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View Diary: Tsarnaev Presumed Guilty: Government Leaks Ill-Gotten Incriminating Statements (180 comments)

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  •  Not yet, but that's what the government (3+ / 0-)
    Recommended by:
    jbob, gerrilea, aliasalias

    will no doubt argue.

    My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

    by Jesselyn Radack on Fri May 03, 2013 at 06:51:46 AM PDT

    [ Parent ]

    •  What is the basis for your "no doubt?" (1+ / 0-)
      Recommended by:
      erush1345

      How can there be no doubt when there is no precedent?

      Or, has incriminating evidence gathered during the public safety exception in the past actually been entered into evidence in a court of law?

      Cite sources, please.

      Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well-warmed, and well-fed. --Herman Melville

      by ZedMont on Fri May 03, 2013 at 07:06:47 AM PDT

      [ Parent ]

      •  Read Quarles. Duh. (5+ / 0-)

        link:

        The facts of this case clearly demonstrate that distinction and an officer's ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety.

        We hold that the Court of Appeals in this case erred in excluding the statement, "the gun is over there," and the gun because of the officer's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly we hold that it also erred in excluding the subsequent statements as illegal fruits of a Miranda violation. We therefore reverse and remand for further proceedings not inconsistent with this opinion.

        •  It's a long ways from allowing a couple of minutes (6+ / 0-)

          of pre-Miranda evidence to 16 hours worth of it, especially given that he'd asked for and been refused a lawyer multiple times and that the questions went well beyond immediate public safety concerns.

          Hopefully the information gotten from him will prove to be useful in infiltrating and breaking any broader terrorism groups these men were associated with, but not be entered into let alone allowed in court, and that evidence and testimony obtained outside this pre-Miranda interrogation period will be more than sufficient to convict him. But I would like to see the courts slap down the DoJ and FBI for doing this and make it clear that it was unconstitutional.

          "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

          by kovie on Fri May 03, 2013 at 07:33:41 AM PDT

          [ Parent ]

        •  Now that I have been so graciously introduced to (0+ / 0-)

          New York v. Quarles, I see some troubling differences in Quarles and the Tsarnaev case that leave me with a bit of doubt as to how closely they track.

          The question in Quarles was second nature to a police officer.  Even in ordinary traffic stops, officers will often ask occupants of an automobile if there are any weapons in the car and if so, where are they?  This is especially so in states like Texas where it is legal to carry a concealed weapon in your automobile without a concealed weapons permit.

          It was asked spontaneously, without any premeditation, and there was not a strong nexus between the public safety nature of the firearm question and the alleged crime (rape), for which Quarles became a suspect.  Indeed Quarles was convicted only of the firearms charge, and the rape charge was dropped.

          The Tsarnaev case is not, in my opinion, so clear cut.  In the first place, the questions were not spontaneous, they were premeditated, and in fact were the result of an administrative decision of the government (untested in court) to interpret the public safety question more broadly than it would in an ordinary crime (such as Quarles).  In other words the government intentionally plowed new ground here, whereas in the Quarles case the question was instinctive to public safety.

          There is a much clearer nexus in my mind between the crime Tsarnaev was originally charged with, and the public safety questions about plans for future crimes than there was between an alleged rape and an apparently unrelated firearms violation.  

          There is a much greater risk of Tsarnaev incriminating himself in the Boston bombing with his answers to the "exception" questions than there was for Quarles implicating himself in a rape by pointing out where his gun was.

          So, there is indeed considerable doubt in my mind as to how both the government and the courts will approach this.  The government is well aware that a sensitive but useful enforcement tool such as the Miranda exception can be lost if misused.  The government has an interest in protecting public safety, and politically, prevention of terrorist attacks is much more important than convictions.  

          Therefore, there is more doubt in my mind as to how much of this evidence the government will attempt to use than perhaps others here have.

          The courts are not unmindful of the risks involved here.  My guess is that the courts are going to view the exception much more narrowly in admitting evidence than the government viewed it in gathering intelligence.  

          I predict the government will be satisfied to prevent future attacks and preserve its "tool" rather than risk losing it by overstepping the exception, and so will not present any evidence with respect to Tsarnaev's future plans.

          With respect to any pre-MIranda evidence gathered under the exception that would tend to incriminate Tsarnaev for the crime of which he has been accused, I doubt the court will admit it, but the possibility that it will is troublesome.

          Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well-warmed, and well-fed. --Herman Melville

          by ZedMont on Fri May 03, 2013 at 11:20:18 AM PDT

          [ Parent ]

          •  well, remember. (0+ / 0-)

            1. Miranda applies to custodial interrogations. Until you're in custody (which a traffic stop is not), you don't have the rights.

            2. The gun was relevant to the crime in Quarles, in terms of identifying him:

            On September 11, 1980, at approximately 12:30 a.m., Officer Frank Kraft and Officer Sal Scarring were on road patrol in Queens, N.Y., when a young woman approached their car. She told them that she had just been raped by a black male, approximately six feet tall, who was wearing a black jacket with the name "Big Ben" printed in yellow letters on the back. She told the officers that the man had just entered an A & P supermarket located nearby and that the man was carrying a gun.

            The officers drove the woman to the supermarket, and Officer Kraft entered the store while Officer Scarring radioed for assistance. Officer Kraft quickly spotted respondent, who matched the description given by the woman, approaching a checkout counter. Apparently upon seeing the officer, respondent turned and ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun. When respondent turned the corner at the end of an aisle, Officer Kraft lost sight of him for several seconds, and upon regaining sight of respondent, ordered him to stop and put his hands over his head.

            Although more than three other officers had arrived on the scene by that time, Officer Kraft was the first to reach respondent. He frisked him and discovered that he was wearing a shoulder holster which was then empty. After handcuffing him, Officer Kraft asked him where the gun was. Respondent nodded in the direction of some empty cartons and responded, "the gun is over there." Officer Kraft thereafter retrieved a loaded .38-caliber revolver from one of the cartons, formally placed respondent under arrest, and read him his Miranda rights from a printed card

      •  The whole point of the public safety exception (3+ / 0-)
        Recommended by:
        Nada Lemming, fuzzyguy, aliasalias

        is that it allows pre-Miranda statements to be used in court.

        My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

        by Jesselyn Radack on Fri May 03, 2013 at 08:24:43 AM PDT

        [ Parent ]

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