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July 20, 2008

Is LA Gov. Jindal about to flip-flop on capital child rape?

As reported here at SCOTUSblog, tomorrow "is the deadline to seek rehearing in Kennedy v. Louisiana (07-343), though there has been no indication the state of Louisiana will seek rehearing...."  I will be very disappointed if Louisiana does not petition for rehearing, especially given that, as detailed here, Governor Bobby Jindal has stated in this official press release that the Supreme Court "got this case wrong, plain and simple" and that he "will do everything [he] can to see that this decision does not stand."  I am hoping that Governor Jindal will stay true to his word and have his state at least ask the Justices for rehearing in Kennedy.

I am not sure that the Justices will or even should grant rehearing in Kennedy, but I am sure that there are lots of justifications for Louisiana filing a rehearing petition.  The Washington Post stressed in an editorial discussed here why the error the Kennedy decision made about federal law alone justifies rehearing:

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision.... [T]his is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

Moreover, as some commentary has highlighted, both major candidates for President disagreed with the Kennedy court's ruling, and recent poll data (discussed here at The Volokh Conspiracy) indicate that a significant majority of Americans support child rape being a death eligible crime.  In other words, the assertion that there is a national consensus againt capital child rape looks much worse now than it did just last month. 

Whether or not there is a reasonable chance that the Supreme Court grants rehearing and/or reconsiders the merits of its decision, I think it is very important for Governor Jindal to follow up his blustery court-bashing with an actual legal filing.  As I have suggested in this prior post, it would be sad and telling if Gov. Jindal's comments were only intended to score anti-SCOTUS political points and he does not have enough conviction in his own assertions to bring his complaints directly to the Court.  (Notably, Gov. Jindal's slogan on his official website is "I'm asking you to once again believe in Louisiana."  I will never again believe in him if he does not have his state petition for rehearing in Kennedy.)

Some related recent posts:

Cross-posted at Prawfs

UPDATE:  No flip-flops; as detailed here, Louisiana has now petitioned for rehearing in Kennedy.

July 20, 2008 at 04:57 PM | Permalink


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» Louisiana Asks for Kennedy Rehearing from Sex Crimes
Maybe it was Berman challenging Governor Jindal to keep to his word, but whatever the cause, Louisiana filed a motion for rehearing today in Kennedy. SCOTUSBlog has the details and the motion. I'm still in light-blogging mode as I try [Read More]

Tracked on Jul 21, 2008 8:36:53 PM


What makes you believe that Gov. Jindal has any legal authority over the litigation of this case? La. law provides that the parish DA has sole authority over appeals in criminal cases such as this one. That a governor lacks direct authority over litigation isn't unusual (indeed, you home state of Ohio has similar provisions). Obviously, the Gov. would have persuasive or political authority, and there's nothing you've pointed to to show that the Gov. hasn't, in fact, done "everything [he] can" to see that the State seeks rehearing. You should become better informed before you start into the hyperbole, Professor.

Posted by: SC | Jul 20, 2008 6:01:45 PM

SC: Are you saying that the LA governor, representing all the state's citizens and with the presumed backing of the state's legislature, cannot ensure that state lawyers do not file a rehearing petition?

And if that really is the case, shouldn't Gov. Jindal make a public statement stating that he has formally called for resentencing? After all, if the SCOTUS decision is "wrong, plain and simple," what sensible justification could the local DA have for not seeking rehearing? After all, the Wash Post has already written the heart of the petition via its recent editorial.

As for my hyperbole, I am just trying to keep Gov. Jindal to his word. Perhaps you and he and everyone else is content with this expression of outrage and then an unwillingness to follow up. But I am (perhaps naively) still eager to take seriously any words and commitments of political leaders.

Posted by: Doug B. | Jul 20, 2008 7:57:44 PM


Jindal has officially "encouraged" the DA and the AG "both to seriously review these new facts and consider petitioning the court for a rehearing," according to this press release: http://www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&catID=2&articleID=290&navID=3

However, I tend to think that Jindal is just trying to score anti-SCOTUS and tough on crime political points. He didn't seem to care about the issue at all until AFTER SCOTUS released its decision.

Posted by: D | Jul 20, 2008 9:08:43 PM

It appears that the people who will decide about seeking rehearing are Louisiana Attorney General Buddy Caldwell, and Distict Attorney Paul Connick. Unlike Jindal, they are both Democrats, so if those dopes decide to roll over and play dead then I'm not sure Jindal could really be blamed at all.

Posted by: Andrew Hyman | Jul 20, 2008 11:35:15 PM

Are they dopes for being Democrats or do you actually have a reason to think they are dopes?

Posted by: D | Jul 21, 2008 2:52:23 AM

Professor, in many states, this is the case. The governor cannot order a local DA to do anything. Think of an extreme case: if you were a local DA, and you lost at trial. What would you if the governor “ordered” you to appeal it? Could you really be ordered to do this even though it would be professionally irresponsible and a waste of money?

What is sort of interesting about this, is that in some states there are old statutes which attempted to codify the governor’s power to *end* a prosecution by the issuance of an gubernatorial writ of nolle prosequi. To my knowledge, there is no ancient writ that does the opposite.

Anyway, Mr. Hyman, and others, let’s be realistic. The Supremes are not going to change their mind on this. People need to get over the fact that poor blue-booking and IRACing by the state made them lose their case.

Posted by: S.cotus | Jul 21, 2008 6:32:21 AM

I meant they're dopes for not requesting rehearing and/or for not noticing the federal law.

Come to think of it, the better approach might be to not request rehearing. That would only allow the slim majority to beef up and correct its opinion, while unequivocally striking down the federal statute. The more clever approach might be to leave things be, hope that McCain gets elected and appoints some SCOTUS judges, who could then easily overturn the decision given that it was decided on faulty premises.

Posted by: Andrew Hyman | Jul 21, 2008 10:17:22 AM

My point about the hyperbole is that it appears as though there's nothing inconsistent in what Gov. Jindal has done and all you've pointed to is his apparent inability to persuade independent officeholders to file a (pointless) rehearing petition.

S.cotus is correct that many states strictly limit (or altogether exclude) gubernatorial authority over criminal litigation, but that often extends to civil litigation on behalf of a state as well. There are probably 50+ different models for this, but generally speaking, unless an AG or DA is a gubernatorial appointment a governor has only her bully pulpit to influence litigation policies. The NAAG used to publish a book on the powers of the various state AGs, but I don't know if the NDAA has a similar publication on the division of prosecutorial power in state governments.

Posted by: SC | Jul 21, 2008 10:39:14 AM

I can't tell if Prof. Berman is being serious or not. I hope not.

Posted by: | Jul 21, 2008 11:13:08 AM

FYI: http://www.scotusblog.com/wp/louisiana-seeks-change-on-death-penalty/

Posted by: unknown | Jul 21, 2008 6:11:29 PM


Posted by: | Jul 21, 2008 6:40:21 PM

I don't know whether Louisiana has included this in its petition for rehearing, but a Quinipac poll released four days ago shows that Americans support the DP for child rape by 55 - 38.

The majority's idea that there is a national consensus against capital punishment for child rape thus turns out to be wrong, and not merely, or even primarily, because of the omission of the federal statute from the Court's analysis.

Of course this won't make any difference, because the notion that the Court's majority is even slightly guided by public consensus is baloney. The majority was guided by its own impenetrable sense of self importance. The now-exposed phony "public consensus" was made up in a surprisingly weak effort to cover up this fact.

Posted by: Bill Otis | Jul 21, 2008 7:26:02 PM

Yes, the poll is in a footnote.

Posted by: Andrew Hyman | Jul 21, 2008 7:35:54 PM

Ha ha. Americans “support” what we tell them to support. Since the average American is too stupid to go to law school, yet alone defend someone accused a death-eligible crime, their opinions are worthless and irrelevant.

They are welcome to try and change the constitution. But last time we told them to do this, they seemed more interested in banning flag-burning and gay marriage. And, they really don't care about that stuff, either.

So, if they people really wanted to kill convicted child rapists, they would have changed the constitution. But they didn’t. So, the people have spoken. You must learn to accept the democratic process.

Posted by: Scotus | Jul 21, 2008 10:26:14 PM

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