In today’s New York Times, Linda Greenhouse points out what appears to be a factual error in the Kennedy v. Louisiana majority opinion. Justice Kennedy’s majority said that 30 of the 36 states with the death penalty and the federal government do not proscribe the death penalty for child rape. But the Uniform Code of Military Justice was revised by Congress in 2006 to add child rape to the military death penalty. Greenhouse notes that this provision of military law escaped the attention not only of the members of the Court, but also the attention of the ten parties who filed briefs in the case.
In addition to questioning why no one in the federal government brought the UCMJ provision to the attention of the Court, Greenhouse explores how the parties’ research failed to uncover the provision. Jeff Fisher’s explanation of how his appellate team found an older provision but not this more modern one reads like an ad for Shepards. And lawyers for the state of Louisiana, the party that would have been helped by the information, are obviously ducking the Times’ calls.