Colonel Sullivan at CAAFlog had some critical remarks for the new brief by Kennedy in Kennedy v. Louisiana:
Kennedy's brief displayed unfamiliarity with the military justice system. Any number of military justice experts would have made themselves available to help Kennedy's counsel, but it's clear that no sought assistance was accepted. Since petitioner knew that the Acting SG's brief would be prepared with the assistance of the DoD General Counsel's office -- and, in fact, two highly distinguished retired judge advocates had signed onto the Acting SG's previous motion for leave to file a brief in support of rehearing before also signing onto today's brief from the Acting SG -- why wouldn't petitioner's team have sought out reinforcements to keep from being outgunned on the military justice flank? For whatever reason, they didn't and it shows.
What is probably the most significant problem arises in the petitioner's brief's desuetude argument. The petitioner argues at one point that "[t]he military, to our knowledge, has not sought to impose the death penalty for rape in over forty years." Petitioner's Brief in Opposition at 3. The brief later argues, "The military last executed someone for rape in 1961, and it apparently has not even sought – let alone obtained – such a sentence since." Id. at 7-8. Wrong. As a published CAAF decision makes clear, the Navy sought the death penalty in a court-martial of a petty officer for rape and attempted murder in 1989. United States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). But because the members' finding of not guilty to the death-eligible offense was not unanimous, id., death was no longer an authorized sentence after findings. Given that this information is available in a published opinion and was mentioned in a law review article published two years ago, see 189 Mil. L. Rev. 1, 13 n.45, it's surprising that petitioner's brief would make such a major mistake.
Col. Sullivan has a lot more to say about the defendant's brief so you should check out the whole post. He added these comments about the new S.G. brief:
By comparison, the Acting SG's brief was uneventful. Its treatment of zombie statutes is a bit problematic. The SG writes that "in Coker, the plurality's conclusion that capital punishment for the rape of an adult woman was unconstitutional accorded with Congress's silence on the subject at that time. See 433 U.S. at 593-596." Brief for the United States at 5. Of course, when the Supremes decided Coker v. Georgia in 1977, Article 120 of the UCMJ remained on the books with its provision that rape was punishable by death. The Acting SG attempts to escape from this inconvenient parallel to Kennedy by arguing: "In Coker, Congress was silent on the pertinent question because it had not reauthorized the death penalty for rape after this Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), which 'invalidated most of the capital punishment statutes in this country, including the rape statutes.' Coker, 433 U.S. at 593 (plurality opinion)." Id. at 5 n.2. He then concludes: "The Court thus has never held the death penalty unconstitutional for an offense for which Congress has authorized such punishment at the time of its decision." Id. at 5-6. But at the time of Coker, Congress had authorized death as a punishment for rape and no court had held that Furman invalidated the military death penalty system, though Justice Blackmun had noted in his Furman dissent that the case "jeopard[izes], perhaps, . . . the death penalty provisions in various Articles of the Uniform Code of Military Justice." Furman v. Georgia, 408 U.S. 238, 412 (1972) (Blackmun, J., dissenting). And, interestingly, the Supremes ultimately held that there was no necessity for congressional action to revive the military death penalty system post-Furman. See Loving v. United States, 517 U.S. 748 (1996).
I can't fault the S.G. too much for its attempt to explain away the inaction after Coker. I just don't think there is a good argument for Louisiana on the issue. Coker and military inaction afterward are just facts that are very difficult for the government position.
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