updated 12/20/2004 7:20:04 PM ET 2004-12-21T00:20:04

The Kansas Supreme Court agreed Monday to put on hold its ruling throwing out the state’s death penalty law. The delay will allow the state attorney general to pursue an appeal to the U.S. Supreme Court.

The Kansas court deemed the death penalty law unconstitutional Friday based on what it called flaws in how juries weighed evidence for and against death sentences. The court said in its 4-3 decision that the law was weighted against defendants and must be rewritten by legislators.

In a dissent, Chief Justice Kay McFarland noted that all seven justices had previously found the law constitutional and said that to strike it down was “wholly inappropriate and unjustified.”

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

Serial killer would be spared
Attorney General Phill Kline immediately sought a stay following the court’s ruling, which invalidated the death sentences for the six convicted murders on Kansas’ death row, including a serial killer and two brothers convicted in a notorious mass shooting in Wichita.

Kline said Monday that he hoped the U.S. Supreme Court would take the case because even if the Legislature rewrote the law, it would not apply retroactively to the six men on death row or perhaps other defendants.

He said, however, that the high court review might be a long shot. “It is a very narrow window,” he said.

The Kansas court ruled Friday in the appeal of Michael Marsh II, who was convicted of fatally shooting a friend’s wife and setting a fire that killed her toddler daughter.

State-by-state executions

The court did not explain Monday’s decision issuing the stay.

Legislators have said they want to rewrite the capital punishment law during their 2005 session to fix the flaw identified by the court. Legislators convene Jan. 10.

Senate Judiciary Committee Chairman John Vratil said that while he wanted to proceed carefully “to make sure we don’t get it wrong,” he saw no reason to wait for the U.S. Supreme Court.

“This is something we know how to fix if we want to fix it,” he said.

The Kansas court said the law gave prosecutors an advantage when jurors were asked to balance aggravating and mitigating circumstances at sentencing. 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.

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