U.S. v. Dzhokar Tsarnaev: Miranda warnings and the public safety exception

April 15, 2013 has become one of those days that we all remember where we were just before 3 p.m. EST. It was a Monday, so I had cable news on as I worked, but like many people, my first inkling that something terrible had happened came from my Twitter feed, as I watched various people and then news outlets tweet that bombs had gone off at the finish of the Boston marathon. As I continued to follow the story, not wanting to believe that this had happened, speculation was rampant as to who could have done such a thing and why.

Days later, after a massive manhunt, we found out who: Dzhokar and Tamerlan Tsarnaev. Tamerlan was killed in the manhunt, Dzhokar was captured alive. Dzhokar Tsarnaev is a U.S. citizen, with constitutional rights. When he was captured, he was not read his Miranda rights immediately, as the government invoked the public safety exception to the Miranda rule. This post examines Miranda and the public safety exception, and some potential implications of the invocation of that exception.

Everybody who’s ever watched a cop show or film knows some variation of the standard Miranda warning:

You have the right to remain silent. Anything you say or do may be used against you in a court of law. You have the right to an attorney, and to have that attorney present during questioning. If you cannot afford an attorney, one will be provided for you at no cost.

The warning language comes from Miranda v. Arizona, in which the U.S. Supreme Court held in 1966 that suspects must be notified of the above rights which are guaranteed by the 5th amendment. While a suspect has Miranda rights whether he or she is notified of them or not, not everyone knows their 5th amendment rights. Miranda held that suspects must be notified of those rights when they’re taken into custody.

When Dzhokar Tsarnaev was captured, he was taken into custody and brought to the hospital (he had sustained injuries during the manhunt). He was then questioned before he was read any Miranda warnings. How was this allowed? The government invoked the public safety exception. The public safety exception to the Miranda rule was laid out in New York v. Quarles, in which the U.S. Supreme Court held that a public safety exception exists to the requirement that Miranda warnings be given before a suspect’s answers to interrogation may be admitted into evidence. The FBI’s explainer on the public safety exception states that:

[P]olice officers confronting situations that create a danger to themselves or others may ask questions designed to neutralize the threat without first providing a warning of rights.

Thus, the public safety exception is to be invoked to deal with ongoing safety issues. In the Boston bombing case, the ongoing safety issues were more bombs, potential accomplices, etc. The questioning under the public safety exception is to be limited to those ongoing safety issues, and once law enforcement has dealt with the ongoing safety concern, then the suspect is to be Mirandized.

In the case of Dzhokar Tsarnaev, he was brought into custody (in the hospital), then questioned when he was conscious, and was finally Mirandized a couple of days after he was brought in, on the order of a judge. Once he was Mirandized, he stopped responding to questioning.

So, the questions are: How long does the public safety exception last? Should there be a time limit on how long law enforcement may question a suspect without Mirandizing him or her under the public safety exception? Was the time between Dzhokhar Tsarnaev being taken into custody and him being Mirandized (days) reasonable?

From a law enforcement standpoint, the answer to how long the public safety exception should be in place is likely however long it takes to protect public safety. They wanted to make sure, especially after the bombing itself that killed and injured so many and a manhunt that took days and resulted in injuries, that there weren’t any more bombs or accomplices lying in wait. From a civil liberties standpoint, the answer is that the exception should be read as narrowly as possible to ensure the constitutional rights of the suspect while protecting public safety, and is not open-ended.

Now that Dzhokhar Tsarnaev has been indicted on 30 counts for his crimes, we’ll see how the public safety exception plays out in court. Will the court allow the statements given before Mirandizing to be entered into evidence? Will some statements come in, but not all? Will the time lapse of a few days be considered reasonable under the circumstances? Will the statements given before Mirandizing be necessary to convict? These questions will likely be answered in the trial and appeal of Dzhokhar Tsarnaev, and will likely have future ramifications as well.

Hollingsworth v. Perry and U.S. v. Windsor: Wins for marriage equality

On June 26, 2013, the United States witnessed civil rights history being made in the form of 2 key U.S. Supreme Court rulings: Hollingsworth v. Perry and U.S. v. Windsor. One victory was local, and one was national, but both have implications beyond their immediate rulings.

Hollingsworth dealt with Proposition 8, a law that banned same sex marriage in the state of California. The court decided the case on procedural grounds, ruling that those seeking to enforce Prop 8 did not have standing to sue to enforce the law. A little background on standing, for those not that familiar with the concept: In order to sue, you need to have suffered a harm. You can’t just sue because you disagree with something. You have to have suffered personal, tangible damages. The Prop 8 supporters did not. So, on strictly procedural grounds, the Supreme Court correctly ruled that the  Prop 8 case shouldn’t even have come before them. (The Prop 8 supporters, of course, continue to fight this alleged harm that they haven’t actually suffered.)

Thought to ponder: Should standing be required for citizens to propose laws? Prop 8 proponents have no direct interest in prohibiting LGBT marriage, and aren’t harmed by the state allowing it. So why can they propose laws about it? I’m sure there are some slippery slope issues in the idea of standing to propose laws (the things we care deeply about are not always things that affect us directly), but it may be worth discussion. Abstract harm isn’t good enough for the courts, so why should it be good enough for law creation?

Windsor dealt with the federal Defense of Marriage Act (DOMA), which barred recognition of same sex married couples for federal laws/benefits. The court decided Windsor on equal protection (constitutional) grounds, ruling a main section of DOMA unconstitutional. A little background on equal protection: The 14th amendment states that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” For federal laws like DOMA, we look to the 5th amendment‘s due process provisions: A person is not to “be deprived of life, liberty, or property, without due process of law” – marriage equality deals with liberty. Equal protection issues come up when you see the state treating different groups of similarly situated people in different ways. That is exactly what DOMA did: It treated groups of similarly situated people, LGBT citizens & non-LGBT citizens, differently. By doing that, DOMA was in violation of the equal protection clause, & thus was unconstitutional. So same sex married couples can now be recognized by the federal government.

A major part of the Constitution that should come into play now? The full faith and credit clause. Section 2 of DOMA, which was not addressed in the Windsor ruling, allows states to refuse to recognize same sex marriages from other states, which is in direct conflict with the full faith & credit clause.

The Hollingsworth and Windsor rulings don’t fix everything, but they are a major step forward for marriage equality. The Supreme Court has declared marriage to be a fundamental right (in Loving v. Virginia), so it cannot be denied to citizens. Future law will reflect this. Cases in Michigan and Ohio (and other places, I’m sure) are already moving ahead. Going forward: There’s no way to square the position that marriage is a fundamental right with any position against marriage equality.

Final bullet points:

* To any fools talking about marrying animals/inanimate objects in the scope of the marriage equality debate: Marriage is based on consent. Animals/objects can’t consent. THINK.

* These cases come to the courts because states are putting the civil rights of citizens up to a vote. How is this OK? How does this jibe with a Constitution that purports to be extremely concerned with equal rights of all of its citizens?

State of Florida v. George Zimmerman: Injustice for Trayvon

Trials, especially jury trials, are all about storytelling. Each side spins its story of what happened, and the jury has to decide which story is true. This “truth” often ends up being which story the jurors can most relate to.

In the Zimmerman trial, the prosecution told a story of a man, George Zimmerman, who stalked a teenage boy, Trayvon Martin, until he ended up shooting that boy. The prosecution asked the jurors to relate to Trayvon, to put themselves in Trayvon’s shoes on the night of the shooting, starting at the moment when Zimmerman started following Trayvon through the streets of his father’s neighborhood. The prosecution’s story began when Zimmerman first saw Trayvon and called the police, then ignored police direction and stalked Trayvon, eventually killing him.

The defense told the story of a man who was attacked by Trayvon Martin, and who shot Trayvon during the course of the physical fight. The defense asked the jurors to relate to Zimmerman, to put themselves in Zimmerman’s shoes on the night of the shooting, starting at the moment of altercation with Trayvon. The defense’s story began when Trayvon and Zimmerman met and began fighting, resulting in Zimmerman shooting Trayvon.

On the fact side, it really came down to what story the jury believed more, when the jury thought the story began, and in whose shoes the jury could put themselves. Ultimately, they related to Zimmerman, not to Trayvon. Why? Because this country (and this jury) sees a young black man as Other. As a potential criminal. Not as a kid who was walking home at 7 p.m. from grabbing a snack at a neighborhood store, but as someone to cross the street to avoid, or, in Zimmerman’s case, to shadow and assume has bad intent. And this country also sees gun rights as absolute, and sees the gun owner’s right to shoot his way out of a somewhat scary altercation as absolute.

Now let’s look at the law in question. In the instructions to the jury, the judge outlined what the jury had to find in order to find justifiable/excusable homicide:

The killing of a human being is justifiable and lawful if necessarily done while resisting an attempt to murder or commit a felony upon George Zimmerman, or to commit a felony in any dwelling house in which George Zimmerman was at the time of the attempted killing.

The killing of a human being is excusable, and therefore lawful, under any one of the three following circumstances

1.When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or

2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or

3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the attempted killing is not done in a cruel and unusual manner.

She outlined what the jury had to find to find second degree murder:

1. Trayvon Martin is dead.

2. The death was caused by the criminal act of George Zimmerman.

3. There was an unlawful killing of Trayvon Martin by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

She outlines what the jury had to find to find manslaughter:

1. Trayvon Martin is dead.

2. George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin.

George Zimmerman cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide.

It’s clear from those instructions that Zimmerman is guilty of manslaughter at least, and perhaps second degree murder. But whether or not the killing was justifiable/excusable homicide depends on which story you believe, that of the prosecution or the defense. If you believe the defense’s story, and start the story at the time of the altercation, then you can find this killing to be justifiable or excusable under “resisting an attempt to murder or commit a felony” tenet or the “heat of passion” tenet. And I believe that is what the jury did here. They believed the defense’s story, they put themselves in Zimmerman’s shoes, and they found the killing justifiable/excusable under Florida law.

They were wrong.

In the law, we pay a lot of attention to the “totality of the circumstances.” We try to evaluate legality based on the whole story. The Zimmerman jurors ignored the part of the story that they didn’t want to think about: That Zimmerman stalked Trayvon; that he was instructed by police to stand down and did not, that he started this whole chain of events rolling. They focused on the part of the story they did want to think about: What they would do if a black man confronted them on the street. And their verdict tells you what they would do: They would shoot. And they would expect to get away with that. And now, so will others.

So what went wrong? What do we blame? Everything.

Blame George Zimmerman for essentially going out hunting that evening. For thinking he had some sort of authority to police the neighborhood with a firearm. For itching for a fight and finding one with tragic circumstances. For assuming that because a black teenager in a hoodie was walking down the street, he was up to no good. For ignoring police instructions and going after an unarmed child. No amount of burglaries in a neighborhood justifies this behavior.

Blame Florida law for allowing one person to kill another almost without limit (making homicide justifiable to defend against ANY felony being committed – note that a felony is defined as a wrong punishable by over 1 year of jail time – that’s it). For encouraging those who shoot in a situation like this to shoot to kill, so they’ll be the only witnesses left. For allowing an accused child molester, domestic abuser and arrest resistor to have a gun. A gun that he will get back now that he’s been acquitted.

Blame the prosecution, and the Sanford police department, for not wanting to pursue this case in the first place, thus ensuring a weak case and an acquittal.

Blame the defense, for playing up the Other aspect of Trayvon, and urging the jury to start the story too late.

Blame the jurors, who cared more about putting themselves in Zimmerman’s position than in Trayvon’s. Who called the defendant “George” and talking about what he “said,” though he did not testify. Who called Trayvon “a boy of color” and seeming not to much care about who he was.

Blame a justice system that seems always willing to value rich, white lives over those of people of color.

Blame a society that fears, hates and punishes based on race.

Everything was a failure here.

Finally, a few bullet points.

* Looks to me like Juror B37 got herself on the Zimmerman jury on purpose (though it seems clear from her “riot” comments that she should have been stricken by the prosecution if at all possible), so she could shop that book she wants to write. Glad the agent dropped her, but you know someone else will publish that B.S.

* To Zimmerman’s attorneys who are saying he was declared “innocent” – come on, now. You know better than that. A verdict of “not guilty” does not equal “innocent.”

* For those wondering if a civil case against Zimmerman for wrongful death or a Federal DOJ civil rights case against him would be double jeopardy, they would not. Those cases would be different claims arising out of the same facts, not retrials of the same case.

* Regarding Zimmerman’s alleged goal of becoming a lawyer to “help other people like him,” there isn’t a chance in hell. First, he’d have to apply and be accepted to an undergrad program, which may be tough in light of his being kicked out of his previous associate’s degree program. Then he’d have to take the LSAT and be accepted into law school, and even a TTT would think twice before admitting him. And then, if he managed to graduate law school (which is hard to fathom), he’d have to: 1) Pass the bar exam (not likely) and 2) pass the character and fitness review (pretty much impossible).