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This photo released Friday, April 19, 2013 by the Federal Bureau of Investigation shows a suspect that officials identified as Dzhokhar Tsarnaev, being sought by police in the Boston Marathon bombings Monday.  (AP Photo/Federal Bureau of Investigation)
According to HuffPost the Boston Marathon suspect Dzhokhar Tsarnaev will not be given his Miranda Rights.
WASHINGTON -- A Justice Department official says the Boston Marathon bombing suspect will not be read his Miranda rights because the government is invoking a public safety exception.

That official and a second person briefed on the investigation says 19-year-old Dzhokhar Tsarnaev will be questioned by a special interrogation team for high-value suspects. The officials spoke on the condition of anonymity because they weren't authorized to disclose the information publicly.

Now I am not a lawyer, but I have watched enough Law and Order to pass the Bar (down the street from me, cuz I just have a scotch in my office like Jack), but really what is this Public Safety Exception?

Are we as a country back to the Bush-Cheney tactics, just drop suspects in black holes, or maybe a little waterboarding?

Are Americans back to the revenge fever, please tell me we have learned lessons from 9-11(the hard-way)?

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Comment Preferences

  •  Tip Jar (1+ / 0-)
    Recommended by:

    Taking Back the Take Back of America

    by The Sheeping of America on Sat Apr 20, 2013 at 08:42:28 AM PDT

  •  This article answers some of your ?s (5+ / 0-)


    It boils down to this:  The public safety exception deals with IMMINENT threats.  Originally, it was carved out by the Supremes in regards to a police officer asking a suspect where a gun was (that they suspect was reported to have) before mirandizing him.  

    Basically, it takes less than five minutes to Mirandize someone, and the public safety expection would therefore only reasonably apply to circumstances and questions where that less-than-five-minutes it would take to read them their rights might matter in saving lives.  

    So, this 48-hour business is bullshit, an unjustifiable erosion of civil rights of the accused.  

    •  Nonsense (5+ / 0-)

      Judges decide if the public safety exception was applied reasonably (and even that decision must withstand appeal).

      The authorities may be taking an unwise risk to their prosecution, but they aren't "eroding rights".

      We were not ahead of our time, we led the way to our time.

      by i understand on Sat Apr 20, 2013 at 08:55:18 AM PDT

      [ Parent ]

    •  Tough subject. But how do you define IMMINENT? (2+ / 0-)
      Recommended by:
      The Sheeping of America, rlochow

      If those young men were working in a group that is planning some other similar attacks within a couple of weeks in other cities, do you consider this an IMMINENT threat ?

      When we're talking about actions that can kill or injure people in the hundreds, there is a RATIONAL discussion to have about the balance between the civil right of an individual and the life and security of a multitude.

      Does this 48-hours rule have the potential to be abused ?  You bet.

      But in this imperfect and dangerous world, there are no simple answers.

      What can be done?

      Push for checks and balances, for transparency and accountability. Push for very restrictive rules to mitigate the potential for abuse. ( 48 hours only in case of use or planned use of weapons of mass destruction like bombs...)

      Raise hell if people in power use the 48-hour rule as routine. ( for the moment, I'm more concerned for abuses at the local and state levels).

      Keep the fascists out of power, which means, for the moment, the republicans. Have you heard what Lindsey Graham said yesterday ?...

      Note: watch republicans losing their sh** when it will be announced in a couple of days that the kid has been given his Miranda rights.

      •  Another thing: JUDGES (2+ / 0-)
        Recommended by:
        The Sheeping of America, UFOH1

        At every level, vote with one very important thing in mind: how does my vote impact the judiciary system ?

        Do everything in your power to prevent the most conservative people to become judges. Especially if the nomination is for life.

        •  It's only at the level of appeal ... (0+ / 0-)

          that judges "vote".  Prior to that, decisions are made by single judges.

          And no, the typical judge isn't nearly as concerned with how his decision might impact the judiciary as he is with whether or not his decision might be overturned on appeal ... and, to some extent, whether his re-election might be jeopardized.

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

          by Neuroptimalian on Sat Apr 20, 2013 at 02:16:05 PM PDT

          [ Parent ]

      •  I'd define imminent (0+ / 0-)

        As having concrete plans that have gone beyond an abstract intention to do harm, but not necessarily having progressed to the stage of involving a precise time and place.

    •  It may or may not be a good idea, but (3+ / 0-)
      Recommended by:
      elmo, Neuroptimalian, thomask

      your attack on it makes no sense. It is not the amount of time it takes to read Miranda that is the issue (which is less than a minute by the way). It is the fear that once a prisoner is Mirandized he will be more likely to "remain silent". Of course, Mirandized or not, suspects do have the right to remain silent, a right to an attorney (eventually), etc. But by not reading him his rights, and not providing immediate access to an attorney, the public safety exception is designed to elicit greater information from the suspect that might save lives. I think it is a fine exception, as long as it is not abused either in terms of the frequency of its use or the duration of the delay in individual cases.

      In any event, a kid like this, raised on American TV, likely can already recite most of Miranda.

  •  I am a lawyer, and I think it's completely (13+ / 0-)

    appropriate to interrogate the terrorist without Mirandizing him.

    It is unknown whether he has planted other bombs or has placed caches of bombs and weapons and explosives.

    It is unknown whether he is part of a larger terrorist gang.

    If ever there were a situation involving imminent public danger, this is it.

    The previous poster's business about "five minutes" is ridiculous.  And I don't believe there is any 48 hour rule either.  It might be weeks before this guy could speak.  All that time, the dangers will persist and continue to be imminent.

    •  Ok (0+ / 0-)

      so just don't Mirandize him. Should we just treat him like a Tim McVeigh, an American that killed and wounded people on American soil?

      Taking Back the Take Back of America

      by The Sheeping of America on Sat Apr 20, 2013 at 09:10:43 AM PDT

      [ Parent ]

    •  If it's important enough to question him (2+ / 0-)
      Recommended by:
      PeterHug, UFOH1

      It's important enough to give him complete immunity for all criminal acts uncovered by the questioning (not for acts that they have other evidence for).

      It is unknown whether he has planted other bombs or has placed caches of bombs and weapons and explosives.

      It is unknown whether he is part of a larger terrorist gang.

      So, give him legal immunity, then ask him questions.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Sat Apr 20, 2013 at 09:18:49 AM PDT

      [ Parent ]

      •  At first glance, I was about to think that was (3+ / 0-)

        ludicrous, but then I reread, and I agree.  They've got enough already to put him away for life, giving him immunity on anything else to clean up any potential additional threats is fine.

        •  No -- and that's important. (3+ / 0-)

          See United States v. Oliver North.  To first order, immunity is immunity.  There's no way to ensure that there is no contamination.

          The point is this: as long as the interrogation doesn't step outside legal bounds (so, no Cheney-Bush administration war crimes,)  the police can ask any questions they want.  The suspect can always say "I want a lawyer" -- at which point the questioning MUST stop.  The suspect doesn't have to answer those questions (see, right to remain silent, q.v.), but if he or she does, those statements, and anything depending upon them, cannot necessarily be entered into evidence against him.

          In this case, if the government already has enough to convict, then there's no loss to it from gathering additional evidence which isn't admissible against this defendant, as it would still be admissible against another defendant.

          •  No what? (1+ / 0-)
            Recommended by:

            He's not saying 'give immunity to another defendant'.  In fact, the whole point of potentially granting such immunity is to be able to locate and arrest any other potential suspects.  Heck, I don't even think he's saying 'Don't try what deminmodian is suggesting first'.  Just that if you want to be sure you're getting as much as possible from him, offer to not pile any further charges on if he knows about other crimes that could be stopped before they occur.

            It's the 'ticking time bomb' scenario without the torture part.

            •  Nope (0+ / 0-)

              Immunity is immunity.  Once you've granted it, YOU HAVE GRANTED IT.  In this case, if granted, then this guy can never be tried for any crime prior to the grant of immunity.  (Yes, whether related or not.  Income tax evasion?  Wiped out.)

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

                Are you saying that it's impossible to grant immunity for one specific crime while not granting it for every other crime anyone does?  That it's a magic 'get out of jail on everything you've ever done' card?

                Either we're talking past each other, or one of us completely misunderstands how immunity works.

                If I say 'Joe, we're prosecuting you for committing the murder we watched you do, but if you killed anyone else, we'll grant you immunity on those other killings if you hand over your partner so we can prosecute him', are you suggesting that that suddenly makes him immune from the one we just told him we were going to prosecute?

                •  That is *exactly* what I'm saying (0+ / 0-)

                  Again, see US v. North.

                  It actually makes a lot of sense.  If I grant you immunity for crime X, and, in the process of investigating X, I learn that you also committed crime Y, I could prosecute you for crime Y, and go from there.  Remember, Al Capone went to jail for tax evasion, and the Feds made damned sure he died on Alcatraz.

                  •  This is the reverse, though. (1+ / 0-)
                    Recommended by:

                    They've already got him on crimes that will put him away for life on which they won't grant him immunity, there is no need to worry about other crimes in his case.

                    •  It doesn't matter (0+ / 0-)

                      Suppose information revealed under immunity affected the prosecution's choice of evidence to present.  In that case, the grant of immunity would have been irrelevant.

                      For what it is worth, that situation is exactly what occurred during North's prosecution.  The Court ruled that his conviction was invalidated.

                  •  You're completely misreading US v. North. (0+ / 0-)

                    The Court of Appeals simply held that held that the government couldn't use testimony made under a grant of immunity to refresh the memory of witnesses.

                    In summary, the use of immunized testimony--before the grand jury or at trial--to augment or refresh recollection is an evidentiary use and must be dealt with as such.
                    Para. 67.

                    It goes on to say that in order to try someone for a crime that they testified to under a grant of immunity

                    the prosecution must not only prove that all of its evidence was derived from sources independent of the immunized testimony, but also demonstrate that no nonevidentiary or strategic use was made of the immunized testimony or the fruits of the testimony. In practice, these burdens are often very difficult to satisfy.
                    Para. 77.

                    I'm not sure why you're relying on a DC Circuit decision. Kastigar v. United States, 406 U.S. 441 (1972), is the controlling case.

                    Under federal law, a grant of immunity only means that your testimony and evidence derived from it cannot be used against you. You can still be tried for crimes that you testify to. The immunity grant certainly doesn't apply to unrelated crimes unless they come up in or are the product of the testimony.

                •  You are correct (0+ / 0-)

                  Police grant immunity every day in the manner you are suggesting.

                  (-5.50,-6.67): Left Libertarian
                  Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                  by Sparhawk on Sat Apr 20, 2013 at 10:09:41 AM PDT

                  [ Parent ]

                  •  Um, no, they *don't* (0+ / 0-)

                    They get a confession, try the suspect for that crime (usually with a reduced sentence), and then, and only then start questioning him or her.  Usually, the sentencing phase of the trial is delayed until the authorities believe they've squeezed the suspect dry.

                    •  I don't know what TV show you've been watching ... (1+ / 0-)
                      Recommended by:
                      Andrew Lazarus

                      (and not paying close enough attention to), but your understanding of these issues is terribly flawed.  For one thing, giving a suspect/defendant immunity does NOT mean the prosecution has waived its right to prosecute all prior crimes committed.  Immunity agreements are detailed as to what's involved, and usually they're quite limited (thus the term "limited immunity").

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

                      by Neuroptimalian on Sat Apr 20, 2013 at 02:22:31 PM PDT

                      [ Parent ]

          •  Contamination (0+ / 0-)

            is not an issue when the perp confessed (bragged) to another of their crime victims prior to their arrest. That's what happened here.

      •  You don't have to go that far. (3+ / 0-)

        Just insure you don't use the fruits of the questioning for prosecution.

        If the police can develop entirely independent lines of evidence that prove their case, that's fair game as far as I'm concerned.  Note, they'd do well to document the independence of that evidence carefully.

        “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

        by jrooth on Sat Apr 20, 2013 at 09:30:10 AM PDT

        [ Parent ]

        •  I think that's what he said. (1+ / 0-)
          Recommended by:
          •  Ah, I misunderstood. (0+ / 0-)

            I took "immunity" to imply no prosecution even if independent evidence exists.

            “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

            by jrooth on Sat Apr 20, 2013 at 09:36:56 AM PDT

            [ Parent ]

            •  I would even go that far (0+ / 0-)

              Let's say the police find out he set some third bomb somewhere else because he told them about it.

              It's hard to argue that "independent lines of evidence" would have existed otherwise. It's all contaminated now because how would you have known to start looking...?

              I would argue that under this immunity deal he simply could not be prosecuted for the third bomb.

              (-5.50,-6.67): Left Libertarian
              Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

              by Sparhawk on Sat Apr 20, 2013 at 09:41:19 AM PDT

              [ Parent ]

            •  There's two types. (1+ / 0-)
              Recommended by:

              Transactional-You can never, under any circumstances, be charged with any crimes you testify about under a grant of immunity.

              Use-Your testimony and any evidence derived from it can't be used, but if the police can independently prove their case, you can still be tried for the crime you testified to.

              Some states have transactional immunity, but the fifth amendment only requires use immunity.

      •  I agree with that, after reading it twice. (1+ / 0-)
        Recommended by:
    •  All that time, the dangers will persist and be (1+ / 0-)
      Recommended by:
      The Sheeping of America

      imminent?  If there are any such dangers, maybe.  On the other hand, assuming they have other bombs, if they're well constructed and stable, they might not go off for years.  That's stretching imminent about as far as the drone argument word stretching.

      In any case, it's a silly distinction.  I'd bet money he knows his rights without having them read to him.

    •  Fine, question him without Mirandizing ... (1+ / 0-)
      Recommended by:
      Ice Blue

      Just don't use the fruits of that questioning in prosecution.

      I'm with Justices Marshall, Brennan and Stevens in Marshall's dissent to NEW YORK v. QUARLES.  The public safety exception

      By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in Miranda v. Arizona, 384 U.S. 436 (1966), and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly and in direct conflict with this Court's longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions.


      As the majority candidly concedes, ante, at 658, a public-safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary. The Court's candor cannot mask what a serious loss the administration of justice has incurred.

      “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

      by jrooth on Sat Apr 20, 2013 at 09:27:50 AM PDT

      [ Parent ]

      •  I'm sure this is the intent. (4+ / 0-)

        They already have a super-abundance of evidence against him for many serious crimes.  They don't need further evidence for prosecution.  They really do need public safety and national security information.

        •  I wish I could be as sure as you. (1+ / 0-)
          Recommended by:
          The Sheeping of America

          I think there's a lot of police and prosecutors who have always hated Miranda and are always looking for chances to incrementally weaken it.

          “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

          by jrooth on Sat Apr 20, 2013 at 09:41:03 AM PDT

          [ Parent ]

          •  That's what precedent is for (1+ / 0-)
            Recommended by:
            The Sheeping of America

            In this case, I fear that a very bad precedent could be set if this questioning is held to fall under the exigent circumstances exemption, but, hey, that's what courts are for.

            •  Well, yes, that's what courts are for ... (0+ / 0-)

              but I guess I'd prefer if the DOJ under a Democratic president who allegedly cares about civil rights wouldn't try to push the envelope.

              “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

              by jrooth on Sat Apr 20, 2013 at 10:09:27 AM PDT

              [ Parent ]

              •  I prefer the prosecution to be as aggressive as (0+ / 0-)

                allowed by the constitution to the extent that they see fit, and let the defense do the same.   Ours is an adversarial system.  And the party of the president has nothing to do with it, unless you are arguing that Democrats should inherently be soft on prosecution and willingly forgo methods of prosecution available under the constitution.  Good luck running for office on that.

          •  The odds of this setting legal precedent is nil. (1+ / 0-)
            Recommended by:

            The case probably won't go trial.

            If it does, the prosecution isn't going to need to rely on questionable confessions. They won't want to set themselves up for a potential reversal on evidence they don't need.

            Even if they tried to, why would a Judge admit it? If she admits the evidence, the defendant gets convicted and she risks am embarrassing reversal. If she excludes the evidence, the defendant still gets convicted.

        •  Yup (1+ / 0-)
          Recommended by:
          The Sheeping of America

          So giving him immunity should be a no-brainer then, right?

          But they haven't done that (to my knowledge). They are trying to have their cake and eat it too.

          (-5.50,-6.67): Left Libertarian
          Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

          by Sparhawk on Sat Apr 20, 2013 at 09:42:28 AM PDT

          [ Parent ]

    •  "the terrorist" isn't he a "suspect?" (3+ / 0-)

      if innocent until proven guilty still applies in the USA. Is the video we saw and one witness enough to prove his guilt beyond a reasonable doubt without a trial?

    •  As a lawyer (1+ / 0-)
      Recommended by:

      you know, I'm sure, that the gentleman is- plain and simple- not guilty of terrorism currently. He may well be found guilty of that crime, eventually, but it hasn't happened yet.

      Your referring to him as a terrorist short-circuits a whole lot of proceedings that one would hope those in your profession deem important.

      •  If I were writing a bylined article, or (1+ / 0-)
        Recommended by:

        appearing on TV, or acting in any official capacity in this case, of course I'd use words like "alleged" and would not label him a terrorist, at this point at least.

        But on an anonymous blog, where the facts seem so clear, I think it's appropriate to call him a terrorist.

    •  Here's the tougher question (0+ / 0-)

      Is this situation serious enough that any of us would accept coercive interrogation techniques as a further means of prying information?  If he requests a lawyer, would you tolerating one not being provided to him (so long as the statements aren't introduced, etc)?

      •  I hope that very few of us would (1+ / 0-)
        Recommended by:

        answer that affirmatively.

        Gondwana has always been at war with Laurasia.

        by AaronInSanDiego on Sat Apr 20, 2013 at 03:24:18 PM PDT

        [ Parent ]

      •  NO! He is a U.S. citizen (although I don't (1+ / 0-)
        Recommended by:

        really think that should make a legal difference).

        NO TORTURE!

        No deprivation of legal counsel!

        Assholes Buckwheat and McCain have declared that he should be considered an "enemy combatant"!

        This country has become so degraded!

        He is a U.S. citizen.  He committed crimes in the United States.  He must be tried in U.S. courts and given all of his legal rights as a citizen.

        I think this really is terrorism, so I'm not concerned that the FBI has taken the lead and will try him in federal court, if he survives.  

        Sadly, the cops apparently shot him up some more after they realized he was in the boat, and then waited 1.75 hours to approach the boat while he was bleeding to death, so we may never know much of anything about this disaster.  

        Needless to say, I completely understand the caution of the cops...and yet, I think they waited too long.

      •  No to the coercion. (2+ / 0-)
        Recommended by:
        Timaeus, AaronInSanDiego

        There is no evidence that it is effective, and lots of evidence that it isn't. So it doesn't actually matter either how serious the crime is, or how imperative it might be that information be extracted.

        As for the lawyer .... This is a bit strange.

        My suspicion is that this 19 year old will be only too willing to talk when he is not sedated. There is virtually nothing to be gained by not reading the Miranda rights because if willing to talk he would probably agree to talk without a lawyer. If he knows his rights and stands on them, then not Mirandizing him makes no difference, except to the prosecution.

        He doesn't lose his rights just because they were not read to him. The imminence is perfectly described in the public safety exception, and it appears not to apply here.

        I think the whole kerfuffle about Miranda is a political smokescreen. It allows the prosecuting authority to appear to be tough on a terrorist without it causing any harm or detriment to anyone. What it does is deflect much right wing criticism while allowing professional law officers to get on with their jobs.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        Who is twigg?

        by twigg on Sat Apr 20, 2013 at 06:16:41 PM PDT

        [ Parent ]

  •  Thanks (1+ / 0-)
    Recommended by:

    Down the 9-11 rabbit hole we go

    Taking Back the Take Back of America

    by The Sheeping of America on Sat Apr 20, 2013 at 08:56:18 AM PDT

  •  There's a misconception here (10+ / 0-)

    People seem to think that your Miranda right doesn't exist until it's read to you.

    You are always protected by a Miranda right. You always (generally speaking) have the right to remain silent. You (again, generally speaking) have the right to an attorney. You don't need the cops telling you this. The Miranda reading is to inform someone who might not know about the rights they already have.

    All the public safety exception does is allow the cops not to tell the accused his/her rights in the hope that they don't know enough to invoke them before they might get some information out of them.

  •  He is in no state to hear his Miranda rights ? (3+ / 0-)

    I bet he is drugged up right good on pain killers .
    If a person is read their Miranda rights while they are in great pain from bullet/s wounds , dazed and confused from flash bangs , drugged with pain killers , are they really read their miranda rights in a real way ?

    Sir do you understand what I just said to you ?

    Drop the name-calling MB 2/4/11 + Please try to use ratings properly! Kos 9/9/11

    by indycam on Sat Apr 20, 2013 at 09:00:07 AM PDT

    •  Meh, that's not the reason, though. (2+ / 0-)

      Gov't claiming 'public safety exemption'.

      The miranda right though, is only the right to be read the list of rights you already have.  You still have them, even if no one tells you you have them.  And he's been here a decade already, so he probably knows them - most people know at least the very basics, silence and a lawyer.  So really, the only thing choosing to go down the 'exemption' path does is give ammo to his lawyer in any potential trial to try and get any evidence they collect before that point struck down.  On the other hand, there's so much other evidence already that I don't think anything he says is going to make the difference at trial.

      •  Meh yourself . (2+ / 0-)

        Reading right to a person who isn't in a state to hear them doesn't bother me one little bit . Why they say they are not reading them to him isn't really all that important to me . If it came up in court that he was read his rights when he was out of it with pain , drugs , etc , they might have a case .

        For people to be upset that a wounded person who has has flash bangs tossed at them to disorient them hasn't had the miranda warning read to them on the way to the hospital to get wounds taken care of ...

        If its true that he was bleeding out , he might not have been in any shape to hear and understand .

        Drop the name-calling MB 2/4/11 + Please try to use ratings properly! Kos 9/9/11

        by indycam on Sat Apr 20, 2013 at 09:36:04 AM PDT

        [ Parent ]

    •  I have a related question to which (1+ / 0-)
      Recommended by:

      I have no idea what the answer is - if he is not able to judge what constitutes self-incrimination (for example, if he is half-anesthetized prior to surgery), would statements be admissible in any case?

      Once again, I really don't think that the outcome of the trial will depend on anything he says, but it is a question that occurred to me.

      •  I'm fairly sure the FBI isn't looking for (2+ / 0-)
        Recommended by:
        PeterHug, ZedMont

        anything from this interrogation as critical to developing their criminal case against this defendant (they've got more than enough evidence already to convict him). They're looking to find out whether there are any other bomb plots, suspects, etc. out there that they don't know about. Even if their questioning did violate this defendant's Miranda rights, other defendants would not be able to use that fact as a way to exclude evidence developed against them.

  •  After the great job by the cops (2+ / 0-)

    I was disconcerted to find out that this guy is going to be handed over to the feds.  I trust the state of Massachusetts much more than I do the federal government.  Our criminal justice system has constitutional protections built in for all of us thanks to the foresight of our LIBERAL founding fathers, and the Bush administration did a truly amazing job of whacking that  system to rubble and handing it over to a legalized lynch mob egged on by authoritarians like Graham and McCain.  The Bush-Cheney infrastructure appears to be in place yet.   Imminent danger to the public?  Hardly.  Any bomb that this guy left ticking out there would have blown up by now.

    At least President Obama has said he won't be disappearing the accused into Gitmo.  

  •  Miranda only does one thing (11+ / 0-)

    it protects the Government by allowing in statements made by a suspect who's been properly advised of his rights, and conversely protects a suspect who gives a statement without a rights advisal from having those statements or any evidence derived from those statements from being used against him at trial.

    That Is It.

    It in no way protects the suspect from being questioned ANYWAYS. All it means is that the government better have evidence unrelated to the questioning that will establish guilt beyond a reasonable doubt.

    This case is filled with such evidence.

    Therefore, they can ask him all sorts of incriminating questions and learn all sorts of incriminating things, never read him his rights and AS LONG as they don't use that evidence against him at trial and only stick to what they knew before they questioned him then...

    his constitutional rights have NOT been violated.

    •  If that's what happens, that's fine. (2+ / 0-)

      And that was the state of the law even before New Yory v. Quarles.

      What's disturbing is the ongoing effort to expand the scope of the "public safety exception" carved out in Quarles, which says the fruits of non-Mirandized statements can be used in prosecution if the questions were asked for the purpose of dealing with an imminent threat to public safety.

      “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

      by jrooth on Sat Apr 20, 2013 at 09:34:29 AM PDT

      [ Parent ]

      •  and those will be looked at (0+ / 0-)

        by judges and courts...and eventually the Supremes.

        Quarles has been around for a long long time and I dont see any evidence that it has been tremendously expanded. Prosecutors always try to move the line a little one way just like defense attorneys try to move it the other way.

  •  There have been long standing exceptions (2+ / 0-)

    due to exigent circumstances.  How limited the scope is of the use of any information they might gather prior to the Miranda warning is key here.

    You are my brother, my sister.

    by RoCali on Sat Apr 20, 2013 at 09:18:29 AM PDT

  •  In short, the underwear bomber (1+ / 0-)
    Recommended by:
    The Sheeping of America

    was Mirandized fairly quickly after he was arrested.  The Wingers yelped, and this is the response.  Yes, it is bullshit.

    The thing about democracy, beloveds, is that it is not neat, orderly, or quiet. It requires a certain relish for confusion. Molly Ivins

    by MufsMom on Sat Apr 20, 2013 at 09:27:00 AM PDT

  •  As has been noted upthread, a suspect has (1+ / 0-)
    Recommended by:
    The Sheeping of America

    the right to remain silent whether he or she has been advised of that right.

    More troubling to me is whether any of the goombahs in the Federal Government are considering torturing Tsarnaev in the event he invokes his right to silence.

    Bush and Cheney left a stinking legacy of institutionalized crimes against humanity. And Obama, by refusing to allow a criminal investigation by the Justice Department, has become an accessory after the fact to those crimes.

    •  bollocks (1+ / 0-)
      Recommended by:
      Tony Situ
      More troubling to me is whether any of the goombahs in the Federal Government are considering torturing Tsarnaev in the event he invokes his right to silence
      Next you'll be telling us that you're worried the Obama administration is going to re-invade Iraq in response to the Marathon bombing.

      Just as likely as the scenario you posit.

    •  then have the courage to loudly and frequntly (0+ / 0-)

      demand his impeachment.  If you haven't been doing that, then your claims of crimes is just so much hot air.

      •  Well, I voted Green in 2012 to protest this (0+ / 0-)

        and other matters. But you are right that I should be demanding impeachment. Maxine Waters is my Rep and I just know she'll hop on it when I demand it :) But I do appreciate your point and agree with it. I'll PM you with what Waters' office tells me.

  •  Tipping and reccing (0+ / 0-)

    I completely disagree with the diarist, but the threads this diary has spawned are really, really good

  •  This is legal and constitutional (4+ / 0-)

    I think a lot of people don't understand Miranda rights precisely because they have seen it over and over on TV.

    The only remedy for the failure by the police to read a suspect his/her Miranda warning is that any confession obtained can't be introduced into evidence.

    Police read Miranda rights not because they are separately required, but because they don't want to screw up the subsequent prosecution if it is primarily based on the defendant's confession.

    There appear to have been several bombs in the Boston area, and it makes sense from a public safety perspective to find out if there are more before calling in a lawyer who will basically advise this kid to say nothing.

    The police can delay giving this kid his Miranda warnings and providing him with a lawyer because the physical evidence against him is overwhelming, and any case brought against him probably won't rely on his confession. On the other hand, I would also guess that after he is given his warning and provided a lawyer, he's going to confess anyway as part of a plea bargain.

    •  You're wrong (0+ / 0-)

      The Miranda warnings are specifically required.

      There is nothing to indicate that there is still a public energency.  The suspect is under arrest and the"lockdown" is over.

      Keep the TVA public.

      by Paleo on Sat Apr 20, 2013 at 10:34:39 AM PDT

      [ Parent ]

      •  Catch 22? (2+ / 0-)
        Recommended by:
        ZedMont, Tony Situ
        There is nothing to indicate that there is still a public energency
        If we don't ask this guy, how could we know whether there are still any bombs out there set to go off?  Or accomplices still at large?
        •  Exactly. There was nothing to indicate that the (0+ / 0-)

          Marathon bombs were about to go off - until they did.

          How the hell can you know he has no evidence of danger to the public unless you ask him?  Even then you don't know for sure, because he could lie, but you can at least make the attempt.

          Once the authorities have questioned him about possible existing danger, they will mirandize him and ask him questions about the already committed crimes.  If, before he is Mirandized, they ask him questions the answers to which would tend to incriminate him in the crime of which he has already committed, his answers will not be admissible, because bombs already exploded pose no public safety threat.  

          The suspect has nothing to lose if the authorities screw this up.  Won't hurt him a bit, in fact it might help him if they screwed up, were it not for the mountain of evidence not requiring any response from him.

          Once the authorities are satisfied that there is no additional public safety threat, it is in the government's best interest to immediately Mirandize the suspect.

          As I understand it they have 48 hours to ask their public safety questions.  I have a question.  Is the beginning of the 48 hours delayed for whatever time he is too incapacitated to be questioned?

          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 Sat Apr 20, 2013 at 05:56:20 PM PDT

          [ Parent ]

      •  FWIW, Orin Kerr disagrees with you and agrees with (2+ / 0-)
        Recommended by:
        HamdenRice, Andrew Lazarus

        HamdenRice. Link here.

      •  No, Miranda warnings aren't required. (1+ / 0-)
        Recommended by:
        Andrew Lazarus

        Chavez v. Martinez, 538 U.S. 760 (2003).

        Miranda is purely a rule of exclusion.

      •  No, you are wrong. Flat out wrong. (1+ / 0-)
        Recommended by:

        At what point the emergency ends is open to some debate. One could argue that they may have planted more bombs elsewhere. But your main wrongness is that Miranda warnings are never "required". They are required in order to introduce evidence into Court at trial. In this case, there is plenty of other evidence.

  •  He already confessed, didn't he? I heard he (1+ / 0-)
    Recommended by:

    confessed / bragged to the guy he carjacked.

    •  Hearsay (0+ / 0-)

      or in your case double hearsay. The avoidance of "he told me" evidence where the accused subsequently denies he made such a comment is precisely why in English law (the Police and Criminal Evidence Act or PACE) all interviews are at least recorded on audiotape.

      We will work, we will play, we will laugh, we will live. We will not waste one moment, nor sacrifice one bit of our freedom, because of fear.

      by Lib Dem FoP on Sat Apr 20, 2013 at 11:15:04 AM PDT

      [ Parent ]

      •  It's not hearsay. (0+ / 0-)

        It's the statement of a party opponent-- A criminal defendant's out-of-court statements are not hearsay when introduced by the State.

        It would also qualify as a declaration against interest.

  •  No, when Bush and Cheney do it it's wrong (0+ / 0-)

    But when Obama does it it's OK.

    Keep the TVA public.

    by Paleo on Sat Apr 20, 2013 at 10:30:18 AM PDT

  •  He will be Mirandized. The exception (1+ / 0-)
    Recommended by:
    Andrew Lazarus

    is limited.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Sat Apr 20, 2013 at 11:22:24 AM PDT

  •  Random thoughts (0+ / 0-)

    Which reflect my mixed feelings about this

    1 - The kid is likely smart enough to know he doesn't need to talk
    2 - how are they going to force him to talk? he's not in Gitmo
    3 - he will be talking to a lawyer, so if they brutalize him, he can reveal this
    4 - might they bring in his uncle or some of the victims or the father of the child killed to shame him into talking?
    5 - none of this jeopardizes a conviction - they have plenty on him without his admitting guilt
    6 - but if his defence is in part he didn't know what he was doing - not part of the bomb building, then was in a panic after, afraid for his life when his picture shown - this good be ended by his talking (this is where having a lawyer could help him, at least in avoiding the death penalty)
    7 - couldn't the US att'y pressure him to tell what he knows in exchange for no death penalty? (risky in terms of public opinion - but remember, Terry Nichols got a life term and the public accepted it for a much worse toll)

    On the whole, unless they have strong evidence of no one else involved (who now could flee the country) or that no other bombs have been planted, I get the imminent threat part. But the whole thing is borderline, and I agree that if Obama weren't president, a lot of us might look at this differently.

    That said, doing this likely immunizes  Justicer Dept in part for going ahead with a civil trial and is the political course of least resistance.

  •  Don't take your law from Law & Order (0+ / 0-)

    Even leaving aside the "public safety exception", Miranda only covers introducing evidence from an interrogation in court (and possibly evidence obtained from an un-Mirandized interrogation).

    In this case, let's be blunt, there is a mountain of incriminating evidence, from the videos/cell phots to the similar bombs that the Tsarnaevs threw from their getaway vehicle to the admission they made to the man they carjacked. Even Hamilton Burger could get a conviction from this without any material from interrogation of the suspect.

    There has never been a rule that you have to Mirandize someone in order to try him.

    A more legalistic discussion is here.

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