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Blogger Picks Up on Supreme Blunder

Legal bloggers make no bones about telling the Supreme Court it got an opinion wrong. But one astute blogger is pointing out that in one decision last week, the court got its facts wrong. In deciding Kennedy v. Louisiana, holding that the Constitution bars the death penalty for child rape, Justice Anthony M. Kennedy's 5-4 majority opinion relied heavily on a survey of state and federal law. Forty-four states have not made child rape a capital offense, the opinion concluded, and Congress has chosen not to make it a capital offense under any federal law. Justice Samuel Alito's dissent repeated the conclusion that Congress has enacted no death penalty statute for child rape.

Wrong, says Dwight Sullivan at his blog CAAFlog. A colonel in the Marine Corps Reserve who works for the Air Force as a civilian defense lawyer handling death penalty appeals, Sullivan points out that Congress, in 2006, amended the Uniform Code of Military Justice to add child rape to the military death penalty. "That is a congressional statute expressly authorizing the death penalty for the rape of a child," he writes. "How come neither side in the Kennedy case even mentioned it?" His answer to his own question is that the military justice system gets no respect. "If the Kennedy Court's apparent unawareness of the military justice system is any guide, ... military justice remains the Rodney Dangerfield of legal systems."

Let's not be too harsh on the Supreme Court, given that the lawyers missed it too. Writing in the New York Times, Linda Greenhouse says that not one of the 10 briefs filed in the case mentioned the law.

Jeffrey L. Fisher, a Stanford Law School professor who successfully represented the defendant in the case, Patrick Kennedy, said that he and others on the defense legal team, in researching how various jurisdictions treat child rape, had actually looked into what military law said on the subject. All they found was an old provision making rape a capital offense; it predated the court’s modern death penalty jurisprudence, under which the death penalty for the rape of an adult woman was ruled unconstitutional in 1977.

'We just assumed it was defunct,' Mr. Fisher said of the military provision. 'We figured if somebody in the government thought otherwise, we’d hear about it.'

We'd hear about it? I seem to recall a lesson somewhere around the first month of law school about not relying on the other side's research. This is an embarrassing blunder all around. Will it cause the court to reconsider its decision? Unlikely, Greenhouse writes in the NYT, given that a member of the majority would have to change his mind for that to happen.

So how did Greenhouse hear about it? According to Lawbeat, the veteran Times reporter had a little help from her husband Eugene Fidell, a military law expert who saw Sullivan's post this weekend.

Posted by Robert J. Ambrogi on July 2, 2008 at 10:51 AM | Permalink | Comments (0)


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