Blogger Dwight Sullivan

In November of 2007, the state of Louisiana petitioned the U.S. Supreme Court in the capital punishment appeal of Kennedy vs Louisiana. A description at SCOTUSblog is here.

The case involves Patrick Kennedy, sentenced to death after being conviced of raping his eight-year-0ld stepdaughter. At the time of his conviction, Louisiana law allowed a death sentence for raping a child under age 12; the law has since been changed to allow that sentence when the child is under age 13. Kennedy is the only individual now facing a death sentence in any state for a non-homicide, his lawyers have told the Court.

The state said that the Court, if it agrees to hear the case, should focus not only on how many states treat rape of a child as a capital crime, but also on a trend toward applying the death sentence to more crimes where the victim is not killed. Five states, like Louisiana, now have capital punishment for child rape, all enacted since 1997 with the most recent, in Texas, in 2007.

Moving beyond that specific crime, the state’s brief said, 15 out of the 38 states and the federal government – 41 percent of the jurisdictions, it notes — “authorize some form of non-homicide capital punishment.” That includes treason, espionage, aircraft piracy, aggravated kidnapping, and some drug trafficking crimes.

The petition was granted and oral arguments were finally made before the Court in April of this year.  On June 25th, the Supreme Court ruled 5-4 to deny Louisiana the right to impose the death penalty in the case of child rape.  The decision drew loud and vociferous objections from politicians and the public as well as relief from those in favor of the ruling.  Amidst all clamor, there was just one problem - a big one.

In the majority ruling authored by Justice Anthony Kennedy, and agreed upon by Souter, Breyer, Ginsberg and Stevens, much was made of the fact only five other states (including Texas in 2007) had passed laws allowing for capital punishment in child rape prosecutions.  Now comes along Dwight Sullivan, a military legal blogger, who supports himself as a civilian appellate defense counsel in the Air Force Appellate Defense Division.  Mr. Sullivan noted on his blog, CAAFlog, the Supreme Court majority opinion had inexplicably omitted the National Defense Authorization Act for Fiscal Year 2006 passed by Congress and authorizing the death penalty for the rape of a child in military courts.  The mistake spread like wildfire in the legal blogosphere and beyond and was eventually noted by Linda Greenhouse of the New York Times, the most prominent journalist covering the Supreme Court. 

None of this, of course, escaped the notice of the state of Louisiana and the speculation became rampant about what they would do and if they would meet the 25 day deadline (SCOTUS Rule 44) to seek a rehearing.  On July 21, 2008 Louisiana did indeed file for a rehearing in Kennedy vs Louisiana.  A ruling on the petition is awaited, but no one actually believes the Court will reverse itself even though most, on both sides of the issue, are convinced the Justices have no choice but to grant the rehearing given the blunder of omission that occurred.  Jonathan Adler, law professor and blogger at Volokh Conspiracy commented on the rehearing:

Why “correct the record” if the outcome of the case would be the same? I can think of several reasons. Among other things, the Supreme Court’s decision is binding on lower courts, so it is important that its analysis is based upon a correct statement of the law. Furthermore, if (as many suspect) the purported existence of a “national consensus” on the death penalty for child rape had little to do with the Court’s holding, the Court should say so, particularly now that the factual basis for the “national consensus” argument has been undermined. If the law of the land is that those punishments that a majority of the Supreme Court finds objectionable or disproportionate when imposed for certain crimes, then the Court should make that clear.

I want to note that of nine Supreme Court Justices, dozens of law clerks, an untold number of appellate attorneys, law schools and professors across the nation, thousands of legal reporters and journalists, 535 members of Congress and the enormous Justice Department, it took one inconsequential JAG lawyer blogging on his computer at home to bring the wheels of Justice to a halt in this country. Not one of these other geniuses noticed such a huge mistake ?  And they say blogging is just a waste of time…