Understanding Miranda In The Context of The Marathon Terrorist Attack

I'm Not Referring To This Miranda.
I’m Not Referring To This Miranda.

I’ve told this story before. It’s appropriate I tell it again. I was a young lawyer during the days when the Warren Court was changing the law in a very substantial manner when it came to defendant rights. It started applying the guarantees in the Bill of Rights to the states using the mechanism of the 14th Amendment. No longer could the states violate a person’s Fourth or Fifth Amendment rights.

We were confronted with terms like “fruit of the poisonous tree” that forbid the government from using information at trial which was discovered after an illegal action by the government. The Supreme Court ventured into the area of admissions and confessions under the Fifth Amendment. Concerned that people did not know their rights before they gave statements to the police, it set out in the Miranda decision certain standards the state had to meet before it could use a person’s statements which contained admissions or confessions against her.

These became known as the Miranda warnings. You’ve all heard them. A person in custody must be told she has, the right to remain silent, anything she says can be used against her, and she has the right to a lawyer’s presence prior to being questioned.

Miranda came down in 1966. My story involving this criminal I’ll call Henri took place a few years after Miranda but during the time when the Warren court seemed hell-bent on finding more reasons to invalidate or improve police actions.

Henri wanted to hire me to represent him. Henri had had prior brushes with the law, at least that’s what he like to call his prior arrests. He told me that this time he’d been arrested inside a building with burglar tools. He was caught cold by a couple of Boston cops as he was jimmying open a safe-type container looking for money.  After listening to his sad tale, I told him I’d be glad to do what I could but I didn’t see much chance of beating the case. He’d have to plead guilty and I’d see what type deal I could work out for him but it probably would involve him doing some time.

He shook his head suggesting I didn’t understand. I asked him what’s wrong. He said I didn’t get it. I wasn’t asking the right question. After a bit back and forth he said, “you didn’t ask me if I’d been Mirandized.” I agreed. It had nothing to do with the case.

Miranda applies to out of court statements the state plans to use in court against the person. In Henri’s case the state didn’t need any admissions from him, it had him cold. He even hadn’t made any admissions.

He didn’t like my answer. He’d been told if he didn’t get his Miranda rights he couldn’t be prosecuted. He went off to get another lawyer who agreed that the failure to give a Miranda warning when one wasn’t necessary was a bar to a prosecution.

Now with respect to the captured terrorist, Dzhokhar “Joker”  Tsarnaev, Miranda raises its head and you may be confused when you hear people complaining he should be given his Miranda rights and provided an attorney. Remember my experience with Henri and you won’t get confused.

There is no need to give him his Miranda rights. The FBI now has enough evidence to convict him. If Joker clams up, it will not affect the FBI’s case in the slightest. In other words, nothing he says is needed to convict him. So the FBI should feel free to work him over until it gets every last bit of information out of him since it does not need to use it against him in court. Miranda only prevents the statements from being used in court. The Fifth Amendment’s prohibition is against forcing a person to incriminate himself, not to incriminate others.

You may hear talk of a “public safety” exception to Miranda. That’s really a side issue. The Supreme Court did say Miranda does not have to be given if the cops are looking for information that is necessary to protect the public safety. For example, if the cops get information Henri had planted a bomb in a building and arrested him, they would not have to wait while the bomb ticks away to question him and until a lawyer showed up.

Here the FBI is alleging there may be more bombs out there or other associates planning attacks or persons with bomb supplies who may threaten the public. It’ll say in that circumstance Miranda doesn’t apply and will try to use any statements Joker makes as additional evidence against him. If it succeeds all it will do is make a strong case stronger.

So while many will yell Joker is being treated unfairly it’s a tempest in a teapot. It makes those who pretend they are the last guardians of our civil liberties feel good. I find myself in the uncomfortable position as a person who values our civil liberties and rights as much as any other person, if not more so, agreeing with Senator Lindsey Graham and some other Republicans that Joker should be treated as an “enemy combatant.”

I’m convinced his brother Tamerlan was trained in bomb making and terrorism by radical Islamists in Russia with whom he became associated. Joker joined in with him to terrorize Americans and commit an attack against us. Joker who was educated in Cambridge, had American friends, and our values decided to join in a plot to attack and terrorize us on Patriot’s Day during our celebratory marathon.

We’ve used our drones to eradicate American citizens who were just preaching against us calling them “enemy combatants.” We’ve got to keep constant and strong in our approach to terrorism. Now’s not the time to show weakness. The  victims of the Marathon Terrorist Attack deserve this. Let’s not put them and their families through the torture of a federal court hearing in Boston. Ship Joker off to Guantanamo and give him a trial when the War on Terror ends.

13 thoughts on “Understanding Miranda In The Context of The Marathon Terrorist Attack

    1. Henry:
      Some call him Professor Torture. He advocates getting torture warrants to be used against Muslims. How does this work now. It’s all right to torture people but not to fail to give them their Miranda rights. Has there ever been anyone more wrong than Professor Torture who also said that even if Demanjuk was not Ivan the Terrible for which he was convicted and later acquitted he should be imprisoned forever. It’s good they created law professorship positions. That way real dangerous people are limited to tossing out words rather the setting off explosives.

  1. I agree with your understanding of Miranda the Feds do not need any statement he now makes to be used against him at trial. They have more than enough for a conviction.

    I respectfully disagree on sending him to our base in Cuba. If he is held for trial under the federal statute for terrorism he could get the death penalty.
    If sent to Guantanamo and held there for some time terrosists could kidnap US citizens and bargain for his release, not so if he was executed.
    How many terrosists sent to Guantanamo have been executed?

    1. Jim:
      I agree that the guy should get the death penalty even though he killed a lot less people than Stevie Flemmi or John Martorano. If I had confidence in the US Attorney’s office going for the death penalty and not bargaining it down to life it’d make sense. If they do the latter then we are in the same situation even though the guy will be at ADX Colorado which is as bad at Guantanamo. But that will come after months of a federal court circus with the Boston area around the courthouse shut down every time he is brought to the courthouse. Remember the plan to shut down lower Manhattan when they planned to try one of the terrorists in NY City. Terrorists want to be heroes. There are no heroes at Guantanamo. In the Boston courthouse the rafters will be filled with his misguided supporters.

      Guantanamo just seems much easier to me. It will be cleaner. Less chance the guy will become a hero to the radicals. The evidence against him can be used at Guantanamo without fear of compromising US security. A military court can sentence him to death. It’d be cleaner and swifter.

  2. Great posts on terrorism as well as WB. Your take on Miranda is correct. Miranda is completely irrelevant in this case. The questioning of suspect #2 will be for intelligence purposes only. They don’t need the defendants statements to convict in a criminal case. The Feds want to know who helped him domestically and what his brother told him about his overseas training. Mike Sullivan, former U. S. Attorney, said Joker should be stripped of his citizenship. He obtained it under false pretense seven months ago. Then he could be given a military trial at Gitmo. 2. The steps taken in this investigation are starting to look suspect. Law enforcement has the photos of the perpetrators on Monday night or Tuesday. One had not only an FBI file in 2010 but a Cambridge Police arrest. Yet they ask the public for help at a news conference the next day. Didn’t they disseminate his photo to the Police and FBI and ask if anyone could I.D. him? Were the Feds trying to hide their contacts with this guy. Was the entire press conference with the photos a sham? Or was it psych ops against the bombers? 3 Once Joker comes out of his coma the Feds first question to him is what does he know about Whitey, Connolly and Cahill. Then what info can he give them on the probation officials.

    1. Neal:
      You make some good points.
      2. There’s a high chance the FBI was trying to hide its involvement with this guy. Did you ever consider he might be a member of their Top Echelon informant program. Someone should ask if he was cooperating with the FBI. Was he an informant? It’d be nice to know at least that but if the FBI denied it then it has such a veracity problem no one would believe the denial. It has to open up its doors.
      3. I heard the FBI plans to ask the Joker if he was willing to testify against Whitey. If he agrees then he gets a deal that Flemmi got. The property that Flemmi forfeited will be given to him; and he’ll get life in prison at some resort island until the heat blows down then he’ll be put out on work release.

    1. Henry:
      That’s going to be issue is how much does the Patriot Act triumph the Bill of Rights. That’s why the first steps taken in this case have to be considered carefully. If he’s brought into federal court, then the Bill of Rights will come into play. If he’s shipped to Guantanamo then we’ll be dealing with the Patriot Act. There’s time to get it right so I hope nothing is rushed despite some clamor that might happen in the press.

    2. Mr. Barth, Mtc9393, etc…

      International conspiracy? Hmm perhaps if the stock market was affected last week???- oh, gosh it was. One report cites with respect to last week, “in the last four days more than 1 trillion was erased from the global stock market.” Another writes, “Buffett lost almost 1 Billion in a week; IBM fourth worst performing company on the S&P last week down more than 10%.” Last week’s events had what I call “market positioning” or “market set-up.” When a company is “low” that’s the time to buy. Whereas Buffett had been buying up IBM on a high for a time, now he can buy more of it on a staggering low – it will be interesting to see if he does. This would have the net effect of making up for his/offsetting his initial investment at the high level. In reading up on the market, I also noticed this – see if you think this is odd…

      Buffett began buying up IBM in March/April of 2011 with the SEC’s blessing to do so secretly using “encryption or code” he called it “HAL” This was reported on “CNBC Squawk Box”. Folks should also note with interest, that in the Squawk box report Buffett said he “testified FOR IBM in 1980 when the government was attacking about on on anti-trust matter.”

      Guess What?! That anti-trust matter also involved another corporation – the case was “Telex vs. IBM.” In fact, IBM and Telex were in a NASTY anti trust dispute also involving allegations about the misuse of trade secrets. Watson, the head of IBM said the head of Telex owed him big, big, big money as a result of all this. The issue boils down to money – A couple hundred million which was apparently a lot more back then than what it is today. Wait – it gets better.

      Watson – although still on the board of IBM had been appointed the Ambassador to the Soviet Union by Carter after having done a stint in another capacity under Nixon/Ford (he was advising on nuclear policy Wait – it still gets better.

      The head of Telex at the time Mr. Buffett was “weighing in” on behalf of Watson’s company was none other than Mr. Roger Wheeler = ya, that Wheeler = the one Mr. Bulger is accused of sending his thugs out to “hit.”

      Here is the problem – IBM and Telex also worked on “advanced listening devices.” Moreover, the feds dropped the anti-trust suit soon after Warren’s weigh-in and then gave unprecedented ability for IBM to introduce and engage in for the first time the concept of “Global Financial Swaps” which involved the LIBOR… and a year later Wheeler was dead. (Ya. That LIBOR. You know the LIBOR fraud cases which in turn involve big banks that are under investigation for fraud – banks that Buffett owns.) Making matters worse was that on or around March/April 2011 the other major IBM stock holder was State Street Global Advisors. Ya. That State Street….the one that is currently dealing with multiple fraud cases filed against it with one involving Ireland’s debt agency and tanking Ireland’s economy and another one making its way through the halls of the Moakley now.

      Unfortunately the CNBC reports indicate that Mr. Buffett has “immunity.” This is “seconded” by Andrew Ross Sorkin in the NYT as he states, “Mr. Buffett received special permission from the SEC to keep secret his investment.”

      Now the sticky wicket – Buffett clearly has “unwritten immunity” sanctioned by the DOJ/SEC. So, if Buffett has “unwritten immunity” doesn’t it stand to reason that Mr. Bulger could also argue that he too had been given “unwritten immunity.” After all, it appears they may be linked or within one degree of eachother – at least to the Wheeler murder.

      Hmmm which begs the question – didn’t Mr. Connolly try to “tip off” Judge Wolf about “illegal wiring” – do you think he was trying to “carefully” refer to “that” more than the planting of some bug in a local mobster’s den or did it deal with other subsequent “stealth optics” going on around the 1990’s? Wouldn’t “wiring like that” back then have been “Pre-Patriot Act” and thus “illegal?” Was Mr. Connolly really just a Whistleblower? Was Mr. Connolly “set-up” as the fall guy to protect Mr. Buffett? But if the DOJ does what Buffett tells them to, then…the country’s Constitutional structure does not exist. The DofI and the Constitution are nothing more than mere pieces of paper – like the Magna Carta – housed in a museum. If the DOJ and FBI kowtow to Mr. Buffett than it would appear he is a Czar…or Ceasar…oh wait, I forgot, wasn’t it right around March/April 2011, that Obama gave the highest honors to “Bush-Buffett-Merkel” at the same time? As such are the new “triumvirate”? Did we all miss the “subtle announcement”?

      Speaking of March/April 2011, does anyone else think the “secret IBM purchases” connecting back to the days of Wheeler seem problematic? What was the timing after that “purchase” that Mr. Bulger’s “deal” was “reneged” and he was “recalled?” Does the timing of all that (with the FBI having to “finesse” things) now seem suspect?

      Hopefully C&B got all of the Telex/IBM anti-trust documents leading up to Wheeler’s murder from the DOJ or they might have to subpoena Mr. Buffett for his testimony or depose him on what he knew and when he knew it with respect to Telex/Wheeler…and imagine, the Victims Families would be psyched because now because they have a deep pocket to focus on. Their lawyers would have to hurry up and attach/put a lien on “Berkshire Hathaway” and request depositions too. And, if the claims that losing 1 Billion in 1 week doesn’t even make Buffett blink, then I bet he can furnish the victims families claims and make their prior judicial “hollow victory” not so hollow after all…How quickly do you think civil cases would get filed? Amazing – didn’t Shaheen and Gordon represent someone before on related to another really big “Civil Action” in the past? How funny they are in position to possibly do so again. Plus if the DOJ didn’t give these documents to C&B wouldn’t that be the prosecution not providing possible exculpatory evidence? Did they leave these documents out in the hundreds of thousands/reams of documents they overwhelmed C&B with? Would it then be a “glaring omission” If the DOJ/SEC allowed Buffett to secretly play the market before, what lengths would they go to make sure that his “investment strategy” was protected if they learned that Buffett might have been within “one degree” of a case involving Bulger?

      So,that was all just food for thought – but does something like that qualify for taking on the essence of an “international conspiracy?”

      1. Alex:
        As Doctor Watson would say “very interesting.” The great Mr. Buffet has a secret deal with the government that allows him to make money in secret. Hecan violate the laws meant for other people like the top echelon guys. The much revered Mr. Buffet to whom every head on Wall Street bows when he passes is given a leg up over other people; or is he. How many others have made secret deals with the SEC and DOJ. How will we ever know if they are not in writing. Didn’t that guy Madoff have some secret deals for years that he’d get a pass on any inspections. Ah how our Government loves it secret deals like the Top Echelon program.
        Tell me, what did the government receive in exchange for its secret deal with Buffet? Don’t both sides have to benefit. I don’t see how C&B can make anything out of this other than showing there are secret deals all the time. In that sense you are right to call this to their attention so that they can inquire of that guy in the whose been with the DOJ who filed the affidavit (name escapes me now and it is too late to look it up) what he knew of the deal. Or, at a minimum must bring in Buffet, (bow your head), to testify about his secret deal that went on for years and years.
        As for Connolly, you have to remember he was just a working stiff. He was talking about illegal wires by other working stiffs. Buffet’s at another level. Working stiffs are there to take the blame when things go wrong; them in the heights get passes.
        As far as IBM is concerned, if Buffet started buying it in secret in March – April 2011 he was getting in at the 155 level. By he end of 2011 it was up to about 185. So he’s made $30 a share times how many million shares he had. Throughout 2012 it sold mainly in the 190s but sometimes popping up to 210 but whenever it did it came down quickly. Buffet wasn’t making any money. He decided to act in 2013. In late February and through March he maneuvered so that the stock jumped up suddenly above 210 reaching as high as 215. The news started to spread that Warren had big holdings in IBM. The Wall Street suckers (almost everyone except a handful of guys are the suckers) jumped in gobbling as much of IBM as they could. Warren was unloading as fast as he could, the SEC kept that secret as part of their deal. Warren knew the stock would take a big hit and come back to around 190 where he had been getting in. He was mostly out at 212 to 215 on his original 190 or less purchases. A cool $20 to $25 a share times hundreds of millions stocks he owned. He can now sneak in. Those who write he lost billions of dollars don’t know of his deals with the SEC/DOJ that he can get in and out using fake accounts. Not only did he not lose billions but he made tens of billions. And he is well place to make tens of billions more after the suckers get up off the floor, see that Warren is still in IBM not knowing he’s been out and back in, and they push their good money into Warren’s pockets.
        Did you ever see the face value of an IBM stock certificate. It is worth less than a penny. But as long as there are suckers out there willing to pay $215 for it, Warren will remain happy. After all, isn’t that what we want in America, a happy Warren Buffet and a stock market that goes along oblivious to the terrorist attacks on the streets of our cities.

        1. WOW!!! I LOVE this blog. You are totally on top of the game – right down to the numbers – the ever shifting numbers.
          Thank you for your straight talk and straight up insight and great gut- insight. You are like a “Gibbs” – the “Gibbs of the Justice system” …well, except you utter/write with a few more characters/words in a conversation than he uses and you also have a sense of humor. By the way, that’s a rare gift in a lawyer – usually being an attorney and having a sense of humor are two things that don’t often go together. No wonder you were successful for so many years!

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