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U.S. Supreme Court to hear 2nd Kansas death penalty appeal

  • The Wichita Eagle
  • Published Monday, Feb. 25, 2013, at 11:10 a.m.
  • Updated Wednesday, Oct. 16, 2013, at 10:21 a.m.

For the second time since the state’s capital murder law was reinstated in 1994, the United States Supreme Court has agreed to hear the appeal of a death sentence that was overturned by the Kansas Supreme Court.

Kansas Attorney General Derek Schmidt said the nation’s highest court will decide whether the state Supreme Court acted properly when it overturned the death sentence imposed on Scott Cheever, who was convicted of the 2005 murder of Greenwood County Sheriff Matt Samuels.

The state court overturned Cheever’s conviction in August, ruling that prosecutors violated his right against self-incrimination when they allowed an expert witness to testify about the results of a mental exam that Cheever was required by a judge to take.

The Fifth Amendment does not prevent a judge from ordering a defendant to submit to a mental exam, the state court ruling said, but it does prevent the state from using the exam against the defendant at trial.

When he announced in September that he was appealing that ruling, Schmidt said he didn’t think the state court ruling correctly reflected the requirements of the Fifth Amendment.

Cheever’s appeal involves the testimony of New York University forensic psychiatrist Michael Welner, who testified as a rebuttal witness after a defense expert told a Greeenwood County jury that Cheever’s use of meth kept him from making sound decisions. Welner conducted the court-ordered mental exam of Cheever.

“He made a decision to shoot when he did,” Welner told the jury. “And when he stopped shooting, he made a decision to stop shooting.”

The jury convicted Cheever of capital murder on Oct. 30, 2007, then sentenced him to death two days later.

Witnesses said Samuels, who had a warrant for Cheever’s arrest, went to a home in the town of Virgil where Cheever and others had been manufacturing and using meth. Cheever hid in a bedroom upstairs and shot Samuels as he climbed the stairs.

In the earlier death penalty case, the U.S. Supreme Court voted 5-4 in 2006 to reverse a Kansas Supreme Court ruling in the case of Michael Marsh. The federal court said in that case that juries can impose death sentences if aggravating evidence of a crime’s brutality and mitigating factors behind a defendant’s actions are equal in weight. The state court had reasoned that all things being equal, the sentence should not tip toward execution.

Marsh was charged with breaking into a home in the 1700 block of South Washington on June 17, 1996, with the intention of committing a robbery. Once inside, he shot and stabbed Marry Ane Pusch, then set a fire that resulted in the death of her 18-month-old daughter, Marry Elizabeth.

Marsh, initially sentenced to death, was resentenced in 2009 to life in prison.

Kansas hasn’t carried out an execution since 1965.

Reach Hurst Laviana at 316-268-6499 or hlaviana@wichitaeagle.com.

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