Spared death in 2008, man continues appeals in child rape

AP News
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Posted: Aug 06, 2015 2:34 PM

NEW ORLEANS (AP) — He was spared the death penalty by the U.S. Supreme Court in a landmark 2008 decision. Now a man convicted in the 1998 rape of his 8-year-old stepdaughter wants a federal appeals court in New Orleans to uphold a ruling that could lead to his freedom — or a new trial.

A three-judge panel of the 5th U.S. Circuit Court of Appeals on Thursday heard arguments on whether there was gender discrimination in the selection of grand jury leaders when Patrick Kennedy was indicted in Jefferson Parish, a New Orleans suburb. The panel did not say when it would rule.

Kennedy, who has said he didn't commit the crime, once faced execution. But, his case led to a 5-4 Supreme Court ruling that death sentences for child rape were unconstitutional.

That decision invalidated laws in five states that allowed executions in child rape cases. It drew criticism at the time from Republican Gov. Bobby Jindal and then-Sen. Barack Obama, running for the Democratic presidential nomination.

Kennedy was resentenced to life in prison in January 2009, at age 44. He has continued to fight his conviction, moving to federal courts after failing at the state level.

In October 2013, U.S. District Judge Helen Berrigan rejected numerous arguments by the defense but agreed on one key point: that there was sufficient evidence proving that when Jefferson Parish judges selected people to serve as foremen or forewomen of a grand jury, women were too often passed over.

That led to Thursday's arguments at the 5th Circuit.

Although the case involved the emotional issue of a child's rape and trial testimony had included gruesome evidence of the girl's injuries, Thursday's arguments centered largely on dry statistical arguments as to whether the number of grand jury foremen and forewomen cited in the defense arguments were drawn from a statistically significant number of grand jury panels.

"It reminds me of the old very famous book, 'How to Lie With Statistics,'" Judge Jacques Wiener remarked.

Berrigan's 2013 order called for Kennedy's release or reindictment within six months. However, she agreed to a delay in carrying out her order pending the appeal, citing the violent nature of the crime and the "significant incentive" Kennedy would have to flee to avoid a life sentence, if he were released pending a new trial.