Man serving life sentence in ’98 attack on girl, 8
A federal judge granted a new trial this week for Patrick Kennedy, whose 2003 death sentence for raping an 8-year-old girl in Harvey eventually led to the U.S. Supreme Court’s 2008 ban on executing child rapists.
U.S. District Court Judge Ginger Berrigan found that during the 10-year period when Kennedy was indicted by a Jefferson Parish grand jury women were significantly underrepresented as jury forepersons.
This amounted to unconstitutional gender discrimination, she found, ordering the Jefferson Parish District Attorney’s Office to start at the beginning with the 1998 rape case.
Kennedy, serving a life sentence, will need to be reindicted within 180 days or released.
District Attorney Paul Connick could not be reached for comment, but told NOLA.com on Wednesday that his office’s appellate division is reviewing the decision.
Kennedy was indicted in May 1998 and charged under Louisiana’s aggravated rape statute, which at that point allowed the death penalty when victims were under age 13.
After a 2003 trial, he was unanimously sentenced to death.
At the time of the Supreme Court decision five years later, he was one of only two convicts nationwide on death row for rape, both from Louisiana.
The allegations against Kennedy are gruesome, a fact underscored in the high court’s decision reversing his death sentence.
He was accused of raping his victim so violently that she had to have emergency surgery that same day.
Initially the victim supported Kennedy’s contention that she was raped by one or two neighborhood boys, but months later she identified Kennedy as her attacker.
The high court’s 5-4 opinion found the death penalty cannot be applied in crimes in which the victim does not die.
Kennedy was resentenced to life in prison.
Eventually, Kennedy’s attorneys returned to federal court, seeking to quash the indictment on a number of grounds, including the make-up of the grand jury.
In Louisiana courts, they previously had raised the issue of gender discrimination in the selection of grand jury forepersons, but that issue ultimately was rejected by state judges, including the Louisiana Supreme Court.
In her decision, Berrigan noted that one of the cases that formed the precedent for her decision indicates someone can be reindicted, retried and reconvicted on the same evidence as long as the indictment process is constitutional.
One legal analyst said the decision could prompt other felons indicted in Jefferson Parish to contest their convictions on the same grounds.
“Perhaps other defendants who have been indicted and convicted using the same jury selection process could start making similar claims,” Loyola law professor Dane Ciolino said.
For Kennedy, however, “it could be just a temporary victory because all he’s got himself is a new trial and often that just leads to a new conviction,” he said.
Kennedy’s petition, which included 11 other claims for a new trial, was first considered by a magistrate judge, who recommended denying all of them.
In her review of that recommendation, Berrigan only embraced the gender discrimination claim.