BY RICH GALEN
Reprinted from Mullings.com
Suddenly, every cable news anchor, every pundit, every Sunday show guest, and every waiter in Old Town Alexandria, Virginia has become an expert on whether or not Dzhokhar Tsarnaev should be informed of his Miranda rights.
Let’s assume, for the moment, that Dzhokhar Tsarnaev, has never watched a single episode of “Law & Order” in any of its manifestations and, thus, does not know he can ask for a lawyer – or refuse to answer any questions with a lawyer or without.
Just so I can catch up (I know you already know this), the whole Miranda thing stems from that pesky portion of the Fifth Amendment to the U.S. Constitution that reads: “No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”
And that portion of the Sixth Amendment that reads: “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense.”
In the case of Miranda v. Arizona, Phoenix cops arrested Ernesto Miranda on a charge of rape. They interrogated him for two hours after which he signed a confession to the crime.
At trial, Miranda’s attorney claimed he had been coerced into signing the confession and it should not be allowed as evidence. The Arizona Supreme Court agreed with the cops, but in 1966, Chief Justice Earl Warren writing for the majority in the U.S. Supreme Court said: “The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”
The opinion further explained: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
As you know, one of the many things I am not is a lawyer.
I took one semester of Constitutional Law from Dr. Robert Hill at Marietta College, Marietta, Ohio 45750 and have claimed unlimited understanding of the ins-and-outs of our legal system solely based upon that one undergraduate course.
After the SCOTUS threw out Miranda’s original conviction (as well of the convictions in associated cases in California and New York), Ernesto was re-tried, was convicted without his confession, and was sentenced to 20-30 years in prison.
Miranda was paroled in 1972 and was killed in a bar fight in 1976. He was 34 years old.
In the 1990 movie, “My Blue Heaven” Steve Martin’s character (a mobster in witness protection) caught breaking the law again says of his Constitutional rights: “I’m exactly the guy Thomas Jefferson put that in for. I am the worst case scenario of Thomas Jefferson’s dream.”
My point is, you don’t have to pass a personality test to be protected by Constitution.
Getting back to Dzhokhar Tsarnaev, we have been told that he is not being read his Miranda Rights because the Justice Department is invoking what is called the “public safety exemption.”
On the FBI.gov website an article written by Special Agent Carl Benoit, a lawyer,who is a legal instructor at the FBI Academy explains it as applicable when “law enforcement officers [are] confronted with an emergency that may require interrogating a suspect held in custody about an imminent threat to public safety.”
In his article, Special Agent Benoit writes that the public safety exemption permits “Law enforcement to engage in a limited and focused unwarned interrogation and allows the government to introduce the statement as direct evidence.
The “limited and focused” aspects of the exemption are important. Benoit concludes his article by writing: “Once the questions turn from those designed to resolve the concern for safety to questions designed solely to elicit incriminating statements, the questioning falls outside the scope of the exception and within the traditional rules of Miranda.”
Now you can call the bookers at the cable news nets and tell them you want to come on and talk about Miranda.
Editor’s Note: Rich Galen is former communications director for House Speaker Newt Gingrich and Senator Dan Quayle. In 2003-2004, he did a six-month tour of duty in Iraq at the request of the White House engaging in public affairs with the Department of Defense. He also served as executive director of GOPAC and served in the private sector with Electronic Data Systems. Rich is a frequent lecturer and appears often as a political expert on ABC, CNN, Fox and other news outlets.