Legal News

After Blog Report, High Court Might Reconsider Child Rape Case

By Dan Slater

It would give us great satisfaction to see a legal news blog cited in a Supreme Court opinion. It could happen.

As the WSJ’s Jess Bravin reports, the High Court said it might reconsider its June decision that struck down the death penalty for crimes that fall short of murder. At issue in the case was the constitutionality of a Louisiana statute authorizing a death sentence for the rape of a child. In a 5-4 decision, the court found that capital punishment for the crime violated the Eighth Amendment prohibition of “cruel and unusual punishments.”

In finding the penalty excessive, Justice Kennedy’s majority opinion noted that neither the U.S. government nor the overwhelming majority of states permit capital punishment for child rape. Kennedy relied on briefs filed by Louisiana and the U.S. Justice Department.

But DOJ lawyers overlooked a 2006 amendment to the Uniform Code of Military Justice authorizing death for certain sexual assaults on children under age 16. The error was found by Dwight Sullivan, an attorney and Marine Corps Reserve colonel and military-justice blogger. Louisiana and the Justice Department asked the court to reconsider the decision.

Who pointed out the oversight? As we noted in July, 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, wrote on his blog, in a post entitled “The Supremes Dis the Military Justice System,” that, in 2006, Congress revised the sex crimes section of the Uniform Code of Military Justice 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.

In an unsigned order late Monday, the Court asked both the Justice Department and lawyers for the child rapist, Patrick Kennedy, to file briefs by Sept. 17 on the relevance of the military statute and whether a new hearing should be ordered. It takes five votes to order a rehearing, and at least one justice in the majority would have to switch sides to change the decision.

Full post as published by Law Blog - WSJ.com on September 09, 2008 (boomark / email).