# Opposition Brief — Bethley v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1259

## Text

W a [> a
\\ . ORIGIN Supreme Court, U.S.
: FILED

APR 23 S97 |
NO. 96-8334
CLERK

REE EEE EEE EEE REE EERE EERE EREREEEREEEREEEEERERERREEEEREEEEREREEERERREKEE RK EAEKE

IN THE

SUPREME COURT OF THE UNITED STATES

RERERREEEREEERERER EERE REE RE REEEREREEREREEEEREEEERAEREERRERREERRREEEREEKREERERREREREEEREEREREREREEEERE ARAM

PATRICK DEWAYNE BETHLEY
PETITIONER

VERSUS

STATE OF LOUISIANA
RESPONDENT

BREAKER EERE REE ERER EEE EER EEEEEEEREREEEEREEEEREREEEREEEEREREREREEREREEEREEREREREEREERREREEREEEEEEEEK KEKE

STATE’S RESPONSE TO DEFENDANT'S
PETITION FOR WRIT OF CERTIORARI

REE EREEEREEEERREREREES BEREREREREEEREERRERD REREKRZEREEEREERREEREERREREREREEEREREREREKERKEERE KERR

ORIGINAL BRIEF ON BEHALF OF THE STATE OF LOUISIANA

RRR EEEE AEE EEEREERE EEE REEREEEREEREREEREREREEREEREERREEEEEREEEEERERREEEEREERREEREREE AKRAM

A CAPITAL CASE

REE ERE ERE EEK EEE EE REE EER EREREREERERREEREEREEEREEEEREREREREEEREEEREREREEREREEEERRERRKK AKRAM KRE

RICHARD P. IEYOUB
ATTORNEY GENERAL
STATE OF LOUISIANA

JERRY L. JONES

DISTRICT ATTORNEY

BAR ROLL NO. 07492
FOURTH JUDICIAL DISTRICT
P.O. BOX 1652

MONROE, LOUISIANA 71210

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES 3
STATEMENT OF JURISDICTION 5
QUESTION PRESENTED FOR REVIEW 5
CONSTITUTIONAL AND STATUTORY PROVISIONS PRESENTED 6
STATEMENT OF THE CASE 7
SUMMARY OF THE ARGUMENT 8
ARGUMENT

|. EIGHTH AMENDMENT CHALLENGE 9

A. DEATH AS A PENALTY FOR THE RAPE OF A CHILD LESS THAN 10
TWELVE YEARS IS NOT EXCESSIVE

1. LEGISLATIVE ENACTMENTS AND ACTION OF SENTENCING 10
JURIES

ll. CAPITAL PUNISHMENT MAKES MEASURABLE CONTRIBUTIONS TO 16
ACCEPTABLE GOALS OF PUNISHMENT

lil. THE FOUNDING FATHERS ALLOWED FOR THE DEATH PENALTY FOR _ 17
THE RAPE OF A CHILD UNDER TEN YEARS OF AGE AND NOT TWELVE

IV. PROTECTIONS FOR THE ACCUSED ON BOTH THE FEDERAL AND 18
STATE LEVEL PROVIDE THAT THE DEATH PENALTY FOR THE RAPE

CONCLUSION

25

TABLE OF AUTHORITIES

PAGE
FEDERAL
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) 23
California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) 15
Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) 9

Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) 10

Furman v. Georgia, 409 S.Ct. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) 8
Flynt v. Ohio, 101 S.Ct. 1958, 451 U.S. 619 (U.S. Ohio 1981) 7
Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) §

Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) 21
Morisette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.2d 288 (1952) 13
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) 8

Thompscr v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 .Ed.2d 702 (1988) 9

Tison v. Arizona, 481 U.S. 135, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) 10
Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590 (1958) 9
STATE

State v. Brown, 660 So.2d 123 (La. App. 2d Cir. 1995) 12
State v. David, 468 So.2d 1126 (La. 1984) 21
State v. Feet, 481 So.2d 667 (La. App. 1 Cir. 1985) 13
State v. Jackson, 658 so.2d 722 (La. App. 2d Cir. 1995) 12
State v. Polkey, 529 So.2d 474 (La. App. 1 Cir. 1988) 12

State v. Feltus Taylor, WL 83866, 93-2201 (La. 1996) 22

3

OTHER STATES

Buford v. State, 403 So.2d 943

Collins v. State, 550 S.W.2d 643 (Tenn. 1977)
Leatherwood v. State, 548 So.2d 389 (Miss. 1989)
State of Kansas v. Hendricks, No. 95-1649

Upshaw v. State, 350 So.2d 1358 (Miss. 1977)

STATUTES
LSA-C.Cr.P. Art. 905
LSA-R.S. 14:42

LSA-R.S. 15:150

LSA-R.S. 14:107.1(C)(1)

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14

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STATEMENT OF JURISDICTION

Jurisdiction in this matter is controlled by 28 U.S.C. 1257. Pursuant to that statute,
the finality of the state judgment for review by the United States Supreme Court is normally
defined by imposition of sentence. Flynt v. Ohio, 451 U.S. 619, 101 S.Ct. 1958 (U.S. Ohio
1981). The instant case has not proceeded to trial and sentence has not been imposed.
The decision of the Supreme Court of Louisiana finding the death penalty constitutional for
the crime of rape of a child less than twelve is not within the jurisdiction of this Honorable
Court. The defendant has an adequate remedy by way of appeal of any adverse judgment

to the appropriate courts.

QUESTION PRESENTED FOR REVIEW

Can the State of Louisiana seek the death penalty for an AIDS inflicted child rapist?

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the following constitutional and statutory provisions. The Eighth
Amendment to the Constitution of the United States, which provides in pertinent part:

“Excessive bail shall not be required..nor cruel and unusual punishments inflicted.”

The Fourteenth Amendment to the Constitution of the United States, which provides
in pertinent part:

“[Njor shall any state deprive any person of life, liberty or property without

due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”

LSA-R.S. 14:42, which provides in pertinent part:

“A. Aggravated rape is a rape committed upon a person sixty-five years of

age or older or where the anal or vaginal sexual intercourse is deemed to be
without lawful consent of the victim because it is committed...

RREEREE

(4) When the victim is under the age of twelve years. Lack of knowledge of
the victim's age shall not be a defense

RERKEE

C. ..[I]f the victim was under the age of twelve years, as provided by
Paragraph A(4) of this section, the offender shall be’*punished by death or life
imprisonment at hard labor without benefit of parole, probation or suspension
of sentence, in accordance with the determination of the jury.”

STATEMENT OF THE CASE

The defendant, Patrick DeWayne Bethley, DOB 2/9/68, has been indicted in a three
count indictment for aggravated rape of three minor children, all under the age of 12: A.K.
DOB 12/5/90; F.K. DOB 3/9/88 and L.K. DOB 11/29/86. The offenses are alleged to have
occurred between December 1, 1995 and January 10, 1996. On April 15, 1996, the State
announced that it would seek the death penalty in this case pursuant to R.S. 14:42(C) as
amended in legislative session .

On April 30, 1996, the defendant filed a “Motion to Strike and Quash as
Unconstitutional the Louisiana Statute providing for the Imposition of the Death Penalty in
Cases of Aggravated Rape in which the victim is under the age of twelve years.”

On May 29, 1996, the motion was heard by the Honorable John R. Harrison, Fourth
Judicial District Court and taken under advisement.

On June 7, 1996, the trial court granted the defendant's Motion to Quash, finding
the death penalty unconstitutional as it relates to aggravated rape when the victim is under
the age of 12. The Court found that R.S. 14:42, as amended, would “pass muster under
the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment of
the United States Constitution, and Article 1, Section 20 of the Louisiana Constitution” if
the class of death-eligible defendants was not limited under LSA-R.S. 14:42 and C.Cr.P.
Art. 905 et.seq.

On June, 11, 1996, the State gave notice of its intent to appeal the ruling and was
given until July 26, 1996. The State requested an extension and was given until August
5, 1996 to submit its brief. On December 13, 1996, the Louisiana Supreme Court upheld

the constitutionality of La. R.S. 14:42(C). The defendant applied for rehearing which was

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denied.

The defendant now applies for writ of certiorari with this Honorable Court.

SUMMARY OF THE ARGUMENT

Legislative enactments are presumed constitutional under both the Federal and
State Constitution. Gregg v. Georgia, infra; State v. Griffin, 495 So.2d 1306 (La. 1986).
The decision by the Supreme Court of Louisiana finding the death penalty constitutional
for the crime of rape of a child less than twelve is not within the jurisdiction of this Court.
In context of criminal prosecution, the finality of state court judgment for purposes of review
by the United States Supreme Court, is normally defined by the imposition of sentence.
Flynt _v. Ohio, 101 S.Ct. 1958, 451 U.S. 619 (U.S. Ohio 1981). This case has not
proceeded to trial and sentence has not been imposed. The defendant has an adequate
remedy by way of appeal of any adverse judgment to the appropriate court.

Evolving needs of society mandate the protection of our children especially in a
society with sexually transmitted diseases such as AIDS that can lead to death much
quicker and with more certainty than any decision by a jury. Accordingly this writ of

certiorari should be denied.

ARGUMENT
The case before the Court is that of State of Louisiana v. Patrick Bethley, No. 96-
8334 whom the state alleges raped three young girls all under the age of twelve and further

it is alleged that at the time the rapes occurred Patrick Bethiey knew that he had Aquired

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immune Deficiency Syndrome commonly referred to as AIDS. One of the girls was the
naturai child of Bethley.

The people of Louisiana have determined through their legislature that the death
penalty for the rape of a child under twelve is necessary for the protection of their children
and to provide for a stable community. This Court has acknowleged that child abuse can
have a devastating effect on a child to the extent that where a defendant in a capital
murder case has been the subject of abuse, the jury must be allowed to cnsider that as a
mitigating circumstance. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d
256 (1989).

Applicant asserts that the death penalty for the rape of a child under the age of
twelve violates both the Eighth Amendment and the Fourteenth Amendment to the United

States Constitution.

|. Eighth Amendment Challenge

The Eighth Amendment prohibits punishment that is cruel and unusual. U.S.C.A.
Const. Amendment 8; Furman v. Georgia, 409 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972). A punishment is cruel and ubusual if it is administered in an arbitrary and
capricious manner or if it is excessive. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976).

A punishment is administered in an arbitrary and capricious manner if it is imposed
in a discretionary manner. A jury cannot be given “unbridled discretion” but must be guided
by law. Gregg, supra.

A punishment is excessive if it makes no measurable contribution to acceptable

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goals of punishment and is, therfore, nothing more than unnecessary and wanton infliction

of pain or if it is grossly out of proportion to the severity of the crime.

a. Death As A Penalty For The Rape Of A Child Less
Than Twelve Years Is Not Excessive

Death is an excessive penalty when it is contrary to “contemporary values.”
Punishment for a crime must reflect “the evolving standards of decency that mark the
progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590 (1958),
Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). The
Eighth Amendment is not a “static concept”. Gregg , supra. Society does change and
what is considered appropriate measures to protect society change.

This Court has held that the actions of legislatures and juries are to be considered
as objective criteria in determing whether a sentence is disproportionate. Gregg, supra;
Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Penry., supra .
However, these cannot be dispositive in all cases. If this were true, then the Eighth
Amendment would be a “static concept” in that legislatures could not respond with new and

necessary measures to protect society as it changes.

1. Legislative Enactments And Actions of Sentencing Juries

Applicant makes much of the fact that Louisiana is the only state in over twenty
years that has authorized the death penalty for the rape of a child under twelve. This fact
must be viewed in light of the development of capital punishment since the time of Furman
and Coker coupled with the needs of society today.

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Lee EE

The state of capital punishment after the Furman decision holding that the death
penalty could not imposed in a discretionary manner has been somewhat uncertain.
Following right on the heels of Furman the Court in Coker held that the death penalty for
rape of an adult woman was unconstitutional. Certainly states have been hestitant to
impose the death penalty for any crime other than murder. However, much has changed
since the as of Furman and Coker. Today we have AIDS, a sexually transmitted disease
that is ultimately deadly. We have to teach children the difference between a “good touch”
and a “bad touch” so that they may better protect themselves. Parents don't let their
children walk a few blocks to the park for fear that someone will pick them up. The death
penalty for the rape of a child under twelve is necessary to cope with these changes in our
society and to provide for the protection of our children.

In evaluating the actions of legislatures and juries, this Court has done so in light
of the culpability of the offender. Where a defendant participated in a robbery but did not
kill, intend to kill, or intend that a killing take place, his culpability was not such that the
death penalty was permissible. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982). Where a defendant is under the age of sixteen, he is not as
culpable as an adult due to his youth and inexperience and therefore the death penalty is
not permissible. Thompson, supra. On the other hand, when a person is a major actor
in a felony and knows that death is likely to occur and a death occurs, the death penalty
is appropriate. Tison v. Arizona, 481 U.S. 135, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
The execution of the mentally retarded was held by this Court to be Constitutional. There
are different levels of mental retardation and it is difficult to asses to what degree a person
is retarded and how the retardation affects their propensity to commit crimes. Additionally,

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in many cases such as was the case in Penry, the mentally retarded will not be able to
learn that his behavior is not appropriate increasing the danger to society of repeated
criminal activity. Penry, supra.

As this Court has done in Tison, supra; Enmund, supra; Thompson , supra and
other cases when evaluating legislative action, the culpability of the offender must be
evaluated. The person that rapes a child less than twelve seeks out that child for his own
satisfaction. A child less than twelve is pre-pubescent and will not have the characteristics
of development that a child just as few years older has. Pubic hair and genitilia
development is not appreciable The offender knows he is having sex with a child. The
damage a child suffers from sexual molestation is inherent in the crime. Brown ,supra.
There is no question that the child victim will suffer damage of some kind. The rapist in
having sexual intercourse with a child intends that these consequences occur.
Additionally, the offender knows that the young child is not capable of protecting himself
or herself and indeed the child may not realize what is about to happen to them. Applicant
asserts that there is no mental element in the crime of rape of a child. While it is true that
there is no “specific intent” requirement in the crime, pratically speaking, the child rapist for
reasons stated above seeks out and knows he is having sexual intercourse with a child
and has no regard as to the affects his actions have on that child and the community as
a whole.

The case before the Court in Coker involved a woman that had been raped but
there was no “serious” physica! to the victim. The Court noted that “rape by definition does
not include the death of or even the serious injury to another person.” Coker at 2869. The
Court addressed the constitutionality of the death penalty in light of the crime and its affect

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nei ene aU ERE CE ve eemne ts

on the victim. The Court specifically limited it’s holding to the rape of an adult woman and
left open the question of rape of a child. Certainly, it cannot be said that the rape of a child
less than twelve does not result in permanent injury of some kind, physical, psychological
or both. Rape of a child less than twelve cannot be compared to rape of an adult. A child
has just begun to live and the things thast happens to that child in its early years affects
how he or she will function.

“Common experience tells us that there is a

Vast difference in mental and physical maturity of an
Adolescent teenager...and a pre-adolescent child...It

Is well known that child abuse leaves scars from one
Generation to the next...such injury is inherent

In the offense.” State v. Brown, 660 So.2d. 123 (La. App. 2d
Cir. 1995).

“..Aggravated rape inflicts mental and psychological
Damage to its victims and undermines the community

Sense of security. The physical trauma and indignities
Suffered by the young victim of this offense were

Of enormous magnitude....”"State v. Polkey, 529 So.2d 474 (La.
App. 1 Cir. 1988).

*...the child’s tender age made her particularly

vulnerable and incapable of resisting....considering

acutely deleterious consequences of conduct

on an eight-year old child.” State v. Jackson, 658 So.2d 722
(La. App. 2d Cir. 1995).

“...and because of his history of childhood abuse
That same juror could also conclude that penry was
Less morally “culpable than defendant's who have
no such excuse. But who acted ‘deliberately’ as that
term is commonly understood.” Penry , supra.

The statistics available today (see defendant's brief at pages 18-20) reflecting

legislative enactments regarding the rape of a child less than twelve do not support that

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age

the death penalty is unacceptable for the crime in every instance. In fact, the statistical
data is inconclusive. This Court should note the trend in legislative enactments directed
toward protecting children. Laws have been passed requiring sex offenders to register
across state lines, the Protection Against Sexual Exploitation Act was passed to protect
children from exploitation. Recently, this Court addressed the Kansas Sexual Violent
Predator Act in State of Kansas v. Hendricks, No. 95-1649. Children are a class of
persons that need protection. State v. Brown supra;Morisette v. United States, 342 U.S.

246, 72 S.Ct. 240, 96 L.Ed.2d. 288 (1952).

“...the defendant promised the victim (a seven year

year old girl) candy if she would lower her pants

and underwear . After doing as he requested, she stated that

The defendant placed her on the bed, removed his

clothes and attempted to have sexual intercourse

with her. State v. Feet, 481 So.2d 667 (La. App. 1 Cir. 1985).

The statistics available today (see defendant's brief at pages 26 and27) regarding
the actions of sentencing juries likewise do not support that the death penalty is
unacceptable for the crime of rape of a child. In Coker, the review of actions of sentencing
juries was relative to rape of an adult woman and not a child. Most of the statistics referred
to by applicant refer to pre-Furman cases with the emphasis on racial issues. Statistics
since Furman are of course scarce. Even after Furman Florida, Mississippi and Tennesse
had statutes providing for the death penalty for the rape of a child. However, the Florida
statutes, F.S. 775.082(1) and F.S. 794.011(2), were deemed unconstitutional by the
Florida Supreme Court in that court erroneously determined that Coker applied. Buford v.

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State, 403 So 2d 943 The Mississippi statute, M.C.A. Section 99-3-65, was invalidated in
that the Mississippi statutory scheme did not provide for the death penalty where there was
not a killing. The Mississippi court did not, however, address the issue of whether the
death penalty for rape of a child was constitutional. Leatherwood v. State, 545 So.2d 389
(Miss. 1989). The Tennesse statute was invalidated because the death penalty was
mandatory. Collins v. State, 550 S.W.2d 643 (Tenn. 1977). Given that three other states
attempted in the post-Furman aftermath to impose the death penalty for the rape of a child
does support the proposition that Louisiana is not the only state recognizing the need for
such a punishment. This Court should consider this in light of the trend seen in laws
enacted by legislation for the protection of children. The enactment of these laws through
the years reflects society's increasing need to provide for protection of its children.

The actions of legislatures and juries are not dispositive on the question of whether
the death as a penalty for the rape of a child under twelve is excessive. Society has an
increasing need to protect its children in light of AIDS and other developments since
Furman. The Eighth Amendment is not a static concept but must conform to contemporary
values. Living in New Orleans, Louisiana is very different than living in a quiet Midwest
town. The Louisiana legislature in providing for the death penalty for the crime of rape of
a child has conformed to contemporary values by providing for society's need to protect

its children.

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ll. CAPITAL PUNISHMENT MAKES MEASURABLE CONTRIBUTIONS TO
ACCEPTABLE GOALS OF PUNISHMENT

A punishment is excessive if it makes no measurable contribution to acceptable
goals of punishment and hence is nothing more than the purposeless and needless
imposition of pain and suffering.” Coker, supra. Retribution and deterrance are two

legitimate social purposes behind punishment.

“She took her daughter to the bathroom and

discovered that the child had been sexually abused,
awakened her husband, informed him that the child

had been raped and obtained a pistol from the

closet.” Upshaw v. State, 350 So.2d 1358 (Miss. 1977).

“In part, capital punishment is an expression of society's
moral outrage at a particularly offensive conduct...it is
essential in an ordered society that asks its citizens to rely
on the legal processes rather than self-help to vindicate their
wrongs.” Gregg, supra.

Our society does not permit self-help. The need for retribution is addressed in our
criminal sanctions. Therefore, to have an ordered society and promote a stable
community, our legislature must provide for retribution through criminal sanctions. Gregg,
supra. Nowhere is the need for retribution as strong as when the victim is a child. The
actions of the mother in Upshaw supra are indicative of that need.

This Court has held that the punishment of a crime should be directly related to the
personal culpability of the defendant. California v. Brown, 479 U.S. 538, 107 S.Ct. 837,
93 L.Ed.2d 934 (1987). Applicant asserts that the death penalty for the rape of a child

is a strict liability crime and therefore the defendant cannot be culpable. Again, as noted

above, a person that rapes a child of eleven years or less knows that he is raping a child

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due to that child’s physical characteristics and mannerisms. The rapist knows that this
child cannot protect himself or herself. One that knowingly rapes an innocent and
unprotected child and subjects that child to present and futrue physical and psychological

trauma is certainly culpable and responsible for his actions.

lll. The Founding Fathers Allowed For The Death Penalty For The Rape Of A Child
Under Ten Years Of Age And Not Twelve

Punishment for a crime is excessive if at the time the Bill of Rights was adopted the
punishment would have bneen considered cruel and unusual punishment. Stanford v.
Kentucky, 106 L.Ed.2d 306 (1989).

At the time the Bill of Rights was adopted capital punishment was recognized for the
rape of a child ten years old or less. Blackstone's Commentaries on the Law. It is
apparent from this that the crime of rape of a child has aslways been seen as a
reprehensible act deserving of severe punishment. The fact that the legislature today
acknowledges the rape of an eleven year old as well is of no moment. The statute still
contemplates an innocent pre-pubescent child in need of protection.

The death penalty for the rape of a child is a deterrence to the commission of the
crime. When a person is sentenced to life, no one hears about it. However, when a
person is sentenced to death, it hits the news and the message is out that you do not
harm children. Applicant asserts that the death penalty for raping a child will retard
reporting of the crime by families. The state asserts that a family where a child is a victim
of sexual abuse will no more report the crime when the sentence is life in prison than they

will where the punishment is death. The reasons for not reporting are there in either case

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whether financial, fear or love and affection.

IV. Protections For The Accused On Both The Federal And State Level Provide That
The Death Penalty For The Rape Uf A Child Less Than Twelve Will Not Be
Imposed In An Arbitrary And Capricious Manner

Louisiana legislation and the jurisprudence developed in both federal and state
arenas provide protections for the accused against an arbitrary and capricious imposition
of the death penalty.

The constitutionality of death as a punishment was first addressed in Furman,supra.

Prior to that time, the punishment of death had been addressed only as to whether the
manner in which it was inflicted was barbaric and not whether the punishment itself was
unconstitutional. The Furman Court found the death penalty in the cases before it to be
unconstitutional in that the penalty was determined in an arbitrary and capricious manner
as it was applied in a discretionary manner. Reflecting on the reason for the enactment
of the Eighth Amendment, the Court cited the oppressive manner in which the death
penalty had been used historically by those in power to attempt to keep in check those that
opposed them. -Extrapolating that reasoning to the cases before it, the Court found the
same type of potential for such discrimination. The judge or jury had “unbridled discretion”
in deciding life or death. There was no guidance from legislation as to what the society
they represent considered to be the most heinous of criminal conduct requiring the death
penalty. The Court noted also that the rich or favored had access to the best legal help
while the poor or less favored were represented by someone who may have had no |
experience representing defendants alleged to have committed serious offenses much less

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|

those involving the death penalty.

The holding in Furman, finding the death penalty in the cases before it to be
unconstitutional, was based on the discretionary manner in which the penalty was decided.
The court did not hold the death penalty in and of itself to be unconstitutional. Furman,
supra; Gregg, supra.

in 1976, the Court again addressed capital punishment. In response to the
questions raised in Furman, Georgia enacted legislation requiring a bifurcated proceeding
in capital cases whereby a separate hearing was held for the jury to hear additional
evidence and argument in deciding whether the death penalty should be imposed. The
jury was presented with aggravating and mitigating circumstances regarding the defendant
and the crime. The Georgia Supreme Court reviewed every sentence to determine
whether it was disproportionate to the sentence usually imposed in similar cases. With
these protections against arbitrary and capricious imposition of the death penalty, the Court
held that the death penalty does not invariably violate the constitution.

“The concerns expressed in Furman...can be met by a carefully drafted

statute that ensures that the sentencing authority is given adequate

information and guidance, concerns best met by a system that provides for

a bifurcated proceeding...”

in 1977, the Court in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982
(1977), found the death penalty for the rape of an adult woman to be unconstitutional. The
fact that the Court specifically left open the question of the constitutionality of the death
penalty for rape of a child supports the fact that there is a vast difference in the effects a

rape has on the child victim and society as compared to the rape of an adult victim.

Indeed, since 1977, our recognition and knowledge regarding child sexual abuse has

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Bt SE

greatly increased. It is now time to address this issue.

Much has changed since the decision in Furman and Gregg. Louisiana law now
requires a bifurcated proceeding in capital cases as was approved in the Gregg court.
LSA-C.Cr.P. Art. 905 et.seq. The jury is presented both aggravating and mitigating
circumstances regarding the defendant and the crime. Juries no longer have “unbridled
discretion” in imposing the death penalty. The aggravating and mitigating circumstances
and the manner in which the sentencing is to be carried out as provided in Art. 905 et.seq.
satisfy constitutionality requirements. The jury must find at least one aggravating factor of
those provided by law. LSA-C.Cr.P. Art. 905.3. The defendant may offer any relevant
mitigating circumstance.

C.Cr.P. Art. 905 et.seq., providing for a bifurcated proceeding whereby the jury is
provided aggravating and mitigating factors to be considered in the penalty phase of trial
complies with the requirement in Gregg that the class of death eligible defendants be
limited. Article 905 lists twelve aggravating circumstances to be considered in the penalty
phase. Of these at least seven of them could apply in a case involving the rape of a child.
C.Cr.P. Art. 905.4 is as follows:

.: The offender was engaged in the perpetration or attempted

perpetration of aggravated rape, forcible rape, aggravated kidnapping,

second degree kidnapping, aggravated burglary, aggravated arson,
aggravated escape, assault by drive-by shooting, armed robbery, first degree

robbery, or simple robbery.

2. The victim was a fireman or peace officer engaged in his lawful duties.
3. The offender has been previously convicted of an unrelated murder,
20

Sn ee

aggravated rape, aggravated burglary, aggravated arson, aggravated
escape, armed robbery, or aggravated kidnapping.

a The offender knowingly created a risk of death or great bodily harm
tc more than one person.

5. The offender offered or has been offered or has given or received
anything of value for the commission of the offense.

6. The offender at the time of the commission of the offense was
imprisoned after sentence for the commission of an unrelated forcible felony.
: 2 The offense was committed in an especially heinous, atrocious or
cruel manner.

8. The victim was a witness in a prosecution against the defendant, gave
material assistance to the state in any investigation or prosecution of the
defendant, or was an eye witness to a crime alleged to have been committed
by the defendant or possessed other material evidence against the
defendant.

9. The victim was a correctional officer or any employee of the
Department of Public Safety and Corrections who, in the normal course of
his employment was required to come in close contact with persons
incarcerated in a state prison facility, and the victim was engaged in his
lawful duties at the time of the offense.

10. The victim was under the age of twelve years or sixty-five years of age
or older.

11. | The offender was engaged in the distribution, exchange, sale or purchase,

21

=" *PEREIERS

or any attempt thereof, of a controlled dangerous substance listed in Schedule I, Il,

ill, IV, or V of the Uniform Controlled Dangerous Substances Law.

12. The offender was engaged in the activities prohibited by R.S.

14:107.1(C)(1):

“No person shall commit ritualistic mutilation, dismemberment,
or torture of a human as part of a ceremony, rite, initiation,
observance, performance, or practice.”

Noting aggravating circumstance number 10 would include every defendant found
guilty of aggravated rape, the Court should find that this does not per se invalidate the
statute. Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). The
Lowenfield court determined that a death eligible class may be narrowed in two ways.
The legislature may broadly define a capital offense and require jury findings through
aggravating circumstances whereby the narrowing is accomplished at the punishment
phase. Alternatively, the legislature may define the capital offense so that the jury finding
at the guilt phase accomplishes the required narrowing. The fact that an aggravating
circumstance addressed at the punishment phase is also an element of the crime does
not negate the narrowing function. The statute must be clear as to what constitutes the
criminal activity. State v. David, 468 So.2d 1126 (La. 1984). In both instances, the jury
must consider any relevant mitigating circumstance concerning the defendant and the
offense. California, supra.

While some of the above listed circumstances may not be applicable to a case
involving the rape of a child, a jury is given sufficient guidance as to what our society

considers to be heinous circumstances regarding the commission of a crime. That is

22

EE eB

where circumstances anticipate violence (1,4,7), the defendant's actions demonstrate an
exaggerated disregard for life (4,5,7, 10, 11, 12), where circumstances anticipate
interference with the carrying out of law an order (2,8,9), or where the defendant's criminal
record demonstrates his propensity for crime and disregard for the rules of society (3,6).
Certainly as the law regarding capital punishment for rape of a child less than twelve years
develops through legislatures and jurisprudence there may be circumstances added to
the list that are applicable to the rape of a child less than twelve. However, as the law is
today, there is more than adequate guidance through La. R.S. 14:42 and La. C.Cr.P. Art.
905 et.seaq. to allow the jury to limit the class of death eligible defendants.

A defendant has other protections against the arbitrary and capricious application
of the death penalty. Appeal is available with mandatory review. The Louisiana Supreme
Court must review capital cases for excessiveness. La.C.Cr.P. Art. 905.9. (See infra for
discussion.)

Today we have an Indigent Defender Board (IDB) from which counsel can be
appointed to represent a defendant. An IDB attorney representing a defendant in a capital
case must be “death-certified”. La. Supreme Court Rule XXXI; State v. Feltus Taylor, WL
83866, 93-2201 (La. 1996). Counsel for defendant involved in the case must have
adequate experience to effectively represent a defendant facing the death penalty.
Defendants have access to funds to assist in obtaining necessary resources to develop
their defense. La. R.S. 15:150 provides for the establishment of regional death penalty
centers whereby grants may be applied for and funds used by the center in the defense,
appeals and other functions related to capital cases. These centers provide a means to

follow development and application of the death penalty to assure that the protections as

23

provided by law are adhered to and that the laws continue to reflect the needs of society.
Certainly since Furman there has been case law developed on both federal and
state levels to provide for protection at the trial level. The availability of challenges to jury
selection as provided in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986) and progeny guard against discrimination based on race, gender, etc.
Guidance for juries provided in Art. 905 et.seq., development of requirements for
adequate representation of the accused and protections developed through the courts

guard against arbitrary and capricious imposition of the death penalty of the rape of a child

less than twelve years.

24

CONCLUSION
Respondent accordingly requests that Petiitioner’s request for writ of certiorari be
denied.
Respectfully submitted:

RICHARD P. IEYOUB
ATTORNEY GENERAL
STATE OF LOUISIANA

JERRY L. JONES

DISTRICT ATTORNEY

BAR ROLL NO. 07492
FOURTH JUDICIAL DISTRICT
P.O. BOX 1652

MONROE, LO 71210

we ( i
JERRY#7. JONES

CERTIFICATE

IT IS HEREBY CERTIFIED that a copy of the foregoing brief was mailed, postage
prepa‘d, to Mr. John Holdridge, Attorney for Defendant, 636 Baronne Street, New Orleans,
LA 70113.

MONROE, LOUISIANA, on this 23, day of Glee , 1997.

JERRY L-
DISTRICT ATTORNEY
FOURTH JUDICIAL DISTRICT

24

JERRY L. JONES

27-1412 DISTRICT ATTORNEY ee

. e444 ox 107

pape aa FOURTH JUDICIAL DISTRICT BASTROP, LOUISIANA 71220
oe OUACHITA PARISH (318) 281-4907 Bastrop
’ as P.O. BOX 1652 (318) 281-1077 Monroe

MONROE, LOUISIANA 71210

eae a Eee ea ee ee

April 23, 1997

| RECEIVED
Mr. William Suter

Clerk of Court APR 28 1997
Supreme Court of United States ( OFFICE OF 1HE CLERK
301 Loyola Avenue SUPREME COURT, U.S.

New Orleans, LA 70112

Re: Patrick Bethley v.
Louisiana
No. 96-8334

Dear Mr. Suter:

Please find attached the original and ten (10) copies of the Respondent's brief for
filing in the above referenced case.

Your cooperation is greatly appreciated.

Sincerely,

ae KG

Jerry L. Jones
District Attorney

Spo

cc: Mr. John Holdridge
Attorney for Petitioner

SUPREME COURT OF THE UNITED STATES

PATRICK DEWAYNE BETHLEY v. LOUISIANA

WRIT OF CERTIORARI TO THE SUPREMI
COURT OF LOUISIANA

96—8334. Decided June 2, 1997

The petition for a writ of certiorari is denied

yy JUSTICE STEVENS, with whom JUSTICE
GINSBURG and JUSTICE BREYER join, respecting the
denial of the petition for writ of certiorari.

It is well settled that our decision to deny a petition
for writ of certiorari does not in any sense constitute a
ruling on the merits of the-case in which the writ is
sought. United States v. Carver, 260 U.S. 482, 490
1923). See Singleton v. Commissioner, 439 U. S. 940,
942 (1978) (opinion of STEVENS, J., respecting the denial
of certiorari); Maryland v. Baltimore Radio Show, Inc
338 U. S. 912, 919 (1950) (opinion of Frankfurter, J.,
respecting the denial of certiorari). That is certainly
true of our decision to deny certiorari in this case. It is
worth noting the existence of an arguable jurisdictional
bar to our review. Our consideration of state-court
i is confined to “[flinal judgments or decrees
; the highest court of a State in which a
uld be had.” 28 U.S.C. §1257(a). . Peti
tioner gs bent neither convicted of nor sentenced for
any crime. As we have indicated, “in the context of a
criminal prosecution, finality is normally defined by the
imposition of the sentence.” Flynt v. Ohio, 451 U.S
619, 620 (1981). See Baltimore Radio, 338 U. S., at oan
noting one reason for denial of certiorari is tha
judgment of the lower court may not be final”)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0975%3A3. Public record. Not legal advice.