David Souter, who was appointed by President George H. W. Bush in 1990 and retired in 2009, wrote the dissenting opinion in Kansas v. Marsh. That five-to-four decision held that the Kansas Supreme Court had erroneously set aside a death sentence because the jury had been instructed that they should impose the death penalty if they concluded in the penalty phase of the trial that the aggravating evidence favoring the death sentence and the mitigating evidence supporting a lesser penalty were in equipoise. (Joe Bailey, Collection of the Supreme Court of the United States)