Dzhokhar STILL has the right to remain silent.

[Atman]

He STILL can ask for a lawyer. This argument -- settled by the SCOTUS in 1984 -- is about whether or not the police must read the famous Miranda paragraph. They can't force him to talk. They're not going to waterboard him. No information he gives will be permissible in court. The law "safety exception" still requires he be properly Mirandized once (and if) they question him with the intent of using the information in court. Further, it generally requires (perhaps specifically, I'm not certain) that he must be read his right within a reasonable time, usually 48 hours.

I suppose it is possible that a 19 year old kid has never heard the "You have a right to remain silent..." line. Doubtful, but possible. But he STILL has the right. What so many panties appear to be in a bunch over is whether he is formally read those rights. After all, you don't lose your free speech rights just because law enforcement doesn't formally read you the First Amendment.

In the end, he can still sit quietly and at some point, his rights will have to read to him if investigators expect he has anything of value to say outside of immediate public safety ("Are there any unexploded bombs out there, and if so, where?") He can ask for a lawyer any time he wants. Reading a paragraph of text does not change that.

[Xipe Totec]

1. With half his tongue blown off, keeping silent is not a problem at the moment. nt

[Atman]

3. A separate issue entirely.

I'm referring to all the outrage on DU that someone is taking away the rights of the accused. That's simply not the case.

[Xipe Totec]

10. Public defenders will represent bomb suspect Dzhokhar Tsarnaev

BOSTON (AP) -

Federal public defenders have agreed to represent the suspect in the Boston Marathon bombings.

Miriam Conrad, the federal defender for Massachusetts, says her office expects to represent Dzhokhar Tsarnaev after he is charged.

http://www.turnto23.com/news/local-news/public-defenders-will-represent-bomb-suspect-dzhokhar-tsarnaev

Miranda warning begins:

You are under arrest. You have the right to remain silent.

Dzhokhar is not under arrest. Yet.

[rustydog]

37. He is under police custody in a hospital, he is not free to sign out AMA

He is under arrest. He isn't charged with a crime yet. big difference.

[alcibiades_mystery]

16. Now half his tongue is blown off?

Oy vey...

[Xipe Totec]

19. The shot to the neck took part of his tongue with it

From the article:

But a source close to the investigation, speaking on condition of anonymity, said officials hoped to file charges against Tsarnaev later on Saturday.

The source said the 19-year-old was shot in the throat and had tongue damage.

Massachusetts Governor Deval Patrick said Tsarnaev's condition was serious. "He's not yet able to speak," Patrick told reporters on Saturday.

http://news.yahoo.com/u-public-defender-boston-seeks-represent-bomb-suspect-182116594.html

[rustydog]

38. And we're told he cursed profusely in the ambulance

which "stories' are truth and what are just thrown out there?

[Xipe Totec]

41. Indeed. Link? nt

[Jamastiene]

42. Here:

http://www.latimes.com/news/nationworld/nation/la-na-boston-bombings-20130421,0,2725026,full.story

It is in the second paragraph in the article:

"The neck wound apparently did not initially silence Dzhokhar Tsarnaev, 19, who was swearing profusely in the ambulance ride after his final confrontation with the FBI, according to a source familiar with the case. The Justice Department remained quiet Saturday on whether officials had been able to question Tsarnaev, or whether they would attempt to do so before he consults an attorney."

[Xipe Totec]

43. Thank you for the link

Me gusta el nombre que escogiste, Jamás Tiene .

[FarPoint]

21. This is the first I heard of a tongue injury.

I understand he may be intubated for airway management but no idea about loss of his tongue. Any idea how that occurred?

[NutmegYankee]

29. My guess is a bullet did it.

[OKNancy]

2. +1 good post.

[darkangel218]

4. He better not remain silent.

I hope he gets better and tells the investigators who else is behind this terrorist act. If any.

[Orsino]

24. They have the suspect. They have other leads.

They have probably learned quite a bit about where he lived, who he interacted with, and whether any political motives drove him.

If he talks--and I hope he does--they'll learn more. The FBI is already claiming to have linked him to some sort of terrorist cell. I don't think he'll have to tell them much at all for them to make a case against him.

I just think the most important thing of all is that we learn of his motives, and of any illness that might have contributed.

[Logical]

5. True, but of course the police/FBI can flat out lie to him and tell him horrible stories...

to force him to talk. Happens all the time. Threaten to arrest his friends, family, etc.

This POS does not really worry me. It is the next guy who is not guilty that does.

[Atman]

8. Sadly, the court has ruled that is legal anyway.

Regardless of whether he had been Mirandized. But what good would it do the FBI to lie if it can't be used to prosecute? Remember, their questioning outside of Miranda is limited to immediate public safety concerns.

[morningfog]

12. Regardless, anything he says won't be admissible at trial if he is not Mirandized.

[Logical]

15. Not true. Anything he says during the 48 hours can be used against him. n-t

[Walk away]

23. The government already has more than enough evidence to convict him in court.

They are only interested in getting information about the people involved in helping him with his crimes and any other plans to hurt innocent people. I have no problem with that.

[Logical]

25. Then why not read his his rights? n-t

[JimDandy]

31. Because the FBI might get a freebie?

Last edited Sun Apr 21, 2013, 01:15 PM - Edit history (1)

For Taranaev, info is all he has left to bargain with, as in, "I'll tell you everything if you take the death sentence off the table." For him to use that bargaining chip, I think he has to have been arrested, read his rights, and gotten an attorney who will see that the chip is put into a written agreement signed by the Feds.

Was he actually arrested or just taken into custody (as a material witness, or for medical treatment)? Was he charged with a crime that's severe enough for him to be eligible for a public defender? Can they deny him access to an attorney, if he hasn't been arrested?

Ok, legal eagles, take pity on us and jump in.

[treestar]

28. How can they threaten to arrest anyone else

without charges to arrest them for.

As to the lying, one not telling the truth themselves is not prejudiced being caught that way.

And you are right, this POS will not care if they threaten to arrest his family - he ran over his own brother.

[Yo_Mama]

6. That's correct

The function of the Miranda warning is just to inform him of his rights, and not giving the warning doesn't change his rights.

I see the public defender's office in Boston is prepared to represent him. Right now it is all immaterial, of course. He can't talk and he's in no condition to communicate.

[JimDandy]

32. He can listen!

To be eligible for the free Federal public defender, though, he has to have been arrested. As soon as that happened, his attorney's should have been in his hospital room advising him about everything.

Interestingly, the reports are saying that he was intubated (can't talk) and sedated (can't listen or write/type). Can the Feds argue for expansion of the 48 hr window, if a suspect is unconsious? To use that 'public safety' clock shouldn't the clock have start running from the time his body was in their custody at the boat, and continuously run uninterrupted for the entire 48 hrs?

[Yo_Mama]

33. Mirandizing someone in this condition would be invalid

When he can interact, they can give him the warning. I mean, if they gave him the warning now and then questioned him later without giving him the warning again, his attorneys could argue that it was invalid and I believe any court would agree. The warning has to be understandable to the defendant. For example, if the defendant does not speak English, giving the warning in English is invalid. If the defendant is deaf, giving the warning is invalid unless it is given in writing and there is affirmation of understanding, or in sign language with a similar affirmation. You can't give an unconscious/semi-conscious person a Miranda warning and then question them later. Any lawyer is going to get that thrown out.

The 48 hour window is a general period, and under the circs I am not sure it applies. But he is going to be officially charged, and after that I presume he will have a lawyer and the lawyer will ask to be present, so this is all academic almost certainly.

And truthfully, I think a good lawyer would make a deal with the authorities that if Tsarnaev answered questions about the locations of any possible remaining explosives/munitions the evidence would not be used against him. That's not uncommon, and it could be used to show remorse.

The public safety exception to the Miranda sanctions is not likely to really come into play given Tsarnaev's condition as reported.

I saw a report that the federal public defender office is going to represent him.

[dems_rightnow]

7. You're wrong on the "not admissable in court" part.

There's no requirement that someone be Mirandized. Ever. But, they must be Mirandized if you intend to use their statements in court. Succinctly:

Not Miranized = Not admissable.

Now we learn there is an exception, at least I did. That exception changes the equation to:

Not Mirandized = Still admissable

At least on a temporary basis. Indeed, even Miranda was convicted.... without using his confession.

[morningfog]

14. That is not correct.

Without being Mirandized, no statements that are a product of an interrogation are admissible.

The exception permits interrogation, but does not make the statements admissible. This is more for intel gathering than for trial use.

[dems_rightnow]

18. I invite you to read up on it

http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest

All Miranda does is allow his statements to be used against him. If there's an exception.... there's only one answer.

[Atman]

17. That is just incorrect.

They are hoping that by not reminding him that he doesn't have to talk to him without an attorney that he'll tell them where other bombs might be, or if others are involved, so that he doesn't clam up, and they can act on the immediate public safety issue. However, the information is NOT admissible in court without him formally having been read his rights.

[SidDithers]

40. Correct...

And his point is missed by many DUers.

The decision in the Quarles case was that evidence obtained before Miranda was improperly thrown out, and should have been admissible.

Sid

[boston bean]

9. The public safety exception

was used, imho, moreso to quiet idiots like mccain and graham screaming for him to declared an enemy combatant.

In other words, Obama telling them, we don't need to do that, we already have tools at our disposal to handle this.

[MOTRDemocrat]

11. Correct. nt

[onenote]

13. One clarification

Information that he gives without being Mirandized generally cannot be used against him EXCEPT if it comes within the public safety exception.

One way to think about Miranda is as follows:

Whether one is given a Miranda warning doesn't impact whether or not one has the right to remain silent. It doesn't create that right, it merely informs of its existence. What Mirandizing does, generally, is allow law enforcement to use information that a person in custody gives to the police in a court of law. As indicated, there is a 29 year old exception under which responses to law enforcement interrogation given by someone who is in custody and hasn't been read their Miranda rights can be used against them if the questions pertained to a concern for public safety.

Even Justice Marshall, who strongly dissented in the case creating the public safety exception did not dispute that law enforcement can, will, and sometimes should question those in their custody without informing them of their right to remain silent in order to protect public safety. Marshall's objection was not to the questioning, it was to the use of the information against the person giving it. I don't think the reason that law enforcement wants to question this guy is so much related to gaining evidence to be used against him as it is related to getting information that might expose and/or stop other actions that threaten public safety.

[Atman]

20. Good discussion now on Melissa Harris-Perry

MSNBC

[dems_rightnow]

22. Let us know if they agree with you.

[bobclark86]

26. I'm waiting...

for the waterboarding. Sure, he can remain silent... but only if he doesn't want to drowned.

[treestar]

27. And it would only mean the government could not use those

responses in evidence, if the court finds he was not properly Mirandized. The government appears to be consciously choosing this - they know they may have to fight in court to get any answers he gives into evidence.

And you are right, even if there are bombs out there, he does not have to tell them.

And it is getting more and more unlikely by the day that there are any bombs out there still undetonated planted by he or his brother.

[sofa king]

30. Let's think this through for a second.

The FBI claims to have footage of the guys placing the bombs. They were perfectly described by one of the victims. They used more of the same amateur bombs in subsequent car chases and shootouts. The remaining kid was caught outdoors, hiding, and suffering from a gunshot wound after a city-wide lockdown.

That kid is up the river forever on the evidence we already know about. He's up the river forever without a confession, without any statement at all, without interrogation, without being Mirandized at all (the Miranda warning applies mainly to interrogation). He's potentially facing a death penalty without prosecutors needing a single word on his part.

So, what does he know that we might care about? He might know about his brother's activities in Russia. He might know about the clerics who radicalized him and his older brother. He might have some insight into the structure and operation of international terrorist cells. He might know of other operations in the U.S. (I seriously doubt that one, by the way--it still looks to me like these guys made up this stupid plan all on their own.)

None of which will aid in his prosecution in any way. But I'm sure the intelligence agencies want to know.

One possibility that exists as long as the kid is not Mirandized is that he could cut a deal where he tells what he knows before he's warned, say in return for feds dropping the death penalty. Those statements might contain actionable intelligence, but they would not be able to be used against the kid himself in court.

The cloak-and-daggers get what they want, the prosecutors do not overtly jeopardize their case, and the defense attorney might bite at it simply because it's the best deal he's gonna get and it also potentially gives him a chance to later pursue some sort of a greymail defense in appeals.

I think that's what's going on. The spooks and prosecutors are trying to make it easy for the kid to talk, and it looks to me like the kid's life is on the line over the decision.

[Yo_Mama]

34. I think that's very close to the truth

The only bargaining chip the younger Tsarnaev really has is info that they want. They've got an ironclad case for DP without anything more - the admission to the carjack victim kind of is the last nail in his coffin.

But really this makes it more important, not less, for him to get good counsel, and getting counsel probably will help the deal along and get the Feds better info sooner.

He's never getting out of prison regardless. Executing a 19 year-old offender is not that attractive a prospect, and I think the Feds would be apt to make that deal.

[Walk away]

35. It's also a nice little treat to throw at the Nut Bag Pukes in the Senate.

Ayotte, Graham and McCain are flapping their flippers like the trained seals they are. This makes a nice little sardine to shut them up for a few minutes.

[Hugabear]

36. Why even bother reading Miranda rights to anybody?

If it's ok not to read them in this case, then why should they be read to anyone?

[nadinbrzezinski]

44. You do know the origin of it right?

http://www.mirandawarning.org/historyofmirandawarning.html

The OP is correct...and I would preser an expansion in when it's read, a good reminder of rights...but the kid has lost zero rights

[Canuckistanian]

39. True. Reading Miranda doesn't GRANT any rights

It merely reminds the arrested suspect of their rights.

He can clam up and demand a lawyer as if he had been informed.

This should have no bearing on the trial UNLESS the authorities go beyond their NARROW scope of questioning.