"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, April 16, 2008

Gestalt Jurisprudence: Guaranteeing Employment for Activist Lawyers Since 2002

The SCOTUS is hearing arguments today in a child rape case where the rapist and his death penalty abolition friends (the ACLU, the National Association of Crim Def Lawyers, and others) are urging the Court to rule that the people of Louisiana can not decide that a jury should be able to punish a child rape with death.

The case is Kennedy v. Louisiana, and unlike the claim of the National People's Radio summary I heard on the radio this morning, the facts clearly show that this monster Kennedy raped his stepdaughter, causing "a laceration to the left wall of her vagina [which] separated her cervix from the back of her vagina, causing her rectum to protrude into her vagina. Additionally, L.H.’s perineum was torn all the way from the posterior fourchette, where the vagina normally ends, to the anus."

Nice. L.H. was eight years old when Kennedy raped her.

Kennedy gave several inconsistent stories about two young men supposedly committing the rape, and was found washing blood and other biological evidence off his victim when EMS arrived. L.H. also gave the police the story about two men raping her, a story which was conclusively debunked by questioning by medical personnel during the victim's hospital treatment, and from the beginning of the case, she confided to family members that Kennedy, not two strangers, had raped her.

Most damning to Kennedy was evidence that he made calls following the crime to try to learn how to remove blood stains from carpeting (he had told police the attack took place outside the house), and in one call to his boss, said he couldn't come to work that day because his step-daughter “had just become a young lady.”

One call Kennedy made was to order a rush carpet cleaning to remove bloodstains-- a call made the morning of the rape, but two hours before Kennedy called 911 to report the rape! Luminol tests also showed that large amounts of blood had been cleaned up from the carpet at the foot of the victim's bed, again showing that an attempt had been made to destroy evidence of the crime.
At trial, the now 14-year old victim identified Kennedy as the rapist, and testified that he fed her the story she initially gave the police about two strangers being the rapists.

The jury convicted Kennedy based on this evidence, and after hearing at the sentencing phase that Kennedy had raped another 8 or 9 year old relative of his former wife, concluded that death was the appropriate sentence.

COMES NOW the SCOTUS, with an opportunity to clarify (or hopefully overturn) Coker v. Georgia, a 1977 decision that nullified the democratic decision of dozens of states that allowed for the death penalty for rape of an adult victim. More details about Coker here, in my prior posting about Kennedy's case.

Today, the issue is whether the citizens of Louisiana can elect to allow for the death penalty for child rapists like Kennedy, or whether the SCOTUS, using the bizzare and new-found rationale for discerning an Eighth Amendment violation, will hold that "evolving standards of decency" preclude application of the death penalty to child rapists.

Based on the quantitative score-card nature of the "reasoning" that the Court displayed in Roper v. Simmons (where they ruled that since some states had stopped executing juvenile offenders, "evolving standards of decency" forbade other states from executing juveniles), the Court should affirm Kennedy's conviction since no states used to authorize executing child rapists and now 7 states do-- a "trend" towards authorizing executing these offenders that the Court, to be consistent, should find to be as much an "evolving standard of decency" as they found the contrary trend to be with respect to permitting execution of juveniles.

Why do I get the feeling that somehow the Court's liberals and the abolition lobby will move the goalposts?

The perils for the Court in this case reside in the vague and subjective standard embodied in the current fad of gestalt jurisprudence in Eighth Amendment cases. Instead of the former mode of deciding cases by discerning whether the challenged statute violates a provision of the Constitution as clearly understood by its text and the original understanding of its scope, its purpose, and its intent, the Court is now a sort of uber-Ms. Manners, discerning whether "society" is moving one way or another on a given penal issue.

Fashioning a constitutional rule on the shifting sands of the movements of public opinion is a recipe for continual litigation, constant uncertainty, and erosion of the democratic ideal in the states. And let's be honest for a moment-- Isn't it the case that this new "jurisprudence" is mere window-dressing for the Justices to impose their personal value judgments under the guise of constitutional principles?

But the lawyers at the ACLU and the NACDL, and their murdering, child-raping clients sure love it.

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