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Otis v. Dershowitz, Part II

I thank all of you who tuned in and have given me the benefit of your comments, almost all of which were very generous.

A tape of the relevant segment of the show, which lasts a little less than seven and a half minutes, is here.  Alan is the one who looks like a law professor.  I'm the one who looks like Tom Cruise (Tom Cruise after a nuclear war, anyway).


You brought your A game Bill. Great job!

I thought you did a great job. My reaction to Dershowitz's claim that we shouldn't use the DP b/c of past DNA exonerations was a straw man: there's no reasonable doubt about the factual guilt of Tsarnaev.

Likewise, his point about Tsarnaev becoming a martyr suggests that we should modulated our view of justice based on how those hostile towards our values would react which results in our society and the individual victims being victimized all over again. More to the point: why should we be pawns to their value system?


Thanks very much.


Great answers. I wish I had given them, but the time was so constricted I felt like I had to go with the points I had (and Piers gave Alan the last word, so that was that).

When Alan said that Tsarnaev would become a "role model," I was tempted to interrupt to say that anyone to whom he's a role model is already too far gone to be even slightly influenced by what we do. But your answer is spot on. We will decide what justice is, and administer it, based on our ideas, not Jihad's ideas. Nor will we apologize for making this choice.

Your right about the role model issue. My reaction also is that we shouldn't hide the fact that our values are right and theirs are wrong insofar as Tsarnaev's conduct was depraved and he deserves death for what he did. This is, after all, a war of cultures and values.

Dershowitz praised the Israeli Supreme Court for overturning the death sentence of John Demjanjuk even though he was Ivan the Terrible, guilty of torturing and killing Jews in the Nazi death camp at Treblinka.

There is just one small problem. That was not the decision. The Israeli Supreme Court did not merely overturn Demjanjuk's sentence, it acquitted him of the specific charge. From the New York Times in 1993:

The decision to overturn Mr. Demjanjuk's 1988 death sentence was based on documents unearthed in archives of the former Soviet Union. The files contained sworn testimony by 37 former Treblinka guards and laborers, all of whom are now presumed dead, who said the real name of "Ivan the Terrible" was Ivan Marchenko.

There was no sentencing decision to be made. He was not guilty of the specific charge, and they decided Israel could not try him for other charges.

Demjanjuk was subsequently convicted in Germany of other war crimes, but he died while that case was pending appeal, so the conviction was vacated.

Is it really possible Dershowitz did not know the truth and was merely mistaken? That's pretty hard to believe.

First, Bill, let me say that I would not want to go up against you in court. You speak from the heart and are very learned on the subject.

After 25 years as a prosecutor, I am a "worst-of-the-worst" pro-DP advocate. I believe that some prosecutors have sought (and obtained) the DP in run-of-the-mill murder cases. In my mind, that has watered down the ultimate state-imposed penalty. And, in turn, has increased the likelihood that the Innocence Project will succeed in obtaining DNA exonerations, further eroding the American public's support for capital punishment.

In order to forestall the potential "evolving standard of decency" demise of the DP, I think it would be helpful if brilliant, well-spoken people like you and Kent turned up the heat on prosecutors who, perhaps for political reasons loosely tied to concepts of justice, are too willing to seek an eye-for-an-eye in every murder case that has a technical "special circumstance."

Ironically, in their zeal to show they are tough on crime, these prosecutors, by casting a unwarranted large net, are laying the groundwork for the (one SCOTUS justice away) demise of capital punishment for those who truly deserve it.

Although there have in the past been a few DAs in a handful of counties nationwide that sought the death penalty in every eligible case, I am not aware of any office that presently has such a policy.

Kent, I am not suggesting that DAs are seeking the DP "in every eligible case." My point is that many are seeking it far too often. And that conduct, in the near future (i.e., Hello Justice Kennedy), could result in its demise when justice demands its imposition.

The vexing question, in my mind, is how to impose some sort of reasonable restraints on the exercise of these (overly inclusive) DAs' discretion. And preserve the DP for its core constituency: The Worst-of-the-Worst.

Rarely are the contrasting positions more stark.

A debater who proposes the weak and always ineffectual policy of appeasement versus a debater not afraid to invoke time-tested American values demanding justice and retribution.

Easy Call.

Congrats, Bill.

Lastly, what's the real difference between a jihad hero and a jihad martyr? Obviously, the death of person in question. But it isn't self-evident to me that one is worse for our society than the other.

Bill, you crushed Dershowitz. Crushed him.

Thanks! My only regret is that we didn't have longer.

You are leaving Dieter in the rubble, incidentally. His only way out is dodging, at which he is quite good -- just not good enough, not for you.

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