Report: Dzhokhar Tsarnaev's repeated requests for a lawyer were ignored

[TalkingDog]

http://www.guardian.co.uk/commentisfree/2013/apr/29/tsarnaev-right-to-counsel-denied

But that controversy was merely about whether he would be advised of his Miranda rights. Now, the Los Angeles Times, almost in passing, reports something which, if true, would be a much more serious violation of core rights than delaying Miranda warnings - namely, that prior to the magistrate's visit to his hospital room, Tsarnaev had repeatedly asked for a lawyer, but the FBI simply ignored those requests, instead allowing the interagency High Value Detainee Interrogation Group to continue to interrogate him alone:


"Tsarnaev has not answered any questions since he was given a lawyer and told he has the right to remain silent by Magistrate Judge Marianne B. Bowler on Monday, officials said.

"Until that point, Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule."

Delaying Miranda warnings under the "public safety exception" - including under the Obama DOJ's radically expanded version of it - is one thing. But denying him the right to a lawyer after he repeatedly requests one is another thing entirely: as fundamental a violation of crucial guaranteed rights as can be imagined. As the lawyer bmaz comprehensively details in this excellent post, it is virtually unheard of for the "public safety" exception to be used to deny someone their right to a lawyer as opposed to delaying a Miranda warning (the only cases where this has been accepted were when "the intrusion into the constitutional right to counsel ... was so fleeting – in both it was no more than a question or two about a weapon on the premises of a search while the search warrant was actively being executed&quot . To ignore the repeated requests of someone in police custody for a lawyer, for hours and hours, is just inexcusable and legally baseless.

[Ikonoklast]

1. Contrary to popular belief, this is nothing new.

Just because you request a lawyer does not mean the police will stop questioning you, nor does it mean they will make one immediately appear because you asked.

[malaise]

2. Then what exactly does due process of law mean? n/t

[Ikonoklast]

3. Even after they Mirandize you, they will still try to get you to talk.

It is up to you to keep quiet.

[Ms. Toad]

4. No. Not really.

"We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused [has] himself initiate[d] further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 489.

[Ikonoklast]

5. Didn't say it would be admissable, or even legal.

The police will still do it, though.

All the time.

[Ms. Toad]

7. Have fun playing word games. n/t

[sabrina 1]

11. Doesn't matter what the police do, once someone asks for a lawyer, nothing the police do after

that matters. You implied that asking for a lawyer means nothing.

I see you have backtracked and are now saying 'I didn't say it would be admissable'. You implied it would be by omitting a clarification.

[Ikonoklast]

16. Read Post #3. I meant exactly what I said.

You read into it what you wanted to.


Have you ever been the subject of a police interrogation?

I have.

You actually think it's like it goes on the TV.

[sabrina 1]

19. No I have not. And I am not doubting you that the police do not respect the law.

But many cases have been lost because of violations of the rights of the accused. In small cases if the person decides not to fight, then of course they get away with it. There are literally thousands of examples, mostly in poor and minority areas, of these abuses. The point is, they ARE abuses. And it's a shame they can do as they please without proper supervision and enforcement of the laws.

[Vinnie From Indy]

32. Not really

While there are exceptions, the vast majority of cops will quit asking questions if perp asks for a lawyer. Also, anyone "asking" for a lawyer probably knows that they should quit talking.

[gvstn]

9. I agree with you. Technically.

Except he had lost lots of blood. And, I believe I heard on CNN or such that he was being brought in and out of sedation at the request of Authorities in order to question him--I don't remember the term they used for this procedure. In a normal situation he could have decided not to talk but being sedated and suddenly not sedated( while in pain), then his responses are questionable because he couldn't have decided not to talk and stuck with that decision for several hours. If this condition went on for hours then his statements are not really admissible in a court of law because he couldn't remember those last several hours.

I believe this whole sedation, non-sedation situation is going to play out as a major factor. A suspect in pain may say anything to get pain medication. The imminent danger clause may excuse a bit of time but this can't go on forever. If doctor(s) say the patient isn't really "aware" then anything said is questionable.

Your right to remain silent can't depend on whether or not you are getting pain relief.

All the interrogation took place after massive blood loss and (apparently) a severe wound to the neck. The patient was deprived sedation for interrogation. Pretty bad protocol. Hence the Miranda rights being read by a Federal Judge.

I'm not sure if there is a real problem or it the media is playing this up. I wish the FBI would give an official statement on the events fo the first few days after his capture.

[Myrina]

22. An alternative to waterboarding ... ?

"Propophylling" ?

Gawd, if that's what 'interrogation' has come to, we are truly a sorry excuse for human beings.

And if that is indeed what happened, there can be almost no way anything he said can be admissable, given his sedated (or semi-sedated) state, and the alternate of 'being questioned while in (presumably severe) pain'.


Fuuuuuuhhh, America. We're supposed to be better than this ...

[gvstn]

33. I found the term

"Sedation Holiday". Haha, some spin-meister earned their money on that one.

They were just giving a little "holiday" from his pain relief so they could interrogate him.

http://www.cnn.com/2013/04/22/health/boston-sedation-explainer

[DevonRex]

34. Now you dreamed up torture in the Boston hospital.

[Savannahmann]

6. And a little more of our Civil Rights go down the drain

But most of us won't care, because Tsarnaev was a terrorist who bombed innocent men, women, and children. As for me, I think this is a very dark event in our history. The violations of even the most basic civil rights were outrageous, not just for Tsarnaev, but for the innocent people of Watertown who answered their doors to find machine guns in their faces with shouting military equipped police demanding compliance.

But we buy it hook, line, sinker, pole, boat, and dock. Because we want to believe that they are protecting us.

[DevonRex]

10. "but that request was ignored since he was being questioned under the public safety exemption".

http://www.latimes.com/news/nationworld/nation/la-na-boston-bombing-20130426,0,5051005.story

As usual Greenwald got it wrong or chose to present it wrong.

[sabrina 1]

12. What did he 'get wrong'? Did you even read the article? Greenwald is referencing the LA Times

claim that the suspect asked for a lawyer. His entire article is based on the claim made by the LA Times. He also states he would like to have more than one source for this, stating however that the LA Times seems satisfied with the credibility of the source.

Greenwald got nothing wrong, unless quoting the LA Times, which is what he does, is 'wrong'.

He noticed the reference, as he said made 'offhand' to the claim that the suspect asked for a lawyer and, again NOT according to Greenwald, but to the LA Times, he was ignored.

The only statements that are Greenwald's own and not references to the LA Times are his stated legal opinion that it is just as bad if not worse to ignore a suspect's request for a lawyer and continue to try to get him to talk, than to use the public safety exemption. Are you saying he is wrong about that? That it's okay to ignore that basic right in any, even half-assed democracy?

I hope not, I hope we haven't come to the point where we now don't believe someone has a right to an attorney when accused of a crime in this country. If so, the terrorists can quit, they won, the got our 'freedoms'.

Greenwald is one of the best legal analysts on Civil Rights law we have and is recognized as such by even those who disagree with his politics.

[geek tragedy]

14. Greenwald is incorrect in describing the denial of counsel as substantially different than

failure to advise him of his right to an attorney.

The remedy is exactly the same--excluding the statements given before he was given access to an attorney/advised of his right to an attorney.

[sabrina 1]

36. Greenwald is correct to point out that once a suspect asks for an attorney, the questioning

should stop. That was the only point he was making. He noted the reference to the fact that he HAD asked for an attorney in the LA Times. He did not know, nor was it widely reported, that the suspect had asked for an attorney. He also said, and I agree, that since his source was the LA Times he would like to have additional sources. But his point was, and this was his MAIN point, that once someone asks for an attorney, that should end the questioning.

I am sorry but you are incorrect when you say this: 'he was incorrect in describing the denial of counsel as substantially different than failure to advise him of his right to an attorney'.

It seems you misunderstood him completely. He was not referring to normal circumstances, if he were THEN he would be incorrect.

He was referring to the special circumstances of delaying the right to an attorney under the 'public safety exception'.

Many people feel that the 'public safety exception is a violation of rights. What Greenwald meant was that reasonable people might feel this to be necessary on rare occasions, to delay advising the suspect of his right to an attorney. But to continue to question someone after they have been advised of their rights and have asked for an attorney, is worse than the 'exception' for which a case could be made.

[DevonRex]

44. NO NO NO. PUBLIC SAFETY EXCEPTION WAS IN EFFECT. nt

[Honeycombe8]

58. I see. Got it. nt

[Zorra]

50. IMO, this breach of protocol only relates to admissibility of evidence

relevant to the period of time during which dude was being interrogated while not being given access to an attorney.

This evidence gathered during this period will most likely, IMO, simply be excluded, and will have little or nothing to do with the prosecution's ability to prosecute and convict him.

Dude is still going prison for a very long time, and this discussion about continuing custodial interrogation after dude asked for a lawyer, whatever the circumstances - mirandized, pse, etc, is moot in the respect that it will have any significant impact on the outcome of the case.

The main relevant discussion for us is, IMO, if the cops/system can do this with relative impunity, maybe they shouldn't be able to.

I'm not an attorney, this is only my perspective on the way the justice system often works, a perspective gleaned from a few unpleasant past experiences with the legal system.

[sabrina 1]

57. Yes, I think this is Greenwald's point. Not so much about this case, but the general abuse of

rights during the police questioning of a suspect. It's pretty common, especially among the poor and minorities for the police to ignore requests for an attorney. False confessions under intense and lengthy interrogations are not unusual in this country.

I admire anyone who, even or maybe especially, when the suspect is accused of the most egregious crimes, still insists on ensuring the are not denied their right to a fair trial.

Once we become selective with rights, which we have since this 'terror war' began, it is a threat to all of our rights. Some people don't seem to get that.

[geek tragedy]

56. Any prejudice he suffers from being questioned after

asking for an attorney is exactly the same prejudice he would suffer from failure to Mirandize. And the remedy--exclusion of the statements--is also the same.

If they have such an urgent public safety need to delay Mirandizing, they're not going to say "oh well never mind, you got us" if dude asks for a lawyer.

I would hope that any trial judge would toss the statements should they attempt to use them as evidence.

[Yo_Mama]

51. The justice department already said that they would not use any of the statements so gained

In court. They may use them for further investigations.

The special unit probably only questioned Tsarnaev Sunday and Monday before the judge arrived for arraignment.

He was caught late Friday. He was in bad shape when taken to the hospital, and he would have been intubated for at least a day - probably until Sunday morning when the doctor came around and decided that it was safe to remove the tube. While he was intubated he would have been kept sedated.

So there was probably somewhere around 30 hours inclusive when he could have been questioned.

[DevonRex]

21. LOL. Only everything. The whole purpose of the exception is to question the suspect.

Without counsel. You did realize that the right to an attorney is part of Miranda, didn't you? As soon as the charges against Dzhokhar were signed by the Justice Department on Sunday (which the Justice Department did not have to do so quickly) it meant that the magistrate would meet with him on Monday to Mirandize him. That gave the team of interrogators 16 hours (with Dzhokhar on pain meds, falling asleep at times) to ask him questions in the hospital. He responded to those questions in writing.

The magistrate brought a provisional court-appointed attorney with her to speak with Dzhokhar. They met briefly before the magistrate came in. Then the magistrate Mirandized him. Then the necessary financial information was obtained to ensure he qualifies for a court-appointed attorney. I'm sure much of it was permission to obtain it from his school and the IRS and his bank.

Most defendants have to wait days and even longer to speak to an appointed attorney. They don't grow on trees. They're overworked. And the defendant has to qualify first. Dzhokhar had one brought to him in the hospital. That was pretty nice of the magistrate. I think it was a good thing to do. The right thing to do. I agreed with using the exception. But I also am proud of the rights we afford even to people like Dzhokhar.

[sabrina 1]

38. The exception was only for 48 hours. Greenwald was referring to the LA Times claim that

the questioning continued even after the request for an attorney, presumably when the exception had ended and he had been advised of his rights.

He was talking about the questioning being ended once the request for an attorney was made.

He wasn't talking about WHEN he could speak to an attorney, everyone knows that may take a while, he was talking about the questioning continuing AFTER he requested an attorney, which was presumably after he was advised of his rights.

And as he said, his only source for the claim that the violation occurred was the LA Times. He stated he would like to have another source.

The whole article was based on the assumption that the LA Times was correct which he clearly stated.

[DevonRex]

39. LOL. NO. IT IS DURING THE EXCEPTION PERIOD. Read the LA Times story.

Greenwald fucked up, probably on purpose. The terrorist doesn't GET an attorney during the exception period no matter how many times he asks. After he's Mirandized, yes. Prior to that, no. That's what the exception is FOR and nothing he says during that time can be used against him. They can only ask public safety questions. It is all filmed.

[DevonRex]

46. That is a QUOTE from the FUCKING LA TIMES ARTICLE. Quote Marks. Notice them.

[geek tragedy]

13. Same difference as not Mirandizing--they get to move to exclude the statements given

before he met with his lawyer.

Yawn.

[Gravitycollapse]

15. Where are all the assholes who argued about miranda exceptions?

[randome]

17. "...virtually unheard of..." Implies there is case law that addresses this.

More ginned up outrage. The 'evil gubbermint' strikes again! The public exemption was used. Now it's over. Let's stop trying to get this case tossed before it even begins.

[ProSense]

18. Wait,

"Report: Dzhokhar Tsarnaev's repeated requests for a lawyer were ignored"

...the timing of this is weird, especially since he was appointed a lawyer last Monday, April 22.

http://www.democraticunderground.com/10022737209

[Myrina]

20. "interagency High Value Detainee Interrogation Group "

Why does that title make me and have visions of Blackwater dudes at the bedside?

[DevonRex]

23. That IS weird since these guys are IN the govt and ARE accountable.

Maybe have your eyes checked? Or something? Just saying...

[Myrina]

24. oh Jesus already, just look at the damn title

"High Value Interrogation Group".

Doesn't sound like an 80's cover band or an organization of party planners, does it?

People really need to get over themselves.

[DevonRex]

26. The LA Times article is good. This one is trash.

http://www.latimes.com/news/nationworld/nation/la-na-boston-bombing-20130426,0,5051005.story

[Savannahmann]

42. Accountable, to whom?

I think it is whom isn't it? It was people in the Government that set up the initial illegal wiretapping sans Warrants. Were they ever held accountable? No, Congress, including Democrats, rushed to pass legislation authorizing those wiretaps. Were the CIA held accountable for Abu Ghraib? Don't try and tell me it was the random actions of bored soldiers. Baloney, everyone of them said that that type of stuff was what the CIA told them to. I'm not saying they were right in doing it, I'm just saying they should not be held accountable alone.

So who was held accountable for running that abomination Fast and Furious without checking with Washington to see if it was OK? No one. Who was held accountable for of the massive screw ups that come about? We know that President Obama isn't ordering this stuff, so who is being held accountable for going that far off the Reservation? Nobody. Ok, that is actually not true. They are holding Bradley Manning accountable, but as near as I can recall, nobody else is being held accountable.

So who is held accountable? When? Because I damn sure haven't seen it.

[DevonRex]

43. Fast and Furious, really?? OMFG. I see now.

That is a fucking RW meme there buddy. Oops. As for your other garbage, well, let's just say none of it matters after reading that.

[Savannahmann]

45. Fast and Furious is not a RW Meme

It was a fuck up by former Bush Co cronies who ran it when Bush was in office.

It was shut down, temporarily when Obama was elected. When he was in office, it was started up again, and NOBODY was punished for it. NOBODY was held accountable. It happened. It isn't meme, it is factual. Denying the truth doesn't help our case. Denying the truth doesn't keep fuck ups from happening ever again. In each of those events, nobody was held accountable.

[DevonRex]

47. LOL!

[Savannahmann]

48. It's a shame you're so ill informed

You might be a useful individual to debate otherwise.

http://en.wikipedia.org/wiki/Operation_Fast_and_Furious

Sticking your fingers in your ears and making noises ala petulant child, doesn't help our cause, or our image. Then folks like you wonder how the Rethugs can win elections? They win because they can point to things like this, which HAPPENED. It was a monumental screw up by the Bush Cabal that was left after he was gone, and pretending it didn't happen is counterproductive. We have to admit the truth, before we can fix it, and make sure it never happens again.

[SidDithers]

25. Greenwald. LOL...nt

Sid

[DevonRex]

27. He seems to be getting desperate. That's

the worst article I've seen him write in a long time.

[SidDithers]

30. I'm waiting for the inevitable 2 or 3 updates...

Edit:

Hadn't realized there already were 2 updates. Too funny.

Sid

[kestrel91316]

28. Once a suspect demands an attorney, police and FBI are obligated to

leave him alone. This is BAD BAD BAD. They may have handed him a victory in court.

[stevenleser]

29. Not with the public exception. But you have to understand what miranda is about and what all of due

process is about. Miranda is about due process.

The whole point here is that the statements made prior to the mirandizing are not admissable. They cannot be used against Mr. Tsarnaev. That is what miranda is about and how it impacts due process.

If it doesnt affect the defendant, i.e. cannot be used against him, you havent violated Miranda, and you havent messed with the defendant's rights to due process as specified in several amendments.

[demosincebirth]

31. Miranda Rights? All I can think about is those 3 dead (1 child) and the hundreds injured and maimed

by this a-hole's selfish act or terrorism.

[Rex]

35. Funny, where is our local law experts?

After drooling all over this subject...have they taken a sabbatical? What say you powerful DU lawyers? Why so quiet now?

[DevonRex]

40. Read the LA Times story. I linked to it above somewhere.

It says he asked for an attorney during the exception period so his request was ignored. That's what the exception is for. They ask specific questions related to public safety. He answers them without an attorney. Those things aren't used against him in court specifically because he hasn't been advised of his rights. The court is informed ahead of time so they know what the questions will be about, so they cannot stray from that line of questioning, etc. Because of that, it is also for the defendant's protection. And everything is filmed.

Then he's Mirandized, advised of rights to silence and representation. And in this case the magistrate actually brought him a provisional attorney. No other defendant gets that. They usually have to wait awhile until financial paperwork is filled out and verified to determine they qualify for a public defender. And then for the defender to finally have time to get to them.

[Honeycombe8]

37. We'll have to see if this is true. First, he could barely talk.

Remember that the judge asked him a yes or no question, then the guy answered. The judge then said, "Let the record reflect that I believe him to have said 'yes.'" Which means that one word wasn't clear.

If that's true, then how could he have clearly asked to see a lawyer. Unless he wrote it down. If he wrote it down, then the papers would exist, wouldn't they? Unless they were taken by the FBI. That's getting to sound a little conspiracy-paranoid theory thingie.

[DevonRex]

41. This is NOT TRUE. The LA Times article he refers to says it was during the exception

period. The public safety exception period. So his request was ignored. They questioned him on matters relating to public safety alone. He answered by writing responses. Then he was Mirandized. The magistrate who did that brought him a public defender at that time. To his hospital room. Nothing they questioned him about during the exception period can be used against him in court. That's what the Miranda warning does. Starts that clock.

[KinMd]

49. It will not matter

even if all statements he made were ruled inadmissible, they have enough physical evidence, plus the testimony of the man who was car jacked to keep him locked up forever

[Justice]

52. I agree, but think publicizing what he said makes it impossible to get an impartial jury

Everyone has heard what he said before he received Miranda warnings, so how do you find an impartial jury. I have no issue with the public safety exception, knowing statements likely inadmissible. However, I have an issue with his statements being publicized - as that is not needed (absent a public safety need). Once publicized, the jury pool is completely tainted - likely nationally tainted (you cannot just move the trial out of Boston or out of Massachusetts to find impartial jurors).

[Demit]

53. Somebody here seems to have decided to pound the table.

For a clear setting out of the facts, and the law—to understand why the government’s actions are questionable—see marcy wheeler’s explication at http://www.emptywheel.net/2013/04/29/tsarnaev-right-to-counsel-not-miranda-is-the-key/ She supports what Glenn Greenwald is saying (in fact, he links to her piece in his piece). You should read the whole thing, but here is how she concludes:

“...The bottom line is this: not telling a suspect about his rights in order to try obtain brief, immediate and emergency public safety information is one thing. Straight out denying and refusing a defendant constitutional rights he is legally entitled to, and has tried to invoke, is quite another. The government has issues on both fronts as to Tsarnaev.

The other thing that must be remembered is all of the foregoing likely only affects the admissibility of evidence communicated in the relevant period by Tsarnaev, not the legality of his detention and not the ability of the government to convict him. At best, it involves evidentiary exclusion principles only. There is, by all accounts, more than enough evidence to convict the man without anything he communicated being admitted in a trial (if indeed there ever is a trial). Dzhokhar Tsarnaev will not be walking free in society again no matter how it sorts out. Big and emotionally fraught cases of national interest rarely make for good, and sound, creation of law and the Tsarnaev case is no exception.

How the Tsarnaev facts and case is discussed, sorted out in court, and what foundation it lays for future cases – and there will be future cases – does, however, speak loudly as to who we are as a nation.”

[burnodo]

54. It's not like he's an American citizen or anything

nt

[avebury]

55. The boy should have just told them "fairy tale stories" to make them

happy and send them on wild goose chases as soon as they ignored his demand for a lawyer. I think that the younger boy just followed along with an older brother who was pissed off that his life did not go the way he wanted it to. Older brother may have been influenced by people he talked with overseas or stuff he saw online or read but he doesn't come across like a person with deep actual ties to a group. Time will tell.

People tend to forget that the thought of danger has the potential to be far more damaging and disruptive then actual danger. Fear has just as much to play with what has happened in this country as 9-11.

All the"bad guys" have to do is drag out the boogie man so to speak periodically and authorities go bat shit crazy. I don't think that they have to do that many incidents comparable to 9-11 anymore as it is far easier to sit back and "push the right buttons" and watch what happens. Little actual threats once in a while just keep the fear level ratcheted up to allow the psychological warfare work.