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Wrong Poster Boy for Attacking Death Penalty

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This is just too good.  O'Ryan Johnson and Bob McGovern report for the Boston Herald:

Dzhokhar Tsarnaev's lawyers want to stage a constitutional challenge to the death penalty in the wake of last week's botched Oklahoma execution -- but a leading death penalty opponent says the accused jihadi is the wrong poster boy for the cause.
Really?

"This is not a good case," Harvard Law School professor and constitutional lawyer Alan Dershowitz said about Tsarnaev, accused of acting on a Islamic extremist agenda in the Boston Marathon bombings and their aftermath that left four people dead, hundreds injured, and more than a dozen badly maimed.

"You have a man who, according to the evidence, planned to murder multiple civilians," Dershowitz told the Herald. "You take someone like John Kerry. He said, 'I'm against the death penalty except in cases of terrorism,' and I think many Americans feel the same way. This is a bad case to test this on. It would actually set back any movement to repeal the death penalty because of Americans' feelings about terrorism."

But of course, professor, it is not a defense lawyer's job to advance a political agenda.  It is the defense lawyer's job to make the best case for his client.

Not that the constitutional argument is a good one.  It is exceeding weak.  But what else is there?  He didn't do it?  Of course he did it.  He is not eligible for the death penalty?  Of course he is.  "The defendant killed or attempted to kill more than one person in a single criminal episode."  18 U.S.C. §3592(c)(16).  He is not retarded, not a minor, and not insane.  This isn't a case where the death penalty should be imposed? Don't "the aggravating ... factors ... sufficiently outweigh all the mitigating ... factors ... to justify a sentence of death ..."?  §3593(e).  Of course they do.  The defense can and will argue they don't, but the argument won't pass the straight-face test.

So of course they have to make the constitutional argument, and Dershowitz notwithstanding this is the perfect case to consider it.  If you say the death penalty is unconstitutional, then you are taking the absolutist position of "never" and not "hardly ever."  Shouldn't we decide the issue in a case that actually presents that distinction?

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