HOUSE_OVERSIGHT_017260.jpg

4.2.12 WC: 191694 I was reminded of Chief Justice Berger’s bear baiting hypothetical in the I Am Curious Yellow case, but this time the stakes were much higher. I answered the Justice’s question: No. That wouldn't be enough. And that is not this case in any event. This case is handing guns over, under an agreement that no shooting would take place. In Enmund the guns were provided. What Your Honor, Justice Scalia, is asking for, in a sense, is a return to the felony murder rule where guns are provided. Justice Scalia didn’t seem satisfied with my answer, so I threw a hypothetical back to him—law professor to law professor: And to throw a hypothetical back, which I'm not entitled to do, but I'll throw it back to myself...what if there were a statute saying, anyone who provides guns to an armed robber in the course of an armed robbery, whereby death results, is guilty of first-degree capital murder? That would be clearly within Enmund. That's what Enmund decided. Because the facts of Enmund were exactly that. The dialogue continued: Justice: In Enmund, had he provided the gun? Mr. Dershowitz: The state certainly argued that he had provided the gun in Enmund. The gun had belonged to his common law wife. He then disposed of the gun. Certainly, a reasonable judge and jury could conclude that he had provided the gun. It was an armed robbery. L73 HOUSE_OVERSIGHT_017260