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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. ("Amendment VI" to the U.S. Constitution. Emphasis added)

A couple days ago, I happened upon an article in my home-town rag, The Los Angeles Times. One brief passage in particular about the pre-Miranda interrogation of Dzhokhar Tsarnaev caught my eye:


Until that point, Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. (Emphasis added)

Wait, what?

Continues below fold:

The 'Public Safety Exception' to the Miranda rule does not allow the government to deny suspects their rights, e.g., to remain silent or to counsel. It does allow the government to put aside temporarily its obligation to read suspects those rights. In other words, Tsarnaev had the right to an attorney, whether he was advised or not, and he attempted to exercise that right by requesting an attorney.

If the Times' reporting is to be believed, the government chose to ignore Tsarnaev's request for an attorney and kept right on questioning him.

I'm not an attorney, more like an attorney manque, nurtured on episodes of Perry Mason and Law and Order. But from where I sit, the government willfully violated Tsarnaev's right to an attorney. The Public Safety Exception never allows the government to deny suspects their rights. It only allows the government to delay informing suspects of their rights for a brief period. There is a difference.

As soon as Tsarnaev requested an attorney, whether during the Public Safety Exception or otherwise, the Sixth Amendment required the government to provide him with access to one. So, please, someone, anyone, tell me the U.S. did not jeopardize its entire case by violating Tsarnaev's Sixth Amendment rights.

10:47 AM PT: In reading the language of the Sixth Amendment again, I am humbled by the magisterial wisdom of its drafter(s). It's not the drafters' fault thatobservance of the Sixth has become more honored in the breach, than in the observance.

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Comment Preferences

  •  Even asssuming that they get in front (0+ / 0-)

    of a Judge willing to follow the law, they will only lose the statements and anything that flowed from the statements.  Teh entire case should not be jeopardized; its still a stupid thing they did and very, very worrisome in teh casual nature that they did it.  More like a Bush/Cheney kind of government than one run by a constitutional scholar.

    . On ne gagne que les combats que l'on mène

    by NearlyNormal on Tue Apr 30, 2013 at 09:54:01 AM PDT

    •  Jesus H. Christ, one would think from their (1+ / 0-)
      Recommended by:

      behavior that the Public Safety Exception gives them carte blance to suspend the U.S. Constitution.

      Even Abraham Lincoln, faced with domestic insurrection, never stooped so low.

      My jaw hit the floor when I read that passage in the LA Times. My question is, if the government violates someone's right to an attorney, does the entire case get tossed?

      •  For up to 48 hours. /nt (0+ / 0-)

        Happy little moron, Lucky little man.
        I wish I was a moron, MY GOD, Perhaps I am!
        —Spike Milligan

        by polecat on Tue Apr 30, 2013 at 10:16:37 AM PDT

        [ Parent ]

        •  Hunh? This is not a "Public Safety Exception" (0+ / 0-)

          issue (except in the tortured minds of the interrogators). Instead, it is a 6th Amendment "right to an attorney" issue. There's no 48-hour time limit on that right

          •  And if that attorney told the suspect to shut up? (0+ / 0-)

            Then what?

            Happy little moron, Lucky little man.
            I wish I was a moron, MY GOD, Perhaps I am!
            —Spike Milligan

            by polecat on Tue Apr 30, 2013 at 10:52:02 AM PDT

            [ Parent ]

            •  Not sure I'm following your train of thought. If (1+ / 0-)
              Recommended by:

              an attorney advised his or her client to shut up, and the clent shut up, well, that's the way our system is supposed to work.

              The client retained the right to remain silent, whether advised via Miranda or not. Again, that's how our system is supposed to work.

              Here's how it's not supposed to work. You're in custody and the police start questioning you. Not knowing what you should or should not say, you request to speak to an attorney. The police pretend they did not hear you and just keep questioning you. You request an attorney again. Again the police pretend they didn't hear and keep questioning. Does that sound like the way our system is supposed to work?

              •  My train of thought is from the LE point-of-view: (0+ / 0-)

                1) We just caught this guy.  Red-handed, no less
                2) There might be more bombs out there
                3) A lawyer will almost definitely tell him to shut up
                4) I'm supposed to use the Miranda Exemption to question him to find out and it's really friggin' important

                So, do we wait until he's read his rights (gonna happen within 48 hours) or let him see a lawyer now? And if he shuts up and there are more bombs out there (can you say PUBLIC SAFETY), then what?

                Now, this system is broken.  This exemption has not been thought out.  However, my asking this question in this manner is NOT stupid.

                Happy little moron, Lucky little man.
                I wish I was a moron, MY GOD, Perhaps I am!
                —Spike Milligan

                by polecat on Tue Apr 30, 2013 at 11:03:22 AM PDT

                [ Parent ]

                •  We seem to be talking past one another here. The (1+ / 0-)
                  Recommended by:

                  issue is that Tsarnaev requested an attorney and the interrogators 'ignored' his request (language from the original LA Times article).

                  Um, in the land I grew up in, the government is not allowed to ignore a request for an attorney. Period. No exceptions. The minute a detainee invokes his right to an attorney, that's it. There's no Public Safety Exception for the Sixth Amendment. At least, not until now.

                  This has nothing, repeat ZERO, to do with 'reading him his rights" and everything to do, repeat EVERYTHING, with the exercise of those rights.

      •  No it doesn't and I'll give you (2+ / 0-)
        Recommended by:
        NearlyNormal, lazybum

        a brief reason why. The requirement for a lawyer, just like Miranda rights is not an inherent part of the constitution. And both have been noticeably narrowed with these right wing justices.

        Often they defund the public defender office or put it on such a tight budget that it makes the goal of everyone having competent counsel difficult.

        I was a public defender in the '80's my job generally was to go to the mass arraignments and quickly stand in for someone without counsel. Did I always get a chance to review my client's case adequately; no. I did my best. And indeed my best work was in the PD's office.

        But since then particularly with the massive War on Drugs and since 9/11 police and people - everyday people- treat you like scum if you try to even state that everyone needs a good defense.

        I've had that conversation over and over. However, so far I think the Boston case has gone pretty well. A lot of people don't think that he deserves counsel at all. Some are really upset that he is in custody and getting medical care instead of being shot dead.

        It's a very complex subject. I usually tell people that I'd defend him myself. That usually either confounds them or they open their eyes.

        In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

        by vcmvo2 on Tue Apr 30, 2013 at 10:19:07 AM PDT

        [ Parent ]

        •  The right to an attorney may not be an (1+ / 0-)
          Recommended by:
          Dogs are fuzzy

          "inherent part of the constitution" (your words), but it sure as hell is an inherent part of the Sixth Amendment to same.

          The 'right to an attorney' is so much meaningless drivel if the government can willfully ignore its invocation.

          So let's at least be honest: we no longer have the right to an attorney and that portion of Miranda can safely be excised as no longer relevant.

          •  My words yes (0+ / 0-)

            Meaning as an Amendment it gets changed as the Supreme Court goes further right.

            As far as the rest of my comment, any response? or just churlishness...

            In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

            by vcmvo2 on Tue Apr 30, 2013 at 12:16:21 PM PDT

            [ Parent ]

            •  Sorry, did not mean to come off as churlish (1+ / 0-)
              Recommended by:

              towards you. I'm seriously pissed that a core right in the Bill of Rights is cavalierly 'ignored' by authorities. Still trying to decide what to do about it (other than ranting churlishly here :)

              You are actually a positive force and I salute you for your efforts on behalf of those too poor to afford an attorney of their own. And kudos to you for volunteering to defend Tsarnaev. That makes you a total hero in my book.

              •  Well I'm kind of hoping (0+ / 0-)

                that one of the antiques on the Supreme Court will retire, giving us a chance to replace a rightie with a Democrat and get some balance there.

                Other than that people have to pay attention to state elections. I mean look at Virginia, the AG Cuccinelli is now running for Governor, they have all these ALEC Laws that they put into place & then these people infest the government all around. It's a tough one.

                In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

                by vcmvo2 on Tue Apr 30, 2013 at 12:26:57 PM PDT

                [ Parent ]

      •  No, not necessarily (0+ / 0-)

        I've had cases where the crucial evidence was unconnected to the statement and the case proceeds, in those cases where the crucial evidence is contained in, or flows from the unMirandized statement then the case should get tossed.  Good luck finding a Judge that would toss this one, however.  Bad cases make bad law.

        . On ne gagne que les combats que l'on mène

        by NearlyNormal on Tue Apr 30, 2013 at 10:21:44 AM PDT

        [ Parent ]

        •  With all due respect and understanding that I'm (2+ / 0-)
          Recommended by:
          cfm, NearlyNormal

          not an attorney, this does not seem to be a Miranda issue.

          Rather, this seems to be a simple open-and-shut Sixth Amendment issue whereby Tsarnaev requests an attorney and, instead of being given one, is still interrogated. In other words, Tsarnaev is denied counsel.

          That has very little to do with Miranda, as I understand it, and very much to do with the core meaning of the Sixth Amendment.

          Or am I missing something?

          •  No, you are not missing anything (0+ / 0-)

            But the remedy for the violation would be suppression of the statement and the fruits of the statement.  I don't think the Ct. would sanction the state by dismissing the entire case.

            . On ne gagne que les combats que l'on mène

            by NearlyNormal on Tue Apr 30, 2013 at 11:14:46 AM PDT

            [ Parent ]

            •  At the risk of sounding sexist, a court with (1+ / 0-)
              Recommended by:

              balls would toss the entire case to teach the goombahs who trash our rights a lesson. Of course, that judge would then face a hysterical lynch mob howling not just for Tsarnaev's blood, but the judge's also. Rather than of course targeting the goombahs who trashed our rights.

              Thereby demonstrating that we really are only a couple steps removed from the law of the jungle.

              Oh, brave new world.

  •  But WHEN did the Government have to provide (0+ / 0-)

    him with one?

    In other words, did they have the right to delay or not?

    It will be hard to make hay with this.

    Happy little moron, Lucky little man.
    I wish I was a moron, MY GOD, Perhaps I am!
    —Spike Milligan

    by polecat on Tue Apr 30, 2013 at 10:16:18 AM PDT

    •  The 'right' to an attorney is meaningless if (0+ / 0-)

      the government can simply ignore its invocation.

      Please tell me what the 'right to an attorney' means in such a case.

      •  Given the context, we're talking about the (0+ / 0-)

        duration of the Miranda Exemption.  (up to 48h)

        Nevermind the slippery slope of if 48, why not 72 or 144?

        Happy little moron, Lucky little man.
        I wish I was a moron, MY GOD, Perhaps I am!
        —Spike Milligan

        by polecat on Tue Apr 30, 2013 at 10:46:23 AM PDT

        [ Parent ]

        •  Actually, we're not. All the Miranda Public (1+ / 0-)
          Recommended by:

          Safety Exception does is give the government time to question a suspect without advising him or her of his or her rights.

          The Miranda Public Safety Exception does not give the governemtn carte blanche to deny someone the right to an attorney.

          Unless we have entered a new Lewis Carroll realm where, as the White Rabbit might say, words can mean whatever you want them to mean and the 'right to an attorney' means you get an attorney when we say you can have one, not when you request one.

          •  I hear what you're saying, but do you hear what (0+ / 0-)

            I'm saying:

            That knowing to ask for an attorney completely trumps everything, including the intent behind the Public Safety Exemption.

            Someone didn't think that out all the way.

            Happy little moron, Lucky little man.
            I wish I was a moron, MY GOD, Perhaps I am!
            —Spike Milligan

            by polecat on Tue Apr 30, 2013 at 11:06:43 AM PDT

            [ Parent ]

            •  Again, I'm not an attorney, so these are a (1+ / 0-)
              Recommended by:

              layperson's observations.

              The case that established the Public Safety Exception (Quarles vs. New York, 1984) was not a unanimous ruling. It was a 6-3 decision with vigorous dissent. Because the PSE creates a slippery slope whereby authorities can compel self-incrimination under the guise of protecting a nebulous public safety.

              It means something to say that citizens have the right to an attorney if, upon invocation of that right by a citizen, the government ignores its invocation. Why not dispense with the mumbo-jumbo and simply say the truth: You no longer have a right to an attorney. (Small matter that James Madison would be spinning in his grave.)

  •  I think your problem is with the remedy... (2+ / 0-)
    Recommended by:
    CharlesInCharge, Catte Nappe

    Not the "right."  Sixth Amendment case law since Massiah v. US (1964) has consistently held that failure to timely provide an individual counsel is remedied merely by the suppression of any incriminating statements.  

    Now, Sixth Amendment violations tend to be treated a bit more broadly than Miranda violations under "fruit of the poisonous tree" analysis.  But, courts aren't going to dismiss charges because prosecuting authorities are a little slow on the draw for appointing counsel any more than they are going to dismiss charges because Miranda isn't given.  These types of violations aren't fatal unless there isn't other inculpatory evidence.

    Also, if he hadn't been arraigned yet (or appeared in front of a magistrate) at the point at which he was requesting counsel, his Sixth Amendment right would not have "attached" under the case law.

    •  Thank you for this well-reasoned response. My (0+ / 0-)

      understanding is that the mere act of holding a suspect in custody or under restraint constituted a 'coercive' environment (legally defined) and that's why Miranda arose, so that suspects were not doubly coerced into self-incrimination, first by being in a coercive environment (custody) and second by not being made aware of their right to silence and to an attorney.

      That said, I don't think our system works very well when someone being interrogated requests an attorney and, instead of being provided one, continues to be interrogated.

      In such a milieu as the foregoing, what's the point of saying someone has the 'right to an attorney'? It's meaningless drivel.

      •  I prefer your proposed rule (0+ / 0-)

        My innate sense of justice (disclaimer: I am a criminal defense attorney) persuades me that a society enforcing your interpretation would be a more just society.

        However, I'll put on my Scalia hat here for a minute to play devil's advocate.  The line seems to get drawn in Sixth Amendment cases with the "commencement of adversarial proceedings."  That line is justified by the opening words of the Sixth Amendment, "In all criminal prosecutions..."  As such, one argues that the Sixth doesn't always give a right to an attorney.  It only gives you one when you're in the midst of a criminal prosecution.  That can't happen until you're formally charged.

        My sensibilities (like yours) were tweaked much more regarding the Sixth than Miranda in the Tsarnaev investigation.  The media and pols focused on the public safety exception (don't get me started on how that virus has grown since Quarles).  But, I noticed that they held off putting him in front of a magistrate as long as they could.  The media reported that the magistrate would advise him of Miranda rights.  But, the magistrate would have also formally charged him and kicked in his Sixth Amendment rights to counsel under the traditional analysis.

        •  What got my ire up was that line that the (0+ / 0-)

          interrogators simply 'ignored' Tsarnaev's request. So much is contained in that one word "ignored,' isn't it? Like they are empowered to 'ignore' the Sixth Amendment because, by God, they're the the High Value Interrogation Team and they get to do whatever they want, Constitution be damned. Hence the title of my diary this morning.

          If someone being detained is conscious enough to request an attorney, then that in and of itself is proof that an adversarial relationship already exists. The invocation of the right does not require formal arraignment for the protection of the right to take effect. The right and its protection thereof precedes the formal charging of the crime. So take that and stuff it in your fascist piehole, Scalia. (Not you, but Scalia :)

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