For seventeen years I was a public defender and tried around eighty cases before juries. Criminal defense law involves regular litigation over the range of constitutional issues relevant to criminal justice – the 4th Amendment (freedom from unreasonable searches and seizures), the 5th Amendment (“no person shall be compelled in any criminal case to be a witness against himself” and due process of law), and the 6th Amendment (right to a speedy and public trial, the right to compel witness to appear in court, the right to confront witness through cross-examination and the right to counsel).
With Friday night’s arrest of alleged Boston Marathon bomber Dzhokhar Tsarnaev, attention quickly turned to how the young accused terrorist’s upcoming case would be adjudicated. Senator Lindsey Graham’s suggestion to try him as an enemy combatant was rightly ignored by President Obama who said in no uncertain terms that the courtroom is the best place for the nation to seek justice. Civil libertarians, however, were not pleased with the further announcement that Tsarnaev would not be given Miranda warnings and would be questioned under the guise of the “public safety exception” first formulated by the Supreme Court in New York v. Quarles, 467 U.S. 649 (1984).
That came to a head this Saturday morning with a series of essays by Emily Bazelon at Slate (here), Evan Perez at the Wall Street Journal (here) and Glenn Greenwald at the Guardian (here) warning that the questioning of Tsarnaev without Miranda warnings was a dangerous violation of his rights. All of them raise relevant arguments under the theme that the Department of Justice (see DOJ public safety memo, here) will operate with unchecked impunity which would surely lead to unchecked abuses. Unfortunately, with some exception by Greenwald, the essays all seemed to base their view of the giving of Miranda warnings on Dick Wolf’s endless runs of Law and Order where the rights are read as cuffs are slapped on wrists rather than what the true function of the warnings are – to exclude from trial evidence statements made by defendants who were in a custodial setting at the time of questioning without the benefit of having been warned of their right to remain silent, the right to consult with an attorney before questioning and the warning that any incriminating statements may be used against them in court.
When I was a defense lawyer, I lost count how many times a new client would say to me, “they didn’t read me my rights when the cops arrested me?” My standard reply was, “Did they question you?” If the answer was, “No,” clients were consistently surprised when I told them that in such a case Miranda warnings are not necessary. To repeat – unless a suspect is in a custodial setting and subjected to questioning, the police do not need to give Miranda warnings. (If you are in such an unfortunate situation, be unequivocal that you want a lawyer or are exercising your right to silence. Courts consistently rule that saying something like, “I guess I should maybe get a lawyer,” is not enough of an invocation.)
Bazelon, Perez, and to a lesser extent Greenwald, all played into that widespread erroneous belief by focusing on the questioning itself rather than on whether the answers to non-Mirandized inquiries will be used against the Tsarnaev in court. Those decisions will not be made by the FBI’s High-Value Detainee Interrogation Group (HIG) but by the U.S. Attorney and, in turn by the federal trial judge when faced with ruling on the admissibility of any evidence the prosecution will seek to admit. To be clear, the 5th Amendment will still play a role, even if non-Mirandized statements are not sought for admission, but in two distinct areas: whether questioning complied with what is considered due process of the law (more broadly using torture or other unseemly methods) and whether any statements made after a later Miranda warning are admissible because the non-Mirandized questioning is so intertwined with the later interrogation to make the later warning meaningless.
As an astute reader will note, I am no longer a public defender. I am now a lawyer with an office which oversees the conduct of one of the largest law enforcement agencies in the country. As a result, I have seen the enforcement of procedural justice from a completely different point of view than before – as an enforcer of constitutional policing. An important part of our activities is oversight of each and every officer involved shooting. I, or one of my colleagues, is on call 24/7/365 to respond to such officer shootings, be they hit or non-hit. Normally, I am there shortly after the incident to take part in a year-long or more process to parse out moment by moment what occurred. The review culminates in possibly career-altering decisions regarding tactics, command and control and the ultimate question whether the use of deadly force was in policy. I give you all of that background so to give you insight into how the public safety exception works in action and to draw attention to where the focus with Tsarnaev should rest – not on the FBI, but the courts.
One night last year an officer encountered a car which matched the description of a suspect vehicle. It is no surprise his attention was drawn to it as he first saw the car as it crashed through the fence of an adjoining cul de sac and came to a rest a hundred feet in front of him. The two occupants quickly got out and immediately started firing handguns at him. As the officer returned fire, the suspects turned and ran into a neighborhood (sound familiar?). By the time back-up arrived, the suspects were gone. Patrol officers set up containment and soon the on-call special weapons team arrived with armored vehicles and began combing the neighborhood. Eventually, and I won’t tell you how, SWAT focused on a garage of a residence. Once they had it surrounded, someone came out of the garage and was apprehended. The person was unarmed. Someone else was still hiding inside.
From some of the comments I saw today, the SWAT officers should have sat the detainee down and explained the Miranda rights. Were the suspect sensible, demands for a lawyer or an invocation of rights would have occurred. Say they instead questioned the suspect without warnings about who was still in the garage, where he was located, how he was armed and what his state of mind was. With such valuable information obtained, SWAT could then respond. In this case, the event culminated with a team member shooting and killing the suspect when he suddenly emerged from the garage.
When I arrived later that morning, I was shown where the firing officer was located, where the suspect emerged from, the decedent’s body where SWAT EMTs tried to resuscitate him, and the weapon he had possessed. I have no doubt that the information provided by the detainee helped protect the safety of the officers. Should her case go to court, I am certain that if the prosecutor seeks to introduce those statements she made right after her detention that they would be admitted under the public safety exception.
Now hypothetically, imagine that after a few hours detectives develop information that the suspects were part of a group that was planning a murder of a prominent person? Say the crime is not planned for several more weeks. Should investigators now be allowed to interrogate the suspect again without Miranda because of the impending danger? Is the threat too remote to invoke the public safety exception? Should the suspect make incriminating statements about the planned crime without having been given Miranda warnings, would those second set of statements be admissible?
Those are the types of issues which are struggled with in the real world of law enforcement and criminal justice. They are taken very seriously because they have real world impacts. This pre-9/11 Second Circuit Court of Appeals decision in United States vs. Khalil, 214 F.3d 111 (2000), touches on that very issue where the first questioning took place right after arrest over how to defuse pipe bombs and the second non-Mirandized questioning took place after the shot suspect’s surgery. This FBI training bulletin on the public safety exception demonstrates not a roughshod desire to trample rights but the on-going seeking of the balance between insuring public safety and observing the Bill of Rights. That is the essence of constitutional policing.
The bottom line is that Miranda does not prevent questioning of in-custody suspects without providing warnings. The questioning can occur. The risk carried by the prosecution is that they will seek to use those statements and will be prevented from doing so. The challenge for the justice system is that those questions about immediacy of public safety threat are treated honestly and fairly, otherwise, the public safety exception will be so monstrously large that it will swallow the rule.
Bazelon raises tough and fair questions about aggressive interrogations, false confessions and related issues. When we do discuss these challenging issues which go to the heart of the rights and safety of our republic, though, it is best to not to start the conversation by engaging in an erroneous premise built by watching the dozens of iterations of Law and Order.
[Update: For further reading I suggest you read Andrew Cohen’s excellent column at The Atlantic, “Tsarnaev Without Tears: The Legal Way Forward.” I can also recommend Orin Kerr’s piece at The Volokh Conspiracy, “Tsarnaev and Miranda Rights.” Kerr points out that the public safety exception is only useful for a limited period of time. With reports emerging this evening that he may be unable to speak due to a possible self-inflicted gunshot wound to the neck further issues are emerging.]