Arguments Before the Kansas Supreme Court

The Wichita (Kansas) Eagle carries an AP report, "One word at core of death penalty case."

Kansas' death penalty law could come down to a single word in the state's constitution.    

An attorney for convicted murderer Wichitan Gavin Scott argued before the Kansas Supreme Court on Tuesday that the word--"or" -- allows the high court to strike down the state's death penalty law again.

The state Supreme Court invalidated the death penalty law in December 2004, but the U.S. Supreme Court upheld it as constitutional in June 2006.

The Kansas court is now considering the appeal of Scott, sentenced to die by injection for the shootings of Doug and Beth Brittain as they lay in bed in their rural Goddard farmhouse in September 1996. An accomplice was sentenced to 80 years to life in prison.

Scott's attorney, Rebecca Woodman, told the justices that they could invalidate the death penalty law over the same issue that was before the U.S. Supreme Court when it ruled in June 2006. She said that's because the state constitution bans "cruel OR unusual" punishment and the federal constitution prohibits "cruel AND unusual punishment."

The small difference in wording means the state constitution offers more protection to defendants than the federal constitution, Woodman said.

"This court, in interpreting its own state constitutional provisions, is not bound by the U.S. Supreme Court decision," said Woodman, a state capital appellate defender. "If it were, the state's highest court, this court, would simply forfeit its power to interpret its own constitution to the federal judiciary."

But Stephen McAllister, the state's solicitor general, said the Kansas court has said repeatedly in past rulings that the differences in the state and federal constitutions' bans on cruel and unusual punishment aren't significant.

"There's no indication that the people at the time the constitution was adopted would have thought that 'or' made any legal difference," McAllister said. "The problem in this case... is a reluctance to accept what the Supreme Court of the United States resolved."

Yesterday's preview, with links to Marsh v. Kansas, is here.