News Release ~ 06/25/2008

 Supreme Court Abolishes Death Penalty for Non-Capital State Crimes, Reaffirms Confrontation Rights

Washington, DC­ (June 25, 2008) -- The Supreme Court decided two criminal cases today in favor of the petitioner-defendants. NACDL supported the petitioners in both cases with amicus curiae (“friend of the court”) briefs.

In Kennedy v. Louisiana, No. 07-343, the Court decided 5-4 that a Louisiana man’s death sentence for the state crime of raping a child under 12 was disproportionate to his conviction in violation the Eighth Amendment, where the crime did not result, and was not intended to result, in the victim’s death.

“We are glad that the Court has blocked this expansion of the death penalty to state crimes other than murder,” said NACDL President-Elect John Wesley Hall, of Little Rock.. “We agree with the majority that the goals of retribution and deterrence are not met where the death penalty is imposed for crimes in which no death resulted or was intended. Moreover, as we argued in our briefs, the problems presented by unreliable or even imaginary child testimony would result in wrongful executions of innocent defendants.”

The amicus briefs filed by NACDL and Twelve Innocence Projects, cited with approval by the majority, on behalf of petitioner Patrick Kennedy, were authored by attorneys at the law firm of Baker Botts LLP. NACDL opposes the death penalty as a matter of policy.

Still, it appears that a majority of the Court are not yet ready to abolish the death penalty entirely for state crimes. Though the Court’s jurisprudence for guiding the states and juries in capital murder cases “remain sound,” Anthony Kennedy wrote for the majority, “beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty. Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.” Associate Samuel Alito filed a 23 ½ page dissent, which was joined by Chief Justice John Roberts, and Associate Justices Antonin Scalia and Clarence Thomas.

In the other criminal case decided June 25, Giles v. California, No. 07-6053, the Court held that a criminal defendant did not automatically forfeit his right to exclude the admission at trial of prior accusations of a witness he killed, where the state did not show that he killed the decedent to prevent her from testifying. Prior to her death, the decedent, Brenda Avie, filed a domestic violence report against Dwayne Giles, her boyfriend.

The defendant admitted killing his girlfriend but claimed he acted in self-defense, testifying that she was a violent person who had shot another man and had threatened people with knives. To prove that the killing was premeditated, the state introduced statements the decedent has made to police officers weeks earlier accusing the defendant of threatening and assaulting her on another occasion.

California’s law allowing use of such statements against a defendant in a criminal trial violates the defendant’s Sixth Amendment right to confront witnesses and evidence against him, the Court held. Under the Court’s previous holding in Crawford v. Washington, NACDL argued, a criminal defendant must have the opportunity to confront the witnesses against him, except in cases where the exception to that right was recognized by the Framers of the Constitution.

“NACDL has long opposed so-called ‘exceptions’ to the hearsay rule,” Hall said. “Today’s decision is a welcome affirmation of Crawford. It expressly affirms that wrongdoers who cause a witness’s unavailability with the intent to prevent them from testifying still forfeit their right to exclude the witness’s reliable prior statements. The problem with California’s law was that any time a defendant was accused of making a witness unavailable, their out-of-court statements would automatically be admissible.”

Other amici which sided with the State of California, argued that a ruling in favor of the Constitution would create an “incentive” to kill victims of domestic violence, in order to prevent them from testifying, but the Court’s decision addressed that concern. Scalia wrote that in Giles’ case, on remand, the state court is free to consider whether the defendant intended to keep his girlfriend from testifying against him in a domestic violence case.

Justices Thomas and Alito filed concurring opinions, and Souter filed an opinion concurring in part, in which Ginsburg joined. Justice Stephen Breyer, joined by John Paul Stevens and Kennedy, dissented.

NACDL’s amicus curiae briefs (two in Kennedy and one in Giles) are available for free on NACDL’s Amicus Curiae Web page at

The brief in support of certiorari in Kennedy was written by Jonathan G. Cederbaum, Michael J. Gottlieb and Joshua M. Salzman of Wilmer Cutler Pickering Hale & Dorr LLP, in Washington, D.C. NACDL’s amicus merits brief in that case was written by Stuart F. Delery, Kelly Thompson Cochran and Joshua M. Salzman, Wilmer Cutler.

NACDL’s amicus brief in support of the petitioner in Giles was written by Jeffrey A. Lamken and Robert K. Kry, Baker Botts LLP, Washington, D.C., and Kennon L. Peterson of Baker Botts’ San Antonio office.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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