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July 2, 2008

Ineffective assistance (by prosecutors) in Kennedy child rape case?

Linda Greenhouse has this fascinating follow-up to the Supreme Court's ruling in the Kennedy case declaring unconstitutional state efforts to make child rape a capital crime.  The article is headlined "In Court Ruling on Executions, a Factual Flaw," and here is how the article starts:

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court.  Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it.  The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.

In addition to being very proud of the work of a fellow law blogger — in this case, "Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals" and who deserves lots of extra traffic for his post, The Supremes Dis the Military Justice System — I cannot help but enjoy the broader irony in this story. 

Usually, the story is that poor lawyers by the defense team in part explains why a defendant got sentenced to death.  This time, it would seem, poor lawyers by the prosecutors in part may explain why a death sentence was found unconstitutional.  (Of course, I seriously doubt the outcome would have been different even if the Justices had all their facts right.)

July 2, 2008 at 02:53 PM | Permalink


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How in the world can someone argue that the nation's sense of decency has evolved to a point where the execution of a child rapist is "indecent" when the national legislature has specifically authorized the punishment?

Posted by: federalist | Jul 2, 2008 3:07:23 PM


Because the abolitionist movement has defined itself as "decent" and its opposition as "indecent."

To say this is an act of stupendous self-congratulation and arrogance hardly does it justice.

Posted by: Bill Otis | Jul 2, 2008 3:56:55 PM

The Supreme Court has some serious egg on its face.

Posted by: federalist | Jul 2, 2008 4:12:39 PM

Specifically, Justice Kennedy, who harangued a lawyer at oral argument earlier this term for inaccurate statements in a brief, has egg on his face.

I posted on this over at VC.

Posted by: Alex Blackwell | Jul 2, 2008 4:29:35 PM

I wouldn't want to be the clerk who was tasked with doing the statutory survey.

Posted by: Bill Otis | Jul 2, 2008 5:06:44 PM

[How in the world can someone argue that the nation's sense of decency has evolved to a point where the execution of a child rapist is "indecent" when the national legislature has specifically authorized the punishment?]

Because the national legislature is indecent.

That one was easy.


Posted by: Dr Nigel Leigh Oldfield | Jul 2, 2008 5:07:55 PM

ok, Nigel, but the idea is the view of the society, not your personal opinion.

Posted by: federalist | Jul 2, 2008 5:10:46 PM

This is great. Pretty big f'up all the way around. I imagine Greenhouse loved having this as one of her final stories.

Posted by: Bwahahah | Jul 2, 2008 6:00:07 PM

I am sure that the result would be totally different if the UCMJ DP for child rape (never applied) was factored in.

Posted by: S.cotus | Jul 2, 2008 6:39:41 PM

I am 'society'.

Although, not yours, thankfully (for us both, I guess) :)


Posted by: Dr Nigel Leigh Oldfield | Jul 2, 2008 7:29:58 PM

S.cotus, when you say "never", you must mean not applied after 2006, when Congress passed the law.

In any event, we know that this wouldn't have changed the outcome, but it would have been funny to see the contortions of Justice Kennedy trying to argue that an enactment of Congress authorizing the death penalty for rapers of children was contrary to a "national consensus" as expressed through legislation. The national legislature spoke, and it didn't think the DP for child rapists beyond the pale. Five lawyers did, and so they voted that way.

Posted by: federalist | Jul 2, 2008 8:14:23 PM

I think it is pretty clear that the state lost in Kennedy because of a failure to adequately IRAC and bluebook. I put this completely at the feet of the lawyers. They were ineffective advocates.

Posted by: S.cotus | Jul 2, 2008 9:14:42 PM

S.Cotus writes:

"I think it is pretty clear that the state lost in Kennedy because of a failure to adequately IRAC and bluebook. I put this completely at the feet of the lawyers. They were ineffective advocates."

I don't expect anyone at the DoJ will put two and two together and chalk this up to a policy of hiring based on Regent University and Federalist Society credentials, rather than merit.

On the bright side, conservatives are showing the world just how dreadful affirmative action programs can be--by example (admittedly with a creative take on the notion of a "protected class").

Posted by: Branden R. | Jul 3, 2008 4:07:49 AM

Branden R.:

What is your evidence that Federalist Society members lack sufficient qualifications on the merits to warrant being hired at DOJ?

My understanding of the canons of ethics is that BOTH sides have an obligation to bring to the court's attention relevant authority, which would certainly include the military law on child rape. Did defense counsel meet that obligation, either in the brief or in their Supreme Court argument?

Of course the principal responsibility for the blunder rests with the Court's majority, which used the (we now know) exaggerated claim of a national consensus against the death penalty for child rape as a key part of the analysis to support its outcome.

The majority consisted of Souter, Breyer, Ginsburg, Stevens and Kennedy.

Which of them is a member of the Federalist Society? I think the answer is zero. If you know differently, I'm all ears.

Indeed, Ginsburg is a former general counsel of the ACLU. Should we avoid confirming to the Supreme Court ACLU members because she, like her comrades in the majority, missed this?

More generally, why do you take a pass on criticizing those most responsible (the justices in the majority) to take a crack at those who were less responsible?

If a point be made of it, DOJ was NOT A PARTY TO THE CASE. It therefore had no obligation to say anything. This is by no means to excuse its blunder; once it chose to come in as an amicus, it should jolly well have done its homework. My point is simply that there were other and more directly involved people who also didn't do their homework, but you haven't a word of criticism for them.

Why is that?

Posted by: Bill Otis | Jul 3, 2008 8:39:48 AM

My post above contains an error. It is true that the United States was not a party, but, contrary to what I said, it did not file an amicus brief either.

This does not mean it didn't make a mistake. The SG is supposed to defend the federal government's interests in Supreme Court litigation, and it failed to do so here.

That said, it remains the case that it is primarily the duty of the parties to file comprehensive briefs, and of course it's the paramount duty of the Court itself to get it right.

Each justice has three or four clerks. That means that among the five justices in the majority, there were between 15 to 20 clerks. That not one of them saw the omission is very unfortunate.

Posted by: Bill Otis | Jul 3, 2008 10:14:19 AM

Bill, For what it's worth, when I was in law school, I had one resume with my "Federalist Society" credentials and one with my ACLU credentials. Everyone was fooled to the point of people commenting on my obvious talent.

Posted by: S.crotus | Jul 3, 2008 2:21:44 PM


You force me to confess that I was in law school before the Federalist Society was founded.


Posted by: Bill Otis | Jul 3, 2008 3:19:09 PM

Bill - given that military Law and civilian law is way different, the government may have been aware of the law and thought that Kennedy would not effect them. It also seems that there is nothing in the Kennedy decision that precludes the application of capital punishment for an offense that does not result in death in an military law so it is not for certain that the UMCJ provision has been struck down. Obviously, if Louisiana files a motion for reconsideration it might make a difference, but no one seems to seriously believe that it will (quite simply, the majority can simply insert a footnote saying they are making no decision based on military law in this case and wait to see if the issue ever arises).

I also am rather skeptical that the existence of a law so obscure that apparently no one knew it existed proves much of anything beyond that sometimes Congress passes laws which not even they know what they say.

Posted by: Zack | Jul 3, 2008 3:22:06 PM

I'd love to see that at argument--gee your honor, Congress passed this law, but they didn't know what they were doing.

Posted by: federalist | Jul 3, 2008 4:39:15 PM

Well, maybe that is why some judges give very little or no weight to legislative history.

Posted by: Zack | Jul 3, 2008 5:54:15 PM

Well, I'd be happy to junk the "evolving standards of decency" and just go back to 1868.

Posted by: federalist | Jul 3, 2008 6:16:26 PM

"Well, I'd be happy to junk the 'evolving standards of decency' and just go back to 1868." Fine by me. Let's also junk the internet, safe medicine, and Trial Director.

Posted by: S.crotus | Jul 7, 2008 11:22:55 AM

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