WEBVTT - Judge Napolitano 

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<v Speaker 1>KRC, the talk station. It's 830 at 55 KRC, the

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<v Speaker 1>talk station. Appointment listening time with Judge Janet Apolitano. Judging

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<v Speaker 1>Freedom is Judge Janet Apolitano's podcast. We usually end up

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<v Speaker 1>the segment talking about what he's doing today. But in

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<v Speaker 1>the meantime, I say all the time I get a

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<v Speaker 1>copy of his column, which comes out tonight at midnight

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<v Speaker 1>in advance. I am blessed in that regard today. It's

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<v Speaker 1>a culture of death. Welcome back, Judge Ed Napolitano. It's

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<v Speaker 1>always a pleasure to have you on the 55K RC

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<v Speaker 1>Morning Show.

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<v Speaker 2>Thank you, Brian. A pleasure to be with you, and

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<v Speaker 2>welcome back to Joe.

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<v Speaker 1>Yeah, it is nice having him back. No idea what

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<v Speaker 1>peace of mind just having Joe in the production booth

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<v Speaker 1>gives me, sir. Anyhow, you know, I read your column,

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<v Speaker 1>and I agree with you. I have told my listening

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<v Speaker 1>audience a multitude of times I don't believe in the

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<v Speaker 1>death penalty. As a younger man, more of a kill-em-all-let-God-sort-it-out

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<v Speaker 1>kind of guy, I no longer carry that because I

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<v Speaker 1>no longer... really, and that guy ever should, trust the government,

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<v Speaker 1>and a government who screws up in prosecuting criminals sometimes

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<v Speaker 1>convicts the wrong person, and sometimes we find somebody who's

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<v Speaker 1>been sitting on death row for like 30 years or

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<v Speaker 1>something ends up DNA evidence, exonerates them. So if that

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<v Speaker 1>can happen, the state shouldn't be able to take a life.

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<v Speaker 1>And here's the parallel I want to draw. I am

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<v Speaker 1>a Second Amendment fan. I am a firearms owner. I

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<v Speaker 1>know that in using a firearm, deadly force requires imminent

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<v Speaker 1>apprehension of grievous bodily harm or fear of death. And

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<v Speaker 1>if you don't have that, you're not allowed to use

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<v Speaker 1>deadly force. That's kind of a parallel you're drawing here

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<v Speaker 1>with the government locking criminals up. They are no longer

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<v Speaker 1>a threat to society. But then killing them.

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<v Speaker 2>Well... You know, I went through the same ideological odyssey

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<v Speaker 2>that you did as a young man, as a law student,

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<v Speaker 2>as a young lawyer, even as a judge, though I

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<v Speaker 2>never tried a capital case. And during my time on

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<v Speaker 2>the bench in New Jersey, the legislature removed the death penalty,

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<v Speaker 2>so it became irrelevant. But in my youth... I believed

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<v Speaker 2>that it was appropriate. I now believe that the government

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<v Speaker 2>doesn't have the moral and therefore doesn't have the legal

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<v Speaker 2>authority to kill people. What prompted my piece, of course,

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<v Speaker 2>was the statement by Secretary of Defense Hegseth that this

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<v Speaker 2>execution will be by firing squad and will be live streamed.

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<v Speaker 2>I mean, to me, this is pornographic. this just glorifies

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<v Speaker 2>killing and makes it a television spectacle. I'm not using

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<v Speaker 2>the television terms because I worked with Pete Hegseth and

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<v Speaker 2>we both worked at Fox, but that's basically what this is.

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<v Speaker 2>There's only three or four countries in the world that

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<v Speaker 2>have public executions. So we really want to be in

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<v Speaker 2>the same category as them, North Korea, Afghanistan, and Iran.

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<v Speaker 2>And none of them televise them or live stream them

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<v Speaker 2>as Hegseth wants to do. To me, this is part

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<v Speaker 2>of the Washington Post calls Pete Hegseth Trump's minister of manliness.

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<v Speaker 2>It is part of the minister of manliness's glorification of

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<v Speaker 2>government and the power that government has to kill government

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<v Speaker 2>killing people should be an absolute last resort and only

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<v Speaker 2>in the case of defense, not in any other case,

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<v Speaker 2>particularly not when the person being killed poses no threat

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<v Speaker 2>whatsoever to American life, liberty, or property.

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<v Speaker 1>Is it your belief, I don't know that it's ever

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<v Speaker 1>been articulated by Hegseth or anybody else that wants this

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<v Speaker 1>execution public or live streamed, is it your belief that

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<v Speaker 1>that will serve as an illustration to deter others from

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<v Speaker 1>similar conduct, which is what the criminal justice system in

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<v Speaker 1>part is supposed to do, putting aside death. But the alternative, though,

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<v Speaker 1>or the way I view this public education or execution is,

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<v Speaker 1>you've just created a poster child martyr for the recruitment

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<v Speaker 1>of additional people to join the forces with the ISIS folks.

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<v Speaker 2>Correct. I mean, this video, if it happens, I think

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<v Speaker 2>a federal judge... will probably interfere, although there is an

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<v Speaker 2>issue of standing here because he doesn't have a lawyer,

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<v Speaker 2>and he probably wants this live stream. But you will

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<v Speaker 2>see it all over the Middle East, and you will

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<v Speaker 2>see children reacting to it, and you'll see Americans repulsed

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<v Speaker 2>by it. the Secretary of Homeland Security, who has nothing

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<v Speaker 2>whatsoever to do with this, nevertheless said on Fox the

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<v Speaker 2>other day, well, if you don't like it, you don't

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<v Speaker 2>have to watch it. You're going to see it everywhere,

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<v Speaker 2>whether you want to watch it or not, because it is,

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<v Speaker 2>you know, it's unique. A plane lands, it's not news.

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<v Speaker 2>A plane crashes, it's news. Somebody is executed, like they

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<v Speaker 2>tried to execute Christoph Pike, um, It's news when it

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<v Speaker 2>goes wrong or it's news when it's televised. You will

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<v Speaker 2>see this monstrosity all over the place. Archbishop Timothy Brolio,

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<v Speaker 2>who's the head Catholic chaplain for all the military, told

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<v Speaker 2>any Catholic sharpshooters they must ask to be excused from

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<v Speaker 2>this sharpshooting squad. These guys are going to have PTSD.

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<v Speaker 2>for the rest of their lives over this kind of

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<v Speaker 2>use of military force.

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<v Speaker 1>Well, I would argue you're right. But then again, I

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<v Speaker 1>can hear the sort of the chorus of voices who

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<v Speaker 1>want this guy executed. They want him executed in public.

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<v Speaker 1>They want to do that, that they would sign up

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<v Speaker 1>for the job, Your Honor. There are people out there

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<v Speaker 1>that wouldn't mind that. I have to observe.

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<v Speaker 2>I'm sure there are. But this presumes... an extraordinary power

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<v Speaker 2>to government, which we have never consented to it having.

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<v Speaker 2>The government exists, I'm parroting the Declaration of Independence, I'm

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<v Speaker 2>not making this up, by virtue of the consent of

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<v Speaker 2>the governed. The governed have given individual power that each

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<v Speaker 2>of us has, like self-defense, to the government to exercise

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<v Speaker 2>it for us. The governed don't have the power to

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<v Speaker 2>kill someone who presents no threat. So if they don't

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<v Speaker 2>have that power, how can they give it to the government?

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<v Speaker 2>I recognize this is a philosophical argument.

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<v Speaker 1>It is.

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<v Speaker 2>It's an extraordinarily libertarian argument. It is. But the opposite argument,

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<v Speaker 2>the government can do whatever it can get away with,

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<v Speaker 2>will lead to authoritarianism. And we're on the verge of

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<v Speaker 2>it today.

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<v Speaker 1>We are. and I keep the idea that government can kill.

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<v Speaker 1>Are there that many countries in the world that have

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<v Speaker 1>the death penalty? I'm trying to reflect on the Supreme

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<v Speaker 1>Court at one point found it to be cruel and

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<v Speaker 1>unusual punishment only to reverse itself subsequently, correct?

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<v Speaker 2>Correct. There was a time when there was no death

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<v Speaker 2>penalty in the United States, and then the Supreme Court

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<v Speaker 2>reversed itself. There's not that many countries that do. It's

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<v Speaker 2>illegal in the EU. Russia and China have it, and

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<v Speaker 2>it's illegal in most of Latin America. So you have

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<v Speaker 2>outliers like the US, China, Russia, Afghanistan, North Korea, Iran

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<v Speaker 2>that use it. I don't even think Israel has the

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<v Speaker 2>death penalty, though there is legislation in the Knesset to

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<v Speaker 2>make it lawful. This is horrible, but this is the legislation.

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<v Speaker 2>For Palestinians only, not for Israelis. Put that aside. I

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<v Speaker 2>don't believe it is lawful in Israel. So most of

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<v Speaker 2>the West, indeed most of the world, does not have

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<v Speaker 2>this any longer.

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<v Speaker 1>Well, walking through this philosophical analysis, and I'm sorry I

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<v Speaker 1>didn't go back and look at the Supreme Court case

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<v Speaker 1>allowing for the death penalty again, but what changed in

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<v Speaker 1>terms of the court's rationale when outlawing it and then

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<v Speaker 1>changing a position on cruel and unusual punishment?

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<v Speaker 2>Well, first the court said it was cruel and unusual

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<v Speaker 2>because it was applied with a racial animus. And then

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<v Speaker 2>another generation later, so basically another court, because I had

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<v Speaker 2>different members on it, but the same Supreme Court, if

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<v Speaker 2>you follow me, said there's nothing in the federal constitution

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<v Speaker 2>about this and the states have their own safeguards and

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<v Speaker 2>the death penalty preexisted the country. So the first was

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<v Speaker 2>sort of a modernist, we can't use it in a

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<v Speaker 2>racially animated way, ruling. The second was sort of an originalist.

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<v Speaker 2>It's been around for longer than the country has been around.

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<v Speaker 2>It's up to the states to make sure it's applied fairly.

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<v Speaker 1>That's like a Bruin decision insofar as the death penalty

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<v Speaker 1>is concerned.

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<v Speaker 2>Yeah. You know, the last public execution was during the

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<v Speaker 2>FDR years. It was around 1920. it was the execution

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<v Speaker 2>of a black man for raping a white woman. There

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<v Speaker 2>was no television then, but 10,000 people showed up to

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<v Speaker 2>watch this happen. That was the last public one.

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<v Speaker 1>Kind of like gladiators in the Roman Empire, Judge Napolitano.

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<v Speaker 2>Yeah. It's kind of sickening to me, and I wasn't surprised,

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<v Speaker 2>but I was disappointed to hear Hegseth glorying in it.

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<v Speaker 2>He sounded unbalanced the way he was defending this decision.

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<v Speaker 2>I understand it's legal. I get it. The law is

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<v Speaker 2>not going to change because I think it's unconstitutional philosophically,

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<v Speaker 2>but adding this public... viewing and live streaming is totally

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<v Speaker 2>unnecessary and will be counterproductive.

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<v Speaker 1>Counterproductive. I think you're putting it lightly when you call

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<v Speaker 1>it counterproductive, Your Honor. The problems that are going to

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<v Speaker 1>ensue from that, the recruiting that will most assuredly go on,

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<v Speaker 1>the martyrdom that this man will become a martyr, it's

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<v Speaker 1>just a dumb idea. We can just call it that.

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<v Speaker 1>Judge Antonio Napolitano, Judging Freedom is the podcast. Find it

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<v Speaker 1>wherever you get your podcasts. Same group of folks on

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<v Speaker 1>a Wednesday, Judge Napolitano?

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<v Speaker 2>Yes, yeah, I have the great Phil Giraldi, Colonel Douglas McGregor,

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<v Speaker 2>and my favorite international investigative journalist, Pepe Escobar, who has

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<v Speaker 2>extraordinary sources in Saudi Arabia, in Yemen, and in Pakistan

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<v Speaker 2>to explain to us what is going on there. Why

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<v Speaker 2>is the government of one of the richest nations in

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<v Speaker 2>the world Saudi Arabia about to collapse.

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<v Speaker 1>That's a hell of a subject matter. You just got

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<v Speaker 1>a lot of listeners going to be tuning into Judging

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<v Speaker 1>Freedom today, Your Honor, and they will tune in next week.

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<v Speaker 1>Appointment listening with you on the 55KRC Morning Show, Wednesdays

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<v Speaker 1>at 830. God bless you, sir. I appreciate what you do.

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<v Speaker 1>And thank you for sharing my obviously less than widely

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<v Speaker 1>popular beliefs about the death penalty. I just... You know,

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<v Speaker 1>and let's try to remind people, prison sucks. It's not

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<v Speaker 1>like they're getting let free. They get no liberties, no freedoms.

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<v Speaker 1>They can't have a cheeseburger whenever they want. They'll probably

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<v Speaker 1>get raped by one of their fellow prisoners. It's a hellhole.

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<v Speaker 1>So let them enjoy that for the rest of their life.

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<v Speaker 1>Hell on earth, followed by hell in the afterlife. Can

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<v Speaker 1>we live with that?

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<v Speaker 2>I think we can live with that. Brian, it's a pleasure,

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<v Speaker 2>my man. Thank you. See you next week.

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<v Speaker 1>Have a great week, my friend. It's 842-55-CARS. The Talk Station.

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<v Speaker 1>Don't go away. Josh Gerth.