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Court Seeks Briefs on Rehearing Capital Case
La. and Justice Cite Change by Congress

By Robert Barnes
Washington Post Staff Writer
Tuesday, September 9, 2008

The Supreme Court yesterday ordered briefs on the question of whether it should reconsider its June decision that it is unconstitutional to impose the death penalty on those who rape children.

The state of Louisiana and the Justice Department have asked the court to reconsider the 5 to 4 decision because the court was not made aware of what they consider a crucial development: that Congress in 2006 made child rape a capital offense under military law.

No one presented that fact -- it seems none of the parties knew at the time that it existed -- when the court said in June that there was no evidence of a national consensus in favor of putting child-rapists to death. The court further found that in its "independent judgment," child rape could not be compared to murder in terms of warranting the death penalty.

Justice Anthony M. Kennedy wrote the opinion, joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. It provoked a sharp dissent from the other four justices and was among the most controversial of the term. Presidential candidates John McCain and Barack Obama criticized the ruling.

The decision overturned the death penalty for Patrick Kennedy, 43, who was convicted of raping his 8-year-old stepdaughter in Louisiana in 1998. Justice Kennedy noted in his opinion that Louisiana is one of six states that allowed the death penalty for the crime.

Louisiana did not note in its briefs the little-known change Congress made to military law provisions or the addition of the provision to the Manual for Courts-Martial by President Bush, in an executive order.

The Justice Department admitted its error in not seeking to join the case or advising the court of the law.

This summer, the department and Louisiana asked the court to rehear the case.

"The United States regrets that it did not previously bring those pronouncements to the court's attention," Acting Solicitor General Gregory G. Garre wrote in a petition. "Because the court did not have a complete description of the relevant legal landscape, the court's decision rests on an erroneous and materially incomplete assessment of the 'national consensus' concerning capital punishment for child rape. That error undermines the foundation for the court's decision."

The court yesterday requested briefs from Kennedy's attorney, the state of Louisiana and the Justice Department "addressing not only whether rehearing should be granted but also the merits of the issue raised in the petition for rehearing."

The court gave the parties a relatively short time frame, indicating that it wanted to rule on the issue at its opening conference of the term, scheduled for Sept. 29.

The court has several options, including rehearing the case, adjusting its opinion or simply denying the rehearing request. It would require the vote of at least one of the justices in the majority to rehear the case.

The existence of the military law came to light only because a civilian Air Force lawyer, Dwight Sullivan, noted it in his military law blog after the decision. "The Supremes Dis the Military Justice System," Sullivan wrote on his CAAFlog blog. His report led to a front-page New York Times article on the omission.

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