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Alan Dershowitz Just Wondering Why Convicted Murderers Don't Get To Go Home Pending Appeal

How is that even fair?

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(Photo by John Lamparski/Getty Images for Hulu)

In today’s episode of “What the F*ck Happened to That Guy?” we check in with famous Harvard professor Alan Dershowitz for a lawsplainer on state criminal procedure.

Take it away, Dersh.

“He should be released on bail. There’s no reason why he should be remanded,” Dershowitz told Fox’s Laura Ingraham. “He’s not going to flee, he wants to have an appeal. He’s not going to endanger anybody. His face is well known. And what if his conviction is reversed? Where does he go to get the two years back?”

Here on Planet Earth, courts are not generally in the habit of sending convicted murderers home to cool their heels for a year while appeals work their way through the system. No, not even white ones with no prior criminal record, as Ingraham, who clerked for Justice Clarence Thomas after receiving her JD from UVA, knows perfectly well.

She also knows exactly why Derek Chauvin, a police officer who publicly murdered a Black man, needs to be in segregated housing within the Minnesota Department of Corrections if he wants to make it to his sentencing date in two months. But that won’t stop her pretending this is some kind of revenge plot against the defendant.

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“Alan, it’s being reported that Chauvin is being held in solitary confinement, 23 hours a day, one hour a day to exercise,” she said. “Do you think that what the judge said about an appeal that he probably shouldn’t have been remanded back into custody? And then we have the solitary confinement issue on top of that.”

Indeed, Judge Peter Cahill did make an offhand comment that “Congresswoman Waters may have given you something on appeal that may result in this whole trial being overturned.” But then he denied the defendant’s motion for a mistrial, and the jury returned a unanimous guilty verdict within a matter of hours.

As appellate attorney Andrew Fleischman wrote in Arc Digital, the odds of Chauvin’s conviction being overturned on appeal are slim to none. Particularly since Minnesota’s courts take a highly restrictive approach toward deposing jurors post-conviction.

Nonetheless, Ingraham and Dershowitz demand that Judge Cahill behave as if his decision is inevitably going to be overturned and release a convicted murderer on his own recognizance.

“Well, different states have different rules about whether you’re entitled to be bailed if you’re convicted of a crime as serious as murder,” Dershowitz agreed, without reference to any relevant Minnesota law or precedent. “But in general when you have good appellate issues, and the judge himself said there are good appellate issues — at least one good appellate issue in this case, and I think there are half a dozen good appellate issues — he should be released on bail.”

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But Fleischman, who does not have the distinction of advising Mike “My Pillow Guy” Lindell on his latest suit against Dominion, but is engaged in the day-to-day practice of law, disagrees.

“Generally speaking, judges are reluctant to release murderers on bond after they’ve been convicted,” he told ATL. “It would be very embarrassing if they ran or committed another crime, and it is no political panacea to say you are following Alan Dershowitz’s advice.”

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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