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September 24, 2008

Louisiana files final Kennedy rehearing petition brief

As detailed here at SCOTUSblog, Louisiana today filed its final brief before the Supreme Court decides whether to rehear the Kennedy child rape case.  This last brief is available at this link, and here is part of Lyle Denniston's summary:

The new brief went to considerable lengths to try to persuade the Court that the fact that an existing federal law on death penalty for child rape was only a military law, binding in that sector alone, should not make a difference in judging whether it contributes to a “national consensus” in favor of the penalty....

The brief, taking note of the fact that the Court, in judging other crimes and their eligibility for the death penalty, had cited foreign law for guidance, argued that “the failure to consider domestic military law would a fortiori call into question any reliance on the laws and practices of foreign jurisdictions.”

Louisiana also sought to inject a bit of politics into its argument that there is a building consensus in favor of the death sentence for child rape.  It included in its appendices statements from presidential candidates John McCain and Barack Obama criticizing the ruling in Kennedy v. Louisiana.  Also included was a July 10 letter, written to members of the Court, by 85 members of Congress urging the Court to reconsider the decision because of the omission of the military law on the subject.

I continue to predict that the Supreme Court will ultimately deal with all these issues through an amended opinion that adds discussion of military law, but does not change the sum or substance of the Kennedy ruling.  But, then again, who knows what mischief might lie in the hearts of Justices in Kennedy.

Some related posts the Kennedy ruling and a possible rehearing:

September 24, 2008 at 05:10 PM | Permalink

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The last brief is in on the question of whether Kennedy v. Louisiana should be reheard. From Louisiana's new brief:Military law is American law. Yet the briefing to this Court continues to be marred by misstatements that demonstrate an inattention [Read More]

Tracked on Sep 25, 2008 12:18:29 AM

Comments

I wholly fail to understand how a death penalty for a child rapist is anything but a death sentence for the child?

I have 30+ years dealing with crooks as a criminal defense lawyer--hence having to be anon. They know the risk and will act accordingly.

JA

Posted by: Joe Anon | Sep 24, 2008 11:24:36 PM

Joe Anon: Unless, of course, the child rapist is deterred from doing it in the first place by the DP.

Plus, Joe Anon, doesn't the justice delivered to baby-rapers in the joint also increase the likelihood that the child rapist kill his victim. A life of enforced analingus without the benefit of Charmin I would imagine, is, in the twisted mind of a criminal, reason to kill the child victim.

Posted by: pa | Sep 25, 2008 12:21:12 AM

Joe Anon: Unless, of course, the child rapist is deterred from doing it in the first place by the DP.

Plus, Joe Anon, doesn't the justice delivered to baby-rapers in the joint also increase the likelihood that the child rapist kill his victim. A life of enforced analingus without the benefit of Charmin I would imagine, is, in the twisted mind of a criminal, reason to kill the child victim.

Posted by: pa | Sep 25, 2008 12:21:31 AM

I'm amazed that it was a blogger who pointed out the oversight of the state of Louisiana, the Department of Justice, Kennedy's attorney, and the Justices of the Supreme Court. It's interesting to see how much of an impact blogs can have in the legal world. For further commentary, see http://jolt.unc.edu/blog/2008/09/12/will-blog-justice.

DAB - I'm a 2nd year law student.

Posted by: Julie | Sep 30, 2008 9:54:09 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB