Kennedy v. Lousiana
The United States Supreme Court, in a 5-4 decision, with the “swing vote” of Justice Kennedy siding with Justices Ginsburg, Breyer, Stevens and Souter, ruled that the death penalty is unconstitutional when applied to child rape cases. No consideration was given to the particulars of any state’s statutory scheme, so we will not be seeing any other state’s statutory schemes being reviewed. Interestingly, as the dissent by Justice Alito (joined by Justices Scalia, Roberts and Thomas) points out, the 1977 Supreme Court decision of Coker, implied that the death penalty would be unconstitutional for any crime except homicide—yet the majority rested its decision on the fact that very few state’s had enacted the death penalty for child rape since the Coker decision.
While this is good news for people accused of sexual battery upon a child, and people who oppose death penalty, everyone should be wary that there are five Justices on the Court that openly devoted a large portion of their opinion to public policy considerations typically left to the other two branches of the government and their own personal judgment about what public policy should be.
Giles v. California
In an opinion delivered by Justice Scalia, (joined by Justices Roberts, Thomas, and Alito in full, Justices Souter and Ginsburg in part, concurring opinions by Justices Thomas and Alito, separate concurring opinion by Justice Souter joined by Justice Ginsburg. The dissenting opinion filed by Justice Breyer who was joined by Justices Stevens and Kennedy) the Supreme Court held that it violates the Confrontation Clause to admit hearsay statements from a person who is not at trial to be confronted and cross-examined simply because the defendant’s actions have made that person unavailable.
In this particular case, the Defendant killed his girlfriend. Several weeks earlier, in another instance of domestic violence, the girlfriend made several statements about the Defendant’s actions during that incident. The argument that these statements were not testimonial was not raised by the parties, so it was not addressed by the court, other than in passing by two concurring opinions by Justices Thomas and Alito. Therefore, the Court was left with the issue whether these statements violated the Confrontation Clause (Crawford v. Washington) and it held that these statements were admitted in violation of the Confrontation Clause. The historical exception to the Confrontation Clause requires that the action that causes the witness to become unavailable (in this case, the Defendant killing her) be done with the intent to make her unavailable from trial. Because that issue wasn’t explored in the trial court, the case was remanded back to the trial court with the instructions to follow the Court’s opinion. Obviously, if the Defendant kills a witness to make them unavailable to testify (for instance, the 15 year old boy shot recently in Kissimmee after he witnessed a robbery) then the Defendant would forfeit his Confrontation Clause rights. The majority declines to make the evidentiary decision that the murder was done with the intention as silencing her as a witness, the dissent makes that assumption for the trial court.
The dissent would allow the statements in because the Defendant’s killing of the girlfriend made her unavailable. Instead of requiring a judicial determination of whether the killing (or bribing, kidnapping etc.) was done with the purpose of making the witness unavailable to testify, the dissent would allow trial courts to rely on their local rules of evidence regarding hearsay to safeguard whether the statements should be admissible (a return to the pre-Crawford Roberts decision).
Greenlaw v. United States
Trial courts cannot increase someone’s sentence after remand from appeal without an appeal or cross-appeal from the government challenging the sentence.
