This week, I was amazed about how quickly we hearkened back to a time from a decade ago, where fear and uncertainty once again cloud our better judgment and restrain our finer angels. It is for these times of uncertainty that we have a Constitution, a rule of law, and if we do not adhere to our principles when it is difficult, they are not principles at all, they are simply platitudes.
The Associated Press reports that Federal Magistrate Judge Marianne Bowler went to the hospital and convened a court hearing in the hospital room of the accused bombing suspect, Dzhokhar Tsarnaev, about 16 hours after a complaint was filed in her court.
“Her reading of the Miranda warning came as part of the formal presentation of charges to the suspect, an act that would have in normal circumstances have taken place in a courtroom,” the AP reported. “Federal rules of criminal procedure require that defendants appear before a judge without unnecessary delay – usually defined as within one business day.”
The AP reported that Judge Bowler was the first to advise the suspect of his Miranda rights to remain silent and, according to officials cited in the AP’s report, he stopped talking to investigators after being read his rights.
House intelligence committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday “that Justice officials should have pushed back on the judge’s plans. He wrote to Attorney General Eric Holder late Wednesday to register his concerns,” the AP said.
“What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively they may have jeopardized our ability to get public-safety information.”
What I find shocking is how easily the public and public officials are willing to throw out the law and the Constitution in times like these.
As the comedian George Carlin once commented, “Rights aren’t rights if someone can take them away – they’re privileges. That’s all we’ve ever had in this country: a bill of temporary privileges. And if you read the news, even badly, you know that the list gets short and shorter.”
As one blogger, Rick Horowitz, who practices law in Kern County, noted, “These rights privileges, which our forebears stupidly believed were “unalienable,” have been consistently eroded by the steady drips of those who would have us believe the Constitution only enables criminals.”
As “Gideon,” who in real life is a public defender and pens the blog, notes, “The Fifth Amendment to the United States Constitution provides: ‘No person shall be compelled in any criminal case to be a witness against himself.’ “
She continues, “Plainly interpreted, this means that no can be required/forced/compelled to answer questions by law enforcement that would show that the person being questioned was involved in/guilty of a crime. In Miranda, it’s been popularized as ‘the right to remain silent,’ but legally, it’s ‘the privilege against self-incrimination.’ The punishment for violating one’s Constitutional Right is that the Government cannot then use that information or evidence obtained because of that information to then turn around and convict you.”
However, what if the government is less interested in prosecution and more interested in leveraging the defendant to see if there is someone else involved?
As attorney Akhil Reed Amar writes in Slate this week, “The key legal question in the wake of the Boston Marathon bombing is this: Why should courts exclude highly reliable evidence gathered in a civilized interrogation of a suspect, merely because he has been required by law to answer pressing and probing questions?”
“This isn’t about when or whether Dzhokhar Tsarnaev should be read his Miranda rights. He already knows them. So does almost every American – we have all in effect been read the standard warnings countless times, by cop shows that have taught us our basic Fifth and Sixth Amendment entitlements,” he argues. “So what’s the big deal if Tsarnaev, or any other suspect in any single case, doesn’t get the benefit of this fetishized ritual?”
He continues: “The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation.”
He even adds, “His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge.”
“This is the right balance for public safety and a defendant’s rights – and the Fifth Amendment, properly understood, allows it,” he concludes.
In essence, Mr. Amar is proposing that any time there is “ongoing threat to public safety” that, as Gideon puts it, “The police get to question you, no limits, no safeguards, no restrictions. They ask you questions and you must answer.”
She adds, “What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in ‘terrorist’ activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.”
These are attorneys arguing this. But Mr. Horowitz, citing another source, adds, “When the government talks about ‘terrorists,’ they’re talking about the people who they can claim are terrorists. And when they are talking about the people who they can claim are terrorists, they are talking about you and me.”
The problem is that it comes down to not just terror cases, but many wrongful conviction cases. Most people cannot imagine themselves in the position of being accused of a crime that they did not commit.
But tell that to Brandon Mayfield, who was arrested back in 2004, linked to the Madrid train bombing. He was held for over two weeks, facing potentially the death penalty. The problem is he had never been to Madrid and an FBI investigation erroneously linked him to the bombings when they falsely matched his fingerprint.
He was fortunate. Madrid authorities caught the real culprit, otherwise how long he would have been arrested?
There is the case of Michael Morton, who lost 25 years of his life wrongly convicted of killing his wife. He was later exonerated by DNA evidence. The misconduct by the prosecutor, Anderson, was so egregious in this case that he now faces criminal charges for failing turn over favorable evidence pointing to Mr. Morton’s innocence, despite specific requests from the defense and an order by the trial judge to do so. The court made specific findings that Anderson knew of evidence supporting Morton’s innocence but intentionally failed to disclose it to the defense.
The fact is, we probably have the right guy in the Boston Marathon case, but we make the laws to protect the innocent. If we create public safety exceptions to Miranda, we could just as easily end up with a case like the Central Park 5.
Ken Burn’s documentary, that we discussed last week, shows how the young men, innocent, were ultimately coerced into confession. They turned out to be false confessions. But the police were convinced of their guilt and looked the other way, even as inconsistencies and exculpatory evidence, such as the lack of a DNA match, emerged in the case.
We want to rely on good faith of the police and prosecutors? I am sure that, in each case, they believed the defendant was guilty.
As horrific as the attacks were in Boston now almost two weeks ago, we seem to forget that scores of people are killed each day in this nation and yet our legislature cannot even pass the most basic of background checks for guns, despite 90 percent public approval for the modest change.
So while the 2nd Amendment is apparently sacrosanct to the point of precluding background checks to check for criminal backgrounds, the Fifth and Six Amendments get obliterated when someone plants a bomb that kills a couple of people.
I understand people’s concern about terror attacks, but the chance of getting killed in one of them is far less than the chance of getting hit by a car today on your way to church. I much more fear the unmitigated power of the government to take away people’s liberties, in the name of fleeting and temporary security.
—David M. Greenwald reporting
David Greenwald said . . .
[i]”I understand people’s concern about terror attacks, but the chance of getting killed in one of them is far less than the chance of getting hit by a car today on your way to church.”[/i]
I agree wholeheartedly David. The same truism exists with respect to airplane travel and automobile travel. The risks of dying in a car are much greater than the risks of dying in a plane crash, nonetheless there are many people who are much more terrified of plane travel than they are of car travel. That fear is illogical.
One has to wonder whether terrorists would lose their interest in the United States as a target if we treated terrorist acts the same way we treat automobile travel. Perhaps House intelligence committee Chairman Mike Rogers and attorney Akhil Reed Amar might want to consider that one of the major reasons we are such an inviting target is all the free publicity that terrorists get when they choose the US as a target.
Franklin Delano Roosevelt said . . .
[i]”The only thing we have to fear is fear itself” [/i]
[b]Akhil Reed Amar [/b] wrote:
[quote]”This isn’t about when or whether Dzhokhar Tsarnaev should be read his Miranda rights. He already knows them. So does almost every American – we have all in effect been read the standard warnings countless times, by cop shows that have taught us our basic Fifth and Sixth Amendment entitlements…”[/quote]
This person is an attorney?
“He already knew them?” Really? So why did he not invoke from the get go?
“…Almost every American…” OMG!
Most ridiculous, however is Amar’s comments about…Knowing…from “…Cop shows….” have “…Taught us…”
nuff said
In English?
Russian authorities secretly recorded a telephone conversation in 2011 in which one of the Boston bombing suspects vaguely discussed jihad with his mother, officials said Saturday, days after the U.S. government finally received details about the call.
Read more here: http://www.sacbee.com/2013/04/27/5376805/apnewsbreak-russia-had-wiretap.html#storylink=cpy
http://www.sacbee.com/2013/04/27/5376805/apnewsbreak-russia-had-wiretap.html
i don’t understand either of your points either?
I think the point being made is that almost all cop shows on television routinely show suspects being interrogated without the presence of a lawyer, thus teaching American citizens that this is the norm. I think that the vast majority of Americans, if asked what the Fifth Amendment concerns, would have to answer that they have no idea.
What is true is, the Tsarnaevs are NOT the 1st terrorists to kill Americans [for their political ideology]. Ergo, if they are radicals/extremists, then Bernardine Dohrn & Bill Ayers are as well, no?
Accordingly, there is no real difference between radicals who detonate bombs (to impose leftist rules) & those who detonate bombs (to impose the rule of Islam).
am i the only one who has no idea what point adremmer is attempting?
[quote]Accordingly, there is no real difference between radicals who detonate bombs (to impose leftist rules) & those who detonate bombs (to impose the rule of Islam). [/quote]
Or those who detonate bombs because of their far right wing beliefs ( Timothy McVeigh). Bombs, like
firearms used to kill large numbers of people quickly, are weapons of terror and should be considered
equivalently. The aim is to do as much human damage in as short a time as possible. This is also the outcome and as such should be handled similarly.
An equally disturbing trend to have come from the recent terror attack in Boston is the clear disregard for the 4th amendment demonstrated by enforcement around Boston conducting forced house to house searches for the accused. No one is discussing this in the media and it seems to me that for whatever reason people are accepting of a SWAT team kicking down your door without even reasonable suspicion much less a search warrant.
nvn8v
I think that you make a very good point. Speaking only for myself, I would like to expand upon it.
It seems to me that there is a very large difference with which some folks regard different amendements to our constitution. Some folks seem adamant about the defense of 2nd amendment rights, but are very willing to suspend the 1st and 4th amendment rights. I have a hard time understanding how one claims the constitution as inviolate in one instance, but completely mutable in others.
Re: house-to-house searches, Boston.
Yes, I saw photos of paramilitary police pointing assault weapons right into the faces of residents. The home-to-home searches seemed pretty heavy-handed; the citizens were treated more as criminal accomplices than as law&order allies in the search for the bomber brother. Imagine sitting peacefully in your home having a cup of tea, and suddenly a team of combat-rigged paramilitary police barges in and points assault weapons in your face and yells commands at you? Could be terrifying! I think some of these tactics should be reviewed by teams including representatives of the public; they are matters of public concern (I’m reminded of the SWAT team raid of international house in Davis a few years ago; also very heavy-handed; terrified the international guests in international house and caused a lot of damage to the house–at least they had a warrant for that one).
re: David: “What I find shocking is how easily the public and public officials are willing to throw out the law and the Constitution in times like these.”
Care to comment on this regarding the lack of effective border enforcement and the status of “undocumented” immigrants? I know its off-topic; but if one person can pick-and-choose what laws to enforce and what not to enforce; another person is equally justified to have another opinion which laws to enforce and what laws not to enforce!
I guess I don’t see the parallel between the failure of the government to respect citizen’s constitutional rights with the efficacy of enforcing civil and criminal immigration statutes. That’s probably not a satisfactory answer, but I review immigration laws similar to how I view drug laws – largely unenforceable and costly with huge negative unintended consequences. Whereas I view the constitution as the firewall preventing government from sinking into indiscriminate tyrannical policies in the name of security.
More to the point, border patrol has increased in numbers and spending: [url]http://www.politifact.com/truth-o-meter/statements/2011/may/10/barack-obama/obama-says-border-patrol-has-doubled-number-agents/[/url]
Record numbers of illegal immigrants have been deported: [url]http://www.pbs.org/wgbh/pages/frontline/race-multicultural/lost-in-detention/record-number-of-illegal-immigrants-deported-in-2011/[/url]
So nobody is choosing ‘not to enforce’ the laws about immigration. It is simply that even more resources would be needed to achieve higher levels of efficacy.
David–yes I agree with you about the constitutional protections; though strongly disagree about impracticality of border enforcement (Berlin Wall worked very well using technology from 65 years ago). Of course can never get 100% perfect enforcement; but its entirely plausible to ratchet up enforcement to a level where illegal crossings are reduced to 10% or less of what they have been in recent years. Don that’s good info. about enforcement; however the federal government is conflicted with respect to immigration–to maintain public credibility they need to give lip service and take some measures to secure the border; however I would contend that the amount of resources required to reduce illegal crossings to a trickle is not enormous (will find supporting articles for a future thread); though politicians of all stripes would have us believe, through relentless repeated propaganda, that it is impractical.
Back to the Miranda rights issue; isn’t there a legal mechanism whereby a suspect can be interrogated with no lawyers present; such that the responses of this particular interrogation session are not admissable in court (kind of an off-the-record conversation)? It seems this would be a good idea if there might be existing ongoing threats from a terror cell or terror connections (or a bomb timer ticking away somewhere); so the suspect would feel free to talk about such connections and related terror plans without fearing the legal consequences for himself. Later he could be interrogated about his own role in terror activities with a lawyer present; responses of this later interrogation could then be admissable.
MW, Bill & Bernadine belonged to the Weather Underground Organization (WUO), to your knowlege — with which group did McViegh tell the world he belonged?