Legal research faux-pas affects Kennedy v. Louisiana case
July 03, 2008 at 11:51 AM
An interesting development in the recently decided Kennedy v. Louisiana case has emerged. The case dealt with the application of the death penalty for child rape. One of the reasons stated by the court for its decision banning the death penalty for child rape pivoted upon the fact that only 6 states, and not the federal government, permit it. This has turned out to be incorrect because in 2006 Congress made child rape punishable by death for members of the armed forces.
The state of Louisiana is now debating whether to ask the court to re-consider the case given this information. Additionally, lawyers at the Justice Department have admitted they failed to find this statute. The event further establishes how vitally important effective legal research is to jurisprudence and how small mistakes, or omissions, can result in huge consequences.
Manual for Courts-Martial (PDF format) -- contains the 2006 revision which includes the provision for the death penalty in cases of child rape.
- See page 360 for the relevant passage (left hand column, bottom of page)
Court opinion (Kennedy v. Louisiana) -- SCOTUS Blog
The Supremes dis the military justice system -- CAAFlog (a military justice legal blog)
In court rulings on executions, a factual flaw -- NY Times (Linda Greenhouse)
Justice Department admits error in not briefing court -- NY Times (Linda Greenhouse)
Blogger finds factual error in Kennedy's Kennedy decision -- Volokh Conspiracy (Jonathan Adler)
More on the overlooked military law in Kennedy v. Louisiana -- Volokh Conspiracy (Orin Kerr)
The NYT on the UCMJ -- Concurring Opinions (Carissa Hessick)
(h/t to Amy Wright at USF's ZiefBrief)