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November 2, 2017

Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets?

The question in the title of this post is prompted by this new Guardian article, headlined "Trump's 'alarming' death penalty call threatens suspect's chance of fair trial, experts warn." And that article was prompted by this series of tweets by Prez Trump this morning:

Prez Trump tweet around midnight on 11/2: "NYC terrorist was happy as he asked to hang ISIS flag in his hospital room.  He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!"

Prez Trump tweets around 8am on 11/2:  "Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system... ...There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!"

I welcome all sorts of comments from all sorts of litigators about whether and how they think these tweets might impact the federal prosecution of Sayfullo Saipov for mowing down people in NYC.

Prior related posts:

November 2, 2017 at 04:00 PM | Permalink


Well, at least he didn't toss in "mowing down" in that tweet.

Posted by: Joe | Nov 2, 2017 4:16:28 PM

How can there be anymore prejudice than from the demands of the terrorist for ISIS flags in his hospital room? How can it get worse than his only regret, that he could not kill more.

And, you lawyer morons need to explain why there would not be a fast track to the death penalty? When one of yours got it, Abraham Lincoln, we had a fast to the death penalty, not just for the shooter, but for all his collaborators. They found and dead in a month.

Posted by: David Behar | Nov 2, 2017 4:19:12 PM

Behar, go back into your cave.

Posted by: Emily | Nov 2, 2017 4:27:40 PM

Trump is the chief law enforcement officer of the land (he takes an oath to "take care" that the laws are faithfully executed). In a series of statements, he would have a permanent resident taken to Gitmo (he has since changed his mind) he has called our criminal justice system a "laughing stock"; and he has repeatedly called for the death penalty to be imposed even before the defendant has been tried much less convicted. Trump's impulsive tweets have handed defense lawyers powerful arguments, one of which is that the potential jury pool is irreparably tainted. As a remedy, a federal judge (with life tenure) could well take the death penalty off the table, an ironic result indeed.

Posted by: Michael R. Levine | Nov 2, 2017 4:31:45 PM

@Professor Levine

Well, a federal judge could take the DP off the table. He/she could also do 100 jumping jacks naked. The question is what is a federal judge likely to do and there is no reasonable basis for a federal judge to take the DP off the table for some idle tweets, even those coming from the POTUS. Trump has a right to his opinion. If a judge goes off their rocker because of a series of tweets the judiciary is the laughing stock Trump claims it is.

What happened to the adage that "a kind word turns away wrath"? Sometimes Trump's critics go out of their way to prove that they are just as prone to irrational knee-jerk reactions as he is.

Posted by: Daniel | Nov 2, 2017 4:50:57 PM


You fail to link to the Guardian article you mention in the opening sentence of your post.

Posted by: Daniel | Nov 2, 2017 4:53:21 PM

As noted in a comment below in a related post, judges will take the death penalty off the table if the prosecutorial misconduct is sufficiently egregious. Having the chief law enforcement officer of the country calling our criminal justice system a "laughing stock" and repeatedly tweeting to 60 million folks or so that death should be imposed could do the trick. As noted below, in a case with entirely different facts, a judge did take the death penalty off the table.

Judge Removes Death Penalty Option in Murder Case Because of Law Enforcement Cheating
R. Scott Moxley | August 18, 2017 | 10:20am

Saying it would be "unconscionable perhaps even cowardly" to ignore Orange County law enforcement's "chronic" corruption exposed during a controversial murder case, Superior Court Judge Thomas M. Goethals today removed the death penalty as a punishment option, prompting gasps in a packed Santa Ana courtroom.

"This court finds that [Tony Rackauckas' Orange County District Attorney's office and Sandra Hutchens' sheriff department] are unwilling or unable to comply with lawfully issued orders," Goethals said during a 38-minute hearing in People v. Scott Dekraai where he repeatedly spoke about the importance of the rule of law in the criminal justice system.
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Posted by: Ted | Nov 2, 2017 4:59:22 PM

Hi, Micahel. As stated before, any judge misuse loppholes or lawyer gotchas must be impeached by the Congress, then run out of the country. Zero tolerance for disloyalty to our country, especially by Harvard Law School radicalized judges.

I have, in the past, proposed a black list of lawyer traitors. All service and product providers would be required to deny that judge services.

Posted by: David Behar | Nov 2, 2017 5:00:51 PM

Until he does ...


Trump isn't some Joe-Smoe here. Trump is the chief law enforcement officer of the land. So, I'm not sure if the judiciary is going to take as much of a laissez faire attitude as Daniel desires. This is not just a matter of "should" but what the rules are deemed to be. Depending on the judge, unlike nudity, a special celebrity case like this, one where quite truthfully it is harder to guard against illegitimate bias as is, could decide such statements poisoned the well, at least in respect to capital sentencing.

Anyway, local examples are out there for those in the business, I'm sure, and they can provide examples of how local judges handled something comparable.

Posted by: Joe | Nov 2, 2017 5:02:09 PM

British authorities ruling Palestine hanged several members of the underground Zionist Irgun organization in the 1940s following their conviction on charge of bombing and other violent attacks. Menachem Begin, former Irgun leader and later Prime Minister of Israel, reportedly told a former British Government minister that the executions had “galvanized” his group, which subsequently hanged several British soldier in retaliation. Menachem Begin said the hangings “got us the recruits that we wanted, and made us more efficient and dedicated to the cause … you were not sentencing our terrorists to death, you were sentencing a lot of your own people, and we decided how many”
Amnesty International “When the State Kills”, 1989 ACT 51/07/1989 p. 19

Posted by: Claudio Giusti | Nov 2, 2017 5:04:06 PM

Hi, Emily. Are you a licensed lawyer? I am not going to get your URL, nor report you. I am just curious. You seem frustrated.

Posted by: David Behar | Nov 2, 2017 5:09:06 PM

Apologies for leaving out the link to the Guardian article when I had to scurry off to class. I have the link now, and I look forward to hearing continued perspective on what Trump's tweeting could mean.

Posted by: Doug B. | Nov 2, 2017 5:52:53 PM

"Trump isn't some Joe-Smoe here. Trump is the chief law enforcement officer of the land."he President,

Well sure. He is also the President, he is also the commander and chief of the military, and about a dozens hats as well.

"Elizabeth II, Dei Gratia Britanniarum Regnorumque Suorum Ceterorum Regina, Consortionis Populorum Princeps, Fidei Defensor"

So on any given utterance which of these hats should we interpret the words of the Queen of England?

The problem here isn't who Trump is or what role he fills. The problem is rather than exercising good will certain kinds of people put the worst possible construction of his remarks. Why? because these days everything is ammunition and so any hope of communal understanding goes out the window.

Posted by: Daniel | Nov 2, 2017 6:48:40 PM

Claudio. You make an excellent point. When it comes to the Middle East, people cannot be deterred. They can only be eradicated. That is why in the Bible, written by a bunch of Palestinian and Iraqi assholes, they kill everything in a conquered land, down to the last kitten. Why take a risk? The kitten might back later and carry out a thar (vendetta in Italian).

Those assholes talked their way into plunging us into a 1000 years of the Dark Ages. It is the Romans who were the civilized good guys. They were on the verge of making the discoveries of the Renaissance, also led by Italians. Can you imagine if were 1000 years ahead today, because the Middle Eastern assholes had not fooled the Romans into accepting their bullshit.

You may say, that was long ago. Hell, no. Those assholes are still radicalizing our Harvard Law students, making them accept their Middle Eastern bullshit, via the catechism. Those assholes still control the American legal system, 2000 years across time. This legal system is just about the very worst in the world. And the lawyers that radicalized this way have been made into the very stupidest people in our country, stupider than Life Skills students learning to eat w ith a spoon.

Posted by: David Behar | Nov 2, 2017 8:36:34 PM

"The problem is rather than exercising good will certain kinds of people put the worst possible construction of his remarks."

Or, his remarks are objectively bad, so bad that even those who are allies have trouble defending them. And, since he has a special role, one he took an oath to uphold, Trump cannot just blithely vent. He doesn't, nor does your average prosecutor, just get to opine like someone at the corner bar or something about this defendant. Those are the rules in place. Weren't just invented recently or something. If you don't like them, it's fine.

Posted by: Joe | Nov 2, 2017 8:51:01 PM

Joe. That was really stupid, even for you.

Posted by: David Behar | Nov 2, 2017 9:56:46 PM

“Those who really think that death penalty can stop terrorist attacks or make them decrease, are naïve people or dreamers. Usual punishments, death penalty included, don't provoke any fear within terrorists or political criminals, who are ideologically motivated and devoted to sacrifice for love of their cause [...]. Besides, terrorist activities are dangerous and the terrorist faces letal risks every day, so he isn't frightened by immediate death. How could he be discouraged by the risk of being sentenced to death?”
Professor Ezzat A. Fattah, Simon Fraser University Canada

Posted by: Claudio Giusti | Nov 3, 2017 10:00:29 AM

Regardless of how bad Trump's comments are (which is almost a necessary precursor on any topic to any discussion of any of Trump's comments), the question is whether the comments preclude sitting a fair jury. I am not sure that any one politiican's comments on one occasion would meet that test. Some poetential jurors will be biased by those comments, but the majority will not.

Posted by: tmm | Nov 3, 2017 10:46:21 AM

"any one politician's comments"

tmm's bottom line very well might be correct but this trivializes things.

This isn't "one politician," as if some local congress person was involved. I would be interested to know what would happen if a local DA made such comments. This cannot be totally academic. It surely happened that some local DA made comments of this nature and defense attorneys claimed bias. Or, a local mayor or big picture, governor.

Posted by: Joe | Nov 3, 2017 11:04:24 AM

ETA: Mayor probably would be less on point, if they are not in charge of prosecutions.

Posted by: Joe | Nov 3, 2017 11:05:37 AM

I see that the military judge in the Bergdahl trial dishonorably discharged him, but gave him no prison time. I have no doubt that draft-dodger Trump's (and the other right wing, arm-chair warriors) repeatedly calling Bergdahl a traitor who should be executed played a part in this independent judge's thinking. So, President Trump keep up your inane tweeting.

Posted by: Ted | Nov 3, 2017 12:58:10 PM

I'm not sure how much of a part. An Army investigator early on recommended no prison time.

Posted by: Joe | Nov 3, 2017 1:44:35 PM

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