Wednesday, September 24, 2008

"Military law is American law"

The state of Louisiana filed its reply in support of its rehearing petition in Kennedy v. Louisiana today. Here's a SCOTUSblog piece discussing it and here is SCOTUSblog's link to the brief itself.

As the quotation from the brief in the title of this post indicates, Louisiana argues that it is appropriate to consider military justice legislation when conducting jurisdictional nose counting. Louisiana's Supplemental Brief at 2. Even more, since Congress enacts military justice legislation, such statutes count as Cyrano de Bergerac-quality noses. See id. at 2-3 ("This Court has never found a 'national consensus' against capital punishment for a particular offense . . . when Congress, consisting of Representatives from all 50 States, has affirmatively authorized such punishment.") (quoting Acting SG's brief at 4).

Beyond this and other statements of respect for the military justice system, the brief engages in nuanced discussion of military law reflecting great familiarity with the system. In one passage sure to warm any military litigator's heart, Louisiana reminds the Supremes that their predecessors on the bench relied in part on the UCMJ when deciding Miranda. Id. at 7. The brief also knowledgeably discusses CMA and CMR decisions dealing with Coker's effect on the military justice system, id. at 17, and calls out Petitioner's counsel for ignoring a 1989 military capital prosecution for rape, id. at 14-15.

The brief's most devastating point is delivered even deeper in the weeds. Petitioner's brief opposing rehearing argued that neither of the DOD reports that led to the National Defense Authorization Act for Fiscal Year 2006's Article 120 amendments "mentions the penalty for child (or adult) rape in its executive summary." Petitioner's Brief at 9-10. But if one actually reads past the executive summary, Louisiana's brief points out, the Joint Service Committee's report on sex crimes and the UCMJ includes a discussion about Coker and its effect on capital punishment for rape generally and for child rape specifically. Louisiana's Supplemental Brief at 12 (citing JSC Report at 74-75). As a matter of advocacy, that point must have been particularly delicious for Louisiana's counsel, since Petitioner's counsel had lit them up for allegedly overplaying the Joint Service Committee report's treatment of the Louisiana statute authorizing capital punishment for child rape. Petitioner's Brief at 10. Yet, as Louisiana's counsel retort, page 75 of the JSC report expressly discussed the 1995 amendment to Louisiana law that allowed capital punishment for child rape. Louisiana's Supplemental Brief at 12.

What happens next? As the greatest blog on Earth (SCOTUSblog) reports: "The Justices are scheduled to consider the rehearing petition at their private Conference on Monday. If rehearing is granted, word of that may become known as early as next Tuesday. A denial might not become known until Monday, Oct. 6, at the formal opening of the new Term." We will, of course, be on the lookout for developments and post a link when more news is available.


Anonymous said...

Counsel for the State is Prof Neal Katyal - who most of you should remember as being Charlie Swift's co-counsel in Hamdan. Neal's no stranger to military law.

Dew_Process said...

Does anyone know if Kennedy gets a "Reply" to the State's response? If so, that could be interesting reading.

CAAFlog said...


That does it for this round of briefing. Here's a link to the Supremes' order directing the briefing: