WAIT HE HAS RIGHTS AS AN AMERICAN FOLLOW UP (READ)

[Great-Kazoo]

I'm starting a new thread as my first one has drifted somewhat and this is how the media / .Gov is explaining No Miranda


ERE'S HOW the media / law / SCOTUS explain it

Some excerpt and the issue of Miranda vs. Imminent Threat.

http://news.yahoo.com/constitution-check-limits-questioning-bombing-103826150.html

Some three decades ago, the Supreme Court for the first time gave police and federal agents the authority to avoid giving criminal suspects Miranda warnings about their constitutional rights, when the public safety justified that suspension. That authority, given in the 1984 decision of New York v. Quarles, has since been expanded by lower courts so that, even if a suspect has claimed the right to remain silent or the right to a lawyer, the questioning can go on if the public safety threat remains.


Last year, in a bulletin to law enforcement officers across the nation, the FBI cautioned them that this exception applied only to questions “directed at neutralizing an imminent threat.” It added that “once the questions turn from those designed to resolve the concern for safety to questions designed solely to elicit incriminating statements, the questioning falls outside the scope of the exception and within the traditional rules of Miranda.’

Related story: Constitution Check: Why would a terrorism suspect be given Miranda warnings? (http://blog.constitutioncenter.org/2013/04/constitution-check-why-would-a-terrorism-suspect-be-given-miranda-warnings/)
However, under the terms of a 2010 Justice Department legal memo (criticized by Slate.com’s Emily Bazelon in the column quoted above), questioning of a terrorism suspect who has not been told of his rights may also continue even beyond concerns for the moment, in order potentially to get significant intelligence information “not related to any immediate threat.” The memo cautions that the officers conducting the interrogation should get approval from their superiors to go further into intelligence-gathering.

[Aloha_Shooter]

Orin Kerr's explanation on the Volokh Conspiracy:


Tsarnaev and Miranda Rights
(http://www.volokh.com/2013/04/20/tsarnaev-and-miranda-rights/)Orin Kerr (http://www.volokh.com/author/orin/) • April 20, 2013 2:18 am

Law enforcement has successfully captured Dzhokar Tsarnaev (http://www.nytimes.com/2013/04/20/us/boston-marathon-bombings.html?_r=0), and DOJ has announced that Tsarnaev is being interrogated without first being read his Miranda rights because the DOJ thinks that the public safety exception to Miranda applies. Back in 2010, I blogged a lot about Miranda in this setting. Here are a few reminders about the law here:

1) A lot of people assume that the police are required to read a suspect his Miranda rights upon arrest. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement can be excluded. See United States v. Patane, 542 U.S. 630 (2004). So, contrary to what a lot of people think, it is legal for the government to even intentionally violate Miranda so long as they don’t try to seek admission of the suspect’s statements in court.

2) Even if we assume that the police later seek to admit a statement from Tsarnaev from post-arrest custodial interrogation outside Miranda, a court would allow an initial pre-Miranda interrogation to be admissible under the public safety exception of New York v. Quarles, 467 U.S. 649 (1984). It’s not clear how long the public safety exception will continue to apply: At some point in time, it becomes harder to say that the agents needed to dispense with Miranda in light of the threat to public safety. We don’t have good cases on when that line might be crossed, in part because (fortunately) there aren’t many similar cases. So the longer investigators interrogate Tsarnaev outside Miranda, the more they run the risk that some statements they obtain from him may be inadmissible. But recall that under (1), the government is still free to question Tsarnaev outside Miranda as long as the government accepts the uncertainty of whether those statements would be admissible in a criminal case against him. Assuming that the evidence against Tsarnaev’s many different crimes over the last week is likely to be overwhelming, agents may not need any statements from him for a criminal case. They may simply want whatever intelligence he can provide for use in broader antiterrorism efforts, and Miranda is no impediment in that case. The agents are free to question Tsarnaev outside Miranda to gather intellligence as long as they don’t cross the line into coercing statements from him. See, e.g., Townsend v. Sain, 372 U.S. 293 (1963) (http://supreme.justia.com/cases/federal/us/372/293/).

3) It is true that, under existing law, interviewing Tsarnaev for an extended period without reading him his Miranda rights and obtaining a waiver creates a risk that any incriminating statements made after an extended period may not be admissible in court in a criminal prosecution against Tsarnaev. However, if Tsarnaev does end up making incriminating statements that fall outside the public safety exception, and the government wants to use those statements in court against him, the government has a possible remedy to get the substance of even those statements admitted. At the end of the interrogation, agents can give him his Miranda warnings, see if he will waive his rights waiver, and, if he does, try to get Tsarnaev to repeat his pre-waiver incriminating statements. Because the two-stage interview likely would not be deemed an intentional two-step interrogation technique designed to circumvent Miranda, a court would very likely allow the post-Miranda, post-waiver statement under Justice Kennedy’s controlling opinion in Missouri v. Seibert, 542 U.S. 600 (2004).


UPDATE: I have fiddled with the post a bit to make it clearer.
ANOTHER UPDATE: If Tsarnaev is going to be charged in federal court, the more pressing limit on his interrogation may be the limits imposed by Rule 5 of the Federal Rules of Criminal Procedure. See generally Corley v. United States (2009) (http://www.supremecourt.gov/opinions/08pdf/07-10441.pdf).

[Bailey Guns]

That's a good read from Orin Kerr. I'm sure someone will be along soon to explain why he's wrong, the Republic is doomed, the Constitution has been trampled and shredded, the jack-booted thugs will soon be knocking at your door, etc...

[SA Friday]

Kerr's explanation is valid. It's good info, and thank god he didn't go into non-custodial interviews. I'm pretty sure they couldn't try to claim that ever at this point.

Rights advisement at this point is a legal call, but really is pretty stupid. There is simply NOTHING pointing to this incident having a conspiratorial group supporting these two idiots. There is a possibility the cops have something pointing to more people and we don't know it. Regardless, zealots have a tendency o be pompous and in my experience narcissistic enough to waive. So, take 10 seconds and mirandize them after a decent preamble. Anyone smart enough to invoke their right to silence and request an attorney is smart enough to tell them to go pogo-stick a broom handle without a miranda warning. It's a bad decision IMO.

[SA Friday]

That's a good read from Orin Kerr. I'm sure someone will be along soon to explain why he's wrong, the Republic is doomed, the Constitution has been trampled and shredded, the jack-booted thugs will soon be knocking at your door, etc...
Or why it makes all the sense in the world from their immense catalog of investigation and terrorism experience as to why someone's citizenship should be overlooked during investigation and prosecution...

[BushMasterBoy]

The .gov just makes shit up, so does the propaganda press, one and the same. You have rights when it suits the politicians, otherwise you are a peasant. This wouldn't have happened if the FBI had taken the Russian . gov seriously. I wonder how many others living in the US are planning terror? Incidents like this are exactly the reason you want to have an assault rifle at home if it happens near you, at least the US Senate realized this. Don't even rely on the idiot in the Oval office...

[wctriumph]

Read his rights and go from there. It seems pretty simple to me, there are procedures and protocols in place to deal with this. Why play games other than to cause distraction?

[TFOGGER]

Ok...approaching this from the other direction: What is the advantage of interrogating this imbecile without reading him his Miranda rights? It seems that according to the article above, the advantage would lie in mirandizing him as soon as he was conscious, so that any admissions or statements he made would be admissible. What am I missing?

ETA: I'm assuming that "enhanced" interrogation techniques are off the table...

[Aloha_Shooter]

You might want to question him if time is of the essence -- in locating other bombs or identifying accomplices. If you have enough evidence to convict without his statements (or care more about preventing additional incidents than about the court process for this piece of human filth) then Mirandizing and waiting for his lawyer to be identified/appointed and show up for questioning is just needless delay. People also forget about the NY lawyer currently serving time as an accomplice because she was passing messages on from the "blind sheik" to his followers.

In this case, they appear to have plenty of surveillance video tying him to dropping off the bag and physical evidence to tie the explosion to the bag he dropped so his testimony is probably moot.

Personally, I think Miranda caused more human suffering than it prevented by allowing scum to go free over technical violations and wreak more havoc on more lives. Then again, I think the ACLU has been one of the most anti-American and UNcivil organizations inside our borders for the past 40-50 years so what do I know?

[Bailey Guns]

Or why it makes all the sense in the world from their immense catalog of investigation and terrorism experience as to why someone's citizenship should be overlooked during investigation and prosecution...

I have never argued his citizenship should be "overlooked". I stated he could be held as an enemy combatant despite his status as a naturalized citizen and backed that up with federal court decisions. Others said designating him as an enemy combatant would deprive him of habeus corpus. I also provided a Supreme Court decision that stated that wasn't true.

Everyone seems to want to clamor on about Constitutional issues but only when it suits their agenda or viewpoints. But few seem to want to take the Constitution as a whole...especially when doing so would conflict with their pet agenda or viewpoint.

Here's the bottom line from my perspective: Times do change. The guidance of the Constitution should remain constant unless changed by the process found within it. With changing times come changing laws. The Supreme Court is charged by the Constitution with hearing and deciding issues of the law brought before it. In regards to this particular argument, they have. The Supreme Court has upheld US citizens being held as enemy combatants. They've also held that doesn't preclude them from their rights to habeas corpus. That seems to have the heads of the ideologically dogmatic among us spinning.

You, and others, might not like those facts for whatever reason. I get that and understand you're entitled to your opinions. But you're not entitled to manufacturing your own facts...which you tried to do by claiming US citizens could not be held as enemy combatants.

The US Constitution is as near to a perfect document as was ever crafted. Unfortunately, people are not. People make mistakes, people have agendas and opinions, and sometimes those people get elected and/or appointed to positions of power within various branches of our government and their agendas and opinions go with them. Thus, on occasion, their agendas or viewpoints often clash with our own...specifically with regards to Supreme Court justices and their decisions. I respect the court and it's authority and recognize their decisions are not always in line with my beliefs and opinions. But I'm not willing to throw the baby out with the bathwater.

So our system of government isn't perfect (nor or those elected and appointed to government positions) and more and more it seems, in my opinion anyway, the federal government is far exceeding it's Constitutional limits and has it's nose in many places it doesn't belong. As a result, just as our Forefathers warned, with bigger government comes loss of liberties. But that doesn't change the fact that we're a nation of laws whether we agree with those laws or not. There's a system in place, perhaps an imperfect one, that's allows for citizens to change the laws and to remove those in government with which we disagree. Unfortunately, it doesn't always work out the way we want it to.

[Zundfolge]

$10 says if the bombers were natively born, white, Christian and connected to any organization to the right of the AARP there would never have been any question about whether or not they should be tried as "Enemy Combatants" and they'd already be on a plane to Gitmo.

[buckeye4rnr]

http://www.realclearpolitics.com/video/2013/04/22/dershowitz_authorities_will_regret_not_reading_bos ton_bomber_miranda_rights.html



Alan Dershowitz, Civil Liberties and Criminal Attorney, talks about the legal road ahead for the Boston bombing suspect. Dershowitz says authorities will "regret" not reading Dzhokhar Tsarnaev, 19, his Miranda rights and "may have blown the death penalty" also.



MSNBC ANCHOR: Authorities decided to withhold reading Dzhokar his Miranda rights, invoking a public safety exception. As time passes, does the justification for this wear off? And, in your opinion, does the U.S., do investigators stand to regret that?

DERSHOWITZ: They will regret it, I think. A: There was never a basis for the public safety exception. As you know, when they announced it, the police had already announced that the public safety danger was over, they had arrested everybody. They didn’t think there was any further risk to the public. So they were using it as a subterfuge.

Why will they come to regret it? Because they think that this case is going to be made based on videotapes the physical evidence. Bu there are two elements to every crime: The actus reus, that is the crime itself, which they will have no problem proving. And the intention. Now in order to get the death penalty they have to prove a terrorist intention. Now, in order to do that, they may get the information from him without having Mirandized him. And that information may be kept out of a trial. So they may have blown the death penalty, by not giving him his Miranda rights.

###

DERSHOWITZ: And I do that there will be a price to be paid for it. I know the courts in Boston, I practiced in front of the federal courts in Boston. They're very tough on insisting that the rules be followed. And if they try to circumvent these rules by not giving him his Miranda rights, I can easily see a federal court saying, 'you can't use any of his statements that he gave you in writing in the hospital.' They may not be able to use them anyway because he may be not be competent to provide incriminating statements while he is in and out of sedation.

[Ronin13]

Kerr's explanation is valid. It's good info, and thank god he didn't go into non-custodial interviews. I'm pretty sure they couldn't try to claim that ever at this point.

Rights advisement at this point is a legal call, but really is pretty stupid. There is simply NOTHING pointing to this incident having a conspiratorial group supporting these two idiots. There is a possibility the cops have something pointing to more people and we don't know it. Regardless, zealots have a tendency o be pompous and in my experience narcissistic enough to waive. So, take 10 seconds and mirandize them after a decent preamble. Anyone smart enough to invoke their right to silence and request an attorney is smart enough to tell them to go pogo-stick a broom handle without a miranda warning. It's a bad decision IMO.
I'm sorry, what!? They were both unemployed, and the older brother had a wife and kid, the wife didn't work, and he drove a Mercedes. No group supporting these two? How the hell did they live then? Something doesn't add up, especially when the older brother goes to Russia (then parts unknown?) for 6-8mos, what does his wife do to survive? Daddy is a mechanic in Russia, I don't think he can afford to support them, so where did they get their money?

[sellersm]

If you want your voice to be heard, and this terrorist to be interrogated to the full extent of the law, click here: http://aclj.org/war-terror/petition-against-miranda-warnings-enemy-terrorists