There has been much controversy over the past week over the fact that Boston Marathon bombing suspect Dzhokar Tsarnaev received his Miranda warnings before the FBI was supposedly finished with questioning him under the “public safety” exception to the rules established by the Supreme Court’s decision in Miranda v. Arizona. I’ve already dealt with the reasons why the objections to Mirandizing Tsarnaev are entirely without merit in a previous post, but this report from The Los Angeles Times raises a far more serious question:
Tsarnaev has not answered any questions since he was given a lawyer and told he has the right to remain silent by Magistrate Judge Marianne B. Bowler on Monday, officials said.
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. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.
As I discussed previously, the Miranda warning itself is really best understood as more of a rule of evidence than a Constitutional mandate. If law enforcement continues to question a suspect when he’s in custody without giving him the Miranda warning, or without a signed waiver from the suspect waiving the right granted under Miranda, then they risk the possibility that anything that the suspect tells them will be ruled inadmissible at trial. Things get a little different when we start talking about the right to counsel. It’s black letter law that when a suspect who is being questioned requests counsel, all questioning is supposed to stop. In the days since Dzhokar Tsarnaev was arrested, In the light of the events in this case, I went back and re-read the decision in New York v. Quarles, the case that created the “public safety” exception to Miranda,and I cannot say that I find anything in there that would justify an exception to the 6th Amendment right to counsel. As I’ve stated before, the Quarles case involve a situation where the Defendant was arrested near the scene of the crime and, before reading him Miranda rights, the police, noticing an empty shoulder holster, asked him where the gun was. The Supreme Court ruled, correctly I would submit, that this was an acceptable deviation from the Miranda rules due to the risk to public safety of a handgun lying unattended somewhere on the streets of New York City. That’s clearly not the situation that existed in the FBI’s questioning of Tsarnaev.
There’s actually a more important thing to keep in mind here. The warnings that the Supreme Court’s decision in Miranda v. Arizona requires law enforcement to give to suspects at the point of arrest do not create rights, they are merely meant to inform someone who is in the custody of law enforcement of the rights that they already have under the Constitution. Therefore, the fact that Dzhokar Tsarnaev was not read his Miranda rights before the afternoon of April 22nd is, in some sense, entirely irrelevant. Throughout the period before that time, he was under no obligation to speak to law enforcement, and if he requested counsel, those authorities ought to have been legally obligated to end questioning immediately.
Glenn Greenwald comments:
[I]f the LA Times report is true, then it means that the DOJ did not merely fail to advise him of his right to a lawyer but actively blocked him from exercising that right. This is a US citizen arrested for an alleged crime on US soil: there is no justification whatsoever for denying him his repeatedly exercised right to counsel. And there are ample and obvious dangers in letting the government do this. That’s why Marcy Wheeler was arguing from the start that whether Tsarnaev would be promptly presented to a federal court – as both the Constitution and federal law requires – is more important than whether he is quickly Mirandized. Even worse, if the LA Times report is accurate, it means that the Miranda delay as well as the denial of his right to a lawyer would have continued even longer had the federal magistrate not basically barged into the interrogation to advise him of his rights.
As Greenwald acknowledges, this allegation is serious enough that it perhaps requires more than just the word of an anonymous source. If Tsarnaev really did request counsel and his request was ignored, then that is a serious allegation. Regardless of what Tsarnaev is accused of, he deserves the protections of the Constitution, and law enforcement ought to have respected that.
