Louisiana has filed a request for a re-hearing in Kennedy v. Louisiana. Lyle Denniston reports, "Louisiana seeks change on death penalty, at SCOTUS Blog.
The petition in Kennedy v. Louisiana (07-343) can be found here.
And:
Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so. The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.
The decision in the Louisiana case, issued on June 25, came on a vote of 5-4, with Justice Anthony M. Kennedy writing for the majority. One of those five would have to support rehearing, presumably along with the four dissenters, for that to happen.
In today's New York Times, Adam Liptak reports, "Louisiana Asks Court to Revisit Rape Laws."
Lawyers for the State of Louisiana asked the United States Supreme Court on Monday to reconsider its decision last month striking down laws that made child rape a capital offense. The lawyers said the court’s decision overlooked two crucial legal developments: a 2006 federal law and a 2007 executive order making child rape a capital crime under military law.
“Both political branches have recently and affirmatively authorized the death penalty for child rape,” the petition said. “Such a clear expression of democratic will, at the very least, calls into question the conclusion that there is a ‘national consensus against’ the practice.”
In his opinion for the majority last month, Justice Anthony M. Kennedy counted up the number of jurisdictions that allowed the death penalty for child rape. Finding only six states, he concluded that “on balance” and in light of “evolving standards of decency,” there is a national consensus against such punishment.
But none of the briefs filed in the case had alerted the justices to the two federal legal developments arguably altering that calculus.
The lead lawyer on the rehearing petition is Neal Kumar Katyal, a law professor at Georgetown University who is usually associated with liberal causes. Professor Katyal represented Salim Ahmed Hamdan in the Supreme Court in a 2006 case that rejected the Bush administration’s initial plans to put Guantánamo prisoners on trial before military commissions.
“I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters,” Professor Katyal said. “Since the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case, so when the State of Louisiana gave me the chance to help, I was happy to accept.”
The Justice Department did not file a brief in the case, Kennedy v. Louisiana, but it did issue a statement expressing regret for failing to tell the court about the 2006 law after the oversight was noted in a military law blog. In a statement on Monday, Erik Ablin, a spokesman for the department, said lawyers there would review the petition and consider whether to seek the court’s permission to offer the government’s views on the case.
Jeffrey L. Fisher, a law professor at Stanford who represented the defendant in the case, Patrick Kennedy, said “rehearing is completely unnecessary.” Military law does not apply to Mr. Kennedy, a civilian, Professor Fisher said, and Congress has not made child rape a capital offense for civilians.
"Louisiana asks court to reopen child rape case," is Mark Sherman's AP dispatch, via Google News.
Louisiana prosecutors asked the Supreme Court on Monday to revisit its recent decision outlawing the death penalty for people convicted of raping children.
The unusual request is based on the failure of anyone involved in the case — lawyers on both sides as well as the justices — to take account of a change in federal law in 2006 that authorizes the death penalty for members of the military who are convicted of child rape.
The court almost never grants such requests, but lawyers for Louisiana said their situation was different because the 5-4 decision written by Justice Anthony Kennedy relied in part on what Kennedy called a "national consensus" against executing convicted rapists.
The ruling on June 25 drew harsh criticism from politicians in Louisiana and other states where executing those who rape children was authorized or under consideration. Presidential contenders John McCain and Barack Obama also said they disagreed with the outcome of the case.
But only in the days following the decision did anyone point out that Congress changed the law and that President Bush signed an executive order in September 2007 that implemented the change. It was first discussed on a military law blog.
Louisiana "regrettably did not know of this federal provision," the state's lawyers wrote Monday. "This was a significant error, for which (Louisiana) accepts full responsibility."
The New Orleans Times-Picayune has, "Review sought of child-rape case ruling," by Paul Purpura.
Jelpi Picou, director of the Capital Appeals Project in New Orleans, which helped in Kennedy's appeal, said "the rehearing is really uncalled for."
He said the military's law allowing the execution of child rapists predates 1977, when the Supreme Court banned the death penalty for the rape of an adult. Congress two years ago merely amended the law to say that consent was not a defense, Picou said, though the military has not executed a child rapist since 1961.
"I think that the majority is not going to be swayed by the clarification" to the military law, Picou said. "And I don't think the minority missed anything."
Carl Tobias, a University of Richmond, Va., law professor not involved in the Kennedy case, said Connick has "certainly a valid reason" to seek a rehearing, but justices rarely grant them.
"I'm not sure if that one reason will be sufficiently compelling to overturn the entire case, " Tobias said.
Earlier coverage is here.
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