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«IN THE PATRICK KENNEDY, Petitioner, v. LOUISIANA, Respondent. On Writ of Certiorari To The Louisiana Supreme Court JOINT APPENDIX Terry M. ...»

-- [ Page 1 ] --

No. 07-343









On Writ of Certiorari

To The Louisiana Supreme Court




Terry M. Boudreaux Pamela S. Karlan

Jeffrey L. Fisher

Counsel of Record

Assistant District Attorney Counsel of Record Juliet Clark STANFORD LAW SCHOOL SUPREME Assistant District Attorney COURT LITIGATION CLINIC OFFICE OF THE 559 Nathan Abbott Way DISTRICT ATTORNEY Stanford, CA 94305 200 Derbigny Street (650) 724-7081 Gretna, LA 70053 (504) 368-1020 Petition for Certiorari filed September 11, 2007 Certiorari granted January 4, 2008


Page Relevant Docket Entries at the Supreme Court of Louisiana

Relevant Docket Entries at the Twenty-Fourth Judicial District Court for the Parish of Jefferson............2 Grand Jury Indictment

Jury’s Sentencing Verdict

Sentence Review Memorandum on Behalf of Petitioner

Sentence Review Memorandum on Behalf of the State of Louisiana




Case No. 2005-KA-1981 _________________

Patrick Kennedy, APPELLANT, v.

State of Louisiana, APPELLEE.



Date Filed Docket Text 12/09/2004 Motion for Appeal 12/21/2004 Order GRANTING Appeal 11/28/2007 Oral Argument 5/22/2007 Opinion Issued AFFIRMING 6/29/2007 Petition for Rehearing






Case No. 98-1425 _________________

State of Louisiana, v.

Patrick Kennedy, DEFENDANT.



Date Filed Docket Text 05/07/1998

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The Grand Jurors of the State of Louisiana, duly empaneled and sworn, in and for the body of the Parish of JEFFERSON, in the name and by the authority of the said State, upon their Oath, present: That one

–  –  –

late of the Parish of JEFFERSON, on or about the 2nd day of March in the year of our Lord, One Thousand Nine Hundred and Ninety-Eight (1998), with force and arms, in the Parish of JEFFERSON aforesaid, and within the jurisdiction of the Twenty-Fourth Judicial District Court of Louisiana, in and for the Parish of JEFFERSON aforesaid, then and their being violated R.S. 14:42 in that he did commit aggravated rape upon a female juvenile under the age of 12 years,

–  –  –

Having found the below listed statutory aggravating circumstance or circumstances and, after consideration of mitigating circumstances offered, the jury unanimously determines that the defendant Patrick O’Neal Kennedy should be sentenced to death.

Aggravating circumstance or circumstances found:

A. Aggravated Rape B. Victim under the age of 12 years Gretna, Louisiana, this 26 day of August, 2003.

–  –  –



Appeal from Conviction and Death Sentence Imposed In the 24th Judicial District Court for the Parish of Jefferson Hon. Ross LaDart, Judge, Presiding.






–  –  –

Jelpi P. Picou, Jr., La. Bar No. 18746 G. Ben Cohen, La. Bar No. 25370 The Capital Appeals Project 636 Baronne Street New Orleans, LA 70113 (504) 529-5955 Counsel for Defendant-Appellant Patrick Kennedy

–  –  –



Appeal from Conviction and Death Sentence Imposed In the 24th Judicial District Court for the Parish of Jefferson Hon. Ross LaDart, Judge, Presiding.



COMES NOW APPELLANT, Patrick Kennedy, through counsel and pursuant to Rule 28 of the Rules of the Supreme Court of Louisiana, Article 905.9 of the Louisiana Code of Criminal Procedure, the Eighth and Fourteenth Amendments to the United States Constitution, and Article I, sections 13, 16, 19, 20, 21, 22, 23 and 24 of the Louisiana Constitution of 1974, who respectfully files this sentence review memorandum.

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1964. The State of Louisiana has not executed a person for rape since 1957. Of the three thousand three hundred and sixty six (3,366) inmates who are presently on Death Row in the United States, Patrick Kennedy is the only one awaiting execution for a non-homicide rape.

John Michel, in 1957, was the last person put to death for rape in Louisiana. Mr. Michel was a twenty-three-yearold black male convicted of raping a white female. In the entire history of Louisiana, there have been five hundred and ninety nine (599) executions. Although only a small percentage of these executions in total were for nonhomicide offenses, all of those executions occurred before our modern capital jurisprudence, and a significant number of them included the hangings of slaves.

Mr. Kennedy would be the first executed for rape since 1957, but would extend the long and lonely string of African-American men executed for rape. The death sentence imposed upon Mr. Kennedy is disproportionate and excessive, given the large number of instances in which defendants have received lesser punishments for greater, or equal offenses.

The State filed a Sentence Review Memorandum on April 21, 2006. The State’s Sentence Review Memorandum first details the seventy-seven cases that are mistakenly claimed to be all of the “first degree murder indictments” in which sentence was imposed after January 1, 1976. Of those seventy-seven cases, three defendants were executed, and twelve defendants remain on death row with appeals or other challenges to their convictions and sentences pending.

The State’s Sentence Review Memorandum includes discussion of sixty-two defendants charged with first degree murder who have not been sentenced to death. A number of these defendants who were not sentenced to death committed offenses far worse than the offense committed in this case.1 The State’s Sentence Review Memorandum also 1 As discussed in more detail below, the State’s Sentence Review Memorandum details a number of cases in which defendants received a life sentence for actions that were incontrovertibly worse than those 9 fails to detail a number of murders, including some of children, that are worse than the offense in this case.2 The State’s Sentence Review Memorandum next details a list of capital aggravated rape cases in which sentence was imposed “after August 15, 1995.” The Memorandum details twelve aggravated rape cases, and indicates that this is the only case in which a defendant has been sentenced to death. The State’s Sentence Review Memorandum does not detail other comparable cases throughout the State of Louisiana that resulted in a sentence less than death. See e.g.

State v. Clark, 2002-1463 (La. 06/27/03); 851 So. 2d 1055, 1089 (“Given the lack of comparable cases in Richland Parish, it is appropriate for this court to look beyond the judicial district in which the sentence was imposed and to conduct the proportionality review on a state-wide basis.”) citing, inter alia, State v. Carmouche, 2001-0405 (La.

05/14/02); 872 So. 2d 1020; State v. Deal, 00-0434, p. 17 (La. 11/28/01), 802 So. 2d 1254, 1268; State v. Duncan, 99p. 38 (La. 10/16/01), 802 So. 2d 533, 559; State v.

Howard, 98-0064, (La.4/23/99), 751 So. 2d 783, 820; State v.

Ortiz, 96-1609, (La.10/21/97), 701 So. 2d 922, 936. Nor does the State address the particular mitigating circumstances at issue in this case that render the imposition of the death penalty excessive, arbitrary, wanton, and freakish.

Appellant counsel’s effort to provide such a reviewensues.

presented to the jury in this case. For instance, the State’s Memorandum details the case of Brian Bibb who was sentenced to life for stabbing to death two children ages 5 and 3, and attempting to kill the children’s mother.

2 As discussed below the State’s Sentence Review Memorandum does not detail a number of cases involving charges of first degree murder, including – for instance – the case of Whitney Spencer, who was charged with four counts of first degree murder for intentionally killing 14-month-old Keitwon Ester, six-year old Ranneisha Kent, seven-year old Deaunta Kent, and four-year old Branika Murph. See State v.

Spencer, 00-2084, Division A, 24th JDC, Jefferson Parish.



In addition to the arguments put forth in Mr. Kennedy’s Original and Supplemental Briefs, the sentence of death imposed in this case is disproportionate and excessive given the vast number of instances in which a lesser sentence has been imposed for equal or greater offense. Moreover, the existence of critical mitigating circumstances renders the imposition of the death penalty in this case arbitrary.

Mr. Kennedy is the only person to be sentenced to death in the United States for rape in over forty years, and the only person to be sentenced to death for rape in Louisiana in over fifty years. Louisiana juries’ recalcitrance to sentence aggravated rapists to death, and the fact that every other convicted aggravated rapist in Louisiana is serving life or less – independently and together – make clear the excessive and disproportionate nature of the sentence.

As discussed more fully below, in the vast majority of prosecutions for capital rape, the charges are usually dropped to lesser charges, or the case proceeds without the possibility of capital punishment.3 When the cases proceed to a jury, juries in Louisiana routinely return life sentences to those defendants who are convicted of aggravated rape of a child under twelve.

Moreover, the death penalty is an unusual punishment for defendants convicted even of killing children, and a significant number of defendants have received lesser sentences for the offense of intentionally murdering a child during the course of a rape.

–  –  –

Clerk of Court in every parish in Louisiana. See Exhibit A.

Thirty-four (34) parishes - including Orleans4 - did not respond to those requests. Eleven (11) responded to that request indicating that they could not provide the information. See Exhibit B. Nine (9) responded that no capital rapes prosecutions had occurred in their districts.5 See Exhibit C. One (1) other parish responded that it was unable to segregate capital rape from other non-capital aggravated rape, but provided information concerning these offenses. See Exhibit D. Finally, a mere nine (9) parishes provided information responsive to the request. See Exhibit E. This information led to the disclosure of eighty-eight (88) additional cases involving indictments for aggravated rape.

After securing the information discussed above, counsel also sought to review all of the published and unpublished appeals involving the charge of aggravated rape of a child.

These additional cases are discussed below. Appellant counsel also reviewed the information concerning one hundred additional cases that were introduced as Exhibit B at the Motion for New Trial. See R. 6053.6 At that 4 Angela West, in assessing the different charging practices prior to the amendment to the aggravated rape statute reviewed the case-files for thirty-two indictments for aggravated rape that occurred in Orleans between 1995 and 1998, roughly ten a year. See Angela D. West, Death as Deterrent of Prosecutorial Tool? Examining the Impact of Louisiana’s Child Rape Law, 13 Crim. Just. Pol. Rev. 156, at 160 (2002). Undersigned counsel has not been able to review the case-files on these cases or the ones that have occurred since. It would be sufficiently conservative to approximate that there have been at least an additional one hundred and ten (110) such indictments in Orleans alone since 1995.

5 This information received from the districts is not necessarily deemed accurate. Indeed, Jerry Jones of the 4th Judicial District indicated that no such capital rape indictments had issued in his jurisdiction, even though the case of State v. Bethley arose from that district. See State v.

Wilson, 685 So.2d 1063, 1073 (La. 1996).

6 Where counsel has secured a citation to a court record for any of the cases identified in MNT Exhibit B, counsel has referred to the case 12 proceeding, the State stipulated to the authenticity and accuracy of the research prepared by researcher Emily Maw, who had endeavored to identify every single pending capital rape indictment within four different parishes.

Finally, undersigned counsel attempted to review news media and other public reports concerning charges of aggravated rape of a child. Substantiation of the data discussed below is attached to this Brief in Reply to the State’s Sentence Review Memorandum. Undersigned counsel wholeheartedly concurs that the documentation and citation identified herein does not establish the entire universe of capital rape charges but notes that it vastly expands the universe of eleven (11) cases provided by the state to a total of more than one hundred and eighty (180) cases.




The sentence of death imposed on Mr. Kennedy is excessive and disproportionate when compared to the sentence imposed in similar or worse offenses. The State lists twelve (12) defendants in its Sentence Review Memorandum who were convicted since the aggravated rape statute’s enactment; from these twelve cases, only the Appellant in this case has been sentenced to death.

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