Kent notes that defense counsel's argument to the jury this morning that, if it imposes LWOP, Tsarnaev's case "will be over for good" is -- if reported accurately -- a bald-faced lie.
That's correct, but there's more. The groups and interests, and some of the same lawyers, urging no death penalty for Tsarnaev -- or anyone -- will take only so much time before they're back in court urging that his sentence be shortened.
There is simply no such thing as a case's "being over for good." This was proved in spades by Judge John Gleeson's years-long campaign to overturn a perfectly legal sentence he imposed on a violent carjacker. I have written about this before, e.g., here and here. Indeed, Gleeson and the defense kept going years after the Supreme Court granted cert and rejected the defendant's case on the merits.
The "litigate-to-infinity" approach is even more prevalent when the defendant is given an LWOP sentence. With unlimited time on their hands and nothing to lose by trying -- and extremist legal groups more than happy to pitch in -- murderers serving LWOP can and do file petition after petition.
But wait, there's more! Suppose abolitionists succeed in getting the death penalty repealed. What are the chances that, the next day, they won't petition for a re-sentencing for Tsarnaev, on the theory that he got LWOP when a now-illegal sentence was the only alternative?
"Over for good" my foot. Defense counsel should be ordered to correct his statement and then be sanctioned by the court.
Sanctioned, please. The statement didn't even draw an objection from the prosecution.
1. It is considered extremely poor practice to interrupt your opponent's opening and closing statements for even a very good reason.
2. A court's power to sanction an outright lie to the tribunal does not in any way depend on whether the lawyers object to it or even notice it.
3. Do you agree that the statement both Kent and I have identified as an outright lie is, in fact, an outright lie?
4. If so, what do you think should be done about it?
Mr. Otis, I do not agree the statement is an outright lie, see my response to Mr. Sheidegger's post.
I think you and Mr. Sheidegger are taking Mr. Bruck's words too literally. He was not answering a law school exam question, testifying before Congress or stating black letter law in a legal brief. He was speaking rhetorically.
The defense conceded guilt in opening and did not argue for a not guilty verdict. There is zero chance for reversal of a life verdict in this case. Bruck was contrasting the practical differences between life and death verdicts. It may have been more precise to say, "For all intents and purposes his case will be over for good" The failure to include those words does not make the statement an outright lie.
"I think you and Mr. Sheidegger are taking Mr. Bruck's words too literally."
God forbid that a polished attorney should have his words taken for what they say.
"The defense conceded guilt in opening and did not argue for a not guilty verdict."
Nope. They conceded that he was involved in the bombing, not that he was "guilty."
"There is zero chance for reversal of a life verdict in this case."
As an experienced litigator, you undoubtedly know better than to use the word "zero."
"It may have been more precise to say, 'For all intents and purposes his case will be over for good.'"
Years of direct and collateral review (all at taxpayer expense), jailhouse interviews on national TV (like McVeigh got on "Sixty Minutes"), letters to the editor and taunting letters to the many victims' families -- that's having it "over for good"???
I don't think so.
The statement Bruck made, as it has been reported, was a lie, and the substitute statement suggested for him is as well.