense
charged
case
prove
existence
aggravating
circumstances
defendant
constitutional
rights
violated
placing
burden
proving
mitigating
circumstances
sufficiently
substantial
call
leniency
noted
requirement
individualized
sentencing
jury
must
opportunity
consider
evidence
relevant
mitigation
state
statute
permits
jury
consider
mitigating
evidence
comports
requirement
citing
blystone
pennsylvania
also
pointedly
observed
constitution
requires
sentencing
jury
discretion
mandate
discretion
unfettered
free
determine
manner
jury
may
consider
mitigating
evidence
long
sentencer
precluded
considering
relevant
mitigating
evidence
capital
sentencing
statute
said
impermissibly
much
less
automatically
impose
death
plurality
opinion
roberts
louisiana
plurality
opinion
indeed
walton
suggested
capital
sentencing
systems
impermissibly
mandatory
automatically
impose
death
upon
conviction
certain
types
murder
contrary
marsh
contentions
kansas
conclusions
see
question
presented
instant
case
squarely
walton
though
marsh
notes
walton
employ
term
equipoise
issue
undeniably
gave
rise
question
sought
resolve
necessarily
included
walton
argument
arizona
system
unconstitutional
required
death
penalty
unless
mitigating
circumstances
outweighed
aggravating
circumstances
see
supra
moreover
dissent
walton
reinforces
evident
opinion
judgment
equipoise
issue
resolved
issue
favor
state
indeed
equipoise
issue
large
measure
basis
walton
dissent
see
opinion
blackmun
mitigating
aggravating
circumstances
equipoise
arizona
statute
requires
trial
judge
impose
capital
punishment
assertion
sentence
death
may
imposed
case
runs
directly
counter
eighth
amendment
requirement
capital
sentence
must
rest
upon
death
appropriate
punishment
specific
thus
although
walton
discuss
equipoise
issue
explicitly
issue
resolved
holding
cf
post
stevens
dissenting
cf
also
post
souter
dissenting
conclusion
walton
controls
reinforced
fact
arizona
kansas
statutes
comparable
important
respects
similar
express
language
kansas
statute
arizona
statute
issue
walton
consistently
construed
mean
death
penalty
imposed
upon
finding
aggravating
circumstances
outweighed
mitigating
see
state
ysea
en
banc
state
gretzler
banc
adamson
like
kansas
statute
arizona
statute
places
burden
proving
existence
aggravating
circumstances
state
statutes
require
defendant
proffer
mitigating
evidence
statutes
distinct
one
respect
arizona
statute
state
met
burden
tasks
defendant
burden
proving
sufficient
mitigating
circumstances
overcome
aggravating
circumstances
sentence
less
death
therefore
warranted
contrast
kansas
statute
requires
state
bear
burden
proving
jury
beyond
reasonable
doubt
aggravators
outweighed
mitigators
sentence
death
therefore
appropriate
places
additional
evidentiary
burden
capital
defendant
distinction
operates
favor
kansas
capital
defendants
otherwise
statutes
function
substantially
manner
sufficiently
analogous
purposes
thus
walton
distinguishable
instant
case
accordingly
reasoning
walton
requires
approval
kansas
death
penalty
statute
bottom
walton
held
state
death
penalty
statute
may
place
burden
defendant
prove
mitigating
circumstances
outweigh
aggravating
circumstances
fortiori
kansas
death
penalty
statute
consistent
constitution
may
direct
imposition
death
penalty
state
proved
beyond
reasonable
doubt
mitigators
outweigh
aggravators
including
aggravating
circumstances
mitigating
circumstances
equipoise
iv
even
marsh
contends
walton
directly
control
general
principles
set
forth
death
penalty
jurisprudence
lead
us
conclude
kansas
capital
sentencing
system
constitutionally
permissible
together
decisions
furman
georgia
per
curiam
gregg
georgia
joint
opinion
stewart
powell
stevens
jj
establish
state
capital
sentencing
system
must
rationally
narrow
class
defendants
permit
jury
render
reasoned
individualized
sentencing
determination
based
defendant
record
personal
characteristics
circumstances
crime
see
long
state
system
satisfies
requirements
precedents
establish
state
enjoys
range
discretion
imposing
death
penalty
including
manner
aggravating
mitigating
circumstances
weighed
see
franklin
lynaugh
plurality
opinion
citing
zant
stephens
use
mitigation
evidence
product
requirement
individualized
sentencing
see
graham
collins
thomas
concurring
discussing
development
mitigation
precedent
lockett
ohio
plurality
held
eighth
fourteenth
amendments
require
sentencer
precluded
considering
mitigating
factor
aspect
defendant
character
record
circumstances
offense
defendant
proffers
basis
sentence
less
death
emphasis
original
held
sentencer
must
full
access
information
alteration
omitted
quoting
williams
new
york
thus
lockett
struck
ohio
death
penalty
statute
unconstitutional
limiting
jury
consideration
mitigation
three
factors
specified
statute
prevented
sentencers
capital
cases
giving
independent
weight
mitigating
evidence
militating
favor
sentence
death
majority
held
sentencer
may
categorically
refuse
consider
relevant
mitigating
evidence
see
also
skipper
south
carolina
discussing
eddings
aggregate
precedents
confer
upon
defendants
right
present
sentencers
information
relevant
sentencing
decision
oblige
sentencers
consider
information
determining
appropriate
sentence
thrust
mitigation
jurisprudence
ends
never
held
specific
method
balancing
mitigating
aggravating
factors
capital
sentencing
proceeding
constitutionally
required
franklin
supra
citing
zant
supra
rather
held
enjoy
constitutionally
permissible
range
discretion
imposing
death
penalty
blystone
see
also
stating
requirement
individualized
sentencing
capital
cases
satisfied
allowing
jury
consider
relevant
mitigating
evidence
graham
supra
thomas
concurring
stating
ur
early
mitigating
cases
may
thus
read
little
safeguarding
adversary
process
sentencing
proceedings
conferring
defendant
affirmative
right
place
relevant
evidence
sentencer
kansas
death
penalty
statute
satisfies
constitutional
mandates
furman
progeny
rationally
narrows
class
defendants
permits
jury
consider
mitigating
evidence
relevant
sentencing
determination
interfere
constitutionally
significant
way
jury
ability
give
independent
weight
evidence
offered
mitigation
kansas
procedure
narrows
universe
defendants
consistent
eighth
amendment
requirements
kansas
law
imposition
death
penalty
option
defendant
convicted
capital
murder
requires
one
specific
elements
beyond
intentional
premeditated
murder
found
see
stat
ann
convicted
capital
murder
defendant
becomes
eligible
death
penalty
state
seeks
separate
sentencing
hearing
cum
supp
app
instruction
proves
beyond
reasonable
doubt
existence
one
statutorily
enumerated
aggravating
circumstances
stat
ann
app
instruction
consonant
individualized
sentencing
requirement
kansas
jury
permitted
consider
evidence
relating
mitigating
circumstance
determining
appropriate
sentence
capital
defendant
long
evidence
relevant
specifically
jurors
instructed
mitigating
circumstance
fairness
mercy
may
considered
extenuating
reducing
degree
moral
culpability
blame
justify
sentence
less
death
although
justify
excuse
offense
determination
mitigating
circumstances
jurors
resolve
facts
circumstances
case
appropriateness
exercise
mercy
mitigating
factor
may
consider
determining
whether
state
proved
beyond
reasonable
doubt
death
penalty
warranted
instruction
jurors
apprised
limited
factors
defendant
contends
mitigating
instructed
ach
juror
must
consider
every
mitigating
factor
individually
finds
exist
kansas
weighing
equation
ibid
instruction
merely
channels
jury
discretion
providing
criteria
may
determine
whether
sentence
life
death
appropriate
system
kansas
provides
type
discretion
walton
citing
gregg
sanctioned
walton
boyde
blystone
indeed
boyde
sanctioned
weighing
jury
instruction
analytically
indistinguishable
kansas
jury
instruction
review
today
boyde
jury
instruction
read
conclude
aggravating
circumstances
outweigh
mitigating
circumstances
shall
impose
sentence
death
however
determine
mitigating
circumstances
outweigh
aggravating
circumstances
shall
impose
sentence
confinement
state
prison
life
without
possibility
parole
emphasis
original
boyde
argued
mandatory
language
instruction
prevented
jury
rendering
individualized
sentencing
determination
rejected
argument
concluding
foreclosed
blystone
rejected
nearly
identical
challenge
pennsylvania
death
penalty
statute
holding
noted
mandatory
language
statute
prevent
jury
considering
relevant
mitigating
evidence
boyde
similarly
prevent
kansas
jury
considering
mitigating
evidence
marsh
argument
kansas
provision
impermissibly
mandatory
likewise
contrary
marsh
argument
create
general
presumption
favor
death
penalty
state
kansas
rather
kansas
capital
sentencing
system
dominated
presumption
life
imprisonment
appropriate
sentence
capital
conviction
state
fails
meet
burden
demonstrate
existence
aggravating
circumstance
beyond
reasonable
doubt
sentence
life
imprisonment
must
imposed
app
instruction
state
overcomes
hurdle
bears
additional
burden
proving
beyond
reasonable
doubt
aggravating
circumstances
outweighed
mitigating
circumstances
ibid
instruction
instruction
significantly
although
defendant
appropriately
bears
burden
proffering
mitigating
circumstances
burden
production
never
bears
burden
demonstrating
mitigating
circumstances
outweigh
aggravating
circumstances
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