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Thankless Tribute

A retiring justice votes to spare the life of a convicted child rapist

The end seemed sudden, somehow. After nearly 36 years on the Louisiana Supreme Court – including 18 years as Chief Justice – Pascal Calogero Jr.’s last public appearance as an elected jurist before his retirement turned out to be a sparsely attended judicial disciplinary hearing at the Royal Street Courthouse.

There had been months of media build-up. Two days earlier, the white-haired Calogero, 77, was honored at a public retirement ceremony in the courthouse in the French Quarter. Even earlier, there was the heated November election between two conservative Republicans for the First Supreme Court District seat that the New Orleans Democrat would vacate. Finally, his retirement on Dec. 31 would precede the historic inauguration of the first woman Chief Justice on the state’s highest court.

That winter morning, however, it was hard to think of anyone but the Baton Rouge state judge seated before the seven black-robed justices. The accused faced a public reprimand for alleged violations of judicial canons.

By rule, attorneys in bar disciplinary matters get 40 minutes each to argue their case before the state’s highest court. (Lawyers in death penalty appeals get 80 minutes each.) Attorneys for both the prosecution and the accused argued with force and sometimes volume. Calogero and other justices peppered both lawyers with questions, recalling previous cases.

In the heat of the battle, deputy clerk Eddie Gonzales suddenly appeared behind the justices, carrying a white China cup and saucer. (“Café au lait,” the clerk said later.)

He placed the cup next to Calogero, who didn’t look up. His brown eyes remained fixed on the lawyers gesturing before him, except for sips of the morning brew.

Suddenly, time was up. The hearing was over.

“All rise!” Gonzales commanded. A hush fell over the court. The handful of spectators, mostly lawyers, stood up. The justices marched single-file toward a side door. “As Chief Justice Pascal Calogero leaves the bench for the last time, this court now stands adjourned!” Gonzales announced.
Calogero, his head slightly bowed, didn’t look up. A red digital clock marked the end of his era: 11:48 a.m. Thurs., Dec. 4, 2008.

Forty days before Calogero retired, there came a ruling with a thankless tribute.

On Nov. 21, the Court notified a state judge in Jefferson Parish that the U.S. Supreme Court had reversed its 6-1 decision upholding the death sentence of Patrick Kennedy for the rape in 1998 of his then 8-year-old stepdaughter in Harvey.

Chief Justice Calogero – the father of 10 children and eight grandchildren – cast the lone dissenting vote. “He agonized over that [case],” a court employee recalled later.

Kennedy v. Louisiana didn’t define Calogero’s legacy. However, the case illustrated his legal acumen and judicial restraint. Kennedy’s false allegations against two black youths in a conservative parish also called to mind Calogero’s quest to protect the innocent from “wrongful convictions” – though that obvious theme didn’t emerge prominently in his dissent.

The U.S. Supreme Court emphasized the brutality of the case: “[Kennedy’s] crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing [Kennedy] to death.”

The attacker weighed 300 pounds. The child required surgery at Children’s Hospital after her rape.

At the scene of the crime and during the weeks that followed, Kennedy and the victim insisted she has been raped by two neighborhood black youths – including one who became a named suspect. However, the evidence collected by investigators from the Jefferson Parish Sheriff’s Office kept pointing back to Kennedy, who is white.

In 1999 – 21 months after the rape – the child gave a videotaped statement identifying Kennedy as her attacker. He was arrested, convicted and sentenced to die. Kennedy appealed to the state’s highest court.

Hints of strain from the case surfaced early among the justices.

In a 2001 evidentiary ruling, Calogero wrote: “This difficult case involving the capital crime of the rape of a child tests this court’s resolve in upholding the law as written and as consistently followed by this court for nearly 30 years. However repugnant the alleged criminal conduct may be, we must apply to this case, just as we do any other, well-settled evidentiary rules that promise a process for determining guilt or innocence fairly.”

Justice Jeffry P. Victory of Shreveport concurred, expressing admiration for Calogero’s restraint in the horrific case: “As tempting as it is to provide a badly needed reform in our law to combat the epidemic of pedophilia in this country, I agree with the Chief Justice’s views that it is improper for us to legislate in this matter.”

The state Supreme Court upheld the jury’s decision in 2007. Calogero dissented, citing U.S. Supreme Court capital cases dating 30 years.
“With the possible exception of sui generis crimes against the state involving espionage or treason, the Eighth Amendment precludes capital punishment for any offense that does not involve the death of the victim,” Calogero wrote.

In a 5-4 decision on June 25, 2008, the U.S. Supreme Court found that the Louisiana law authorizing capital punishment for the rape of a child under 12 violated the Eighth Amendment’s ban of cruel and unusual punishment. The court also found a “national consensus against capital punishment for the crime of child rape.”

Moreover, the restricted use of the death penalty in non-homicide child rape case “has the potential to result in some inconsistency of application,” the majority ruled. Interestingly, the court didn’t mention, by way of example, the two black youths who initially fell under police suspicion, based on Kennedy’s allegations to police.

Gov. Jindal blasted the high court ruling, issued the same day that he signed a new state law authorizing the chemical castration of sex offenders.
“The Supreme Court is dead wrong,” said Jindal, who also protested as the father of three children.

In September, the Federalist Society, a think tank of conservatives and libertarians, acknowledged Calogero’s foresight in the case in a white paper examining decision-making on the state Supreme Court.

“Chief Justice Calogero’s dissent accurately anticipated the result of the U.S. Supreme Court’s decision in Kennedy v. Louisiana,” the Society stated.
Overall, when it comes to crimes in Louisiana reviewed by the State Supreme Court, “the primary problems of [judicial] interpretation result from poor legislative drafting,” the Society stated.

Judges are supposed to be referees, not crowd-pleasers. If you don’t like the law, call your legislator.

That is something to keep in mind when the Legislature convenes in April – as Jindal tries to build public support for his legislative “crack down on sex offenders.” Whether the governor can carry out his pledge to restore the state’s death penalty for child rape is unclear.

However, if you have ever seen the reactions of prison inmates and guards to news accounts of a child rape, it’s hard to nurture the belief that death is any worse for a pedophile than spending the rest of your life at Angola – at hard labor without the possibility of early release.

That is Patrick Kennedy’s new sentence since Nov. 21, ordered by Calogero and the other Louisiana justices in the wake of the U.S. Supreme Court decision.

At his retirement ceremony Dec. 2, Calogero said, “I would like to be remembered as an energetic, hard working able judge who contributed … to maintaining stability in the law and jurisprudence, while serving the least privileged of our citizens with compassion, integrity and fairness.”
There is little praise for the judge who hems to the rule of law when the end result favors a convicted child rapist – only thankless tributes.

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