Attorney Find Blog

In a rare case, the Louisiana Supreme Court has upheld a sentence of death for a defendant who did not cause the death of his victim. Only a few states allow the controversial penalty of death for defendants convicted of child rape when the victim survived. The Louisiana decision could make groundbreaking law.

Patrick Kennedy was convicted of the brutal and disturbing rape of his eight-year-old step-daughter. Her physical injuries were so severe, surgery was required to repair them. Her emotional injuries probably run much deeper. Going with the jury’s verdict, I’d like to pummel this guy to death myself. But, our system does not, for good reason, allow individuals to take the law into our own hands. If this monster should killed for his actions, where does it stop? Should every rapist be killed? Should someone who hits a child be executed? A few states currently allow capital punishment for those who commit crimes against the government, like treason, espionage, or aircraft piracy.

In this case, Kennedy originally blamed the girl’s rape on two neighborhood boys and his step-daughter backed him up. She later told her mother and a therapist that Kennedy had actually raped her. Kennedy was sentenced to death under Louisiana’s law providing capital punishment for anyone convicted of raping a victim under the age of 12.

In 1977, the United States Supreme Court overturned the death penalty for a man convicted of raping a 16-year-old. The Court said “the death penalty, which ‘is unique in its severity and irrevocability,’ is an excessive penalty for the rapist who, as such, does not take human life.” In more recent rulings forbidding the execution of defendants who were minors or mentally retarded when they committed their crimes, the Court said capital punishment should be reserved for those who commit “a narrow category of the most serious crimes.”

Following the 1977 ruling, Louisiana changed its capital punishment law for the crime of rape, asserting that the U.S. Supreme Court’s ruling only applied when the victim was at least 16-years old. The Louisiana Supreme Court, in upholding Kennedy’s death sentence, said his crime fit within the narrow category of most serious crimes for which the death penalty is appropriate.

Kennedy’s case could indicate where the U.S. Supreme will stop the slippery slope of capital punishment.

The opening line of an article I read last week was virtually identical to a dozen I’d read before.   It began, “Dozens of people who have had their licenses suspenced for drunk driving may have those decisions reversed,” and then even the challenge itself was the same–a claim that breathalyzer test results were invalid.

The only difference was that instead of the now-infamous Intoxilyzer, the machine in question was the Yanshuf.  The challenge, in the form of two civil suits alleging damages arising from the use of the Yanshuf, is pending in a Tel Aviv magistrate’s court.

The law authorizing police to use the Yanshuf requires approval by the transportation minister in consultation with the minister of health, and apparently that approval never came for the new breathalyzer currently in use.  The statute also requires the machine to be zeroed “on site” before use.  Zeroing is akin to the process generally referred to as “calibration” in the United States.  Although the machines are currently tested once every 24 hours, at least one Tel Aviv attorney is insisting that the “onsite” requirement demands more–testing before each use.

David Hicks, the Australian native being held as a terrorist at Guantanamo Bay, was sentenced for commission of war crimes to only 9 months in prison. David Hicks is one of the worst-of-the-worst, but he’ll be out of jail before the end of this year. If this doesn’t sound right to you, join the club.

Hicks’ tribunal was the first to be completed since the White House overhauled the system following a Supreme Court holding that the tribunals violated Constitution protections and the Geneva Conventions protecting soldiers and others captured on the field of battle. Hicks’ plea bargain and nine month sentence shows just how screwed up the tribunal system remains.

Hicks arrived at the courtroom with three lawyers, one Marine Major and two civilians. By the end of the day, he had only the Marine Major to protect him. The judge dismissed both civilian attorneys on questionable premises. The judge also berated Hicks for his attire. He explained that Hicks should be wearing business dress rather than the short-sleeved, khaki prison garb he had on: Such proper attire would ensure that Hicks was adequately protected by the presumption of innocence.
Hicks then signed a plea agreement, admitting he had trained with Al Qaeda, guarded a Taliban tank, and had scouted a closed American embassy building. Hicks had fought on the battlefield for a mere two hours, before selling his weapon to raise cab fare to flee to Pakistan. Fighting in battle has never been considered a war crime, until now.

His plea agreement has a unique feature. Hicks agreed to recant his allegations of abuse while in detention and not to speak to reporters for one year. Jennifer Daskal of Human Rights Watch said this unusual agreement for Hicks’ silence indicates that the primary goal of the US Government is protecting itself from the “disclosure of abuse.”

Meanwhile, the Government continues to try to scare lawyers off. Recently, Cully Stimson, deputy assistant secretary of defense for detainee affairs, publicly called it “shocking” that major American law firms could represent Guantanamo Bay detainees free of charge and said they would likely suffer financially after their corporate clients learned of the work. He said, in an interview on Federal News Radio: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms” He added that he thought some law firms were not actually representing clients free of charge and were “receiving money from who-knows-where.” Who-knows-where is obvious code for Al Qaeda.

If the US Government really wants to stop terrorism, that means preventing the next generation from growing up as terrorists. The way to stop a new generation of terrorists is to be all we can be, to hold these trials fairly and above board. Muslims throughout the world want to see the bastards that killed three thousand people on September 11th punished for their deeds, but they also want the United States to lead, to show their own governments how to hold a fair trial.

Last spring, the Illinois legislature received a report based on a year-long pilot program designed to test a different procedure for police line-ups and photo identifications. Instead of including a suspect in a traditional line-up or a photo array, a witness would be shown photographs, or live participants, sequentially. Researchers generally agreed that sequential exposure should result in a smaller number of false identifications, both because participants would study each candidate more carefully and because comparative evaluation (wherein a witness compared photographs or participants to one another and would be more likely to choose the “closest” one) would be avoided.

However, the report to the legislature included surprising findings, and those findings, the NACDL says, are being used to fuel resistance to line-up procedure reform across the country. Thus, the organization wants access to the data used to support the reports conclusions.

Litigation regarding defense requests for the source code for the Intoxilyzer 5000 stalled hundreds of Florida DUI cases last year, but the complications stemming from that case aren’t over–at least for one lawyer in the state’s attorney’s office. Don Hartery was misdemeanor chief for Manatee last year when he reportedly sent a letter to Judge Mark Singer attempting to influence the judge to hold a hearing that might benefit the state’s position.

Attorneys and parties involved in pending cases are not allowed to communicate with the judge about the case except under specific circumstances: in court, in written documents also provided to opposing counsel, or in conferences where both sides are present.

The Florida Bar has referred an ethics complaint to the state Supreme Court.