By now, you have all heard of Wednesday's regrettable Supreme Court decision prohibiting the death penalty in cases of child rape. Having read several articles, the mainstream media's take on the case was mostly informational and understated. And that was to be expected. While the ruling could be considered a victory for civil libertarians, even the press understands that you can't do a victory dance when a child rapist is spared the death penalty.

With that said, one Assocated Press article deserves some extra attention. Mark Sherman's article "Supreme Court bans death penalty for child rape" sticks to the media template in that it is primarily informational and straightforward.

In a prior post, however, I pointed out that Sherman's reporting often frames conservative-leaning decisions as "splintered" or "deeply divided," while the liberal-leaning decisions do not get the same treatment. Sherman's current article follows that same pattern.

Despite being a 5-4 decision, yesterday's liberal-leaning decision was again spared the "splintered" label. The only real discussion of the split was the benign statement that "four liberal colleagues joined [Justice Kennedy], while the four more conservative justices dissented." The first quote from a dissenting justice (Alito) was deferred until the 17th paragraph.

But the real outrage of the article comes in a few sentences at the end of Sherman's story in which he suggests that the child rapist might have been innocent.

The case before the court involved Patrick Kennedy, 43, who was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana.

Kennedy was convicted in 2003. The girl initially told police she was sorting Girl Scout cookies in the garage when two boys assaulted her.

Police arrested Kennedy a couple of weeks after the March 1998 rape, but more than 20 months passed before the girl identified him as her attacker.

Incredibly, there was no companion discussion of the mountain of evidence against Kennedy. And the two bits of information put forth by Sherman (assault by two boys/no report for 20 months) are respectively misleading and wrong.

The overwhelming evidence against Kennedy was that he raped his 8-year-old stepdaughter, attempted an emergency carpet cleaning to cover his crime, waited hours before seeking medical attention for the gravely injured child, and then coerced the girl to implicate two neighborhood boys.

Here are just a few excerpts from the Louisiana Supreme Court decision:

Deputy Burgess testified he attempted to question the victim but she was only partially able to respond verbally to his questions at first. When Burgess questioned her, the defendant “kept trying to answer for her and [he] got a little upset with that.” ...

Sergeant Jones then interviewed the victim at the hospital. The victim was in pain and described her attacker as a black male, age 18–19, medium build, with muscular arms. Sergeant Jones testified that the defendant was present during the interview and prompted the victim to include that the attacker had an earring and noted that they had seen the attacker cutting grass in the neighborhood previously. ...

On March 9, 1998, the police also found out about the defendant’s call to B&B Carpet Cleaning, after Mr. Madere contacted them after seeing blood-stained carpets being removed from the defendant’s home on the televised news. As stated earlier, the defendant made this call at 7:27 a.m., almost two hours before the defendant claimed the victim had just been raped, to request an urgent carpet cleaning job to remove blood stains. The defendant was arrested and charged with aggravated rape on March 10, 1998.

Sherman's claim that the child did not identify Kennedy for 20 months is also contradicted by the decision.

Dr. Benton testified that medical records showed that the victim told all hospital personnel this same version of the rape while she was at the hospital, but that she told one family member that the defendant raped her.

The victim also told her mother that Kennedy was the perpetrator, which by reading the decision must have occured within three or four months of the rape. And in any event, it is certainly understandable that an 8-year-old rape victim might be reluctant to immediately implicate her stepfather, especially when some degree of intimidation was apparent.

Anyone who reviews the entire case, I submit, will be convinced of Kennedy's guilt. But Sherman's article would leave any reasonable reader (who did not know the facts of the case) with the impression that Kennedy might be innocent. Only Sherman knows why he did this, but one of the most common arguments against the death penalty is that occasionally innocent defendants are executed.

By suggesting Kennedy's innocence, Sherman advances the anti-death-penalty agenda ever-so-slightly, while also giving cover to one of the most despicable criminals in America. 

—Jason Aslinger is a private practice attorney in Greenville, Ohio.