	Introduction

The six capital punishment decisions which were decided during the 2005-2006 Term involved issues concerning: (1) a challenge to the lethal injection protocol as cruel and unusual punishment in violation of the 8 th Amendment ( Hill v. McDonough) , (2) constitutionality of a death penalty state statute that requires death if plus and minus factors are in balance ( Kansas v. Marsh ), (3) whether petitioner's compelling new evidence, though at the very least a colorable claim of actual innocence, was as a matter of law insufficient to excuse his failure to present that evidence before the state courts ( House v. Bell ), (4) disagreement among the courts regarding whether witness testimony was "mitigating evidence" (designed to spare the 18 year old from lethal injection) or "alibi evidence"(that went directly to whether the defendant was guilty) which should have been presented during the guilt or innocence phase of the trial ( Oregon v. Guzek ), (5) whether State's law governing admissibility of third-party guilt evidence violates the capital defendant's constitutional right to present a complete defense premised on due process, confrontation, and compulsory process clauses ( Holmes v. South Carolina ), and (6) whether a new trial is warranted if two of several aggravating factors found by the jury are later held to be invalid ( Brown v. Sanders ). In three cases the Court kept alive the appeals of the death row inmates in Florida, Tennessee, and South Carolina. In the other three cases, the Court affirmed the States' death penalty sentences. § 1983, which provides a cause of action for civil rights violations, rather than under the habeas corpus provisions. The petitioner (Hill) challenged Florida's injection protocol under 42 U.S.C. They declined to reach, however, the question left open in Herrera , whether the Constitution precludes execution of an "actually innocent" defendant found guilty and sentenced in a constitutionally adequate trial. Kansas v. Marsh42

On June 26, 2006, the Supreme Court narrowly upheld the death penalty in Kansas in a 5-4 decision which reversed the Kansas Supreme Court and ruled that the Kansas' death penalty statute does not violate the Eighth or Fourteenth Amendments when it allows imposition of the penalty should the jury determine that the aggravating and mitigating factors are of equal weight. In Walton , the Court held that a state death penalty statute may give the defendant the burden to prove that mitigating circumstances outweigh aggravating circumstances. Oregon tried Guzek, who was 18 at the time he was convicted, for the offense of capital murder. The Court reasoned that states may put reasonable limits on the evidence a defendant may present.
During the 2005-2006 Term, the Supreme Court gave favorable decisions to the defendants in three out of the six death penalty cases it announced. In Hill v. McDonough, the Court ruled unanimously that the method-of-lethal injection claims can be brought under 42 U.S.C. § 1983 rather than under the habeas corpus statute (28 U.S.C. §2254). In House v. Bell, a case involving a death row inmate who claimed that DNA evidence proved he did not commit the crime for which he was found guilty, the Court found in a 5 -3 ruling that the petitioner had satisfied the "gateway" standard for habeas review, but left open the question of whether the Constitution precludes execution of an "innocent" defendant found guilty and sentenced following a constitutionally adequate trial. In Holmes v. South Carolina, the Court unanimously held that a capital defendant cannot be denied the right to introduce evidence of third party guilt. The other cases, in which the Court upheld application of state death penalty statutes, appear to reveal a greater division among the justices over the fairness of capital punishment. The 5-4 decision in Kansas v. Marsh centered around a debate concerning capital punishment as much as it did a ruling on the unusual statute in Kansas which provided that juries should sentence a defendant to die – rather than serve life in prison – when the evidence for and against imposing death is equal. In Brown v. Sanders, a second 5-4 decision, the Court upheld the petitioner's death sentence even though two of the sentencing factors presented to the jury were declared invalid. In Oregon v. Guzek, the Court held that states may reasonably refuse to allow convicted capital defendants to offer alibi evidence for the first time at the sentencing phase of their trials; two Justices would have permitted the exclusion of any evidence at sentencing that cast doubt upon the jury's guilty verdict, but the majority were obviously unwilling to go that far.