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Author's note: I cross-posted this from my blog (http://ayearatvenicebeach.blogspot.com), because I thought and think it is so important. As with my other DKos diaries, I will endeavor to respond to all substantive comments made in good faith (and even most made in bad faith).

I can't believe it. The U.S. Government has announced that it will not immediately read Dzhokhar Tsarnaev his Miranda warning, invoking the so-called 'Public Safety Exception' as its so-called rationale. This Exception, created by the Rehnquist Court in 1984, allows authorities to question detainees for up to 48 hours about threats to the public or to law enforcement before advising the detainee of his or her various rights, notably the right to remain silent and right to an attorney. Should the detainee speak during this Public Safety Exception period, his or her comments can be admitted into court to be used against him.

OK, sure, you say. The police need to find out if there are any other threats to the public that the detainee knows about and that compelling state interest outweighs the need to keep the detainee fully informed of his rights. What's the problem?

Continues below the fold.

Ah, but there's the rub. Because, you see, the detainee already has the right to remain silent. Tsarnaev could know about 6 more bombs set to detonate in the next 24 hours and he has the absolute right to remain silent about them. All the Miranda rule does is require the government to formally apprise Tsarnaev of his right to silence. Same goes for his other rights. Tsarnaev has an absolute right to request an attorney at any time. All the Miranda rule does is require the government to formally apprise Tsarnaev of his right to an attorney. And all the Public Safety Exception does is relax the requirement that the government Mirandize Tsarnaev before seeking testimony that it then uses in a case against him.

So Tsarnaev has these rights already, it's not the government's  fault if Tsarnaev doesn't understand his rights and Public Safety demands that the government not inform him of these rights so that it can try to elicit information from him that it can use against him, provided that information deals with issues affecting the Public Safety.

See a problem there? Well, let's see. Tsarnaev will be facing the death penalty since the case is now in U.S. jurisdiction (as 'terrorism') and the government basically can try to trick him into further implicating himself.

Jesus H. Christ, don't these legal beagles in the Justice Department understand that the entire civilized world (most of which resolutely opposes the death penalty in all cases) is watching us to make sure that we really have left the days of the Bush-Cheney torture regime behind? Anything that gives the appearance that we are playing fast and loose with Tsarnaev's rights in our system and the world will be entitled to claim that the Bush-Cheney torture regime was not an exception but is part of a new norm.

President Obama, I thought you were some hot-shot constitutional lawyer, law professor or both. Do you really intend to give the rest of the world the impression that we are playing fast and loose with the life of a 19-year-old by playing legal tricks on him?

Come on, Obama, do the right thing. Instruct prosecutors to Mirandize Tsarnaev as soon as he is capable of understanding the Miranda warning. If there truly is a public safety concern - and I think there might be - immunize Tsarnaev for any information he gives about future bombs or other conspirators. But whatever you do, don't try to trick him into further implicating himself. The whole world is watching. You are better than this and America is better than this. And the whole world is watching.

.

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Comment Preferences

  •  The question is moot he has an injured tongue (4+ / 0-)

    and throat and can't talk.  Why would he, he is facing the death penalty anyway, there is no wiggle room.
    Miranda really makes no difference he is headed for a death court.

    The disturbing thing is how eager the DOJ is to toss it as if political grandstanding is more important than Justice.

    We really are resembling a tyranny, a banana Republic in our hysteria and insistence of death penalty extended to every federalized crime as if the more killing, the better.
    Revenge, not justice.  Eric Holder his top lieutenants, the Five hanging judges on the SCOTUS, all of them make me sick.
    What a disappointment and little mind, little man he turned out to be.

  •  ? (20+ / 0-)

    There is no such thing as a "so called exception" to Miranda.  There is a legal exception.  Not one legal expert has said that the exception trumps the 5th Amendment.  I have zero clue what your issue is.

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Sun Apr 21, 2013 at 07:44:21 PM PDT

    •  The Public Safety Exception allows the government (2+ / 0-)
      Recommended by:
      Gooserock, peacestpete

      to question a detainee for up to 48 hours about matters directly affecting the public's safety or safety of law enforcement officers.

      Any statements made by a detainee during that Public Safety Exception period can be used against him or her in the subsequent trial.

      Here's my issue: the 5th Amendment says that citizens have the right to remain silent. Miranda requires the government to apprise detainees of that right b/c of the coercive nature of custody. The Public Safety Exception allows the government to question detainees and use their statements against them without having formally apprised them of their right to remain silent.

      I think it's a huge problem and sets up the possibility that the world will perceive that Tsarnaev was tricked into further implicating himself because of some legal trikcery.

      •  Starting When? To This Moment Subject Has Been (2+ / 0-)
        Recommended by:
        Avila, Ray Pensador

        disabled [may never be able to physically speak again so he'd have to be dealt with via keyboard] so as of the latest reports, he hasn't been approached.

        Does the 48 hours start with apprehension or does it start when the subject is first able to respond?

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Sun Apr 21, 2013 at 08:05:33 PM PDT

        [ Parent ]

      •  "Further implicating himself?" (11+ / 0-)

        How much worse could his charges get? He is a known terrorist, there really isn't much doubt at this point. I think they are just trying to figure out if there is any more danger that he knows of; they don't need any more evidence. I think other countries can kind of dig what's going on here.

        I'm afraid that my signature won't match the mood of my comment.

        by heybuddy on Sun Apr 21, 2013 at 08:10:38 PM PDT

        [ Parent ]

        •  Has there been a trial and conviction already? (3+ / 0-)
          Recommended by:
          Avila, CharlesInCharge, Nada Lemming

          Maybe I missed it.  I thought people are presumed innocent until proven guilty by a jury of peers.

          •  I don't know if it counts as (7+ / 0-)

            a confession of guilt in the marathon bombing, but he was caught lobbing homemade bombs at the police, oh, and the shooting and stuff. But yeah, you know, let's not jump to any conclusions.

            I'm afraid that my signature won't match the mood of my comment.

            by heybuddy on Sun Apr 21, 2013 at 10:02:07 PM PDT

            [ Parent ]

            •  Is that the standard we follow in our system (3+ / 0-)
              Recommended by:
              CharlesInCharge, Nada Lemming, Avila

              of laws?  Did you see the guy himself lobbing the bombs at the cops?  Did you see him placing the bomb down, and walking away from it, shortly before the explosion?

              Does a full-blown confession about a crime translate into having been found guilty of such a crime?

              I thought that in our system of law there are certain processes that must be follow, like due process.

              •  Ray, again, trying my best not to snark but (2+ / 0-)
                Recommended by:
                Ray Pensador, devis1

                you should know that Due Process, like Geneva, is 'Quaint and Obsolete.'

                •  It appears so, more and more. And the "people" (2+ / 0-)
                  Recommended by:
                  Nada Lemming, chmood

                  are clamoring for it to become so.

                  •  I don't see anyone here wanting to see him (12+ / 0-)

                    convicted of a crime without trial.

                    •  Not here, but on DemocraticUnderground.com I (1+ / 0-)
                      Recommended by:
                      Avila

                      personally witnessed an entire thread whose premise was that Tsarnaev was NOT entitled to a fair trial, only to a show trial. Glad I no longer post there.

                      •  So surf over there and yell at THEM. (7+ / 0-)

                        WTH?

                        People drive pretty crazy in Florida, so I should scream at my perfectly same neighbors who drive reasonably here about how unsafe it is to drive on freeway shoulders?

                        They'll look at me like I've lost my mind...And then get mad.

                        And they should.

                        © grover


                        So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

                        by grover on Mon Apr 22, 2013 at 01:01:06 AM PDT

                        [ Parent ]

                        •  Hahahaha! I laughed out loud ... (3+ / 0-)
                          Recommended by:
                          aitchdee, Smoh, exlrrp

                          ... at that one, grover! There should be an award given, and a monthly awards banquet held, for Best Analogy of the Month. Then, every year, we could all meet up in designer gowns and black coats and ties at the Kodak Theater and present the "Anally," which would be the name given to the award for the "Best Use of Analogy in a Comment or Diary."

                          I do agree that we've got a misplaced anger issue here. Nobody is taking any rights away from the suspect. He gets the full benefit of Constitutional protections--as soon as the public is safe. If people in Istanbul and Qatar don't like it, they need to research the issue a little better so they can understand it.

                          As for this site, I've tried to refer to the suspect as "the suspect." Nobody I've seen here has mentioned not having a fair trial. I would use the word "alleged" for the Tsarnaev, but holy crap, there is such a mountain of evidence. In cases like George Zimmerman and Dzhokhar Tsarnaev, I don't feel the need, even as a former defense attorney, to use the word "alleged" to discuss the basics of what they did. (We aren't in court here.)

                          I would tip you, but the man took away my tips.

                          by Tortmaster on Mon Apr 22, 2013 at 01:28:08 AM PDT

                          [ Parent ]

                        •  I was attempting to explain to SusanG that (1+ / 0-)
                          Recommended by:
                          chmood

                          the sentiment to deny Tsarnaev a fair trial is out there, even if she has not seen that sentiment on DKos. I was not yelling at my neighbors about it, although I did find myself laughing at the image and analogy you depict. That joke's on me, I suppose, but I promise I wasn't yelling :)

                        •  Why not? I get yelled at over stuff I don't even (0+ / 0-)

                          know about, because they get wound up by something online, then I get yelled at while they decrease their own pressure.  Then I'm wound up, and can't focus.

                          I could take it out on the cat, but NOBODY thinks that would be good.

                          Yeah, don't displace your anger / frustration:  if it's them, take it to them.  I sure can't help.

                          I am a leaf on the wind - i hover, twirl, float,
                          Weightless, frictionless, I fly

                          by chmood on Mon Apr 22, 2013 at 10:57:08 AM PDT

                          [ Parent ]

              •  Yes, there is video of him setting down ... (9+ / 0-)

                the second bomb and sauntering away to a safe distance.

                And you're right, the authorities must use due process.  But no where does it say that thinking people viewing actual evidence may not come to conclusions in their own minds.  It's what the jury believes that will determine what happens to him, unless he plea bargains out.  He may not be given that option, though, since the evidence seen so far seems to be very solid.

                "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

                by Neuroptimalian on Sun Apr 21, 2013 at 10:46:24 PM PDT

                [ Parent ]

              •  My comment was that there was no need to (3+ / 0-)
                Recommended by:
                Quicklund, Avila, exlrrp

                worry about him further implicating himself. Due process can wait until public safety is assured.

                I notice you seem to have an excellent understanding of the law and an uncanny objectiveness about the case. Have you considered joining his defense team officially?

                I'm afraid that my signature won't match the mood of my comment.

                by heybuddy on Sun Apr 21, 2013 at 10:51:13 PM PDT

                [ Parent ]

              •  There is a crowd on twitter (1+ / 0-)
                Recommended by:
                Avila

                tweeting to free this joker guy. No, really.

                I'm afraid that my signature won't match the mood of my comment.

                by heybuddy on Mon Apr 22, 2013 at 12:43:48 AM PDT

                [ Parent ]

            •  He already confessed ... or bragged (2+ / 0-)
              Recommended by:
              exlrrp, Diogenes2008

              to the guy they carjacked.

              There's a mountain of evidence against him.

          •  these guys were caught about as close to (4+ / 0-)
            Recommended by:
            Avila, Quicklund, aitchdee, Diogenes2008

            red-handed as possible.

            The area in and around the finish line is supposed to filled with banks. Lots of hi-quality surveillance video to work with. Also, how many pro photogs taking wide-angle shots and people w/ cell phones got a picture of them? Furthermore, Jeff Bauman woke up on Wed nite and gave an accurate description of (I think it was) Tamerlan. And they threw IEDs at the cops on Thurs nite. (How many fucking people in the Boston area just have pressure cookers loaded with black powder just sitting around?) And the Youtube & Twitter accounts, testimony from Uncle Ruslan and Gilberto Junior, the overseas trip the Russians wanted the FBI to look into in 2011....

            This is already pretty much open & shut with just the info that's been released publicy. I imagine Dzokhar is just going to plead that way when the time comes.

            Thanks to the internet, bullshit now travels at the speed of light.

            by nota bene on Sun Apr 21, 2013 at 10:10:52 PM PDT

            [ Parent ]

            •  Open and shut case? That's one of the scariest (5+ / 0-)

              statements one could hear from citizens in any society, if it becomes routine.

              I've seen the news; I've seen the aftermath of a horrendous crime (as reported by the news); I've all kinds of things about the manhunt, etc.

              But that means absolutely nothing when it comes to each citizen's constitutional rights, including due process under the law.

              There has to be an indictment, a jury needs to be selected, a prosecution needs to take place, where the accused can exercise all his constitutional rights to defend himself.

              After that process, if jury finds the defendant guilty as charge, then we can confidently say that such defendant committed those crimes.

              This applies to every crime, every time, regardless of the circumstances.

              •  if what becomes routine? (5+ / 0-)
                Recommended by:
                Avila, aitchdee, gramofsam1, Smoh, Diogenes2008
                Open and shut case? That's one of the scariest statements one could hear from citizens in any society, if it becomes routine.
                Please re-read, I think you missed what I'm actually saying.

                In any event, I think calling that "scariest" is clearly hyperbole, cause I remember the last twelve years and I'm pretty sure you do too.

                I entirely agree with everything after your first paragraph, and I'd appreciate it if you could point out to me just where I've said anything different. All I've said is the evidence gathered to date is overwhelming. And these guys were engaged in a day-long running battle with the cops using the same sort of explosive devices used at the marathon, which doesn't exactly scream "falsely accused" to me. Does it to you?

                Thanks to the internet, bullshit now travels at the speed of light.

                by nota bene on Sun Apr 21, 2013 at 11:00:11 PM PDT

                [ Parent ]

            •  I totally disagree with these guys, nota, (4+ / 0-)
              Recommended by:
              Avila, DeadHead, aitchdee, CharlesInCharge

              But the phrase "open and shut case" makes me cringe too.

              The government has to prove its case beyond a reasonable doubt.

              "Open and shut case," like "it's a slam dunk" should just be removed from our vocabularies. Our government works best when it works prudently, pays attention to details, and never forgets that real human lives are on the line.

              If we somehow have the wrong guys, then the real bombers are running free. That's a terrifying thought for me.

              Cases should always be worked up searching for truth, not expediency. I know you didn't mean to imply that. But this country has an unfortunate history history of arresting guys for high profile cases, and they're the wrong guys.

              Just my 2 cents.

              © grover


              So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

              by grover on Mon Apr 22, 2013 at 01:11:51 AM PDT

              [ Parent ]

              •  I would also prefer that all sports (0+ / 0-)

                metaphors, e.g., 'throwing a Hail Mary pass' and 'running out the clock', be abandoned when discussing capital murder cases o rmatters of war and peace. (Remember screaming at my TV in the run-up to Operation Shocking and Awful every time a football metaphor was used.)

                Alas, I don't believe my preference shall take effect any time soon.

                BTW, serious kudos to you for that excellent response. Reassures me somewhat about the health of our commonweal.

          •  I'm trying my hardest not to snark in this (0+ / 0-)

            thread, but "Presumption of Innocence" is so last Century. (Snark is directed not at you, but at the person to whom you are responding.)

          •  Well, it's not like he's been executed already. (0+ / 0-)

            Opinions expressed on blogs are just opinions. It kinda makes sense if people want to label smb seen setting off bombs and shooting at people as terrorist.

        •  Oy vey. Buh-bye Magna Carta. Hello (0+ / 0-)

          Star Chamber (v 2.0)

          •  How so? (2+ / 0-)
            Recommended by:
            exlrrp, Diogenes2008

            As a practical matter, as has been explained in this thread, prosecutors need no admission from the suspect in order to mount a successful prosecution. They do need to know whether there are any other suspects or plots out there, though.

            The practical effect of Mirandizing someone is that they tend to clam up. If Mirandizing this suspect immediately means that we don't learn about a terrorist cell out there, I think that would be a very bad thing. Obviously.

            It makes no difference for this particular defendant. Nothing he can say is going to make his case any worse than it already is. And I am entirely confident that prosecutors will not even attempt to introduce any pre-Miranda statements of his in court. Why would they? It would only introduce the possibility of reversible error, and they don't need those statements to make their case anyway.

            •  I have to disagree respectfully. If during the PSE (0+ / 0-)

              he confesses to there being 20 other bombs in the Boston Metro area, you don't think that would make his case any worse? Remember that statements made during the PSE can be admitted into court and used against the defendant.

              It's not that the prosecutors 'will' use his pre-Miranda statemenets, so much as that they 'can' use his pre-Miranda statements should they so choose.

              •  Sorry (0+ / 0-)

                but it seems to me that you're just arguing for the sake of arguing.

                It's not that the prosecutors 'will' use his pre-Miranda statemenets, so much as that they 'can' use his pre-Miranda statements should they so choose.
                •  That's funny. i actually got off my duff today and (1+ / 0-)
                  Recommended by:
                  Avila

                  emailed and called Maxine Waters, my rep about Obama's failure to Mirandize Tsarnaev. When I subsequently learned that Obama's Press Secretary had announced that Tsarnaev would be tried in the civilian court system and not in a military kangaroo court, I emailed Obama (properly speaking, the White House) to tell his that i strongly support his decision. (BTW: apparently a federal magistrate has now informed Tsarnaev of his rights, based on sources I read earlier today.)

                  The last time I was moved to contact reps and president was in the run-up to Operation Shocking and Awful, so I don't do it very often. Actually, I take that back. I contacted reps and President over the smashing of the Occupy camps by law enforcement. Still, my point stands that I take this Miranda escape clause very, very seriously.

                  I actually think I'm using DKos to clarify my thoughts and feelings about a very important and fraught subject and situation. If such is 'arguing for the sake of arguing,' then I must plead guilty.

        •  he is entitled to a trial by an impartial jury (5+ / 0-)

          and representation by counsel.  He is also entitled to a presumption of innocence until found guilty and if found guilty is allowed to introduce mitigating circumstances to ameliorate his sentence

          •  presumption of innocence in this case (0+ / 0-)

            is going to be a formality. See my above reply to Ray P. They pretty much had enough to convict these shitheads by Wed. night. (Their actions on Thursday-Friday also speak to evidence of consciousness of guilt.)

            I absolutely agree that he's entitled to these rights, but it isn't likely to matter in the end. IANAL, but I can't imagine what he could even say in his own defense. The only two things I can come up with are arguing very fine points of Miranda/PSE & evidence-gathering, or possibly some sort of insanity defense (which given the planning involved, sounds like a very long shot).

            I think the odds of him doing anything other than pleading guilty are slim at best, which moots all the questions about Miranda.

            Thanks to the internet, bullshit now travels at the speed of light.

            by nota bene on Sun Apr 21, 2013 at 10:18:44 PM PDT

            [ Parent ]

            •  at the same time, he is entitled to those (8+ / 0-)

              formalities which I refer to as rights.  Otherwise, those people advocating dragging him out of the hospital and stringing him up from the nearest lamp post would be as correct as those who wish for him to stand trial.

              For that matter, i wish the US had run bin Laden to ground and brought him back here to stand trial to show that we remain a nation of law instead of a lynch mob (which is what some are advocating)

            •  Let me see if I understand. You are saying that (1+ / 0-)
              Recommended by:
              Avila

              statements he makes during the PSE period  can be admitted into his trial to his detriment but that the question of the admissabilty of those statements is moot b/c he's going to plead guilty?

              •  as far as I know, that's correct.... (3+ / 0-)
                Recommended by:
                Quicklund, Avila, Ahianne

                like you, I am no lawyer and I will leave the nuts & bolts details to others more qualified....but it's my contention that they would need anything gained under PSE to convict him of the marathon bombing itself, not to mention crimes committed Thurs-Fri. The PSE, as I understand it, is to deal with crimes that have not yet been committed, rather than securing (what amounts to) a coerced confession to crimes already committed.

                Also, I'd further note that they took Dzokhar alive, and presumably would rather have taken Tamerlan alive if they could have....if they were really hell-bent on falsely accusing Dzokhar, they'd have just blown up the boat on Franklin St then and there, rather than going to the trouble of arresting him and putting everything in the hands of the judicial system.

                I could be wrong about all of this, including the likelihood of a guilty plea.

                Thanks to the internet, bullshit now travels at the speed of light.

                by nota bene on Sun Apr 21, 2013 at 11:15:54 PM PDT

                [ Parent ]

                •  I feel like I've been taking a crash course in (2+ / 0-)
                  Recommended by:
                  Avila, nota bene

                  Constitutional Law in the past 48 hours, fascinating and exhausting at the same time.

                  The government is under no obligation to use any of Tsarnaev's statements in court and may feel its case is already ironclad enough that it need not use any of Tsarnaev's own words to win a finding of guilt beyond a reasonable doubt.

                  However, if they want to use Tsarnaev's own words against him, they must first Mirandize him so that he can effectively waive his right to silence. Except for this catch called the PSE, where they get to ask him questions (and apparently are doing so right now as we write) without having Mirandized him first and, if Tsarnaev does not exercise his right to silence (for whatever reason), those statements can be used against him.

                  THe PSE seems to undermine Miranda in a fundamental and disconcerting way. I am as upset about this as I  was about any of the travesties committed by the Bush Junta. Sigh. I shall be on the phone to Maxine Waters office first thing tomorrow a.m.

                  •  OK (4+ / 0-)
                    Recommended by:
                    Avila, aitchdee, CwV, Calvino Partigiani

                    I think we may have been talking past each other, but we're not now.

                    The government is under no obligation to use any of Tsarnaev's statements in court and may feel its case is already ironclad enough that it need not use any of Tsarnaev's own words to win a finding of guilt beyond a reasonable doubt.
                    This is exactly what I'm getting at....I just can't imagine that their case is going to rely on his testimony. Possibly they'll need that to make the terrorism charges stick, but they won't for the explosives charges, gun charges, carjacking/armed robbery charges, and the four (4) murder charges. (Hell, they've probably got enough to get him on a trespassing charge just for being in that poor guy's boat.)

                    I share your concerns about the potential for abuse of the PSE in general, but I also don't feel nearly as strongly about that as I do about a variety of other things (like, say, Gitmo, or the "free speech zones" they establish at the nat'l conventions now). And I don't feel too concerned about the PSE in this specific case because of its unique circumstances.

                    I read Armando's diary today and although I think that's the first time I've heard of the PSE, I'm still not totally sure what to think about Armando's thesis (about the politics of the announcement). Anyway the PSE seems like it was intended to apply narrowly to just these sorts of extreme Jack Bauer/ticking time bomb scenarios; one of the obviously unusual things about this case is that the need to ensure there were no additional bombs planted seems entirely prudent and appropriate, given the circumstances.

                    Thanks to the internet, bullshit now travels at the speed of light.

                    by nota bene on Mon Apr 22, 2013 at 12:11:11 AM PDT

                    [ Parent ]

                    •  In times of doubt, I like to retreat to source (0+ / 0-)

                      documents.  Here's the text of the Fifth Amendment (emphasis added):

                      No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
                      Since the SCOTUS recognized that the very fact of custody of its nature constituted coercion, Miranda arose to satisfy the public interest that detainees' statements were made voluntarily and in full knowledge that they had a right to remain silent. The possibilities for abuse with this PSE catch seem to me legion.

                      If the government has a concern for public safety or safety of its peace officers, why not immunize detainee for any statements given pre-Miranda? That way public safety is protected and coerced self-incrimination is avoided.

                  •  this is a shadow area (1+ / 0-)
                    Recommended by:
                    grover

                    and as i think i've mentioned to you, much confusion and disagreement because the 2010 intelligence option Obama wanted was not made law, and as far as i know, is a DOJ memo.

                    however, in my opinion, this is an investigation with public safety being the immediate priority.  if it's true that Tsarnaev is cooperating, i am hopeful that the possibility of more death and destruction is a non-issue as a result.

                    i don't think information he provides can be used against him, or that this is the reason for not Mirandizing him; rather, it seems an initiative to cooperate. in exchange for his cooperation, lesser charges may be brought against him than i expect.  

                    in either case, this gray area isn't your doing or mine, and there are many different interpretations of it.

                  •  The PSE is supposed to be narrowly interpreted (2+ / 0-)
                    Recommended by:
                    CharlesInCharge, nota bene

                    It doesn't justify a fishing expedition or open-ended questioning.  The PSE only applies to questions that stem from an "objectively reasonable" concern about public safety.

                    In this matter, it seems to me that it is reasonable to be concerned that the suspect may have been involved in plans for future bombings and may have associates who could carry out such plans.

                    In general, constitutional rights are not absolute.  There is a common thread of many rights having exceptions based upon exigent circumstances such as imminent danger.  For example, Brandenberg v Ohio established the "imminent lawless action" test as a limit on freedom of speech while I'm not sure if anyone has ever bothered to legally challenge the commonly-accepted legal notion that imminent danger provides probable cause for a warrantless search.

                    •  Excellent response. Please allow me to be clear. (0+ / 0-)

                      No one favors allowing the public safety to be further threatened. I would wager that most if asked would say that securing the public's safety is or should be the paramount concern.

                      The problem, though, is that statements made during the PSE, i.e., pre-Miranda, can be used against a defendant, even though the Fifth Amendment states unequivocally that no one can be compelled to testify against himself.

                      As I remember it, the Fifth Amendment bans outright self-incrimination, but the PSE allows it, provided a detainee-suspect-defendant is not aware of his or her rights.

                      If the public safety is the paramount concern, then where is the harm in immunizing Tsarnaev for any pre-Miranda statements he might make. other than the crass concern abpit upsetting charlatanas and demagogues like Graham and McInsane?

                •  Holder most likely will pursue the death (1+ / 0-)
                  Recommended by:
                  Avila

                  Penalty.

                  What's the point of a guilty plea?

                  Holmes tried that for Aurora and they refused to accept it.

                  Not everything can be pled out.

                  © grover


                  So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

                  by grover on Mon Apr 22, 2013 at 01:26:18 AM PDT

                  [ Parent ]

                •  actually any half-decent (4+ / 0-)
                  Recommended by:
                  aitchdee, Ahianne, elmo, Diogenes2008

                  prosecutor will be extremely scrupulous and give the evidence and witnesses no less than finesse.  

                  you do not want to work on any case (and whoever takes this one will be living it 24/7) only to make a careless procedural error, or allow a loophole that'll be reversed later on by appellate courts.  you don't want to deny any suspect the full benefit of a fair trial and will do your level best to make certain it is fair.

                  despite some comments i've seen before here, the prosecutors i know want this on every case, no matter how minor the charge.

                  that said, this one requires a team of the very most skillful, experienced and knowledgeable attorneys, for both the prosecution and defense.

                  they aren't going to allow a new grad or even a five-year grad to get coffee or answer the phone, because the burden is on the DA and her/his colleagues to make a fair, yet airtight, by-the-book, everything-done-right case, given the intense public interest and the crimes.  

                  no slip-ups tolerated. no excuses.  nothing but each individual's very best work, to the letter and the spirit of the law.  that's as it should be, in my opinion.

              •  I don't know what a guilty plea will get him. (2+ / 0-)
                Recommended by:
                elmo, Diogenes2008
                the question of the admissabilty of those statements is moot b/c he's going to plead guilty
                My thinking has been more along this line: even if anything he says during the PSE period can't be admitted, the prosecution has more than enough other evidence to get him convicted and put him away for life.

                They don't need a confession to successfully prosecute; it would be helpful to their case, but there's enough out there that they can convince a jury of his guilt without it.

                "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

                by JamesGG on Mon Apr 22, 2013 at 04:27:20 AM PDT

                [ Parent ]

            •  i don't want to speculate (2+ / 0-)
              Recommended by:
              nota bene, aitchdee

              but any lawyer worth her salt can find some mitigating factors for this suspect if defending him.  from the opposite side, i've thought of some already.  

              it's still early in the investigation, but he will have defense counsel, as is his right. ;)

              •  I'd be curious what those are.... (1+ / 0-)
                Recommended by:
                Avila

                other than trying to suppress evidence and whatever sort of insanity defense is available under MA/federal law, I can't think of anything, and I'm trying to.

                Thanks to the internet, bullshit now travels at the speed of light.

                by nota bene on Sun Apr 21, 2013 at 11:01:24 PM PDT

                [ Parent ]

                •  when and where he grew up (3+ / 0-)

                  the suspect was 10 or 11 when his family immigrated here.  i'm no expert on Chechenya, but my thought is that this young man grew up with violence unlike any we can comprehend, as routine, everyday life throughout childhood.

                  i have read that Chechens were starved and deprived of medical care under Putin's leadership, and the US had no problem with that prior to 9/11.

                  we don't know anything yet, really, but whoever defends Mr. Tsnaraev once he has been charged will get some answers, as he or she should for a proper defense.

                  •  Many people who are absolutely convinced of (2+ / 0-)
                    Recommended by:
                    Avila, aitchdee

                    Tsarnaev's guilt and culpability would no doubt have been (dsand may still be) equally convinced of John Hinckley's 'guilt.' I can see the possibility of a 'Mental Defect' or "Temporary Insanity' defense. Hinckley wanted to impress Jodi Foster and Dzhokhar wanted to impress Tamarlan. Who of us can say what results a comprehensive psychological battery will produce?

                    •  very interesting (1+ / 0-)
                      Recommended by:
                      aitchdee

                      i actually haven't thought of Hinckley in many years, but will see what i can find.  thank you, Charles.

                    •  We don't know that one brother was (1+ / 0-)
                      Recommended by:
                      Avila

                      trying to impress the other. This is just one of many media sub-narratives that could turn out to be false. There are reports that the kid went back to school and hung out with his friends like everything was normal. He described himself as a chill dude. Does that make him a sociopath, or just really confident in his ideology?

                      I never liked you and I always will.

                      by Ray Blake on Mon Apr 22, 2013 at 12:53:12 AM PDT

                      [ Parent ]

                      •  Good points. I think 'sociopath' (or, more (1+ / 0-)
                        Recommended by:
                        Avila

                        properly, Anti-Social Personality Disorder, empahsis sociopathic) is pretty much a given. Perhaps, though, Tsarnaev's defense team will argue that his sociopathy is co-morbid with other pathologies.

                        I'm not a psychologist and have only the barest of education in the field. I have family members afflicrted with various forms of mental illness so have had to educate myself.

                        In watching the various family dynamics play themselves out on TV and in the media, I was struck by what seemed to me an absence of 'love' as Erick Fromm uses the term. By contrast, the impression I've gotten is that the Tsarnaevs are a family constructed around exploitation of one another. Father and Uncle hope Tamarlan's boxing success will rub off ont hem. My amateur armchair shrink take :)

            •  Your first sentence frightens me. (1+ / 0-)
              Recommended by:
              Avila

              Seriously.

              If we can't give this guy a fair trial, then he and his brother really have managed to destroy everything that American claims to hold dear.

              © grover


              So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

              by grover on Mon Apr 22, 2013 at 01:22:23 AM PDT

              [ Parent ]

              •  you misread my comment (0+ / 0-)
                If we can't give this guy a fair trial
                Where did I say that?

                All I'm trying to say is that they have an overwhelming amount of physical evidence and are gathering more by the day.

                Thanks to the internet, bullshit now travels at the speed of light.

                by nota bene on Mon Apr 22, 2013 at 03:11:32 PM PDT

                [ Parent ]

            •  Gasp! Not a shithead untill proven so!! (0+ / 0-)

              We must never call them shitheads untill tbey have been proven so in a court of law!!!
              (clutches pearls)

              Happy just to be alive

              by exlrrp on Mon Apr 22, 2013 at 06:57:09 AM PDT

              [ Parent ]

      •  Only if it expects it will need any statements (8+ / 0-)

        he makes for use at trial.

        Miranda requires the government to apprise detainees of that right b/c of the coercive nature of custody.
        An attorney will be appointed at arraignment, if he needs one.

        'The world' will think what it pleases regardless.

      •  Fourth Amendment or Fifth? (7+ / 0-)

        "fruit of the poisonous tree" or evidence used against suspect from illegal search.  

        Fifth is literally not applicable right now because the suspect is silent, due to his medical condition, and Miranda is an evidentiary rule that the government must follow if it wishes to interrogate a suspect and eventual defendant and use whatever statements that interrogation elicits against him in court.  

        If a suspect is not given his or her Miranda warnings and the state then attempts to utilize post-arrest statements against him, then the government will generally be barred from using that statement against him in court.

        see Chavez v. Martinez, 538 U.S. 760 (2003), interpretation at Volkh:

        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).

            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.

        why does this matter with regard to Tsarnaev?
        • the public exception rule (which is circa 1984, had na' to do with terrists as we know that term) and the Miranda exclusion others have written of is (imo) being used because this is still an ongoing investigation and given the events of the past week, public safety is the immediate priority.  
        • Tsarnaev may cooperate with investigators when his medical condition permits; he may not, but the investigation and public safety are higher priorities: he may talk about what his brother did, who financed their actions, who else may be involved, is there a connection to a group or nexus?  i don't have the sense this is nefarious plotting by Obama administration, because:
        • getting a "confession" from Tsarneav isn't necessary to prosecute this case.  there's abundant evidence against him already.  any half-decent prosecutor could go with what's already in the public venue, but the value of what Tsarneav may reveal (not under torture) is potentially critical info.  

        my feeling is that this non-Miranda, public exception call is very much in the interest of gathering information, and not for the purposes of criminal prosecution.  the longer Tsarneav isn't Mirandized, i also think decreases exponentially any chance of anything he may say being used against him in any criminal proceeding.

        just my newbie 0.2 and i know some of you are gonna scream at me about his liberties, but this man is an American citizen, and there is a preponderance of public info that i'd take any day over a confession.  

        fact is, he and his late brother, based upon the same public info, have well and truly terrorized not just the city of Boston, but a nation.  

        the big questions of who else, why, where's the money trail, what connections go with  . . .  these constitute the exception(s) and are of higher value than testimony in a criminal proceeding.

        i already posted some of this info once, but was surprised people here didn't know it.

      •  48 hours - cite, please? (1+ / 0-)
        Recommended by:
        jayden

        i am not finding this as hard and fast law.  i see some news outlets have reported it, but if you have a cite, i'd appreciate it.

  •  I'm glad the DOJ has delayed (1+ / 0-)
    Recommended by:
    heybuddy

    Mirandizing Tsaranev.  US Security comes first. And I hope he gets the death penalty.

    •  Why not designate Tsarnaev an enemy (0+ / 0-)

      combantant then and ship him to Guantanamo, if U.S. security comes first? For that matter, why not torture him?

      •  hyperbole? (16+ / 0-)

        saying that "security comes first" in the context of advocating for the use of a completely legal interrogation procedure as interpreted by the justice department (the results of which will doubtlessly be reviewed by a judge during trial anyways) is somehow akin to torturing a human being seems like a bit of a stretch.

        •  "A completely legal interrogation procedure" - (1+ / 0-)
          Recommended by:
          Nada Lemming

          well, that's the rub, isn't it? Because it allows for the Fifth Amendment right against coerced self-incrimination to be at least temporarily nullified. (The use of the word 'coerced' here comes from the SCOTUS' recognition that custody in and of itself is by its nature coercive and thus defendants must waive their right against self-incrimination to show that they were not coerced while in custody to incriminate themself.)

          U.S. Security does not come first. The U.S. Constitution comes first. Without a Constitution, "U.S. Security" is a meaningless trope.

          •  Only if they try to use it in court. (2+ / 0-)
            Recommended by:
            CharlesInCharge, Diogenes2008
            Because it allows for the Fifth Amendment right against coerced self-incrimination to be at least temporarily nullified.
            If they simply use the statement to find and dispose of any other bombs he and his brother may have planted, or to find and detain any other associates, but don't try to use his statement in court while prosecuting him, then there aren't any Fifth Amendment issues here.

            My impression of this case has been that the prosecution has more than enough to go to trial and convince a jury he's guilty even without his confession—so non-Miranda interrogation has little downside (won't jeopardize the case against him) and great potential upside (could save lives if more bombs are defused and/or more associates are detained).

            "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

            by JamesGG on Mon Apr 22, 2013 at 04:36:42 AM PDT

            [ Parent ]

            •  I share your impression for the most part, but (0+ / 0-)

              as I have explained elsewhere, I used to view the Fifth Amendment and consequent Miranda Rule as this sort of Great Wall of China in American jurisprudence.

              I now find this gaping hole exists that I was not aware of. Hence this diary.

      •  Lindsey Graham among others such as Rep King (2+ / 0-)
        Recommended by:
        Avila, aitchdee

        have already thought of this

      •  If your goal is a swift trial, a conviction (0+ / 0-)

        and then execution, the civilian courts are the way to go.

        Timothy McVeigh was tried and executed within six years of the Oklahoma City bombing. The military tribunal system has yet to process a single defendant, and legal questions surrounding its establishment may mean that the death penalty isn't even available in that system.

        •  I'd settle for the goal of justice. That said, I (0+ / 0-)

          offered the 'enemy combatant' suggestion to someone who said that 'U.S. Security' trumps all other concerns, i.e., 'comes first.'

          I have not stayed completely up to date on the status of the Kangaroo Courts (aka "military tribunals"). My point was that the protections-rights of the U.S. Constitution and Common Law (like habeas corpus) are sharply diminished for those unfortunate enough to be designated as enemy combatants.

          •  Calling military tribunals (0+ / 0-)

            "kangaroo courts" suggests to me that you know very little about them.  The detainees in Gitmo are indeed entitled to due process and habeas; the Bush era Supreme Court cases of Rasul, Boumedienne, Hamdi, etc. established that.

            If you really are interested about comparing the civilian criminal justice system with the military tribunal system, start by reading this:

            http://www.fas.org/...

            The main problem with the military tribunal system is that it attempts to remake the wheel (when we have a perfectly good and functioning wheel already).

            •  Well, there being only so many hours in each day, (1+ / 0-)
              Recommended by:
              Avila

              I go through periodic crash courses and refreshers in the outrage du jour.

              Actually, come to think of it, 'kangaroo court' is probably a poor metaphor to use for these farces in Guantanamo. They are an insult to every reasonably healthy kangaroo. Witness the fact that, as of yesterday, some 84 Gitmo detainees were engaged in a hunger strike to protest the lack of resolution to any Gitmo detainee's cases, other than through that Sartrean resolution of death. (Think one Gitmo detainee has died of natural causes in the past 12 months.)

    •  Death, huh? (1+ / 0-)
      Recommended by:
      Avila

      Have you been watch Game of Thrones a lot by any chance?

    •  Nothing threatens U.S. security more than the (1+ / 0-)
      Recommended by:
      Nada Lemming

      erosion of our constitutional rights.

      •  that is the "timebomb" in bin Laden's plan (8+ / 0-)

        Not to denigrate the losses of 9/11 but in the course of our history, it would have been a single incident had GWB treated this as a criminal matter and not a military problem.  Because of this, 9/11 began the erosion of our constitutional rights or at least the current slide.  GWB claimed bin Laden hated us for our freedom; the truth is that a benevolent US undermined bin Laden's ideology/theology and he needed to change us into the Great Satan of rhetoric and speeches.  In some respects it appears he has succeeded, perhaps making him the greatest force in American history since FDR  

      •  The right against self incrimination (0+ / 0-)

        is not being violated here. Nothing this guy says will be used against him in a court of law. There's no need for it.

  •  i dont think the whole word will be too upset (6+ / 0-)

    i dont think the whole word will be too upset if the fbi doesnt immediately recite a six-second statement to remind him of rights he will retain, regardless. i mean, look what goes on in most of the world.

    plus, even if they do use trickery of some sort, and they do overstep the bounds of the exception, his attorneys will have ample opportunity to contest the use of that evidence at trial, and the judge will make a ruling on whether it will be admissible under the exemption.

    gary norton posted an excellent diary on this topic earlier in the day. itdoes a very good job of demystifying and contextualizing this issue.

    "Mirana and the public safety exemption: reality and myths"

    •  He should be read the statement lest (3+ / 0-)
      Recommended by:
      heybuddy, Avila, Be Skeptical

      The French get upset. Or something like that.

      •  Why would the French care? (1+ / 0-)
        Recommended by:
        sandbox

        As far as I can tell, French law allows the police to go 72 hours before they have to give a suspected terrorist access to a lawyer.

        •  Why would the French care? Maybe because they (0+ / 0-)

          are a decent people, so decent they refused to join Bush and Blair's excellent adventure, a fact for which history shall laud them through the ages. And they no longer put convicts to death.

          Aside from that, I can't think of any reason.

          •  My point is (2+ / 0-)
            Recommended by:
            elmo, CharlesInCharge

            The decision to question the suspect under the public safety exception may be permissible under the laws of nations that you might consider to be inhabited by "decent people".

            •  It may be permissible under their laws, but these (0+ / 0-)

              are nations that, generally speaking, do not execute convicts any longer. And it's the admissibility of statements made during the PSE and their self-incriminating status that is the real issue here, imho.

              I always thought of the Fifth Amendmend, hence Miranda, as a 'Great Wall of China' in our legal system that ensured that people could not be forced or tricked into incriminating themselves without knowing their rights. I'm now finding that Great Wall (like its real forbear) has some serious holes in it. I find this distressing.

              BTW, I'm reccing your clarification, as I feel it has distinctly advanced the discussion.

    •  I'm not saying the 'word' (sic) will be 'upset'. i (0+ / 0-)

      think the world will see it as proof that the Bush-Cheney torture regime continues under new guise. Tricking 19 year olds into implcating themselves is so 16th-Century.

      •  why would they need to trick him? (2+ / 0-)
        Recommended by:
        Susan G in MN, aitchdee

        there is so much evidence available already that tsarnaev doesnt even need to open his mouth and they could still convict him ten times over. he carjacked a guy and admitted to bombing the marathon. he is on video bombing the marathon. he shot and threw bombs at police officers while attempting to escape after bombing the marathon. what more could they possibly hope to trick him into admitting? the only logical explanation is that they are using the exemption for its actual purpose, i.e., to make sure there are no other bombs planted, or accomplices about to carry out further attacks.

        as to bush/cheney and torture: the public safety exemption is 30 years old -- how is employing it a form of torture or a continuation of the bush-cheney regime? moreover, i would argue that you're badly minimizing the ethical case against torture by comparing it to a fairly mundane and completely legal interrogation tactic employed during the course of a criminal investigation.

        •  Torture is used to compel (or coerce) self- (0+ / 0-)

          incriminating testimony. The PSE can be (not will be, but can be) used to admit self-incriminating testimony. (Also 'coercive,' because the detainee is being held in custody.) So the link between the two is that each can result in coerced self-incriminating testimony, precisely what the Fifth Amendment prohibits.

          I apologize if I failed to make that linkage clear in referencing the Bush-Cheney torture regime. I certainly did not mean to minimize their crimes.

    •  Thanks for that link- (1+ / 0-)
      Recommended by:
      Diogenes2008

      that is indeed an excellent diary.

  •  The Miranda warning was created by the Court (17+ / 0-)

    and the Court added the Public Safety Exception, along with many other exceptions.  They are followling the law.

    Never argue with an idiot. They will drag you down to their level and beat you with experience.

    by thestructureguy on Sun Apr 21, 2013 at 07:45:31 PM PDT

  •  apparently he's communicating (7+ / 0-)

    now

    Bombing suspect is beginning to respond to questions from investigators, federal officials tell NBC News.

    Nearly 48 hours after he was taken into custody following an intense gun battle and manhunt, Dzhokhar Tsarnaev, 19, was communicating with a special team of federal investigators at Beth Israel Deaconess Hospital. He was responding to questions mostly in writing because of the throat wound, according to the officials, who spoke on condition of anonymity. The suspect remains in serious condition.
    ...
    Law enforcement sources had said earlier they were putting the final touches on charges against Tsarnaev and would announce them Sunday. However, Justice Department officials said late in the day that charges would not be announced until Monday at the earliest. They did not give a reason for the delay.

    Authorities have told NBC News that a special high value detainee interrogation team will question Tsarnaev without advising him of his Miranda rights.

    If I can't dance I don't want to be part of your revolution. ~ Emma Goldman

    by Lady Libertine on Sun Apr 21, 2013 at 07:56:08 PM PDT

    •  Thereby rendering my diary moot (in the (2+ / 0-)
      Recommended by:
      Gooserock, Nada Lemming

      legal and figurative senses)?

      I am speechless. I will be calling Maxine Waters office first thing tomorrow a.m. And I will be re-upping my annual memberships to ACLU and CCR.

      •  I For One Support the Intent of the Exception But (7+ / 0-)

        feel that the application is backward.

        The government of the global superpower is not the entity that is short on incentives, rather it's a suspect who is.

        So the exception shouldn't be increasing the authority of the superpower to prosecute but rather offering protection to the suspect to entice them to confess about pending and future threats.

        Remember, a future threat has not yet committed a crime, only the past threats which landed the suspect in custody have committed crimes. There's plenty of time to collect evidence about the existing crime for which the suspect is already in custody. The future crime, well its full execution, hasn't happened. Government can afford to lose some prosecution leverage on those in exchange for surrendering of information to prevent the injury.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Sun Apr 21, 2013 at 08:12:05 PM PDT

        [ Parent ]

        •  yeah (1+ / 0-)
          Recommended by:
          Avila

          i dont really understand why the evidence should be admissible in court. my understanding is that they can already question a suspect without miranda whenever they want, they just cant use that evidence at trial. it seems like the exemption really tilts the scales toward prosecutors. lawyer friends have told me that basically conservative justices have never been happy with the miranda ruling, and used quarles to poke as big a hole in it as they could.

          but nonetheless, the exemption exists, and whether or not the government is entitled to extend the window to use it beyond what it typically thought of as "immediate" in the context of a public safety threat will be up to a judge. personally, im not batting an eye at their use of it. this is not really anything new.

        •  Yeah. (12+ / 0-)

          One of the things that struck me today was the number of people I would have never expected who had no issue with the idea of withholding pain meds as an interrogation technique, even though doing so is pretty much the least likely thing in the history of ever to make someone want to cooperate. And that was before it came out that he did surrender and making the hurting stop was one of the implied results in the talking him out of the boat negotiation.

          I'd be okay completely with the government arranging to take the death penalty off the federal sentencing possibilities in exchange for accurate-as-he-knew-it information on what those other bombs were intended for, whether the third pressure cooker bomb was intended for the marathon or somewhere else, how they learned how to do what they did, the names of anyone who worked with them, whatever he knows about what his brother was up to during those months he was overseas... and so forth. In return, he lives out his days without worrying about food, shelter, medical care, water, access to plumbing, or safety from all the very bad people he'll be supplying information on or pointing to, because wow if that place they stuck Rudolph in isn't just about as good at keeping people out as it is at keeping them in.

          Fair trade: he helps stop the risk to the lives of others, the risk to his goes away. And providing honest information about what he and his brother were up to would be about the only possible good-faith sign that he's worth keeping around as an information resource in case we have to deal with people like him again.

          And I'd really like us to live up to Uncle Ruslan's 'why America is a great country' speech in how we handle this.

          Prayers and best wishes to those in Boston, in Texas, and for this week to be over without anything else happening.

          by Cassandra Waites on Sun Apr 21, 2013 at 08:59:31 PM PDT

          [ Parent ]

        •  I can't imagine anyone who does not support (0+ / 0-)

          the intent of the Exception (I do). It's the fact that statements made as a result are then admissible in court as evidence against the accused. That's the problem and the rub.

          Yours is a most thoughtful consideration and one I deeply appreciate.

        •  exactly but the mood of the government is one (1+ / 0-)
          Recommended by:
          aitchdee

          currently that it will employ its full weight against this kid.  Best case for him would probably be life in a federal heavy max cell; most likely outcome, given the mood of the country, will be the same as it was for McVeigh though there is some question if Boston matches OKC in its horror and destruction

  •  There are some very good people on here that (4+ / 0-)
    Recommended by:
    Jack K, jan4insight, Avila, FG

    can evaluate the law.  You know, like lawyers, and good ones.  So leave it to them.  

    Never argue with an idiot. They will drag you down to their level and beat you with experience.

    by thestructureguy on Sun Apr 21, 2013 at 07:59:29 PM PDT

    •  Oh, hey ... these kinds of non-expert inquiries (1+ / 0-)
      Recommended by:
      thestructureguy

      on dailykos are where it's at for me. I don't think they should be discouraged. I mean, I read Armando today. I learned a lot. I learned a lot in this diary, too (comment section especially). Kinda reinforced my take--and clarified my understanding--of Armando's whole "announcement" thing. Larnin's always good, ain't it?

      God bless our tinfoil hearts.

      by aitchdee on Mon Apr 22, 2013 at 02:03:32 AM PDT

      [ Parent ]

  •  What? (1+ / 0-)
    Recommended by:
    Avila

    Who gives a fuck what the rest of the world thinks?  When you're deciding on what to do day to day, do you take a poll first?

    Public safety issue?  He can have his Miranda rights.  Carmen Miranda.  Let him dance around in fruit hats for a few minutes in the interrogation room.

    Boehner Just Wants Wife To Listen, Not Come Up With Alternative Debt-Reduction Ideas

    by dov12348 on Sun Apr 21, 2013 at 08:39:41 PM PDT

  •  President Obama knows ... (5+ / 0-)
    Recommended by:
    jan4insight, durrati, jaym, begone, Eyesbright

    ... the difference between application of the public safety exception and torture. I believe that we could teach 98% of the population of the planet the difference if we had the time and the inclination. But, I bet we can't teach you.  

    (After typing that first part of the comment up, I read the now-existing comments, and I was right. I owe me a dollar.)

    Besides that, there's enough evidence against this guy to have a year-long trial as it is. There is no need for incriminating statements from him. Your misplaced anger at the administration is telling though. Interesting that you'd rather risk the lives of additional Bostonians than use a practice held to be Constitutional.  

    Good for you about the death penalty. That's an enlightened position. How in the Hell did you come to that excellent conclusion?

    I would tip you, but the man took away my tips.

    by Tortmaster on Sun Apr 21, 2013 at 08:47:51 PM PDT

  •  I think he should be read his rights (4+ / 0-)
    Recommended by:
    Avila, jayden, yella dawg, nota bene

    but it doesn't matter. If they were to throw out every incriminating thing he communicated during his interrogation, they would still have enough evidence to convict him of the most serious crimes. So, I understand there desire to make sure they were not working with others or that they had not planted more bombs prior to a lawyer telling him not to say anything that being said, such exceptions make me very uncomfortable.

    We Won't Let Republicans Replace Medicare with GOP Vouchercare!

    by CatM on Sun Apr 21, 2013 at 09:20:23 PM PDT

    •  I think the myth of the bad guy getting off (6+ / 0-)

      because of a "clever lawyer" or because of a "technical or procedural error" has caused the government to carry many, many extra coals to Newcastle.

        I note the howling against the ACLU when an AOL headline announced the ACLU was troubled by the lack of Miranda warning.  The comments were roughly that the ACLU was a bunch of commies who needed to be strung up on the nearest lamp post.

      (actually, there is more chance of a person going to jail because of an incompetent attorney or judicial error)

  •  He can't implicate himself any more than he is (4+ / 0-)
    Recommended by:
    jan4insight, Avila, Gooserock, KenBee

    already -- given the videos, eyewitnesses, physical evidence and the confession to the car jacking victim they don't need anything more at all.  Agree that the public safety exception could be troubling but not here -- no one is "tricking" the suspect into convicting himself.  

    •  That Evidence Isn't Him Himself. (2+ / 0-)
      Recommended by:
      jayden, yella dawg

      The right is for himself to be free of obligation to pile onto the evidence.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Sun Apr 21, 2013 at 10:01:02 PM PDT

      [ Parent ]

      •  True. I see the conflict (1+ / 0-)
        Recommended by:
        Avila

        but not worried about misuse of the exception here -- in this case he's already in a conspiracy with his brother so it doesn't matter if he identifies others
        this seems to be a good use of the public safety exception to me as he may have information that could save lives
        would be very uncomfortable to see it applied in anything other than a genuine public safety situation and a slam dunk case
        hope courts would be also

  •  I am seeing calls for the investigators to use (5+ / 0-)

    "truth serums" on him, to waterboard him and to send him to some of our "special" prisons overseas among the usual calls to hang him from the closest lamp post.  If they do bring him to trial in a criminal court, jury selection is going to be a problem.  As it is, the RW thinks he should be tried in a military court like Padilla.

    In the meantime, I note that the inmates at Gitmo have begun a hunger strike because they say they have been sentenced to life without any sort of hearing or due process.  It is interesting to note many commentators feel that constitutional rights only belong to US citizens and that these can be stripped at will by the government.  These folks feel Gitmo inmates don't deserve any sort of hearing.

    One small fact: in the past year, one person has been released from Gitmo;  he died.  There appear to be no plans to release any more detainees in the foreseeable future it seems, so Gitmo remains a black eye we inherited from GWB

  •  If you don't Mirandize someone... (1+ / 0-)
    Recommended by:
    CharlesInCharge

    ...can you still put them on trial so long as you don't use anything they say?  I'm wondering about the relevance of Miranda rights in a situation where the government believes it doesn't need any more evidence to try someone successfully.

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Mon Apr 22, 2013 at 03:56:52 AM PDT

    •  Yes (1+ / 0-)
      Recommended by:
      Rich in PA

      And what you describe is pretty much the situation we have here.

      They don't want the suspect to clam up. They want him to tell them if there are any other plots or accomplices still out there. They aren't trying to solicit a confession in order to convict him for the Marathon bombing or the murder of the police officer.

    •  Rich, I'm not an attorney but my understanding is (1+ / 0-)
      Recommended by:
      Rich in PA

      that you can indeed prosecute someone without Mirandizing him or her, provided you do not seek to introduce his or her testimony in court.

      It's the use of a detainee-suspect-defendant's statements that brings Miranda into play, at least based on my understanding.

  •  A citation re: Public Safety Exception (1+ / 0-)
    Recommended by:
    Lady Libertine

    This is from the FBI Law Enforcement Bulletin from February, 2011.

    https://www.fbi.gov/...

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