To read the Louisiana SC decision on whether a defendant can get the death penalty for child rape, click here.

What is your thought on whether the US Supreme Court will grant certiorari and change the answer?

Unfortunately, I believe the Supremes will reverse the death penalty for this non-homicide case. But it may be in the near future (when the Supreme Court's standards of decency evolve to fit all of ours) that the death penalty may be executed for a child rapist. What a well-written opinion from Louisiana!?

It looks as if the state opinion will be longer than the SCOTUS opinion that reviews it! Two thoughts: seeking the dp for cases where no death occurred may well serve to undermine the dp as a whole. Many who generally agree with the dp may be less inclined to support it. Also, the new law may draw the attention and focus of those against the dp away to this new area.

Under the evolving standards of decency, which are whatever the Court thinks they should be (whether acting as a super-legislature or the conscience of the nation), I suspect the SCOTUS will reverse. Why stop with the d/p for rape? It is a brighter line to cut off the penalty with killings.

JAS

[This message was edited by JAS on 05-23-07 at .]

Has Judge Cheryl Johnson (along with Judges Price, Womack, Holcomb, AND COCHRAN) made this entire issue moot by issuing an opinion that every child molester will use to avoid the death penalty? Read the majority opinion and give us your opinion. The case can be used to say that criminals who target only children as victims are no longer dangerous once they get life in prison.

Personally, I think Judge Hervey (joined in dissent by Presiding Judge Keller and Judges Meyer and Keasler) got it right. For her opinion, click here.

While I disagree with the Court's opinion, I don't think that it's necessarily a defense that could be used by every child molester. The majority talked quite a bit about the defendant only being a danger to her own children under specific circumstances, and she wouldn't be of child-bearing age once she's finally released on parole. Certainly this wouldn't apply to all child molesters -- "I only molest my neighbor's children" doesn't have quite the same ring -- but it could still be used by those who only molested their own children.

I didn't say it would necessarily be successful, but the poor reasoning and loose langauge will result in a nightmare of litigation by creative defense attorneys. How the majority could miss the obvious consequences of their decision is a mystery.

Even more likely, it will (and perhaps this was the intent of some of the majority voters) discourage some prosecutors from even seeking the death penalty because of the new barriar placed in front of a death penalty option.

And even more likely, it will create chaos in jury selection, as defense attorneys seek more and more commitments from jurors that they would not find the future danger special issue true if the facts "only show" the defendant hurts kids, who would not be available in prison.

Frankly, the opinion raises the legitimate issue of whether the future danger special issue serves any purpose. Constitutionally speaking, the special issue is not required. All you really need is the narrowing of the choice of offenders (by the aggravating elements of a murder) and the consideration of mitigating circumstances.

My prediction is that the decision will not survive ongoing scrutiny. The sooner the CCA overrules it, the better.

Mother hangs herself, 4 children; infant found alive
By ANGELA K. BROWN
Associated Press Writer
HUDSON OAKS, Texas ? A 25-year-old mother apparently hanged herself and three of her four small daughters in a closet in their mobile home. An 8-month-old girl survived and was taken to a hospital, the sheriff said Tuesday.

The woman's sister, who lived in the same Oak Hills trailer park about 25 miles west of Fort Worth, forced her way into the locked trailer after the woman failed to show up for work. Parker County Sheriff Larry Fowler said the sister rescued the infant when she realized the baby girl was still alive.

The woman was identified as Gilberta Estrada. The other children, ages 5, 3 and 2, had all been hanged with clothing, Fowler said.

"It's horrendous. That's all I can say," he said. "It's just something you don't want to see."

The infant, Evelyn Frayre, was listed in good condition at a Fort Worth hospital, Fowler said.

The sheriff said the hangings appeared to be murder-suicide because the trailer's doors were locked from the inside and a relative said the woman had been depressed.

Fowler said Estrada had won a temporary restraining order in August 2006 against Gregorio Frayre Rodriguez, believed to be Evelyn's father and some of the other children, after an attack on Estrada.

Fowler said the couple had stopped living together in February. Tuesday was the first emergency police call to Estrada's trailer, and Fowler said there was no evidence that Rodriguez abused the girls.

Attempts to reach Rodriguez were not immediately successful.

Child Protective Services will decide who takes custody of the baby, Fowler said.

The young mother and her girls were last seen alive Monday evening, he said.

"I just got a big kick out of watching the kids play over there on her porch, and today it's sad, very sad," said neighbor Joyce Harris, as other residents of the trailer park in this town of 1,600 milled about on their porches, some crying and talking softly about the deaths.

Estrada's trailer was dilapidated, with paint peeling off the brown and white trailer. Cactus plants and a rose bush decorated the front. Toys and a bicycle littered the back yard.

Texas has seen a number of child killings by mothers in recent years.

Less than five years earlier, another Hudson Oaks family was torn apart when Dee Etta Perez, 39, shot her three children, ages 4, 9 and 10, before killing herself.

Andrea Yates drowned her five children in the family's Houston bathtub in 2001. In 2003, Deanna Laney beat her two young sons to death with stones in East Texas, and Lisa Ann Diaz drowned her daughters in a Plano bathtub. Dena Schlosser fatally severed her 10-month-old daughter's arms with a kitchen knife in 2004.

All four of those women were found innocent by reason of insanity. Yates initially was convicted of capital murder, but that verdict was overturned on appeal.

Blunt submits Supreme Court brief supporting death for child rape
By JASON NOBLE
The Star�s Jefferson City correspondent

Blunt JEFFERSON CITY | Missouri Gov. Matt Blunt has filed a brief with the U.S. Supreme Court supporting the death penalty for child rapists.

The �friends of the court� brief supports the state of Louisiana, which is defending a law authorizing the death penalty for offenders who rape children younger than12.

For full article see: http://www.kansascity.com/115/story/541915.html

JAS

Oral argument set for next week:

"In Kennedy's appeal to the Supreme Court, Fisher, a Stanford University law professor, says that since the 1977 case of Coker v. Georgia, the court has not allowed capital punishment for any crime involving "person-on-person violence" that did not lead to a death.

Clark, who will argue for Louisiana, counters in her filing that times have changed. She says several states and the U.S. government have authorized the death penalty for non-homicide offenses, such as espionage. She also points to the recent enactment of "Megan's Laws" requiring sex offenders to register in their cities as a reflection of concern about child sexual assault."


http://www.usatoday.com/printedition/news/20080408/a_court08.art.htm

We can only anticipate that this argument will be more easily understood than the defendant's lethal injection argument a few weeks ago.

JAS

Your AG has decided to enter the fray, along with some of his brethren:

The amicus brief

The authors provide a great twist on this std. Effectively, it is a two-way street--allowing a reduction and expansion in the applicability of the death penalty.

JAS

"Frankly, the opinion raises the legitimate issue of whether the future danger special issue serves any purpose. Constitutionally speaking, the special issue is not required. All you really need is the narrowing of the choice of offenders (by the aggravating elements of a murder) and the consideration of mitigating circumstances."

This is a great point, JB. Just think, without the FD special issue, we'd have a much better chance of retrying all those Penry reversals 20 years later because the D's past 20 years of good behavior in prison wouldn't count for much at trial.

Seems they left out one of the more compelling reasons to kill child abusers: they can't be fixed.

I don't know how the SCOTUS will see it, but it must have been very gratifying to draft that amicus brief and use the Atkins' and Roper's arguments re: national consensus and the "immature & developing" psychological makeup of a juvenile in the states' favor.

[This message was edited by KSchaefer on 04-09-08 at .]

I loved this line in the brief:

"The pitiless infliction of permanent lifelong suffering upon a young child reflects a degree of culpability, a degree of manifest evil, that is qualitatively distinct."

We recently had a case where the police learned of the child abuse because the grandpa of the victim, upon learning of the abuse, went to kill the perp (his son). Fortunately (or unfortunately depending upon who is asked) the police arrived and arrested the perp before grandpa got to him. The jury found the perp guilty on all 5 counts, assessed life plus max fines, and the judge stacked.

Seems if we had more grandpas involved then the death penalty wouldn't be an issue in these cases.

I see that Texas Solicitor General Ted Cruz will actually be presenting argument in the case.

Soldier Bob pushes a button which causes a cruise missile to launch. It smashes into a palace 400 miles away, kills 15, and maims another 23 people.

Soldier Lindy tortures prisoners, but doesn't actually kill anyone.

Only one of them is judged harshly in the court of public opinion.

quote:

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Originally posted by JohnR:
I see that Texas Solicitor General Ted Cruz will actually be presenting argument in the case.

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Future candidates for Attorney General* need all the free media attention they can get.

(*this comment is based entirely on hearsay and conjecture ... but if it turns out to be correct, you heard it here first. )

No one in the United States has been executed for rape since 1964. Other state and federal crimes theoretically eligible for execution include treason, aggravated kidnapping, drug trafficking, aircraft hijacking and espionage. None of these crimes have been prosecuted as a capital offense in decades, if ever.
* * *
Five other states have similar laws. Four of them -- Florida, Montana, Oklahoma and South Carolina -- have had them for years but not applied them in decades. Texas enacted its version in June [TPC 12.42(c)(3)], but no defendant has yet been designated death-eligible for child rape in any state but Louisiana.

http://www.cnn.com/2008/CRIME/04/15/rape.execution/index.html