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.