Two Defense Wins @ SCOTUS

It's nearly the end of the Supreme Court's term, so the big opinions are coming thick and fast this week (the Second Amendment case everyone is waiting on, Heller, should come down tomorrow morning). Today's load included two decisions that were wins for criminal defendants, which is a fairly rare feat these days.

The first one, which will generate a lot of attention over the next few days, is Kennedy v. Louisiana, in which the Court held, 5-4, that Louisiana can't execute a defendant convicted of the rape of a child. Justice Kennedy (no relation, of course) wrote for the majority, applying the now familiar "evolving standards of decency test" for Eighth Amendment issues, writing off the attempts of a few states to shift modern standards in favor of execution. Justice Alito led the dissenters, taking issue with Kennedy's calculus.

Of particular dissension between the two camps was the meaning of the Court's earlier Coker decision, in which the Court held that the death penalty could not be applied to someone convicted of rape of an "adult" (although the adult would have been a minor in most states). Kennedy holds that Coker meant exactly what it said, and no more. Any states that thought it applied to all rapes and didn't act accordingly are just out of luck. Alito, by contrast, points to the common understanding of Coker and argues that you can't hold it against the states if they thought child-rape death penalties were already unconstitutional.

Frankly, on that discrete argument, I think Alito is right. The Court is bad about handing down a decision, letting in percolate in the lower courts for years, and then applying it in a later case and, in essence, saying, "of course this is what we meant." That happened with Apprendi, in which the Court held that facts that increase a defendant's maximum sentence have to be found by a jury. Federal defenders, et. al., quickly noted that the holding should kill the Sentencing Guidelines, but every Circuit Court disagreed and the Supremes repeatedly denied cert on the issue. Years later, in Blakely and then in Booker, the Court essentially said, "of course that's what Apprendi said - what are you, dense?" So I think Alito's right to cut the states a little slack in not figuring out the complete contours of Coker.

But, in the end, Alito's argument proves more than he wants. The fact is that even if the specific holding of Coker doesn't apply in this case, the logic of it is pretty hard to escape, so the outcome becomes predictable. Personally, although I oppose the death penalty in all situations, I don't think it's too much to ask to limit its use to cases where a dead body is present.

The second case that came down today is much lower profile, but equally interesting (to law geeks like me, anyway). In Giles v. California, which I blogged about a while back, the Court held, as I hoped, that a defendant on trial for murder doesn't forfeit his right to confront the most important witness against him - the deceased - unless she was killed to prevent her testimony at trial. Scalia's opinion (for a 6-justice majority) makes perfect sense to me, but, to be fair, I haven't had a chance to read the dissent yet.