Dershowitz: By not Mirandizing Tsarnaev, feds might have blown the death penalty; Update: Tsarnaev Mirandized

posted at 6:01 pm on April 22, 2013 by Allahpundit

His logic’s straightforward. It’s easy to prove that Tsarnaev did the deed but in order to prove that he’s a “terrorist” and therefore eligible for the death penalty, you have to also prove that his intent was to terrorize the population. And the only hard evidence of that might be his own statements — which will be inadmissible if a judge rules that the feds the “public safety” exception to Miranda doesn’t apply in this case. I must be missing something, though, because as I read the statute, I don’t see where the feds need to prove any specific terroristic intent. Via Ken at Popehat, here’s the relevant part:

(a) Offense Against a National of the United States or Within the United States.— A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction—

(1) against a national of the United States while such national is outside of the United States;

(2) against any person or property within the United States, and
(A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
(B) such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;
(C) any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or
(D) the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce;

(3) against any property that is owned, leased or used by the United States or by any department or agency of the United States, whether the property is within or outside of the United States; or

(4) against any property within the United States that is owned, leased, or used by a foreign government,

shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.

As Ken notes, the Boston Marathon is an activity that “affects” interstate commerce so they’ve got him under subsection (2). Per the statute, a “weapon of mass destruction” is defined as any “destructive device” listed in section 921, which includes “bomb.” It’s true that the statute quoted above is listed in the “Terrorism” chapter of the federal criminal code and Dershowitz is right that “terrorism” as defined in that chapter requires proof that the defendant intended to “intimidate or coerce a civilian population,” but the WMD statute under which Tsarnaev was charged makes no mention of “terrorism.” As I read it, it simply says that if you use a WMD to kill someone and there’s some federal nexus to the crime (i.e. it affects interstate commerce), they can give you the needle. Ken notes that the courts, in interpreting that statute, have added the requirement that the suspect must “knowingly” commit the crime, but that should be easy if the allegations in the complaint are true. Bottom line, I don’t see where the feds need to show any “terrorist” intent on Tsarnaev’s part, even in the sentencing phase, to get death. All they need to show is that he knowingly planted a bomb.

In fact, what may have happened here is that Dershowitz gave this interview to MSNBC before the complaint was released, when he was just guessing at the charges. In another interview this afternoon, given after he read it, he said the feds’ case is “ironclad.” Even so, I admit that I don’t understand why they didn’t Mirandize Tsarnaev just to be on the safe side. It strikes me as exceedingly unlikely that the difference between an accused terrorist talking or clamming up would be a single rote recitation of something a U.S. citizen has heard 8,000 times on cop shows before. In all probability, if he’s not going to talk, it’s because he’s resolved to be a tough guy, not because he’s under some misimpression that he’s duty-bound to speak to the police. And if he is talking, I’d guess it’s because he thinks either (a) cooperating might earn him a life sentence instead of death or (b) that the CIA might beat it out of him if he doesn’t, Miranda warnings or no. Also, hasn’t Tsarnaev already had a lawyer appointed to him? If you look at page two of the complaint, there’s an attestation that a copy of the motion has been served on “counsel for the defendant.” If he’s already got a lawyer advising him on what he should or shouldn’t do, what’s the sense in not Mirandizing him at this point? The lawyer will tell him his rights even if the feds don’t.

Update: Well, there you go. The timing is unclear but I think it happened sometime today:

Question for legal eagles: If he makes incriminating statements before they’ve Mirandized him, when he’s being grilled by the High-Value Detainee Interrogation Team, and then they Mirandize him and ask him to repeat what he said before, is that good enough to make the statements admissible? Or will a judge rule that Mirandization after the fact can’t remove the element of coercion that produced the incriminating statements originally?

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all 3 networks should air the hanging.

GhoulAid on April 22, 2013 at 6:05 PM

Well, THAT’s a relief! (sarc)

djl130 on April 22, 2013 at 6:06 PM

This was intentionally done so the admin could blame the Miranda “mistake” for not getting the death penalty. It’s all part of the plan.

NCPatriot75 on April 22, 2013 at 6:07 PM

Personally I think five or six decades of prison showers might be a worse punishment than death.

alchemist19 on April 22, 2013 at 6:07 PM

Our government lacks the testicular fortitude o execute this low life anyway. Is Dershowitz just giving them cover?

dogsoldier on April 22, 2013 at 6:09 PM

He won’t get the death penalty. Its Massachusetts after all, and he has to be available later when presented an offer by Harvard for a position as tenured lecturer and valued member of its academic staff.

/s

hawkeye54 on April 22, 2013 at 6:11 PM

I’m looking forward to auditing his class a Columbia in 30 years.

Jeff Weimer on April 22, 2013 at 6:11 PM

I’m no lawyer, but was taught to always Mirandized prior to specific questioning about an incident.

It is never assumed a person knows their rights, its why we have Miranda in the first place.

As to any statements he made prior to his rights advisement, its going to depend on how good an attorney he gets and how liberal a judge it is as to how they roll through this.

catmman on April 22, 2013 at 6:11 PM

Personally I think five or six decades of prison showers might be a worse punishment than death.

alchemist19 on April 22, 2013 at 6:07 PM

No, please. Old Sparky…

dogsoldier on April 22, 2013 at 6:11 PM

The way to end these type of attacks on civilians is to use the Egyptian method that ended all attacks on Egypt civilian population by the people who eventually became know as ‘Palestinians’.

jarhead0311 on April 22, 2013 at 6:11 PM

Personally I think five or six decades of prison showers might be a worse punishment than death.
alchemist19 on April 22, 2013 at 6:07 PM

Are you kidding? He’ll be a hero to the growing Muslim prison population, both foreign and domestic.

Cleombrotus on April 22, 2013 at 6:12 PM

A person can be detained up to 72 hours without being charged. When he is charged and arrested, then he gets Mirandized. No one knows exactly what happened, like how long Tsarnaev was unconscious; was he able to be informed of his rights?

Of course the Left is going to seek every avenue of empathy for this killer on the way to making him some kind of dark hero. His being somehow ‘victimized’ by the Obama Bush Administration is the best place to start.

Liam on April 22, 2013 at 6:13 PM

Question for legal eagles: If he makes incriminating statements before they’ve Mirandized him, when he’s being grilled by the High-Value Detainee Interrogation Team, and then they Mirandize him and ask him to repeat what he said before, is that good enough to make the statements admissible? Or will a judge rule that Mirandization after the fact can’t remove the element of coercion that produced the incriminating statements originally?

They are different statements. After he was blah-blah’d, his statements after that are admissible.

They told me today.

You get him to say it again, basically.

His argument doesn’t make sense anyway; it’s really weak. You wouldn’t use his statements between his arrest and Miranda to prove he’s a terrorist; you’d use everything he said before that.

Axe on April 22, 2013 at 6:14 PM

Or will a judge rule that Mirandization after the fact can’t remove the element of coercion that produced the incriminating statements originally?

The point is nothing he says is needed for a conviction, so whatever they asked (and whatever he said) will most likely not come up at trial.

The interrogation is, IMO, focussed on what else was planned, where the dangerous stuff is (if any is left), and if anyone else is involved.

BobMbx on April 22, 2013 at 6:14 PM

Question for legal eagles: If he makes incriminating statements before they’ve Mirandized him, when he’s being grilled by the High-Value Detainee Interrogation Team, and then they Mirandize him and ask him to repeat what he said before, is that good enough to make the statements admissible? Or will a judge rule that Mirandization after the fact can’t remove the element of coercion that produced the incriminating statements originally?

Not a legal eagle but :
I think it depends on what he / his defenders in the WH have to say.
I’m inclined to think that the Joker Zaar will somehow found out to be a member of the TEA Party and a homophobe , and thereafter, all his so called statements will be admissible.
Afterall, you and me are not there to hear what he says !!

burrata on April 22, 2013 at 6:14 PM

How could anyone think 2 guys without jobs could afford trips to Russia, cars, apartmentsl and, where did they get the money to buy the ingredients for their bombs and weapons?

lonestar1 on April 22, 2013 at 6:14 PM

Breaking:

2 US officials tell @AP evidence suggests Boston suspects motivated by religion, worked alone

3 mins ago by editor

http://www.breakingnews.com/topic/boston-marathon-explosion

canopfor on April 22, 2013 at 6:15 PM

Screw it! He`s a terrorist! Waterboard and slam him in GITMO for life!

ThePrez on April 22, 2013 at 6:16 PM

Well, THAT’s a relief! (sarc)

djl130 on April 22, 2013 at 6:06 PM

As the ambulance was rolling away after he was taken out of the boat, Andie Cooper on CNN first raised his concern about whether he would be mirandized.

slickwillie2001 on April 22, 2013 at 6:16 PM

So now pressure cookers are WMDs? For the leftists, none of Saddam’s extensive arsenal (including chemicals) qualified as WMDs but the Times Square Bomber’s truck and the Chechen pressure cookers are like atomic bombs, evidently.

Screw this WMD BS. Tsarnaev is a traitor. He should hang for that. Case closed. Pressure cookers as WMDs … my G-d, how ridiculous these people are … Barky’s junta and Rubio’s gang should all stand trial for treason with these morons.

ThePrimordialOrderedPair on April 22, 2013 at 6:17 PM

A number of law professors/experts have explained that the government is not – not – required to read Miranda rights to someone charged with a crime. They can question that person all they want.

However, they cannot use any statements made by that person in court against him. They may use the statements against others and they may use any physical evidence they find as a result of his statements against him. But they have to link the physical evidence to the defendant separately and cannot use his statements.

So, all of those TV crime shows have been getting it pretty much wrong.

SteveMG on April 22, 2013 at 6:18 PM

Dershowitz: By not Mirandizing Tsarnaev, feds might have blown the death penalty; Update: Tsarnaev Mirandized
============================================

Hmmmmmm……………………

White House: Boston Marathon suspect will not be tried as an enemy combatant – @AP_Politics

5 hours ago by editor
=========================

@DMAnews1 tweeted:
DMAnews1
Dzhokar Tsarnaev charged with conspiring to use weapon of mass destruction against persons and property in U.S. resulting in death

4 hours ago from twitter.com by editor

canopfor on April 22, 2013 at 6:19 PM

Of course, this whole affair will hinge on what he was thinking and feeling…did you feel it was wrong to kill those people? If he can prove there was no malice, only a deep-felt desire and commitment to commit jihad, then who are we to judge his acts as wrong?

BobMbx on April 22, 2013 at 6:19 PM

How is what this Dershowitz character think important? I don’t watch tv so is this creep a tv big authority?

Buddahpundit on April 22, 2013 at 6:19 PM

I don’t watch tv so is this creep a tv big authority?

Buddahpundit on April 22, 2013 at 6:19 PM

No. He’s a movie star.

ThePrimordialOrderedPair on April 22, 2013 at 6:20 PM

Are you kidding? He’ll be a hero to the growing Muslim prison population, both foreign and domestic.

Cleombrotus on April 22, 2013 at 6:12 PM

Or a martyr?

CW on April 22, 2013 at 6:22 PM

ThePrimordialOrderedPair on April 22, 2013 at 6:17 PM

WMDs are whatever liberals want to define them as need demands. They tried using the label for AR15s, and even one of our trolls tried calling those semi-auto rifles as such during one thread. The ploy didn’t last long.

Liam on April 22, 2013 at 6:23 PM

Breaking:

2 US officials tell @AP evidence suggests Boston suspects motivated by religion, worked alone

3 mins ago by editor

http://www.breakingnews.com/topic/boston-marathon-explosion

canopfor on April 22, 2013 at 6:15 PM

Shattering :
2 US officials apologize to CAIR before being fired by the Sultan of DC

Tomorrow’s tweet
:O

burrata on April 22, 2013 at 6:23 PM

He needs to be room temperature but there’s been so much nauseating victimizing of this POS he’ll likely get to live out his days in the Colorado Supermax.

Equally appalling to his being a poor misunderstood follower, the fawning by groupies who want to have him “blow me up with a baby” (((shudder))) and think he should be let go because he’s dreamy. Barf, spit.

We truly are going to hell in a handbasket if that’s a prevailing train of thought.

tru2tx on April 22, 2013 at 6:24 PM

Breaking:
2 US officials tell @AP evidence suggests Boston suspects motivated by religion, worked alone
3 mins ago by editor
http://www.breakingnews.com/topic/boston-marathon-explosion
canopfor on April 22, 2013 at 6:15 PM

Again, where’d they get the money? I don’t think welfare pays enough to cover the costs.

lonestar1 on April 22, 2013 at 6:26 PM

The American Left — still pining for a managerial utopia run by them — doesn’t fully grasp yet that we’re basically living Sam Huntington’s thesis. The world is passing them by.

Punchenko on April 22, 2013 at 6:26 PM

Liam on April 22, 2013 at 6:23 PM

And the sad fact is that leftists are the real WMDs. Now, you’ll excuse me while I use my kitchen arsenal of WMDs to make dinner … I think microwaves must qualify as super-WMDs. They look like atomic bombs.

ThePrimordialOrderedPair on April 22, 2013 at 6:26 PM

Knowing how “prison justice” works, he won’t be in for a good time with any other prisoners, if he isn’t in solitary for protection.

Killing a kid will get you all sorts of attention in prison. Strange code of ethics and morality in there, but a code does exist.

ProfShadow on April 22, 2013 at 6:28 PM

How could anyone think 2 guys without jobs could afford trips to Russia, cars, apartmentsl and, where did they get the money to buy the ingredients for their bombs and weapons?

lonestar1 on April 22, 2013 at 6:14 PM

I remember 2 guys without jobs had a pretty lavish lifestyle too

burrata on April 22, 2013 at 6:28 PM

Does the use of WMD charge include murder charges? Will they charge him separately for the murder of his brother?

lonestar1 on April 22, 2013 at 6:28 PM

Copy of charges filed in Boston Marathon bombing case against Dzhokhar Tsarnaev – via @WSJ

4 hours ago from online.wsj.com by editor
=============================================

PDF (11 Pages )

http://online.wsj.com/public/resources/documents/WSJ-20130422-TsarnaevCharges.pdf

canopfor on April 22, 2013 at 6:29 PM

Dershowitz is one of the lawyers who helped OJ walk for a double murder!! I think he is the Jonny Cockran of Havahd!! A Male Gloria Allred gasbag!!

Marco on April 22, 2013 at 6:29 PM

How is what this Dershowitz character think important? I don’t watch tv so is this creep a tv big authority?

Buddahpundit on April 22, 2013 at 6:19 PM

He’s a major Leftist Harvard law professor; he was also an advisor to OJ Simpson’s legal team. In 2000, he claimed that Bush stole the election from Gore, and even wrote a poorly researched book about it. It was horrible.

But to his credit he also got somewhat mugged by reality on the original 9/11. After those attacks he actually advocated for torturing terrorism suspects.

Del Dolemonte on April 22, 2013 at 6:31 PM

public safety” exception to Miranda doesn’t apply in this case.

I am not sure it does. Michael Mukasey was on Fox earlier and said the case that that applied was clear proof that there was imminent danger ex. someone having a kidnapped victim about to die. They have to prove that they thought there was imminent danger of harm.

melle1228 on April 22, 2013 at 6:32 PM

I’m not a fan of Dershowitz’ politics, however I give him credit for legal consistancy.

Tater Salad on April 22, 2013 at 6:33 PM

I am not sure it does. Michael Mukasey was on Fox earlier and said the case that that applied was clear proof that there was imminent danger ex. someone having a kidnapped victim about to die. They have to prove that they thought there was imminent danger of harm.

melle1228 on April 22, 2013 at 6:32 PM

HRT is also made of someones.

Axe on April 22, 2013 at 6:37 PM

canopfor on April 22, 2013 at 6:15 PM

Again, where’d they get the money? I don’t think welfare pays enough to cover the costs.

lonestar1 on April 22, 2013 at 6:26 PM

lonestar1:Very good questions:)

canopfor on April 22, 2013 at 6:38 PM

They will NOT need this punk’s statements to convict him. Doesn’t matter.

michaelo on April 22, 2013 at 6:41 PM

Question for legal eagles: If he makes incriminating statements before they’ve Mirandized him, when he’s being grilled by the High-Value Detainee Interrogation Team, and then they Mirandize him and ask him to repeat what he said before, is that good enough to make the statements admissible? Or will a judge rule that Mirandization after the fact can’t remove the element of coercion that produced the incriminating statements originally?

I believe the answer is the same answer as for any thorny legal question…it depends.

I believe Missouri v Siebert, a 2004 US Supreme Court case which was a plurality opinion, held that the second confession would only be admissible if the Miranda warning and break in interrogation before the second confession was obtained was sufficient to give the defendant a reasonable belief that he did not have to speak to the police the second time around.

CalFed on April 22, 2013 at 6:41 PM

Missouri v. Seibert, 542 U.S. 600 (2004), is a decision by the Supreme Court of the United States that struck down the police practice of first obtaining an inadmissible confession without giving Miranda warnings, then issuing the warnings, and then obtaining a second confession. Justice David Souter announced the judgment of the Court and wrote for a plurality of four justices that the second confession was admissible only if the intermediate Miranda warnings were “effective enough to accomplish their object.” Justice Anthony Kennedy wrote in a concurring opinion that the second confession should be inadmissible only if “the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.”

Seibert was a split decision. The general rule is that when there is no majority opinion in a Supreme Court case, the narrowest rationale agreed upon by at least five Justices controls. But lower courts have disagreed about what that rationale is in Seibert: some have adopted the “effects” test from the plurality opinion; others have adopted the “intent” test from Kennedy’s opinion. As Gerald Uelmen has written, “The fractured opinions” in Seibert “have left lower courts in limbo.” Midstream Miranda Warnings After Seibert, Champion, July, 2005.

According to Justice Souter’s opinion, the two-step interrogation practice was becoming increasingly popular among police departments. Given the confusion about Seibert’s meaning, it remains to be seen whether that changes.

In State v. O’Neill (N.J. Super. Crt. App. Div. 2006) (case #14-2-5143) the New Jersey Appellate Court held that the defendant’s statements given to police after a so-called, “question-first, warn-later” interrogation were admissible. From reading the NJ Court’s opinion, the court bases their ruling on the length of time between the first, non-mirandized interrogation and the second, mirandized interrogation, which was about 1 hour and 15 minutes; that the questioning during the first interrogation were unrelated to the questioning during the second interrogation; that the statements that O’Neill made were different during the first and second interrogation; and that the first interrogation took place at one location (jail cell) while the second interrogation had taken place at another (patrol commander’s office). In terms of Seibert, the NJ Appellate Court endorses the reasoning contained in the concurring opinion of Justice Kennedy.

http://en.wikipedia.org/wiki/Missouri_v._Seibert

http://www.law.cornell.edu/supct/html/02-1371.ZS.html

melle1228 on April 22, 2013 at 6:41 PM

Calfed, you beat me to it by a second. :)

melle1228 on April 22, 2013 at 6:42 PM

Does anyone really think Obama wants to give him the death penalty? The Left hates the DP. This way he can say he tried but the judge threw the evidence out. A win-win for him.

jnelchef on April 22, 2013 at 6:42 PM

Again, where’d they get the money? I don’t think welfare pays enough to cover the costs.

lonestar1 on April 22, 2013 at 6:26 PM

Putin knows ;-)

burrata on April 22, 2013 at 6:43 PM

Now that they got his statement, I hope a blood clot removes this blot on humanity before we have to waste millions on a Lib fantasy show trial.

profitsbeard on April 22, 2013 at 6:43 PM

Again, where’d they get the money? I don’t think welfare pays enough to cover the costs.

lonestar1 on April 22, 2013 at 6:26 PM

What? You can’t buy gun powder with your EBT card?

Ditkaca on April 22, 2013 at 6:43 PM

This is BS. Of course his intent was to “terrorize”. I just worry about the federal court being located in MA. By the time he goes to trial, that 8 year old boy will have been forgotten.

ladyingray on April 22, 2013 at 6:45 PM

His logic’s straightforward. It’s easy to prove that Tsarnaev did the deed but in order to prove that he’s a “terrorist” and therefore eligible for the death penalty, you have to also prove that his intent was to terrorize the population. And the only hard evidence of that might be his own statements — which will be inadmissible if a judge rules that the feds the “public safety” exception to Miranda doesn’t apply in this case. I must be missing something,

Seriously? Yes, you’re over thinking this. Intent is a prerequisite to conviction for any capital crime, and it’s constantly proven without comment from the defendant. The law is pretty clear, at least in state cases, that intent can be inferred from the facts of the crime. E.g. defendant walks into a night club and starts gunning down people, you can easily conclude his intention was to kill. And here, building a bomb, placing it in a crowd, then detonating it…it’s not hard to do the math. So i have no idea what Dershowitz is getting at here.

Question for legal eagles: If he makes incriminating statements before they’ve Mirandized him, when he’s being grilled by the High-Value Detainee Interrogation Team, and then they Mirandize him and ask him to repeat what he said before, is that good enough to make the statements admissible? Or will a judge rule that Mirandization after the fact can’t remove the element of coercion that produced the incriminating statements originally?

Depends. If he volunteers info, then Miranda is irrelevant. Volunteered statements are not inadmissible. As to your latter point, it’s mixing two separate issues. If he’s given Miranda warnings after admitting guilt but before it’s taken down as a statement, there shouldn’t be any admissibility problem for purposes of Miranda itself. But if his confession was the product of a coersive atmosphere, which is what you seem to be hinting at, that’s another inquiry altogether and requires examination of the record as a whole.

Erich66 on April 22, 2013 at 6:45 PM

Barry does not want this in court.
A deal will be struck so it never goes to public trial…or the trial is held after Barry is out of office…

albill on April 22, 2013 at 6:46 PM

Can’t keel him cause Poolice acted stoopidly and botched Miranda,
Jihadi wants death so as to go to his 72 virgins,
so lock heem up and force heem to listen to TelepromterPresnits speeches all day!

ConcealedKerry on April 22, 2013 at 6:47 PM

Calfed, you beat me to it by a second. :)

melle1228 on April 22, 2013 at 6:42 PM

I must have hit the “submit” button a split second before you did…:)

CalFed on April 22, 2013 at 6:50 PM

…you have to also prove that his intent was to terrorize the population

You mean he might have used remotely detonated bombs — designed to kill and injure hundreds of people — to blow up eight and six year old children, and their parents, and a hundred people around them who were just standing around watching a marathon, only for fun?

He didn’t really mean to terrorize an entire city, honest. Even though he still had at least one more bomb just like the two he used and some other smaller ones. All the resulting terror and widespread fear was an unintended consequence. He didn’t really mean to scare and terrorize people.

This makes legal sense and is logical?

And so, he is not qualified for the death penalty?

That’s absurd and insane. If so our legal system is broken, unequipped to deal with terrorism, and incapable of dealing with it.

Is it really necessary for him to yell Allahu Akbar before witnesses when detonating the bomb, or to explicitly state his reasons?

When all other “reasonable” (using the term loosely) motivations are eliminated, what is left is the same one others like him who did the same thing had — Jihad against America, of militant Islamist variety.

farsighted on April 22, 2013 at 6:54 PM

Can’t keel him cause Poolice acted stoopidly and botched Miranda,

Whether they acted stupidly or not is a subject for debate. But you can be sure that the issues were thrashed out before hand and the decision not to Mirandize the subject was made with calculation and in consultation with DOJ attorneys. This was not a case of an Agent making a haphazard decision at the street level.

CalFed on April 22, 2013 at 6:54 PM

If only Dershowitz were AG, instead of the racist thug Holder.

petefrt on April 22, 2013 at 6:56 PM

If he can’t be interrogated by the military then a civil trial is a big waste of time and money, incapable of revealing any worthwhile information about his training and support channels. It’s a dead end trail. We don’t learn any secrets by lawyers asking questions in court. We gain info by pressing hard and pressing relentlessly at the hands of experienced interrogators. Just ask OBL.

If we’re just going to put these enemy combatant assassins on trial, next time double-tap the scumbags instead of taking them alive.

Saves money and the lives of their pursuers.

fogw on April 22, 2013 at 6:57 PM

Dzhokhar Tsarnaev has been given his Miranda warning. It was read to him by the magistrate.

Well, thank God for that. The Republic has been saved from self destruction. And all it took were a few words.

farsighted on April 22, 2013 at 6:59 PM

…you have to also prove that his intent was to terrorize the population

Yes, but Juries are allowed to make reasonable inferences from the evidence before them. They could well look at the totality of the evidence and conclude that “intent to terrorize” is the only reasonable inference.

Further, whether or not any statements that Tsarnaev may have made are admissible in the Government’s case in chief, they can be used to impeach him if decides to testify. If the interrogation did yield any incriminating statements, that will make it difficult for Tsarnaev to take the stand and explain away his intent.

CalFed on April 22, 2013 at 7:02 PM

farsighted on April 22, 2013 at 6:54 PM

I agree. But I think Dershowitz’s point was that he knew these judges who would be deciding the case, and how they think, and as a practical matter, he knew it wasn’t unlikely that they’d seize on Miranda to rule against the death penalty for lack of intent.

I don’t think Dershowitz was agreeing with that outcome. Just warning that it might happen.

petefrt on April 22, 2013 at 7:04 PM

Dzhokhar Tsarnaev has been given his Miranda warning. It was read to him by the magistrate.

This would have occurred at his Initial Appearance, at which time he would likely be assigned counsel. If this was his first advice of rights, that makes it very unlikely that there will be any post Miranda incriminating statements.

That may make the whole Missouri v Siebert question moot.

CalFed on April 22, 2013 at 7:06 PM

Personally I think five or six decades of prison showers might be a worse punishment than death.

alchemist19 on April 22, 2013 at 6:07 PM

I understand the sentiment but I don’t think the citizens of this country should have to pay for keeping him that long

chemman on April 22, 2013 at 7:12 PM

Update: Tsarnaev Mirandized

OUR NATIONAL NIGHTMARE HAD ENDED!!!!1!!!!1!!!!!

Blake on April 22, 2013 at 7:16 PM

Well now that he has been Mirandized, lets get on with the trail (circus really, since we know they will just try to get him out of the country).

nobar on April 22, 2013 at 7:21 PM

From what I understand, a coercive atmosphere is fairly easy for defense attorneys to demonstrate – even when an interviewee isn’t under arrest or even being detained. (For example, a closed door with an officer between the interviewee and the door can be used to argue for coercive atmosphere.) A suspect that’s in a locked room with armed offices and that has already been under the physical control officers should have a difficult time demonstration a coercive atmosphere

blink on April 22, 2013 at 7:14 PM

Well, it’s not hard to prove if the police are intentionally misbehaving, but for the most part, interrogating officers are rather sensitive to 5th Amendment issues and don’t employ coercive measures because they realize the consequences. It makes their jobs harder by F’ing up. So, usually officers will provide a suspect multiple Miranda warnings and a comfortable environment. Therefore, practically speaking, coercion is usually pretty hard to deomnstrate.

Now if it’s the Seibert trick–intentionally witholding Miranda, getting incriminating statements, then providing Miranda and getting a formal confession–that’s another matter. Given that this is a high profile case, I doubt anything like that is going on or has happened.

Erich66 on April 22, 2013 at 7:40 PM

Well now that he has been Mirandized, lets get on with the trail (circus really, since we know they will just try to get him out of the country).

nobar on April 22, 2013 at 7:21 PM

Who is “They”

CalFed on April 22, 2013 at 8:06 PM

Calfed and Melle have Allah’s question answered.

I think Dershowitz is just wrong about the nature of intent required. Even if he isn’t, intent can easily be inferred from the nature of the attack.

Tsarnaev will be tried by a jury. Unless the prosecution is OJ trial incompetent (and with Holder’s DOJ, that is a real possibility), no jury in this country will fail to convict this bastard.

novaculus on April 22, 2013 at 8:11 PM

There is no requirement that an suspect be read his Miranda rights ever. Except for few poorly thought out exceptions, law enforcement must read a suspect his rights if they want to use what they learn through custodial interrogation. One doesn’t have to even be arrested. If a reasonable (very intelligent, educated and gutsy) person would not feel free to leave, then he is in custody. If he blurt out “I killed the bitch” while the cop asks for his address, the cops can use it because the cop isn’t interrogating him at the time. There is no reason to read Miranda rights unless you want to interrogate someone in your custody.

As an aside, only a moron doesn’t read someone their rights before interrogation if they have that person in custody. Most anyone who is going to assert his rights already knows his rights. Most won’t won’t assert them. Especially if the interrogator is talented and well versed in their particular psychology. The FBI is quite good talented in this regard.

mikemorcant on April 22, 2013 at 8:16 PM

By the way, Mukasey made the same point on Megyn Kelly’s show today that I have been making: There was no reason to Mirandize this SOB. His statements aren’t needed to get a conviction, even if they aren’t covered by the public safety exception. Actually, this is a perfect fact situation for the public safety exception to be expanded, if earlier case law is determined to be more limited.

And Tsarnaev wasn’t “Mirandized” by the magistrate. He was advised of his rights as every defendant is. Miranda advisements are by definition given by LEOs prior to custodial interrogation, in order that the suspects statements can be used in court.

Also as predicted, charges filed. Once the bastard was in custody, the feds only had 48-72 hours to charge him, release him, or designate him as an enemy combatant. Unless he was designated an enemy combatant, being advised of his rights in fairly short order was inevitable.

novaculus on April 22, 2013 at 8:19 PM

So BLOWING UP A COUPLE OF BOMBS IN A CROWD isn’t “terrorism”? Or did they make a demand for cash from the victims first? Or were they pissed because they weren’t allowed to run in the marathon?

GarandFan on April 22, 2013 at 8:30 PM

Dershowitz is a defense attorney, so he thinks like a defense attorney.

On this issue, he is 100% wrong. There are lots of specific intent crimes. People are convicted of specific intent crimes all the time without a confession. Intent can be inferred. In this case, it is pretty easy to infer an intent to terrorize.

FranklinBluth on April 22, 2013 at 8:37 PM

blink on April 22, 2013 at 8:20 PM

I don’t know what you’re relying on, but if you want to know how coercion is defined and proven, read Colorado v. Connelly or Oregon v. Elstad. Police overreaching is the very essence of coercion. That can be accomplished in many ways, but cops are usually careful not to go there. I’ve seen enough confessions to realize that.

As for the other, my point stands. If a suspect is taken in for questioning and without any prodding at all starts admitting guilt and volunteering information, the statements are admissible and Miranda doesn’t matter. How do I know? Because that’s exactly what Miranda says, pg. 478 (“volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today”). But that usually does not happen in criminal cases. So, to make sure a confession will be admissible, cops will go out of their way to provide Miranda warnings on multiple occasions in order to preclude a defendant from later claiming his rights were violated.

Erich66 on April 22, 2013 at 8:56 PM

So tell me… exactly how do you mirandize somebody laying in a hospital bed so doped up on morphine that they’re practically comatose?

Mahdi on April 22, 2013 at 9:18 PM

What’s the worry about mirandizing and rights?

First have a judicial proceeding under
TITLE 8–ALIENS AND NATIONALITY
CHAPTER 12–IMMIGRATION AND NATIONALITY

SUBCHAPTER III–NATIONALITY AND NATURALIZATION

Part III–Loss of Nationality

Now he is a foreign national and you can do what you want.


jpcpt03 on April 22, 2013 at 9:25 PM

blink on April 22, 2013 at 9:18 PM

What’s baffling here is you’re trying to start something out of basically nothing. AP asked a question up top about admissibility if they’re talking to the guy. This guy is in the hospital. Once it got to a point where he could communicate (and apparently it has), if he started talking to the police and proceeded to blurt out everything (“Tsnaraev, we’d like to talk to you if you don’t mind.” “I’m sorry, yes I did it, it was my brother’s idea, but we made these bombs…etc.”), that type of spontaneity is not covered by Miranda. That was my sole point, no other. Arresting a suspect and taking him into custody,(not merely questioning, but depriving him of his liberty, which I assumed would not be the case at the moment if this guy is still in the hospital), is another matter. Then, cops typically go out of their way to Mirandize.

Then you made a comment about the ease of demonstrating coercion. Coercion is an issue that need not, and often does not, involve Miranda. It generally depends on the actions of law enforcement, and typically they don’t give criminal defense attorneys much to work with because they understand the ramifications. I’ve only had one case where a confession was deemed suspect, and that’s because the cops brought in a childhood friend of the defendant, another cop, to question him. And even there, the error was found to be harmless. Point being, this doesn’t happen frequently in my experience.

If there’s some other point you’re trying to get across that has something to do with this particular case, feel free to make it.

Erich66 on April 22, 2013 at 9:46 PM

So tell me… exactly how do you mirandize somebody laying in a hospital bed so doped up on morphine that they’re practically comatose?

Mahdi on April 22, 2013 at 9:18 PM

Well…it’s a problem. The waiver of his rights to remain silent and to counsel has to be “knowing and intelligent”…questionable if he is heavily medicated.

But the media indicated that he had seen a Magistrate, which means that he has had his initial appearance (Federal Rules of Criminal Procedure require that a subject under arrest be taken before a Magistrate “without unnecessary delay” for an initial appearance). Typically at the Initial Appearance the Magistrate advises the defendant of the charges lodged against him and of his rights. The defendant is also usually assigned counsel (or given an opportunity to seek retained counsel if he is able).

If Tsarnaev has counsel there is virtually no chance that he will be making any incriminating statements to anyone at this point in the proceedings.

CalFed on April 22, 2013 at 10:34 PM

I wonder where Dershowicz thinks a jury can be found to let this POS off on some incomprehensible talking point?

More likely Dershowicz is simply trying to be relevant when he has nothing to say that has actual value.

Freddy on April 22, 2013 at 11:14 PM

If Tsarnaev has counsel there is virtually no chance that he will be making any incriminating statements to anyone at this point in the proceedings.

CalFed on April 22, 2013 at 10:34 PM

Actually, if you look at the last terrorist, Hasan, he was more than happy to put forth his desire to kill as many as possible in the name of his false idol.

Freddy on April 22, 2013 at 11:16 PM

Say what you will about Dershowitz being a lefty, he did author this:

http://www.alandershowitz.com/publications/docs/torturewarrants.html

guido911 on April 23, 2013 at 12:45 AM

Now that a terrorist has had his Miranda rights, liberals can breathe easy again! Another sunny day in Boston for the left.

And its Massachusetts, so no death penalty.

virgo on April 23, 2013 at 3:09 AM

THOUGHTS:

1) FBI F*-Ups: Having interviewed the older brother after being warned by Soviet counterparts, the FBI released them, failed to monitor him, and then – after the bombing – put his picture on TV, asking US to identify him when they already knew who he was….not reading him his rights…which I do not believe they need because Miranda Rights are for U.S. Citizens, not TERRORISTS’. He gave up his rights as an American when he placed a bomb at the feet of an 8yo little boy in the name of Allah!).

2) Again, Tsarnaev gave up his rights as an American when he betrayed his new nation by perpetrating this terrorist attack. The fact that the FBI did not read him his Miranda Rights is only a factor IF THE FEDERAL GOVT / OBAMA DOES NOT LABEL HIM AS A ‘TERRORIST’ BY CHARGING HIM AS AN ‘ENEMY COMBATANT’. Like the true Muslim / Islamic Extremist sympathizer he is, Obama took the action that will take the death penalty off the table by refusing to call Tsarnaev an ‘Enemy Combatant’

3) “In order to get the death penalty they have to prove a terrorist intention.” Let’s see…Chechen Muslims, one of which was kicked out of a Mosque for violent Anti-American rants, perpetrates 2 bombings at a public sporting event – an act that was called for by the top current Al Qaeda leader a few months ago, one planting a bomb at the feet of an 8yo little boy?! About the only people in this entire country who believes this was NOT a terrorist attack are Bill Ayers and Barack Obama!

easyt65 on April 23, 2013 at 9:34 AM

I’m claiming that since the suspect was denied his freedoms by being in custody that volunteered statements while in custody would be inadmissible in the absence of Miranda or other Fifth Amendment safeguards

-blink

Blink, this is not correct.

Custody and interrogation are required to trigger the need for Miranda. Spontaneous admissions made by the subject, not in response to questions, are admissible, even if he has not been Mirandized.

CalFed on April 23, 2013 at 1:20 PM

I guess I’m confused about how he will receive the death penalty in a state with NO death penalty.

With Colorado and Washington making up their own rules that fly in the face of federal law, I don’t see Massachusetts lighting this guy up.

You have to wonder what his extra credit project will be when he’s hired to the Harvard faculty in a few years.

NoPain on April 23, 2013 at 2:16 PM

Spontaneous admissions made by the subject, not in response to questions, are admissible, even if he has not been Mirandized.

CalFed on April 23, 2013 at 1:20 PM

OK, I understand this qualification. Thanks for clarifying.

blink on April 23, 2013 at 1:30 PM

Which is exactly what I was saying all along. Hence the word “volunteer.” Good grief. There are even cases where a suspect is in custody and no Miranda problem arises because he spontaneously volunteers the info. How many times do I have to say what the opinion itself, and countless subsequent cases, say?

I never stated that it was easy to demonstrate coercion. I said that it could be determined. Coercion could be determined based on, “the totality of the circumstances” including, the site of the interrogation, whether the investigation has focused on the subject, whether the objective indicia of arrest are present, and the length and form of questioning.

Right:

From what I understand, a coercive atmosphere is fairly easy for defense attorneys to demonstrate– even when an interviewee isn’t under arrest or even being detained. (For example, a closed door with an officer between the interviewee and the door can be used to argue for coercive atmosphere.) A suspect that’s in a locked room with armed offices and that has already been under the physical control officers should have a difficult time demonstration a coercive atmosphere

blink on April 22, 2013 at 7:14 PM

As for the rest, you make the ridiculous comment that I said certain factors don’t matter, when in fact I never said that at all. What I said, and now for the third damn time, is that in practice, the police typically go by the book to avoid any coercive atmosphere and, consequently, to prevent defense attorneys from having any a meritorious argument to fall back on. Therefore, again in my experience it is not common for a confession to be tossed out. Based on all the confessions I’ve seen, the police go out of their way to Mirandize, attempt to treat suspects well, and try not to employ tricks.

As for the particular case I was talking about, the suspect was under arrest, had been Mirandized at least half a dozen times, but the court did not like the fact that the police brought in a friend of the defendant to do the questioning. They thought that went over the line because a suspect is more likely to feel compelled to confess to someone with whom he has had a personal relationship. Make sense?

Now please, go pick a fight with someone else. Because this is really getting boring.

Erich66 on April 23, 2013 at 2:30 PM

I guess I’m confused about how he will receive the death penalty in a state with NO death penalty.

There is a Federal death penalty which was imposed on Timothy McVeigh. Tsarnaev is being tried in Federal court and could be liable for the death penalty, irrespective of Massachusetts law.

CalFed on April 23, 2013 at 2:36 PM