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ARGUMENT Powered By Docstoc
					                   No. 07-9999



                    In The

Supreme Court of the United States
              OCTOBER TERM, 2007

                ________________

                Patrick Kennedy,

                                   Petitioner,

                        v.

                State of Louisiana,

                                 Respondent.

               _________________

             ON WRIT OF CERTIORARI
        TO THE LOUISIANA SUPREME COURT
                _________________

            BRIEF FOR RESPONDENT

              ___________________




                     Team 9
                     Counsel for Respondent




                         i
                               QUESTIONS PRESENTED

1.   Whether the Eighth Amendment's Cruel and Unusual Punishment Clause permits a State

     to punish the aggravated rape of a child with the death penalty.



2.   Whether Louisiana's capital rape statute genuinely narrows the class of offenders eligible

     for the death penalty.




                                              i
                                                    TABLE OF CONTENTS

 QUESTIONS PRESENTED........................................................................................................... i

 TABLE OF CONTENTS............................................................................................................... ii

 TABLE OF AUTHORITIES......................................................................................................... iv

 OPINIONS AND ORDER.............................................................................................................. 1

 CONSTITUTIONAL AND STATUTORY PROVISIONS........................................................... 1

 STATEMENT OF THE CASE....................................................................................................... 1

           The Defendant..................................................................................................................... 1

           The First Responders.......................................................................................................... 2

           An Eight Year Old Girl....................................................................................................... 3

           Proceedings Below.............................................................................................................. 4

 SUMMARY OF ARGUMENT...................................................................................................... 5

 ARGUMENT.................................................................................................................................. 6


I.        THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL
          PUNISHMENT DOES NOT PREVENT THE LOUSIANA LEGISLATURE FROM
          CAPITALIZING THE CRIME OF CHILD RAPE............................................................. 6

          A.          The Death Penalty For Child Rape Is Proportional Given The Severity Of The
                      Crime........................................................................................................................7

                     1.          The Louisiana Criminal Justice System Must Be Allowed To Deter Future
                                 Child Rapes And Impose Retribution For This Truly Heinous Crime....... 8

                     2.          The Death Penalty For Child Rape Is In Accord With This Court’s
                                 Jurisprudence, Which Ensures That Only The Most Deserving Of
                                 Execution Are Put To Death..................................................................... 12

          B.          The Direction Of Change In The National Consensus Decisively Favors
                      Imposition Of The Death Penalty For Child Rape................................................ 14




                                                                        ii
II.       LOUISIANA LIMITS THE CLASS OF OFFENDERS ELIGIBLE FOR DEATH BY
          NARROWLY DEFINING THE OFFENSES AND BY REQUIRING JURIES TO
          CONSIDER MITIGATING CIRCUMSTANCES.…………………............................... 17

           A.         Louisiana Genuinely Narrowly The Class Of Offenses Eligible For Death By
                      Limiting It Only To Those Convicted Of The Aggravated Rape Of A Child Under
                      The Age Of Twelve.............................................................................................. 17

           B.         Louisiana’s Sentencing Statute Requires A Jury To Consider Mitigating
                      Circumstances Before Deciding Whether Or Not To Impose The Death
                      Penalty................................................................................................................... 20



 CONCLUSION............................................................................................................................. 23




                                                                       iii
                         TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Atkins v. Virginia,
  536 U.S. 304 (2002) ………………...…………………………5, 7, 8, 9, 10, 11, 12, 13, 14, 15

Blystone v. Pennsylvania,
  494 U.S. 307 (1990)………..……………….………………………………………...17, 21, 23

Coker v. Georgia,
  433 U.S. 584 (1977) ………………………………………………...5, 7, 12, 14, 15, 16, 18, 19

Gregg v. Georgia,
  428 U.S. 153 (1976) … ..…………………………………………………………………..6, 13

Coy v. Iowa,
  487 U.S. 1012 (1988) ……………………………….………………………..……………..6, 8

Eberheart v. Georgia,
  433 U.S. 917 (1977) ……………………….……..……………………………………7, 14, 15

Ford v. Wainwright,
  477 U.S. 399 (1986) ………………………………………………………………………8, 10

Lewis v. Jeffers,
  497 U.S. 764 (1990) …………………………………………………………………………18

Lowenfield v. Phelps,
  484 U.S. 231 (1988) ………….……….……………..……….………………17, 18, 19, 21, 22

Maryland v. Craig,
  497 U.S. 836 (1990) ……….….….………..…….….………………………………………6, 8

McCleskey v. Kemp,
  481 U.S. 279 (1987) ……………......….……..….….……….………….……………………21

Roper v. Simmons,
  543 U.S. 551 (2005) ……….…..………..………..…………………5, 6, 7, 8, 9, 10, 14, 15, 16

Stanford v. Kentucky,
   492 U.S. 361 (1989) …………………………………….…….…………….……………15, 16

Trop v. Dulles,
  356 U.S. 86 (1958) ……….….…….………….……..….……………………..……………..15



                                    iv
Tuilaepa v. California,
  512 U.S. 967 (1994) ……….….…….………….……..….……………..……17, 20, 21, 22, 23

Zant v. Stephens,
  462 U.S. 862 (1983) ……….….…….………….……..….….….…………..……………..1, 18

STATE COURT CASES

Allen v. Ornoski,
   435 F.3d 946 (Ca 2006) ……….…..…….….……….……..….……………………..………10

State v. Kennedy,
   957 So.2d 757 (La 2007) ……….…...…….………….……1, 2, 3, 4, 5, 7, 9, 11, 12, 13, 14, 17

State v. Selman,
   300 So.2d 467 (La 1974) ……….….….…..…….…….……..….…………………..…………8

State v. Williams,
   831 So.2d 835 (La 2002) ……….….…….………….……..….……….…………..…………10

State v. Wilson,
   685 So.2d 1063 (La 1996) ……….….…….………….……..….………….…….…..…….…15

CONSITUTIONAL PROVISIONS

U.S. Const. amend. VIII……….….…….………….……..….……………………..……………..1

FEDERAL STATUTES

18 U.S.C. 2381……….….………….. ..………….……..….……………………..……………..13

18 U.S.C. 3591(b)(1) ……….….…………..…….……..….……………………..……………..12

18 U.S.C. 794……….….……………...………….……..….……………………..……………..13

21 U.S.C. 848(e)……….……………...………….……..….……………………..……………..12


STATE STATUTES

Ark. Code Ann. § 5-51-201……….….……….…...………….……..….…………………..12, 13

Cal.Penal Code § 37……….….………………….……..….……………………..……………..13

La. Code, Crim. Proc. art. 643…………………………………………………………………11



                                         v
La. Code, Crim. Proc. art. 905…………………………………………………………11, 20, 22

La. Rev. Stat. Ann. § 14:29………………….….….…….…..…………………………………..18

La. Rev. Stat. Ann. § 14:41………………….….….…….…..…………………………………..19

La. Rev. Stat. Ann. § 14:42….……………….….….………………………………..13, 19, 20, 23

La. Rev. Stat. Ann. § 14:43………………….….….…….…..…………………………………..19

La. Rev. Stat. Ann. § 14:80………………….….….…….…..…………………………………..19

Miss.Code Ann. §§ 97-7-67…………….……...….…..…..…...…………………………….12, 13

Mont.Code, Ann. 45-5-503………………….….….…….…..…………………………………..13

N.M. Stat. Ann. § 20-12-42………………….….….….….…..……………………………..12, 13

Colo.Rev.Stat. Ann. § 18-3-301 ………….….….…...………….……….………….…………..13

S.D. Codified Laws § 22-19-1………………….….….…….…..…………………………….…13

Wash. Rev. Code Ann. § 9.82.010…………….…….….….…….…..………………………12, 13

SECONDARY RESOURCES

Executing Rapists: A Reluctant Essay on the Ethics of Legal Scholarship,
  4 Wm. & Mary J. Women & L., 129 (1997) …….…….……….….….…….…..……………16

Tobolowsky, Atkins Aftermath: Identifying Mentally Retarded Offenders and Excluding Them
  from Execution, 30 J. Legis. 77, 208 (2003).………….…….…..……..…….…….…………11

U.S. DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS, National Crime Victimization
  Survey, 2006……………………………………………………………………………………9




                                           vi
                                    OPINIONS AND ORDER

       The opinion of the Louisiana Supreme Court is reproduced at State v. Kennedy, 957

So.2d 757 (2007). The unpublished opinion of the case is reproduced at R. 1-62.

                   CONSTITUIONAL AND STATUTORY PROVISIONS

       This case involves questions relating to the Eighth Amendment’s protection against

“cruel and unusual punishment.” U.S. Const. amend. VIII. This case also presents issues

pertaining to the rule announced in Zant v. Stephens, which requires a capital sentencing scheme

to “genuinely narrow the class of persons eligible for the death penalty” if it is to remain

Constitutional. Zant v. Stephens, 462 U.S. 862, 877 (1983). The full text of the Eighth

Amendment and the Louisiana Statute that details the penalty phase is set forth at: State v.

Kennedy, 957 So.2d 757, FN24 (2007) and 957 So.2d 757, FN26 (2007) respectively.

                                 STATEMENT OF THE CASE

       The victim was only eight years old when she was raped. Her perineum was ripped and

her rectum protruded into her torn and profusely bleeding vagina. A pediatric surgeon was called

in to repair the damage. She had to be fed gallons of stool softeners through a tube to be able to

defecate. A pediatric forensic medicine expert testified that her injuries were the worst he had

seen resulting from sexual assault. (R. 2.) On March 10, 1998, the defendant was arrested and

charged with her aggravated rape. (R. 9.)

The Defendant

       The defendant placed four phone calls on the morning of March 2, 1998. Sometime

before 6:15 a.m., he called his place of employment and left a message indicating that he would

not be at work that day. Between 6:30 and 7:30 a.m. he called his job again, but this time asked

how to get bloodstains out of a white carpet because his stepdaughter had “just become a young



                                                  1
lady.” (R. 2.) At 7:37 a.m., he called B&B Carpet Cleaning to schedule an “urgent carpet

cleaning job to remove bloodstains.” (R. 2-3.) At 9:18 a.m., he called 911 to report that his

stepdaughter had just been raped. (R. 3.)

       When the speaking to the police later that day, the defendant first claimed the victim

vomited twice after his wife left for work at 5:30 a.m., so he called his stepdaughter’s school to

report she would be absent. Then he claimed he was upstairs cleaning when the victim’s younger

brother came up and told him that his sister was lying sick in the yard. Then he claimed he found

the victim in a puddle of blood in the backyard with her short halfway off. In his final story he

wrapped her in a blanket, carried her inside, sat her in a tub of water, and called 911. (R. 5.)

       The defendant claimed he saw a black male fleeing on a light blue ten-speed bicycle with

“upwards handle bars” when he went outside. (R. 5.) The male was 250-270lbs., wore a black t-

shirt and blue jeans, and had a gold earring in his left ear. (R. 6.) The defendant claimed that he

recognized the boy as a nineteen-year-old from the neighborhood and had seen the bike behind

the empty house next door on previous occasion. (R. 5.) On March 3, the defendant identified

the exact bike he saw the fleeing black male riding. The bike he identified had straight

handlebars, was blue, gearless, covered in spider webs, rusted, had flat tires, and was inoperable.

The bike belonged to Devon Oatis, a sixteen-year-old whose physical description and inoperable

bike ruled him out as a suspect. (R. 7.)

The First Responders

       Deputy Michael Burgess responded to the 911 call made by the defendant and arrived at

the defendant’s residence between 9:20 and 9:30 a.m. and observed the following upon his

arrival: a dog was sleeping peacefully, there was a small patch of coagulated blood on

undisturbed long grass, there was no one fleeing the scene. (R. 3-4.) He entered the garage and



                                                  2
observed that blood drops formed a straight thin line on the concrete floor. He observed a blood

trail leading up the stairs, but no other blood trails in the house. The officer observed that the

defendant had no blood on his own clothes, even though he told the deputy he had carried the

victim upstairs from the backyard. (R. 4.)

       Emergency Medical Services (EMS) responded to the 911 call in a matter of minutes

also. Stephen Brown, an EMS field supervisor, found the victim in the upstairs portion of the

home. She was in a Pocahontas t-shirt and wrapped in a bloody cargo blanket with her shorts

pushed around her ankles. The defendant was using water from a basin to wipe off the victim’s

bloody genital area. (R. 4) Brown told him to stop, examined the victim, and covered her blood

oozing vaginal area with a pad. (R. 5.) Both Brown and Burgess tried interviewing the victim at

the scene, but the defendant kept interrupting and answering questions for her. (R. 4-5.) Both

Brown and Burgess testified that the defendant’s behavior was suspicious and atypical. (R. 5.)

       Sergeant Kelly Jones was ultimately assigned as the lead investigator on the case. Upon

arrival at the scene the morning of the rape, she observed the following: a patch of coagulated

blood with no blood trail in otherwise undisturbed long grass; four or five very small drops of

blood in the garage; small, random drops of blood leading upstairs inside the house. (R. 6.) There

were no depressions in the grass and a forensic expert testified that the bloodstain indicated a

“low velocity dripping” that had been suggested the blood was “planted there.” (R. 11.)

An Eight Year Old Girl

        The first story the victim told was that she was dragged outside of the garage by two

boys. (R. 8.) The victim stated the rapist was an 18-19 year old black male with a medium build

and muscular arms. (R. 6.) She said she was in the garage with her brother when a boy asked her

about Girl Scout cookies. (R. 8.) The boy dragged her by her legs across the concrete floor and



                                                  3
into the neighbor’s yard by her legs. (R. 8.) The victim, however, had no abrasions on her legs.

(R. 8, 11.) She tried to grab on to the grass while being dragged through the yard.(R. 8.) A

forensic expert could find no grass stains or soil stains on her shorts, t-shirt, or underwear. (R.

11.) Around June 22, 1998, the victim confessed to her mother that it was the defendant who

actually raped her. (R. 11-12.) On December 19, 1999, she stated during a videotaped interview

that she was raped in her room on her bed by the defendant. (R. 13.). After raping her, he told her

that she had better tell the police “the story he made up.” (R. 13.) She testified at trial that she

woke up and the defendant was on top of her. (R. 12.) After he raped her, he called his work and

told them he couldn’t come in because his “daughter had become a young lady.” (R. 16.)

Proceedings Below

        On May 7, 1998, the defendant was indicted by a grand jury for the rape of his eight-

year-old stepdaughter. Defense counsel was appointed June 23, 1998, and jury was selected

August 15, 2003. The jury returned a verdict of guilty of aggravated rape on August 25, 2003.

The penalty phase began on August 26, 2003. (R. 1.) At sentencing, the jury considered four

mitigating circumstances and found two aggravating circumstances. State v. Kennedy, 98-1425

(La. Dist. Ct. 8/26/03); 2003 WL 24273647 (Verdict, Agreement and Settlement). The

sentencing jury heard one witness for the prosecution, and seven witnesses for the defense. (R.

20.). The jury returned a unanimous verdict that the defendant should be sentenced to death. The

district court denied the defendant’s motion for a new trial and sentenced him to death on

October 2, 2003. The defendant appealed his sentence to the Louisiana Supreme Court. (R. 50.)

        The Louisiana Supreme Court affirmed the defendant’s death sentence. (R.29 ) The court

held that the admission of testimony from of victim's mother about what the victim had old her

was harmless error. (R. 22-62) All other assignments of error, including the defendant’s



                                                   4
argument that his conviction violated the Eighth Amendment, were found to be without merit.

(R. 29-62) The court held that a sentence of death was not disproportionate for the aggravated

rape of a child under the age of twelve. (R. 50)

                                  SUMMARY OF ARGUMENT

       The Louisiana Supreme Court correctly held that the Eighth Amendment cannot insulate

a child rapist from the death penalty. The court properly concluded that the death penalty as

applied to a defendant who brutally raped his eight-year-old stepdaughter is proportional. (Part

I.) Furthermore, the Louisiana statute that capitalizes the crime of aggravated child rape is

constitutional because it genuinely narrows the class of offenders eligible for the death penalty.

(Part II.)

       The Louisiana Supreme Court accurately determined that the defendant in this case can

enjoy no Eighth Amendment immunity from the death penalty. First, the death penalty as

applied to child rapists serves both a deterrent and retributive social purpose consistent with the

aims of criminal punishment. (Part I.A.) Neither the defendant nor anyone situated in his

position can claim lessened moral culpability for the rape of a child after refusing every avenue

of mental and physical exculpation available before sentencing. Second, the direction of change

in the national consensus favors the death penalty for child rapists. (Part I.B.) While the absolute

number of states that have passed recent death penalty laws for child rape is not overwhelmingly

large, it has been consistent. It is the consistency of that trend is the proper measure of its

constitutionality given this Court’s holding in Atkins and Roper. Such consistency is further

evidenced by a direction of change in the national consensus even in light of this Court’s opinion

in Coker which should have had a chilling effect on any such legislation.




                                                   5
        The Louisiana Supreme Court also rightly held that the Louisiana aggravated rape statute

 genuinely narrows the class of offenders eligible for the death penalty in two ways. (Part II.)

 First, the court held that the Louisiana statute narrowed the class of offenders by genuinely

 narrowing the definition of the offense. (Part II.A.) Of the six types of rape and sexual battery

 punished in Louisiana, only one is punishable by death. This, the Louisiana Supreme Court

 found, was a sufficient narrowing of the class of offenders eligible for execution. Second, and in

 direct accord with this Court’s precedence, the Louisiana Supreme Court correctly recognized

 that the Louisiana sentencing statute requires a jury to consider mitigating circumstances before

 imposing a death sentence. (Part II.B.). Both requirements, wholly met in the instant case, serve

 to genuinely narrow the class of offenders eligible for death by the state.

                                            ARGUMENT

I.     THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND
       UNUSUAL PUNISHMENT DOES NOT PREVENT THE LOUSIANA
       LEGISLATURE FROM CAPITALIZING THE CRIME OF CHILD RAPE.

       While the Eighth Amendment protects against cruel and unusual punishment, applying the

 death penalty to a defendant convicted of raping his eight-year-old stepdaughter does not violate

 the Constitution. See Gregg v. Georgia, 428 U.S. 153 (1976). As this Court recognized in Gregg

 v. Georgia, the death penalty satisfies two distinct social purposes: deterrence and retribution. Id.

 Because this Court has held that children are our greatest asset deserving of our greatest

 protection, it necessarily follows that those who are convicted of causing them such severe harm

 are considered “the most deserving of death” and should be punished to the fullest extent

 allowable under the Constitution. See Coy v. Iowa, 487 U.S. 1012 (1988); Maryland v. Craig,

 497 U.S. 836 (1990); Roper v. Simmons, 543 U.S. 551 (2005).




                                                   6
        Additionally, even though this Court has held that the death penalty may be used in a

number of instances, except when the crime committed is the rape of an “adult woman,” the

national consensus and the direction of change in public opinion very decisively favors

imposition of the death penalty for those convicted of the brutal rape of an innocent child. See

Coker v. Georgia, 433 U.S. 584 (1977); Eberheart v. Georgia, 433 U.S. 917 (1977).

   A.       The Death Penalty For Child Rape Is Proportional Given The Severity Of The
            Crime.

        Applying the death penalty to a stepfather who viciously raped his eight-year-old

stepdaughter is proportional. The record indicates that the Louisiana Supreme Court strictly

followed this Court’s two-prong analysis for proportionality. (R. 31.) This Court has repeatedly

held that “in this and all matters where the Eighth Amendment is implicated,” the Court’s own

judgment must be brought to bear. Roper v. Simmons, 543 U.S. 551 (2005) (quoting Atkins, 536

U.S. at 312). The Louisiana Supreme Court applied that judgment in determining whether the

twin social purposes of punishment have been met: deterrence and retribution. Id. In applying

the first prong of the proportionality analysis, the court correctly found that only the death

penalty would provide the deterrence necessary to prevent the future rape of countless innocent

children. (R. 32.) Under the first proportionality prong the court also found that the strictest

punishment available under the Constitution was indispensable to exact the needed retribution

against a defendant found guilty of completing this severe and heinous crime. (R. 35.)

        In applying the second prong of the proportionality analysis, the Louisiana Supreme Court

took painstaking measures to detail the crime committed against this eight-year-old girl and

found that although the defendant did not commit murder, the vicious and brutal rape he did

commit made this defendant truly among the “most deserving” of execution. Atkins v. Virginia,

536 U.S. 304 (2002) (emphasis added). The court’s holding on this issue is directly in line with

                                                  7
this Court’s Eighth Amendment jurisprudence, which has historically carved out exceptions for

other crimes that do not include murder such as espionage, drug dealing and even aircraft piracy.

      1.       The Louisiana Criminal Justice System Must Be Allowed To Deter Future Child
               Rapes And Impose Retribution For This Truly Heinous Crime.

           The Louisiana Criminal Justice System must be allowed to punish to the fullest extent

allowed by the Constitution if it is ever to have any power in thwarting future child rapes.

Although this Court has held the death penalty inapplicable to defendants with limited

culpability resulting from a mental or physical ailment, such is not the case with all child rapists

in general and certainly not the case with the defendant currently before this court. See generally

Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543 U.S. 551 (2005); Ford v.

Wainwright, 477 U.S. 399 (1986) (executing the mentally incompetent is unconstitutional).

Furthermore, this Court has repeatedly held that Children are our greatest asset and require our

greatest protection. . See generally, Coy v. Iowa, 487 U.S. 1012 (1988); Maryland v. Craig, 497

U.S. 836 (1990). Thus, the death penalty, which provides the greatest overall deterrence and

individual retribution, is the only punishment suitable to protect them from this heinous crime.

      By arguing that the death penalty does not deter child rape, the defendant is advancing the

same argument made by the dissent in State v. Selman. State v. Selman, 300 So.2d 467, 475 (La.

1974). In Selman, Justice Barham, writing for the dissent, argued that: “application of the death

penalty to aggravated rape, when death is not a consequence of that criminal act, invites one who

commits rape to kill the victim because (1) the penalty is no more severe if the rape victim is

killed; and (2) a dead victim cannot identify the offender.” Id (emphasis added). Justice

Barham’s argument, rejected by the Louisiana Supreme Court, was premised on the theory that

adult rape convictions are based mainly on one-on-one identifications, a fact not wholly untrue.

Id.


                                                    8
    There are, however, several distinctions between Selman and the instant case that makes

Justice Barham’s reasoning inapplicable to the facts before this Court. First, child rape is not,

wholly or even mainly dependant on one-one-one identifications. U.S. DEPARTMENT OF JUSTICE,

BUREAU OF JUSTICE STATISTICS, National Crime Victimization Survey, 2006. In fact,

investigations of child rape are generally initiated by families, friends and social workers and not

the victims. Id. Children are often the last to come to grips with the enormity of the situation and

many times will not even testify at trial against the accused. Child rapists often intimidate their

child victims to such a degree that the victims will not identify the assailant even under the most

intense questioning. For instance, in the case currently before this court, only the victim’s

mother, with the assistance of child services, could help advance the investigation against the

defendant. (R. 11.) It was the victim’s mother alone who, after talking to the victim for eighteen

months, managed to convince her that it was acceptable to come forth and identify her attacker.

(R. 11.) Because of their age, child victims are so easily intimidated that there is no additional

incentive, as the defendant suggests, for the rapist to kill the child. Additionally, a child rapist

would have even less incentive to kill the child because it would draw further attention to the

rape. The homicide of a child, as opposed to an often silent child rape, would prompt a much

larger and more thorough investigation that would eventually expose the previous rape

committed.

    This Court, however, has entertained two other reasons why executing a defendant guilty of a

heinous crime would be disproportional. See Roper v. Simmons, 543 U.S. 551 (2005); Atkins,

536 U.S. at 312 (2002). In the few instances where this Court has found the death penalty

disproportional, the mental or physical state of the defendant was always at issue. Atkins, 536

U.S. at 312 (2002). In Atkins, this Court linked “relative culpability” to the “penological



                                                   9
purposes served by the death penalty on a mentally retarded defendant.” Id. at 317. With respect

to retribution, this Court found that because “severity of the appropriate punishment necessarily

depends on the culpability of the offender ... an exclusion for the mentally retarded is

appropriate.” Id. at 319.

       Similarly, in Ford, this Court held that the Eighth Amendment prohibits the execution of

an insane defendant. Ford v. Wainwright, 477 U.S. 399 (1986). In creating this exclusion for

those found to be insane, this Court relied on the rationale that “the execution of a person who

does not understand, or is not even aware of, the punishment that he is about to face does not

serve the death penalty's aims of deterrence and retribution.” Id. at 405.

       Also, in Roper, this Court held that execution of an individual under the age of eighteen, at

the time they committed the offense, was unconstitutionally cruel and unusual punishment and

thus prohibited by the Fourteenth Amendment. Roper v. Simmons, 543 U.S. 551 (2005). Again

this Court addressed the “lessened moral culpability” of the defendant by emphasizing that “the

reality that juveniles still struggle to define their identity means it is less supportable to conclude

that even a heinous crime committed by a juvenile is evidence of irretrievably depraved

character.” Id. at 1195; See also, Allen v. Ornoski, 435 F.3d 946(Ca. 2006) (holding that the

Eighth Amendment did not prohibit execution of elderly and infirm prisoner for similar reasons).

       By contrast, here, there is no indication that the defendant’s physical or mental condition

or his age affected his mental acuity. Unlike Roper, this defendant does not claim to be a juvenile

when he brutally rapped his eight-year-old stepdaughter. Also, unlike Atkins or Ford, the

defendant in this case is not mentally retarded. According to Louisiana Criminal Code and to the

governing law at the time, State v. Williams, this defendant was judged mentally competent by

two experts, a mental health commission, and a trial judge who properly ruled on all admissible



                                                  10
evidence before him and found the defendant competent. See State v. Williams, 831 So.2d 835

(La. 2002); LA. CODE CRIM. PROC. art. 905.5.1(G) (2003); Kennedy, 957 So.2d 757 (unpublished

opinion at 33) (2007).

      In fact, none of the reasons this court has previously used to limit the use of the death

penalty in previous cases applies to this defendant. Louisiana offers sufficient procedural

safeguards which allow defendants to claim a mental or physical handicap that will excuse

imposition of the death penalty in circumstances similar to this one and it is important to note

that this defendant was found unqualified to pursue any of them . Id.; 831 So.2d at 860; LA.

CODE CRIM. PROC. art. 905.5.1; LA. CODE CRIM. PROC. art. 643; See also, Tobolowsky, Atkins

Aftermath: Identifying Mentally Retarded Offenders and Excluding Them from Execution, 30 J.

Legis. 77, 208 (2003). By proving himself mentally competent at the time of trial, and an adult

at the time he rapped the victim, this defendant is prohibited from using the Eighth Amendment

as a shield simply because this Court has previously carved out a specific exception for those

who can display a “lessened moral culpability” for committing a crime.

      Executing child rapists will not incentivize rapists to murder children in the future. The

intimidation inherent in child rape and the criminal’s need to draw less attention to himself

neutralizes any motivation the rapist might have to murder a rapped and intimidated child. Also,

the lessened moral culpability doctrine used by this Court to overturn use of the death penalty

does not apply to child rape. Sufficient safeguards currently exist to excuse mentally and

physically ailing defendants, even though there is no ailment that can excuse the defendant

currently before this court. Thus, this Court should affirm the Louisiana Supreme Court’s

imposition of the death penalty for the aggravated rape of a child as a proportional punishment

that serves the twin social functions of deterrence and retribution for this truly heinous crime.



                                                 11
   2.       The Death Penalty For Child Rape Is In Accord With This Court’s
            Jurisprudence, Which Ensures That Only The Most Deserving Of Execution Are
            Put To Death.

        The defendant in this case is as deserving of execution as any murderer currently on death

row. This Court has consistently upheld a state’s right to enforce the death penalty against

defendants convicted of other non-homicide offenses including espionage, drug dealing, and

even aircraft piracy. See ARK. CODE ANN. § 5-51-201 (MICHIE 1997); CAL. PENAL CODE§ 37

(WEST 1999); MISS.CODE ANN. §§ 97-7-67, 97-25-55 (WEST 2003); N.M. STAT. ANN. § 20-12-42

(MICHIE 1989); WASH. REV. CODE ANN. § 9.82.010 (WEST 2006 SUPP.). This defendant raped his

own eight-year-old stepdaughter. (R. 7.) He was brutal. (R. 7.) He tried to cover it up. (R. 6.). He

tried to clean the victim up in the bathroom and point the finger on an innocent local teen that

had nothing to do with the crime. (R. 5.) The defendant currently before this court deserves the

greatest punishment allowable under the Constitution.

        Moreover, the creation, as defendant suggests, of a judicially imposed “death for death

only” rule would be inconsistent with this Court’s jurisprudence. Crimes like espionage and

aircraft piracy were capitalized to protect society. See Coker v. Georgia, 433 U.S. 584 (1977).

(Chief Justice Burger and Justice Rehnquist dissenting). Crimes like drug dealing were

capitalized to protect those who are physically and mentally addicted to illicit drugs. Id.

Applying the death penalty to child rapists is intended to protect children and their communities

which are recognizably damaged and often destroyed by the crime of aggravated child rape.

        The Louisiana Supreme Court correctly recognized that a number of crimes that do not

involve death have been capitalized. At the federal level 18 U.S.C. 3591(b)(1) and 21 U.S.C.

848(e) “combine to provide capital punishment for the kingpin of an large criminal drug

enterprise.” State v. Kennedy, 957 So.2d 757, 788. Additionally, even though federal law all but

preempts the issue, at least five states have drawn statutes that provide the death penalty for
                                                 12
treason, espionage, and aircraft piracy.1 See ARK.CODE ANN. § 5-51-201 (MICHIE 1997);

CAL.PENAL CODE § 37 (WEST 1999); MISS.CODE ANN. §§ 97-7-67, 97-25-55 (WEST 2003); N.M.

STAT. ANN. § 20-12-42 (MICHIE 1989); WASH. REV.CODE ANN. § 9.82.010 (WEST 2006 SUPP.).

Four more states provide capital punishment for aggravated kidnapping offenses similar to

Louisiana's (non-capital) crime of aggravated kidnapping in R.S. 14:42. See COLO.REV.STAT.

ANN. § 18-3-301; IDAHO CODE, §§ 18-4502, 18-4504 (MICHIE 2000); MONT.CODE ANN. 45-5-503

(WEST 2005); S.D. CODIFIED LAWS § 22-19-1 (MICHIE 1998).

       The defendant suggests creation of a “death for death only” rule that would essentially

limit the use of the death penalty to cases where death has occurred. This Court’s creation of

such rule out of whole-cloth would, among other things, be inconsistent current Federal law and

the statutes of at least nine other states, all of which have capitalization crimes that do not

necessarily involve murder. The only rule necessary for application of the death penalty was

announced by this court in Gregg v. Georgia and remains as valid a test of proportionality then as

it does today. Gregg v. Georgia, 428 U.S. 153 (1976).

       In Gregg, this Court required that the death penalty should be used only on those “most

deserving” of execution. Id. This Court then went on to apply its “own independent judgment” to

determine whether commission of a crime made a defendant of the type “most deserving.” Id. As

in Gregg, the instant case presents a factual scenario consistent with the “most deserving”

standard. The defendant currently before this Court rapped his eight-year-old stepdaughter so

viciously that surgery was needed to restore the appearance and function of her sexual organs.

(R. 18.) The Louisiana Supreme Court correctly applied this Court’s “own independent

judgment” rule when it held that, because of the brutality of the crime and because “the Supreme

1
  Federal law providing capital punishment for the same kinds of crimes, see 18 U.S.C. 794
(espionage); 18 U.S.C. 2381 (treason).
                                                  13
Court has repeatedly stated that short of murder, rape is the ultimate violation of self”, it seems

clear that “if the Court is going to exercise its independent judgment to validate the death penalty

for any non-homicidal crime, it is going to be child rape.” State v. Kennedy, 957 So.2d 757, 788,

(quoting Roper v. Simmons, 543 U.S. 551) (2005) (emphasis added).

        Thus, when compared to the other non-homicide crimes that this Court has upheld, it

would now be inconsistent to refuse to validate the death penalty’s use against child rapists. To

retain consistency and to encourage reliance by state legislature and state courts alike, especially

where the ultimate punishment is at issue, this Court should affirm the Louisiana Supreme

Court’s holding that, even though they stop short of murder, those who brutally rape children

under twelve are truly among the “most deserving” of death.


   B.      The Direction Of Change In The National Consensus Decisively Favors
           Imposition Of The Death Penalty For Child Rape.

        Aside from finding that the Louisiana law serves the dual social functions of deterrence

and retribution, the Louisiana Supreme Court correctly found that a consistent “direction of

change” in the “national consensus” favors the death penalty. State v. Kennedy, 957 So.2d 757

(2007). Today, the national consensus in every single state around the country is that child rape

is the greatest harm currently afflicting our society. In no other realm of criminal law has public

opinion been so clearly fixed in one direction. Even in seemingly direct opposition to this

Court’s own rulings in Coker and Eberheart, state legislatures have continued to pass laws

capitalizing rape but limiting it to children. See Coker v. Georgia, 433 U.S. 584 (1977);

Eberheart v. Georgia, 433 U.S. 917 (1977) (per curiam citing Coker ).

        Twice this Court has held that when deciding the direction of change a deciding court

must look to an “objective indicia of a national consensus”. Atkins v. Virginia, 536 U.S. 304

(2002); Roper v. Simmons, 543 U.S. 551 (2005). The appropriate “objective indicia” relies on a
                                                 14
review of the particular enactments of state legislatures that have addressed the question. See

Atkins at 304 (emphasis added); Roper at 551. As for the number of individual states that have

addressed the appropriateness of the death penalty for child rape, this Court has held that “it is

not so much the [raw] number that is significant, but the consistency of the direction of change”

in those numbers. Roper at 1193 (quoting Atkins). This Court has indicated that the analysis is

important because the Eighth Amendment “must draw its meaning from the evolving standards

of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86 (1958).

       Ordinarily, the number of individual states and the trend that those numbers afford would

suffice for determining the issue under Atkins. However, in 1977 this Court decided Coker and

then again affirmed it in a per curiam one-page opinion in Eberheart. Coker v. Georgia, 433 U.S.

584 (1977); Eberheart v. Georgia, 433 U.S. 917 (1977). In Coker, this Court expressly rejected a

state’s authority to enforce the death penalty for the rape of “an adult woman.” Coker v. Georgia,

433 U.S. 584 (1977). Although the opinion repeated the term “adult woman” fourteen times, a

single sentence cast enormous doubt on the extent of the Court’s limited holding. Id. Writing for

a plurality, Justice White stated that "Although rape deserves serious punishment, the death

penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist

who, as such and as opposed to the murderer, does not take human life." Coker at 585; State v.

Wilson, 685 So.2d 1063 (La. 1996).

       In 2005, this court announced Roper which abrogated a previous rule that “22 of 37

States could not create a national consensus.” Roper v. Simmons, 543 U.S. 551 (2005)

(abrogating Stanford v. Kentucky, 492 U.S. 361 (1989)). The Roper Court refused to announce a

magic-number-test but instead held that five states abolishing a practice in lieu of Supreme Court

precedence to the contrary was sufficient to establish a national consensus. Roper at 571.



                                                 15
        Defendant’s argument that the direction of change favors abolition of the death penalty

for child rape is misplaced on three fronts. First, the Louisiana Supreme Court properly found

that in the last ten years, at least six states have capitalized the crime of child rape.2 Since Roper

held that a five state trend could be sufficient to indicate a new national consensus regarding

society's standards of decency, the Louisiana Supreme Court correctly found that six states

would unquestionably meet the standard. Second, it is likely that the ambiguity over whether

Coker applies to child rape at all, or just adult rape, has left other states unsure of whether the

death penalty for child rape is constitutional. As the Louisiana Supreme Court opined, these

states may just be taking a “wait and see” attitude until this Court rules on the precise issue.

Thus, the fact that five states have capitalized child rape, even in the face of Coker, should prove

at least as compelling as Roper, given that the Roper Court's reliance on five states abolishing the

death penalty for juveniles was a significant number in lieu of Stanford. 492 U.S. 361 (1989).

        Third, when considering the future of the direction of change it the national consensus,

the Louisiana Supreme Court properly noted that of the thirty-eight current death penalty states,

only fourteen have recently considered child rape. And of those fourteen, six currently authorize

the death penalty for child rape and four are currently debating proposed legislation in favor of

imposing it. State v. Kennedy, 957 So.2d 757, 785 (La. 2007). The importance of this trend, as

the Louisiana Supreme Court noted, is that of the thirty-eight states that have used the death

penalty in the last thirty years, not a single one has abrogated it for child rapists.

        This public and legislative trend, as evidenced by state action in the face of Coker proves

a decided national trend in favor of the death penalty for those who rape children. Moreover, the



2
  Executing Rapists: A Reluctant Essay on the Ethics of Legal Scholarship, 4 Wm. & Mary J.
Women & L., 129, 160-61 (1997) (noting that in 1993, at least six states authorized death for
non-homicide crimes, and by 1997, that number had grown to fourteen).
                                                   16
precise number of states that would support such a penalty is unknown in the face of the apparent

prohibition announced by this Court. Therefore, given clear public opinion and a stubborn, albeit

slow-growing trend in favor of the death penalty for child rapists, this Court should affirm the

Louisiana Supreme Court’s finding that a national consensus favors imposition of the most

severe punishment available under the Constitution.

     II.   LOUISIANA LIMITS THE CLASS OF OFFENDERS ELIGIBLE FOR
           DEATH BY NARROWLY DEFINING THE OFFENSES AND BY
           REQUIRING JURIES TO CONSIDER MITIGATING CIRCUMSTANCES.

     Louisiana’s capital rape statute narrowly defines the rapes eligible for death. This definition

genuinely narrows the class of rapists eligible for the death penalty at the trial phase. The

sentencing is individualized by the consideration of mitigating circumstances. This gives the jury

the discretion to decide whether or not to impose the death penalty. The Constitution requires no

more than this from a capital sentencing scheme.

     This Court held in Lowenfield that a capital sentencing scheme can genuinely narrow the

class of person eligible for the death penalty by narrowing the definition of a capital offense. By

limiting which offenses are eligible for death, the “narrowing function” is performed at the trial

phase. All that the Constitution requires after this narrowing is for the sentencing to be

individualized. This Court held in Tuilaepa and Blystone that the consideration of mitigating

circumstances individualized sentencing and gave the jury the discretion to decide whether or not

to impose to impose the death penalty.

   A. Louisiana Genuinely Narrowly The Class Of Offenses Eligible For Death By
      Limiting It Only To Those Convicted Of The Aggravated Rape Of A Child Under
      The Age Of Twelve.

   Louisiana’s capital rape statute genuinely narrows the class of those eligible for capital

punishment by narrowly defining the offenses eligible for capital punishment. Only those



                                                 17
defendants convicted of the aggravated rape of a child under twelve are eligible for capital

punishment. The law refuses to capitalize other aggravated rapists or any of other types of sexual

offenses, even when those offenses are committed against children.

     This Court has held that in order to satisfy the Eighth Amendment, a capital sentencing

scheme must direct and limit a jury’s discretion “so as to minimize the risk of wholly arbitrary

and capricious action.” Lewis v. Jeffers, 497 U.S. 764, 774 (1990). In order to do so, a capital

sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty.”

Zant v. Stephens, 462 U.S. 862, 877 (1983). The narrowing of the class can be accomplished by

either (1) narrowing the definition of capital offenses; or, (2) by requiring a jury to find at least

one aggravating circumstance at either the guilt or penalty phase. Lowenfield v. Phelps, 484 U.S.

231, 246 (1988).

   In Lowenfield, this Court held that Louisiana genuinely narrowed which homicides were

eligible for capital punishment. 484 U.S. at 241. The Louisiana scheme at controversy

established five homicide grades: first-degree murder, second-degree murder, manslaughter,

negligent homicide, and vehicular homicide. Id. (See also LA. REV. STAT. ANN. § 14:29(1983)).

Under that scheme, every defendant guilty of first degree murder was eligible for the death

penalty. Id. This Court concluded that “[t]here is no question [] that the Louisiana scheme

narrow[ed] the class of death-eligible murderers…” because only one of five grades of homicide

were death eligible. Id. at 246. This Court relied on the Louisiana legislature’s narrowing of that

one capital offense when it held that the Louisiana statute was constitutional. Id.

   In Coker, this Court held that the death penalty is an unconstitutional punishment for the

raping of a married, adult woman. Coker v. Georgia, 433 U.S. 584, 595-600 (1977). Also of

consequence was that this court did not view rape as including “serious injury to another



                                                  18
person.” Id. at 598. As Justice Powell stated in his concurrence, the adult woman did not suffer

any “serious damage.” Id. at 601. In contrast, the victim in the instant case suffered serious

damage. Her rectum protruded into her vagina, her perineum was ripped, and she could not

defecate without being fed gallons of laxatives through a tube. She required surgery and a

pediatric forensic medicine expert testified he had never seen worse damage resulting from

sexual assault.

   Louisiana has criminalized six different classes of rape and sexual battery. LA. REV. STAT.

ANN. § 14:41-43.3. Those categories include three classes of rape: simple rape, forcible rape, and

aggravated rape. LA. REV. STAT. ANN. § 14:42-43. Louisiana has also reserved three classes of

sexual battery: sexual battery, second degree sexual battery, and oral sexual battery. LA. REV.

STAT. ANN. § 14:43.1-43.3. Of the six classes of rape and sexual battery, only the crime of

aggravated rape provides for capital punishment. And even then, the death penalty is reserved for

those who rape a child under the age of twelve. LA. REV. STAT. ANN. § 14:42(D)(2) (2001)3.

Accordingly, Louisiana’s capital rape statute narrows the class of death-eligible rapists even

more than the capital sentencing scheme upheld by this court in Lowenfield.

   Louisiana has nine sexual offense statutes specifically for the protection of children under

seventeen. LA. REV. STAT. ANN. § 14:41-43.3; 14:80-14:81.4 & 14:82.1. Louisiana criminalizes

adults4 from engaging in even consensual sexual with a child thirteen to sixteen years of age.

Louisiana statutory sexual offenses make it clear that the legislature considers children under

seventeen to be especially worthy of protection. LA. REV. STAT. ANN. § 14:41-43.3; 14:80-

14:81.4. Thus, there is no merit to the argument that since Coker prohibits rapists of adult



       3
          LA. REV. STAT. ANN. § 14:42(D)(2) (2001) was amended in 2003 to substitute thirteen
years for twelve years of age.
        4
          Nineteen years of age or older per LA. REV. STAT. ANN. § 14:80 (2001).
                                                19
women from receiving the death penalty, Louisiana’s capital rape statute does not actually

narrow the field of death eligible rapists. Simply being found guilty of the rape or aggravated

rape of a child does not make an offender eligible for the death penalty.

   At the time of this trial, only those who raped children eleven years old or younger were

eligible for death. By no stretch of the imagination can a twelve, thirteen, fourteen, fifteen, or

even an unmarried sixteen year old be considered an adult woman. At the time of trial, LA. REV.

STAT. ANN. § 14:42(D) (2001) defined aggravated rape eligible for the death penalty as “a rape

committed...where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful

consent of the victim because it is committed...[w]hen the victim is under the age of twelve...”

All other aggravated rapists are punishable by life in prison. LA. REV. STAT. ANN. § 14:42(D)(1)

(2001). Louisiana has genuinely narrowed the class of rapists eligible for capital punishment by

narrowly defining the offense eligible for the death penalty.

   B. Louisiana’s Sentencing Statute Requires A Jury To Consider Mitigating
      Circumstances Before Deciding Whether Or Not To Impose The Death Penalty.

   Louisiana requires that aggravating and mitigating circumstances be considered together

before a sentence of death can be imposed.5 Considering mitigating circumstances gives the jury

the discretion to decide whether or not to impose the death sentence. In this way, the Louisiana

statute creates the individualized sentencing scheme the Constitution requires.

     This Court has held that individualized sentencing is a requirement that is met by the

consideration of all relevant mitigating circumstances. This gives the jury the discretion to decide

whether or not to impose the death penalty. Tuilaepa v. California, 512 U.S. 967, 972 (1994);



       5
         “A sentence of death shall not be imposed unless the jury finds beyond a reasonable
doubt that at least one statutory aggravating circumstance exists and after the consideration of
any mitigating circumstances, determines that the sentence of death should be imposed.” LA.
CODE CRIM. PROC. ANN. art. 905 (1988).
                                                 20
Blystone v. Pennsylvania, 494 U.S. 307 (1990). This Court has also held that where a statute

genuinely narrows the offense eligible for death at the guilt phase, aggravating circumstances

found at sentencing may be duplicative of an element of the underlying offense. Lowenfield v.

Phelps, 484 U.S. 231, 246 (1988).

       In Tuilaepa, this court examined the second requirement of a capital sentencing scheme.

512 U.S. at 975. This Court examined California’s capital sentencing scheme which narrowed

the class at the sentencing phase and not the trial phase. Id. at 967, 969. In that case, the

defendant was found guilty of first degree murder at trial and sentenced to death upon the

consideration of aggravating and mitigating circumstances. Id. at 969. This Court held that there

is a separate requirement for a capital sentencing scheme to be Constitutional. Id. The sentencing

stage must make “an individualized determination on the basis of the character of the individual

and the circumstances of the crime.” Id. This individualized determination is made by the

consideration of mitigating, and not just aggravating, circumstances. Id. This Court affirmed the

defendant’s death sentence because the jury was allowed to consider a variety of mitigating

circumstances at sentencing. Id. at 980.

   In Blystone, this Court analyzed a Pennsylvania statute enumerating the mitigating

circumstances a jury could consider at sentencing. 494 U.S. at 304. This Court held that the

inclusion of a “catch all” provision provided the necessary constitutional structure to

Pennsylvania’s statutory scheme. Ultimately, this Court upheld the defendant’s death sentence

because the Pennsylvania “catch all” provision allowed the sentencing jury to consider any

relevant mitigating circumstance. This gave the jury the discretion to “decline to impose the

penalty.” Id. citing McCleskey v. Kemp, 481 U.S. 279, 306-306 (1987).




                                                  21
    In Lowenfield, this Court held that the sentencing scheme for Louisiana’s capital homicide

statute was constitutional because it narrowly defined the class of homicides that were eligible

for the death penalty. 484 U.S. at 246. The petitioner argued that an element that made a

defendant guilty of first degree murder could not be considered an aggravating circumstance to

be considered at sentencing. Id. at 244. This Court disagreed, and held that since Louisiana

narrowly defined the offenses eligible for the death penalty, aggravated circumstances were

irrelevant at sentencing and juries were not even required to consider them. Id. at 246. Thus, the

fact that the aggravated circumstances duplicated the elements of the underlying offense was of

no moment and raised no constitutional issues. Id. Specifically, this Court held that narrowing

death eligible offenders at the guilt phase and allowing the consideration of mitigating

circumstances at sentencing were all the Constitution required of a capital sentencing scheme. Id.

    The instant case is different than Tuilaepa, as the class of offenders eligible for death is

narrowed at the trial rather than the sentencing phase in Louisiana. As in Lowenfield, the capital

sentencing scheme for aggravated rape narrowly defines the rapes eligible for the death penalty.

In fact, the capital rape scheme is much narrower than the capital homicide statute, as not all

aggravated rapists are eligible for capital punishment. Per Lowenfield, aggravated circumstances

are thus not required when the narrowing function is performed at trial. However, the statutory

aggravating circumstances found at sentencing were that “the offender was engaged in the

perpetration…of aggravated rape” and that the “victim was under the age of twelve years…” LA.

CODE CRIM. PROC. art. 905.4(A)(1) and (10) (2003). These are clear and objective and not

subject to interpretation.

        As in Tuilaepa, the sentencing jury in the instant case considered mitigating

circumstances as well as aggravating circumstances. Allowing the sentencing jury to consider



                                                  22
aggravating and mitigating circumstances passes the standard set forth in Tuilaepa requiring an

individualized sentencing. As Pennsylvania did in Blystone, Louisiana provides a “catch all”

provision as a statutory mitigating circumstance. This allows the sentencing jury to consider any

relevant mitigating circumstances. The jury considered four clear, unambiguous statutory

mitigating circumstances, including a “catch all” provision. As in Blystone, this “catch all”

provision along with the other mitigating circumstances allowed the jury to decline to impose the

death penalty. The defense presented seven witnesses at sentencing who testified on Kennedy’s

behalf at sentencing. Upon consideration of the witnesses and the statutory mitigating

circumstances, the jury could have returned a sentence of “life imprisonment at hard labor

without benefit of parole, probation, or suspension of sentence...” LA. REV. STAT. ANN. §

14:42(D)(2)(a) (2001). The jury unanimously sentenced the defendant to death.

   Louisiana requires that aggravating and mitigating circumstances be considered together

before a sentence of death can be imposed. Louisiana demands this consideration even though

they are not constitutionally required to find aggravating circumstances at sentencing because the

“narrowing function” is performed at trial. Considering mitigating circumstances gives the jury

the discretion to decide whether or not to impose the death sentence. In this way, the Louisiana

statute creates the individualized sentencing scheme the Constitution requires.

                                         CONCLUSION

       For the foregoing reasons, this Court should affirm the judgment of the Louisiana

Supreme Court.

                                             Respectfully submitted,

                                             Counsel for Respondent

                                             Dated: February 22, 2008



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