Lawrence and Douglas County

Lawrence and Douglas county

Lawrence attorneys to fight death penalty

November 21, 2005


Two lawyers who live in Lawrence will go before the U.S. Supreme Court next month to argue that Kansas' death-penalty law is unconstitutional.

"At this stage, I am totally immersed in this case. It's all I think about," said Rebecca Woodman, an attorney with the Kansas Capital Appellate Defender's Office who has lived in Lawrence since 1998. "Most of my time is spent thinking, reading, reflecting and preparing arguments."

Woodman is the lead attorney representing Michael Lee Marsh II, a Wichita man sentenced to death after being convicted of the 1996 murders of a woman and her 19-month-old daughter. Last year, the Kansas Supreme Court found in Marsh's case that the state's death penalty was unconstitutional because of the instructions it gives to jurors in deciding how to weigh evidence.

The U.S. Supreme Court agreed earlier this year to take the case at the request of Kansas Atty. Gen. Phill Kline, who will appear on behalf of the state. Arguments are scheduled for the morning of Dec. 7.

Woodman will be accompanied by Janine Cox, another attorney in the Capital Appellate Defender's Office who has lived in Lawrence since 1984.

Lawrence residents Janine Cox, left, and Rebecca Woodman, attorneys with the Kansas Capital Appellate Defender's Office in Topeka, will argue a case involving the constitutionality of the state's death penalty before the U.S. Supreme Court next month.


"My job is to make (Woodman) as comfortable as possible," Cox said. "I try to take care of the little details of things so that she doesn't have to worry about anything except the case itself."

Six on death row

No one has been executed since the death penalty was reinstated in Kansas in 1994. There are six people awaiting the death sentence, including repeat murderers such as John E. Robinson Sr., of Johnson County, and brothers Jonathan and Reginald Carr, of Wichita.

When deciding whether to give the death penalty, Kansas jurors have been required to weigh a list of aggravating factors - for example if it was a murder for hire - against a list of mitigating factors, such as the person's age or criminal history.

The problem with the law, the Kansas Supreme Court ruled last year in Marsh's case, was that it directed jurors to give the death sentence if the aggravating factors and mitigating factors were equal. In essence, a tie went to the prosecutors - not to the defendant.

It's something no other state does. In her brief to the U.S. Supreme Court, Woodman wrote that the practice "flouts the Eighth Amendment requirement of individualized capital sentencing."

"This is a death sentence rendered without the jury's having made a collective decision that the individual circumstances of the defendant's case mark it as more deserving of death than any other generic death-eligible conviction," she wrote.

No one can say that someone sentenced to death under that scenario, she wrote, "was actually found by the jury to deserve that punishment."

State's position

Kline, however, is arguing that such a scenario is constitutional, saying that all that's required by the constitution is that the jury "be allowed to consider any relevant evidence."

But there's a possibility the Supreme Court won't even get to the question of whether that formula is constitutional. Woodman is asking the Supreme Court to find that it doesn't have jurisdiction over Marsh's case, in part because the state didn't challenge whether the scenario was unconstitutional when arguing the Marsh case at the state level.

In fact, that issue had been addressed three years earlier.

The Kansas court found it was unconstitutional in a 2001 case, State v. Kleypas. But instead of striking down the death penalty as a whole, the court tried to fix the problem by ordering the language to be interpreted to mean that aggravating factors must outweigh mitigating factors for someone to be put to death.

Kline has been a vocal critic of the court, saying the sequence of decisions has caused "confusion and uncertainty."

Kline spokesman Whitney Watson said that regardless of the outcome of this case, he anticipates lawmakers will find a way to pass a constitutional death-penalty law.

"The attorney general believes that justice demands we have the death penalty in the state," he said. "It's become a priority for the office."

What's at stake next month before the U.S. Supreme Court, he said, is the fate of the six people now awaiting execution.

"If the High Court doesn't overturn this state's Supreme-Court decision, those people will never face the death penalty," Watson predicted.


John1945 8 years, 3 months ago

If animals like Robinson and the Carr brothers had been dead by the weekend after their trial, the Seven Dwarves of our "Supreme" Court wouldn't have been able to molly-coddle them.

The legislature needs to pass an express lane to execution for monsters like Robinson and the Carrs. 48 hours and they're dead.


girlrider 8 years, 3 months ago

If a person is given the death sentence than on more then 60 days they should be put to death. Why waste more of the tax payers money feeding & defending someone who has taking an innocent persons life? Need to be more accountable for your actions if we starting ending lifes for those have taken lives then maybe some might just think about it and not do such a crime if they know that they will end up dead. No need to be nice about it..... death needs to be hard on them because they need to pay for the pain they inflicted.


Fishman 8 years, 3 months ago

The Carr's are a horrible story. They killed one of my cousins classmates in cold blood, and believe me, you haven't heard all that they did. It never came out. If there was ever a hate crime black on white, this was it. I doubt Ms Janine has any children. I actually thought she was a man until I read the caption under the photo, but I don't know if that disqualifies her from having feelings about children. When there's no doubt, then let the bastards fry. The lack of accountability we have in our country at this time is not doing our future generations any favors.


craigers 8 years, 3 months ago

If this guy actually killed the 19 month-old baby, then why is he still allowed to appeal. I don't really care if it was a tie or not.


neopolss 8 years, 3 months ago

That won't happen John1945, as long as we believe in constitutional rights. Its amazing how quickly we dissipate our beliefs in the rights of our citizens when it serves our needs. I think if it were you, you would at least want to get your appeal and make sure that everything was considered.

girlrider, it is cheaper to feed the person and let them sit in prison than execute them. And why let them off the hook so easily? Shouldn't they fend for themselves in prison until they die of old age?

Too much runs on emotion, and we quickly forget that we follow a system that believes in freedom, and giving every man their right. Why the delay? Why NOT a delay I ask. Make sure the decision is the right one, and that there are no loopholes or false IDs. We executed plenty of innocent people, so let's allow them the appeal. If the case is solid, then a few months of waiting isn't going to hurt anyone.


John Spencer 8 years, 3 months ago

John1945, I ask you again , and the rest of you that so fervently want the death penalty; How many innocent people is it ok to kill so that we can kill the guilty?


bankboy119 8 years, 3 months ago

neo, it wouldn't be more expensive if the defendents weren't allowed 100 appeals.

I don't think John was advocating the death penalty for everyone. Mistakes are made but there still should be an express lane, especially in cases where there is no doubt. BTK, he should be done in by the end of next year, but he won't be. He'll be able to sit in jail and live off of taxpayers money for the next 10 years. It's ridiculous. The Carr brothers, they're still sitting living off of taxpayers money when there's no doubt that they're guilty. The laws should be much more strict for cases with 0 doubt about the heinous crimes that these people committed.


badger 8 years, 3 months ago

I think the 'I bet these women don't have children and don't care about them' is pretty dumb, really. Speculating on the personal lives and motivations of strangers is a pretty weak argument.

Perhaps they have children who might be on a jury someday, and be told that if the mitigating factors and negative factors are equal, that tie has to go to the prosecutor even if they would rather not recommend the death penalty. Perhaps they don't want those children to regret decisions they made, because they were uncertain about the case, but the law said that they essentially had to give the death penalty.

They're not arguing that what he did was right, they're arguing that a system of determining if someone gets the death penalty that is only used in Kansas is not a good system. The state Supreme Court has already said it's not.

In fact, nowhere in that article does either of those women say that the death penalty is wrong, just that the formula for determining it in Kansas violates the 8th Amendment.

A lot of people seem to be misreading this article or having information not contained therein. This isn't at all about whether the death penalty itself is right or wrong, it seems to be about the fact that Kansas (as usual) has a way of doing something that no one else does, and that way is muddled, confused, and possibly in violation of the US Constitution.


oxandale 8 years, 3 months ago

When considering the expense of housing a criminal, some of the factors we must consider are legnth of time in jail, re there any health related issues (such as HIV/AIDS, cancer, alzheimers when they get older, just to name a few). Those will add onto the price of housing. Also, as much as i agree with the idea of notwanting to execute a person not guilty of that particular crime, i wonder.. howmany innocent lives must be victimized for this person?


cowboy 8 years, 3 months ago

Heres one for you to chew on , second degree murder , my brother was robbed and stabbed to death many years ago in KC. The guy got 20 years. Why not life ? Drunken drivers who kill folks get 7-15 years.

As far as I 'm concerned anyone who takes a life there is no punishment too severe.


avhjmlk 8 years, 3 months ago

The reason death row inmates are allowed "100 appeals" (bankboy...) is to ensure that their constitutional rights have been protected through the process. What if you were put on death row? Or your brother, mother, sister, father, son, or daughter? Wouldn't you want every possible opportunity to prove their innocence or prove a constitutional violation against them? Or, would you lead the charge to "let the bastards fry", even if the "bastards" include someone near and dear to your heart?


pity2bu 8 years, 3 months ago

What is all the arguing all about here? The medication injections, the bullet and the noose cost less than feeding the idiots.

All the above, cost less than the breakfast, lunch and the supper that they will receive compliments of us for killling someone, oh lest we not forget the snacks in an attempt to rehabilitate.

That's why there are defense attorney's like the two above, they failed at being prosecuting attorney's or they believe in what is known as the SQUISH-HEAD'S SOCIETY DOCTRINE or in common Kansas vocabulary: TREE-HUGGERS. Eastern Kansas is full of them.


badger 8 years, 3 months ago

Squish-Head's Society Doctrine, huh?

Wow. I mean, what possible logic can contradict genius like that? I'm sure I stand corrected. Obviously, I bow to your superior knowledge of these childless, heartless, bleeding-heart failed prosecutorial Squish-Heads and their social doctrine of cookies and juice and hugging the oaks.

You sure did tell us.


bankboy119 8 years, 3 months ago

There are too many appeals allowed. I understand the reasoning. There are too many appeals allowed though. If it takes 100 appeals to say that some one had their constitutional rights protected then there is something wrong with the system. Again, fix the system so there don't need to be so many appeals, have an expressway for the convicted, and stop wasting my money. There are too many appeals allowed.


Jamesaust 8 years, 3 months ago

While these attorneys (and no doubt Phill Kline) do what they do because they are true believers in their cause, the death penalty is not itself the issue.

The LJW does a good job describing the bizarre problem with the statute as written - when in DOUBT, the jury is supposed to go for death anyway. The entire basis of our law (set up long before there was a U.S. let alone a Kansas) is to require certainty before criminal sanction. This involves certainty not only as to guilt but with regard to sentencing.

What mental miniatures in the Legislature wrote this provision? Why no corrective action once the AG warned in 1995 that there was a problem with this provision? Or after the Kansas Supreme Court's warning in 2001? The Legislature has just as much duty to abide by the Constitution and to enforce it as the courts. If the U.S. Court saves their bacon, Kansas will have beaten odds worthy of Vegas. Otherwise, the Legislature will have to do what it should have done a decade ago, and those criminals already sentenced to death will trade the noose for a prison cot.


newssleuth2814 8 years, 3 months ago

I'm typically a proponent for the death penalty, however, in light of some the mistakes made by our justice system, I can be persuaded against it if prisons were made tougher.

I personally like Arizona Sheriff Joe Arpaio's tent prison method where prisoners are made to where pink, live in tents, go without coffee, cigarettes, magazines television and other pleasantries offered in the typical prisons. He also boasts that it's cheaper to house them in the tents and the Arizona heat makes them less likely to cause trouble.

The idea of prisoners suffering in prison this way and cheaper than other prisons appeals to me, especially if they were made to work from sun up to sundown farming and making their own food instead of ciphering it off of the tax payers. If we were to adopt this method instead of coddling the prisoners, I think more people would feel better about justice to know prisoners were actually miserable instead of having money wasted on keeping them comfortable.


commonsense 8 years, 3 months ago

We have our picture in the paper. Notoriety is good. We are extremely committed to the vile dregs in our society and we are unwilling to sit on our hands and watch the senseless execution of these violent criminals. Thank goodness for people like us. Society is better off that these gentlemen have the legal right to remain in prison and burden our taxpayers. And as far as the families are concerned, it's morally right to forgive.


Dani 8 years, 3 months ago

"That's why there are defense attorney's like the two above, they failed at being prosecuting attorney's..."

Or because they believe in civil liberties.

I believe in equal rights and liberties for everyone, but every now and then, when I see comments like these, I wish that the rights and liberties people get would depend on the rights and liberties they would grant other people. I bet we'd be a lot more tolerant society if that we're the case, even if begrudgingly.


grimpeur 8 years, 3 months ago

Poor legislation like the guideline in this case isn't the only reason defenders are needed. If the cases are such open-and-shut winners for the prosecution, then why do they seem to err so frequently? I mean, if they can't handle a sure conviction by the book, how will they handle a more difficult case? Much can be learned about the gravitas and acumen of prosecutors by the way they handle the "slam-dunk" cases. And when they fail in these, how can we be certain of fairness when the guilt of the defendant is less certain?

The reason that they're not put to death immediately should be obvious to anyone who's paid any attention to death penalty issues: because too many innocent people are convicted, and because of the consequent need for post-conviction assessment of the trial and sentencing phases. Furthermore, the historical misapplication of and bias inherent in death penalty statutes (like this one) and sentencing indicates there is a serious problem with the death penalty as used in the U.S.


bankboy119 8 years, 3 months ago

Care to elaborate grimpeur on "why do they seem to err so frequently?" How frequently are you talking? 1 in 2? 1 in 100? 1 in 10000? Also what biases are there in the statutes? If you murder some one you are going to not going to be living much longer anyways? That's really not considered a bias.


badger 8 years, 3 months ago

I've seen more than one trial lawyer say, "I defend these cases because if the people accused of the most horrible crimes, the people who are the most callous, hateful, ugly, and despicable in the eyes of the world, if those people can get a fair trial, that's the only way I can believe that everyone can get one."

The current Kansas law is set up to favor the prosecution in case of a tie, and so it goes against the original design of the US judicial system, and it should be overturned. If people really wanted to make sure the law was solid and protected them without violating the US Constitution - and thus that the death penalty convictions imposed under it would stand - it's been pointed out here (and very well, I might add) that there were several opportunities to do so before this case ended up headed for the US Supreme Court.

The laws are supposed to be set up to favor the defendant in the case of a tie, and with good reason. Many of those who developed our system of laws and courts were in favor of the idea of 'innocent unless proven guilty' because they'd rather live in a society where the guilty were wrongly freed than one where the innocent were wrongly imprisoned, so they set the burden of proof on the prosecution wherever possible.

There is no system that will guarantee that only the guilty will go to prison and only the innocent will go free. We're trying to get as close as we can, but at some point you have to make that choice, to free the guilty or imprison the innocent. We currently err all too often with regard to the latter, because we are too focused on avoiding the former.


neopolss 8 years, 3 months ago

DNA evidence overturning a recent slew of cases has shed new light to me on the justice system. I agree that the BTK case was a fairly cut and dry issue, but so many are not. Just like anything else, even the court system has politics. Evidence is petitioned against by the defense and the prosecution, and often isn't heard by the jury until well after. I could agree on a system without so many appeals if everything was laid on the table the first time. But this is not the case. badger, we are in agreement here.

Really thought people, prison, though it may have coffee and weight rooms, is no picnic. It may not be all day slave labor like it once was, but in no way is doing time an easy thing. Incarceration and fear of punishment is a proven factor in NOT deterring crime. Making it harder isn't going to change statistics. Should one really want to look, crime overall has been on the decline.


christie 8 years, 3 months ago

The death penalty DOES deter crime. It deters someone locked up for life without parole from killing from within or from escaping and killing again.


grimpeur 8 years, 3 months ago

bankboy, good question. The laws are not necessarily biased against only the guilty. Any defendant faces charges under an adversarial system weighted in favor of prosecution in terms of resources dedicated by the state to conducting the trial and publicizing prosecution's press, in terms of political opportunism, and (not unrelated to the foregoing) public perception (e.g. of jury pools).

The state should focus on trying death cases properly, not sensationally or expediently, or it should get out of the death business completely. Consider the ill-advised grandstanding of the Wichita DA and the KS AG during the press orgy surrounding BTK. Surprisingly, no reporter asked during the Rader spectacle what ever became of Roger Valadez, the man wrongly arrested in December and identified in the media as BTK. What if Valadez had been killed within 48 hrs? Who is held responsible? And who ensures this?

The question isn't always, "If you murder some one you are going to not going to be living much longer anyways?" It's: "What happens when innocent people are killed by the state, what happens when it's because of mistakes, what happens when it's because of poor law, what happens when it's because of misconduct or poor judgment, and what happens when these mistakes become apparent?" When the result is years of appeal and endless expense to the taxpayers, then perhaps it's time to reexamine the worth of the death penalty, if any.


yourworstnightmare 8 years, 3 months ago

I have always been bewildered by the fact that the very same people who think the government is intrusive and dysfunctional are gladly willing to cede to the government the power to decide life and death, the ultimate, irreversible "punishment".

I guess the government is dysfunctional only when it comes to doing things that help people. When it comes to criminal prosecution, wars, and covert operations, the government is A-OK.

I personally don't have a problem with violent criminals being put to death. The problem, however, is that our criminal justice system is not perfect and mistakes are made. This has and will result in the death of innocent people. The recent spate of overturned convictions based upon DNA evidence highlights this point.

As per Jamesaust, the legislature should have never made this anti-constitutional tie-goes-to law, and they had ample opportunity to reverse their error after repeated warnings from the court and others. You can thank the intemperate, ideologically-driven Kansas legislature for the suspension of the death penalty in Kansas.

And by the way, who do those judges think they are? What makes them think they have the right to interpret the Constitution, anyway!


yourworstnightmare 8 years, 3 months ago


Abortion also deters crime.


Lynn731 8 years, 3 months ago

John1945, you are so right. Even if the death penalty does not stop crime as a deterrent, the ones killed will certainly not commit any more crimes. I too like Sheriff Joe Arpaio's approach to criminals! I recall a COPS episode when he took the cameras to one tent, and was chastized by the criminals for serving them green bologna. They are lucky they even get that under his watch. He makes them wear pink boxer shorts. We need more guys like him in Kansas. All of our highways are littered, the mowers just mow over it and shred it up. With as many criminals as we have incarcerated, they should be on chain gangs cleaning our highways, and that's just for starters. There are lots of ways they can repay their debt to society instead of working out and watching tv all day in prison. Thank you, Lynn


yourworstnightmare 8 years, 3 months ago

As long as we seem to have no problem putting the innocent to death, I put forth the following modest proposal:

Using actuarial data, we should track those social situations into which children are born who go on to commit the most crime (e.g. the poverty-stricken and rich socialites). Then, we should not allow these groups to breed. If they do get pregnant, we should force them to have abortions.

This would most assuredly reduce crime.


badger 8 years, 3 months ago


That is SO 1729.

Plus, eating them is so totally cooler than aborting them or sterilizing their parents.

I mean, really, nice fat tender bebby roasts up so succulently!


sharron5rs 8 years, 3 months ago

I dont understand . How can anyone defend these guys To kill an INFANT. What kind of MONSTERS can look at a helpless baby and actually take that baby in their hands and KILL IT??? To think of a baby of 18 months and know at that age they are sooo afraid of strangers anyway.Then to be.... These guys have lived long enough. If there is any dna samples left, retest them, if they match, then put them out of OUR misery. Im getting tired of our money being spent on keeping these people around . They evendently dont have any feelings or they couldnt have committed such a crime. I would vote to put the death pentaly back into the works.


Ishmael 8 years, 3 months ago

Some things should be cleared up. First, there is no "tie-goes-to-the-prosecution" provision in Kansas death penalty law. The jury is not instructed to "go for death" when in doubt. That is a construct of the defense. Actually, the jury must first find the defendant guilty of capital murder beyond a reasonable doubt. Then the jury must find that the State has proven the existence of at least one aggravating circumstance beyond a reasonable doubt. Then, the jury must find, again beyond a reasonable doubt, that the aggravating circumstance(s) are not outweighed by any mitigating circumstances. That is how Kansas' death penalty law operates. The idea that there can be some kind of a tie that favors the prosecution is ridiculous.

Also, Kansas is not the only state in the country to use this type of weighing equation - that is that death is appropriate unless the aggravators are outweighed by the mitigators. Several other states have similar systems. Arizona's, which is functionally the same as Kansas', was upheld by the U.S. Supreme Court in 1990.

Also, no one gets 100 appeals. In fact, everyone convicted of a crime regardless of the severity gets the same number of appeals. Generally, that is one direct appeal through the state system, one habeas corpus appeal throught the state system, and one habeas corpus appeal through the federal system. Capital defendant's get no more appeals than anyone else.


Baille 8 years, 3 months ago

"The majority held it was improper for the jury to be instructed, as K. S. A. 21-4624(3) requires, that if aggravating circumstances were found but "not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death." This has the effect of requiring the death penalty even when the aggravating and mitigating circumstances are found by the jury to be in equal balance. The majority stated: "Here the weighing equation not only limits the jury's consideration, it mandates death if the aggravating and mitigating circumstance are equal. As such, it denies what the Eighth Amendment requires: that the jury is to give effect to the mitigating circumstances that it finds exist." Thus, the majority held, the so-called Kansas "weighing equation"Â-which in essence allows a "tie" to go to the stateÂ-violates the federal constitutional prohibitions against cruel and unusual punishment and the guarantee of due process. The court's majority ruled that "fundamental fairness" requires that a "tie" goes to the defendant when life or death is at issue.

The majority opinion noted that the Kansas Attorney General had, without success, in 1995 recommended to the Kansas Legislature that the death penalty statute be amended to require that aggravating circumstances outweigh mitigating circumstances so that if circumstances are equal "tie goes to the defense."

-exceprt from OJA Summary in Kleypas


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