miranda_rights_ap_605_605By now, everyone is aware of the tragic bombing at the Boston Marathon, and the investigation into finding the culprits. It appears from all indications that two brothers, Dzokhar and Tamerlane Tsarnaev. Tamerlane, the elder brother, was killed during a shootout with police whereas Dzokhar was apprehended late Friday night.

Were Dzokhar Tsarnaev’s Miranda rights not read? No. Should they have been?

The bombings were tragic, killing three and wounding 183 others. In the ensuing hunt, an MIT police officer was killed, and another officer was seriously wounded. It was a traumatic and shocking week for the nation, for Boston, and for the families of all those affected.

Calls for justice at times like this are completely understandable, and natural. But if justice is to be anything more than blind vengeance, Tsarnaev has to be given the same rights afforded every other criminal defendant. He is a naturalized United States citizen who is alleged to have committed terrible crimes on U.S. soil. The word “terrorism” seems to make people all too willing to sacrifice liberty for the sake of security (apologies to Benjamin Franklin). Indeed, already there are calls by some to have him treated as an enemy combatant (http://www.salon.com/2013/04/20/graham_mccain_hold_boston_suspect_as_enemy_combatant/).

While it is unlikely that he will be tried by a military tribunal due to the fact that he is an American citizen, one aspect of this case that caught my attention is the much-criticized decision to interrogate Tsarnaev without reading him his Miranda rights (http://abcnews.go.com/blogs/politics/2013/04/next-for-bombing-suspect-high-value-detainee-interrogation-group/). A little background:

The Miranda rights is that spiel that almost everyone who has seen an episode of Law & Order is familiar with that police give suspects they’re arresting: “You have the right to remain silent, anything you say can and will be used against you….” and so on. They’re called “Miranda” rights for the landmark United States Supreme Court decision Miranda v. Arizona, where the Supreme Court decided that suspects need to be informed by police of their constitutional rights against self-incrimination and to have access to an attorney because police interrogations are inherently coercive. Because of Miranda, anything that’s told to police in what’s called a “custodial interrogation” (basically questioning by police when you are in custody) without the Miranda rights being waved isn’t admissible in court. Miranda has been the law of the land for nearly fifty years now, but one “exception” to the Miranda rule is now playing front and center in the Boston bombings.

More than twenty years after Miranda was decided, a woman on a New York street approached two police officers and said that she had been raped, and that her attacker just went inside a supermarket and was armed with a pistol. One of the officers went inside the store and spotted a man with a gun, chased him to the rear of the store and apprehended him. The suspect didn’t have the gun on him any more, and the police officer asked him where the gun was. The suspect told the officer, the officer recovered the gun, and *then* read the suspect his Miranda rights. The fight at the trial, and on appeal, was whether or not the suspect’s statement of where he had hidden the gun was admissible at trial. After all, he had not been read his Miranda rights yet, but was in custody. It went all the way up to the Supreme Court, and the case — New York v. Quarles — created a public safety exception to the Miranda rule. Basically, the Supreme Court reasoned that the hidden gun posed a threat to public safety, and so the non-Mirandized questioning about the gun was constitutional, and could be admitted as direct evidence at the trial.

It is this “public safety” exception to the general Miranda rule that authorities are going to use as a foundation to question Tsarnaev without reading him the Miranda rights. It is an ill-defined exception that will almost certainly get pushed to whatever boundaries it has.

Tucker Richardson

Tucker Richardson

Tucker is a founding member and managing partner of Baldani, Rowland and Richardson. He practices in all areas of state and federal criminal defense, from capital murder defense to DUI defense. You can reach Tucker at 859-259-0727.
Tucker Richardson

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