Tsarnaev: Right to Counsel, Not Miranda, Is the Key

LadyJusticeWithScalesSince Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.

Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:

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. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.

In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation). As Dr. Richard Leo has studied, and stated, the impact of Miranda on suspects’ willingness to talk to interrogators is far less than commonly believed. One study has the effect rate of Miranda warnings on willingness to talk at 16%; from my two plus decades of experience in criminal defense, I would be shocked if it is really even that high.

On top of this fact, the Miranda warnings relate only to the admissibility of evidence or, rather, the inadmissibility – the exclusion – of evidence if it is taken in violation of Miranda. Professor Orin Kerr gives a great explanation here.

Since there is, without any real question, more than sufficient evidence to convict Tsarnaev without the need for admissibility of any verbal confession or other communicative evidence he may have provided the members of the HIG (High Value Detainee Interrogation Group), the real question was never “Miranda” but when Tsarnaev would be presented to the court which, in turn, would determine when he would be given access to counsel. Not surprisingly, one of the first people I saw to correctly point this out was Marcy Wheeler:

Folks: FAR more important, IMO, than Miranda is presentment. If he sees a judge in 2 days she’ll make sure he gets a lawyer.

That could not have been more true, as was demonstrated on Monday morning, April 22, when Magistrate Judge Marianne Bowler went to the Beth Israel Deconess Medical Center where Tsarnaev was receiving treatment in custody. Also present was William Fick and Miriam Conrad (fascinating look at Conrad and her history here) of the Federal Public Defender’s office in Boston. Fick, who speaks fluent Russian, and Conrad met with Tsarnaev immediately before the formal initial appearance process and represented him in the brief actual initial appearance itself.

So, all is as it should be because Tsarnaev got the initial appearance he was entitled to by law, right? No.

First off, there is the timing of the initial appearance, sometimes also colloquially referred to as “presentment”. The initial appearance is governed by Rule 5 of the Federal Rules of Criminal Procedure (FRCrP). While you may have seen mention of “within 48 hours”, the rule itself provides only that an arrested person must be taken before a magistrate “without unnecessary delay”. The “48 hours” standard for first court appearances comes from the 1991 case of County of Riverside v. McLaughlin, which held that 48 hours was the outside limit. The importance of the Rule 5 initial appearance was cemented by the Supreme Court as recently as 2009 in the case of Corley v. United States (which even suggests delays longer than six hours may be presumptively violative).

But the 48 hour limit was not honored, in either spirit or letter, by the federal authorities in charge of the detention and interrogation of Dzhokhar Tsarnaev. The formal taking into custody of Tsarnaev, the arrest, was effected and announced at 8:45 pm EST Friday night April 19 and, as evidenced by the complaint cover sheet filed with the court, Tsarnaev was immediately in federal custody. The criminal complaint signifying the formal charging of Tsarnaev is noted by Judge Bowler to have been sworn out to her at 6:47 pm on Sunday, April 21. So, Tsarnaev was charged within 48 hours of his arrest, but he was not given his initial appearance within 48 hours, as required by Rule 5 FRCrP, County of Riverside v. McLaughlin and Corley.

The Rule 5 initial appearance was finally given to Dzhokhar Tsarnaev Monday morning April 22, as evidenced by the official transcript of the proceeding. The specific sequence and timing of these events is critical because of the nature and timing of the interrogation of Tsarnaev prior to him being advised of his Miranda warnings by Judge Bowler. It appears as if there were two substantive interrogation sessions by the HIG team, a fact reported by no less than Ray Kelly, based upon claimed briefing by the federal authorities:

The police commissioner explained that was the original story that Dzhokhar told police when they began to interrogate him in the hospital, but that he later provided a more detailed account during a subsequent interview.

Both interviews appear to have happened before authorities read the younger Tsarnaev brother his Miranda rights on Monday. According to Kelly, Dzhokhar was interrogated twice by authorities in the hospital, the first time on “Saturday evening into Sunday morning” and the second on “Sunday evening into Monday morning.” According to an Associated Press report from earlier today, the questioning lasted a total of 16 hours before Dzhokhar stopped cooperating upon being informed of his right to remain silent.

Remember, however, from above, that “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”. This is where the Miranda, the public safety exception and right to counsel all intersect for Mr. Tsarnaev. Frankly, the government has issues on all of those fronts, but let us first look at the one that has been most discussed, and cowardly demagogued by the likes of House Intel Chairman Mike Rogers and NY Congressman Peter King, the most – Miranda and the “public safety exception”.

Professor Erwin Chemerinsky, in the Los Angeles Times, explains the nuts and bolts of the “exception”, and why it arguably does not apply to Tsarnaev’s situation:

Holder said on the Sunday talk shows that the government intended to invoke the “public safety exception” that allows suspects to be questioned without being given Miranda warnings in emergency circumstances. But this exception does not apply here because there was no emergency threat facing law enforcement.

The emergency exception to Miranda that Holder embraced was announced by the Supreme Court in New York vs. Quarles in 1984. A woman told the police that she had been raped by a man with a gun. When the police caught the suspect in a grocery store, they saw an empty holster and no gun. The man was asked about the location of the gun, and he told the officer where to find it.

The Supreme Court ruled that, although the suspect had not yet been given Miranda warnings, the statement about the gun was admissible against him because of the urgent need to find the gun. In other words, the public safety exception applies only when police are acting in an emergency to prevent serious immediate harm. If the police needed to question Tsarnaev as to the location of other bombs, the emergency exception would apply.

The New York v. Quarles case Chemerinsky discusses as setting out the public safety exception can be found here. In light of the fact that not only had multiple voices, from Attorney General Holder, to President Obama, to a myriad of investigation authorities, both local and federal, stated there was no evidence of further threat, there is some merit to Professor Chemerinsky’s opinion on the Quarles exception not being applicable to Tsarnaev by the time his interrogation commenced on Saturday April 20.

Of course, the DOJ did not rely on Quarles alone, they also invoked their now infamous “”Public Safety Exception Memo” first incarnated in a memo from Attorney General Holder dated October 19, 2010, and formally distributed in a cleaned up version dated October 21, 2010. The memo goes beyond the basic immediate public safety questions permitted by Quarles to allow further broader ranging questions:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment. (Emphasis added)

Let us give the DOJ and HIG team the benefit of the doubt under Quarles, and even their own self-stated memo (which is neither binding nor controlling law in any regard), and grant that some base level of questioning of Tsarnaev was reasonable to confirm there were no outstanding bombs, weapons or other dangers, and no outstanding co-conspirators and/or terrorist ties, whether domestic or foreign. In fact, there is court precedent in a recent case via the decision of Judge Nancy Edmunds to uphold this use of the public safety exception, in the case of the “Undie Bomber”, Umar Farouk Abdulmutallab

Grant all of these root questions, and the bolded language – from the Obama DOJ’s own Public Safety Exception Memo – delineates why there is still a significant problem with the treatment of Tsarnaev. The Rule 5 initial appearance, i.e. “presentment”, was not complied with as to Tsarnaev, and public safety questioning can neither appropriately nor legitimately delay it.

In fairness to the Obama DOJ, who has been roundly blasted for the Public Safety Exception Memo, they arguably could have gone further and not included the such strong guidance against violation of Rule 5. There is authority from both the Ninth Circuit in United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989), and the Fourth Circuit in United States v. Mobley, 40 F.3d 688, 692–93 (4th Cir. 1994), cert. denied, 514 U.S. 1129 (1995), for the proposition that, like Miranda, the right to counsel can give way briefly for the public safety exception under Quarles.

The extensions of the public safety exception to right to counsel by the courts in Desantis and Mobley, however, give little, if any, support to the government’s actions vis a vis Mr. Tsarnaev, because the intrusion into the constitutional right to counsel in both the other cases 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. Nothing whatsoever like the 16 hours of interrogation applied to Tsarnaev, across at least two sessions, over a period of at least two days. The “public safety” interrogation of Tsarnaev was not immediate to potential danger, was not narrow and limited, and occurred long after he had been taken into custody. And, apparently, at least as to one of those sessions, the “Sunday evening into Monday morning” session, the interrogation occurred well after formal charges had been filed with Judge Bowler.

Let’s take a look at the “right to counsel”, why it differs, and is arguably far more important in the Tsarnaev scenario than utterance of the “Miranda warnings”. The right to counsel during custodial police interrogations emanates from the seminal 1964 case of Escobedo v. Illinois. The language of the decision syllabus reflects the bright line rule announced by the court:

…where a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody who has been refused an opportunity to consult with his counsel and who has not been warned of his constitutional right to keep silent, the accused has been denied the assistance of counsel in violation of the Sixth and Fourteenth Amendments; and no statement extracted by the police during the interrogation may be used against him at a trial.

Escobedo, as direct law, was implicitly obviated two years later by the decision in Miranda v. Arizona, where the court suddenly, and somewhat curiously, placed the right to custodial interrogation counsel under the umbrella of the Fifth Amendment instead of the Sixth.

The primacy, and fundamental nature of the right to custodial interrogation counsel, however, was confirmed in the 1981 decision of Edwards v. Arizona, where the court held suspects have the right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, as declared in Miranda, and that right cannot be invaded absent a clear and valid waiver. While it is true, under Berghuis v. Thompkins, a suspect must affirmatively invoke his right to counsel as opposed to simply standing silent, there is no authority for interrogators to simply ignore and frustrate, over an extended period, a suspect’s express request for counsel as appears to have occurred in Tsarnaev’s case.

Once, however, a defendant is presented to the court for initial appearance, he will be afforded counsel, and counsel will in almost all cases stop immediate questioning, both to prevent incrimination and to preserve evidence as leverage for plea negotiations. That is exactly what a defense counsel should do, and exactly what our constitutional system of justice and protections contemplates. This is also exactly why the Rule 5 presentment, and not “Miranda”, has always been the critical concern in analyzing the Tsarnaev case, and still is. Once legitimate general questions as to public safety had been asked, Tsarnaev should have been afforded his Rule 5 initial appearance and access to counsel. Clearly Judge Bowler was available on Sunday the 21st, since, as previously noted, she was available to accept the swearing and filing of the criminal complaint.

Again, the timing of the interrogation, and requests for counsel, will prove critical. There are still many questions and facts to be locked down on these issues including, but not limited to:

When in the timeline did Dzhokhar Tsarnaev first invoke by requesting counsel?

How many times did he attempt to do so?

In light of the fact much of his communication to the HIG interrogators was reportedly written, were his attempts to invoke in writing too?

How did the interrogation team document Tsarnaev’s non-written responses in light of the difficulty he had in communicating?

Was there a video or audio record made to preserve the evidence?

Did Tsarnaev provide any evidence that would warrant continuation of the Quarles public safety questioning?

In light of the fact that Undie Bomber Abdulmutallab (who actually had layers of foreign terrorist ties and activities outside of the continental US) was only questioned for 50 minutes under the public safety exception, why did Tsarnaev (who had no such ties or activity) require 16 hours of interrogation over two full days, substantial portions of which were after charges were filed?

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. Are we the cowering nation of supposed leaders such as Mike Rogers and Peter King, or are we the strong and resolute one envisioned by our Founding Fathers and protected by the constitutional rights they bequeathed us with? Recent polls have shown that Americans are increasingly “skeptical about sacrificing personal freedoms for security.” The people have that right, we should listen to them.

65 replies
  1. klynn says:

    Thank you. A great piece bmaz. EW, thank you for being a leading voice in asking about presentment.

  2. phred says:

    Ah bmaz, this is why I like hanging out with you and EW… I was completely unfamiliar with presentment/initial appearance. Thanks for bringing us up to speed.

    I have two questions for you:
    1. Would HIG be required to retain Tsarnaev’s written responses?
    2. Can a federal judge sanction executive branch officials who violated Tsarnaev’s constitutional rights?

    For the former, it would provide evidence for his requests for a lawyer since he couldn’t talk. And for the latter, it would make me feel better knowing that officials cannot violate the constitution with impunity. Hmmm, let me rephrase that… It would be nice if officials were not ALWAYS able to violate the constitution with impunity ; )

  3. bmaz says:

    1) They absolutely should, yes.

    2) Yes, but generally the process is for the court to report the misconduct to DOJ, who polices themselves through OPR for the attorneys and an IG for the law enforcement types. Rarely goes anywhere, as evidenced recently by how the DOJ people in the Ted Stevens case skated even after the court blistered them and appointed a special prosecutor. Nothing.

  4. emptywheel says:

    Note how Eric Holder defended what happened w/Dzhokhar:

    When asked about the timing of the Miranda rights, Holder told CNN’s Brianna Keilar on Saturday night that the decision, made by the magistrate, was “totally consistent with the laws that we have.” … “We have a two-day period to question him under the ‘public safety’ exception. So I think everything was done appropriately, and we got good leads,” he said.

    In spite of the Public Safety memo, he claims that FBI can take the entire time up until seeing a judge as public safety.

  5. Clark Hilldale says:

    Fine piece, bmaz. I hadn’t heard that Tsarnaev asked for and was denied a lawyer.

    Do you happen to know off the top of your head whether the case law on the public safety exemption addresses an issue in which the USG uses information obtained from a suspect (an “escape to NYC” terror scenario, for instance) under these powers and then immediately gives it to the media for maximum sensationalism?

  6. phred says:

    @bmaz: Thanks bmaz. Doesn’t it strike you that there is a massive conflict of interest at DOJ when executive branch officials who have misbehaved are referred back to the executive branch, which is allowed to “police itself”? Smacks of the non-enforcement of regulations we see all the time on Wall Street by OCC, SEC, and the rest of the alphabet soup (non)regulatory agencies.

    I am depressed by the utter collapse of the rule of law.

    Nonetheless, I am thankful for the magistrate asserting her authority in this case. It’s a start.

  7. bmaz says:

    @Clark Hilldale: No, and trust me, I have looked. The case law in this area is pretty much all centered around mundane criminal cases. The closest one analogous to what you ask is the Undie-bomber decision linked to in the post, but that doesn’t address the press angle at all.

    @phred: Buck up sister, the pendulum will swing back some day. We may be partying in a different dimension by then though….

  8. phred says:

    @bmaz: Yeah well, we can’t rush these things, eh? ; )

    I’ve been reading Sinclair’s The Jungle recently. These things never seem to go away, so plod on we must…

    I am thankful for folks like you who can call out our official miscreants and cite them chapter and verse. Well done!

  9. earlofhuntingdon says:

    Thanks. An overdue discussion of basic elements of criminal justice in surveillance state America, or at least the rules that applied before the eruption of the SS.

  10. earlofhuntingdon says:

    Not limited to immediate safety, not narrow, not limited, not related to public safety, enduring long after the defendant is in custody? Lions and tigers and bears, oh my.

    Obama administration, channeling Dick Cheney, seems to regard it as a self-evident power of the executive to discard rules of procedure at a whim. It can dispense with a legal or even a public rationale for its conduct and rely, instead, on its ability (as the best marketed administration evah) to convince the public that whatever it does is in its “best interests”. The administration’s cynicism toward government (exceeding even its predecessor’s) prompts the Orwellian observation that who controls the present controls the past; who controls the past controls the future.

  11. Mike D. says:

    Great piece.

    Curious, tho, what is the reason that denying access to counsel once invoked only implicates admissibility of questioning during the relevant interval? Surely, if the government denied him counsel continuously throughout his prosecution, at some point its validity and viability would be undermined, and perhaps they would even open themselves up to a lawsuit? What is the point they did not cross that would have brought about more consequences than simply inadmissibility of the statements made while he was denied counsel? Is it the I/A – i.e. he was provided with an attorney there, and there is where further consequences would have started to become possible?

    Also, on the 48 hours – did the FBI prevail upon Bowers not to hold the hearing Sunday night immediately after swearing in the charges? Did the magistrate hold the authority to decide when to hold the hearing once the charges came in, or not, and if she decided to wait until Monday morning, then isn’t it in some sense not the case that she was available for the hearing even though she was available to be informed of charges? I don’t know what’s the case wrt to that, I just wonder if you have as much reason to think you do do as you seem to assume.

  12. earlofhuntingdon says:

    Thanks for emphasizing that the right to counsel is what gives meaning to constitutional and other rights. The one on the hot seat, even if he or she knows her rights and has the presence of mind to understand and insist on them, is preoccupied with the events of the day, and with investigators and prosecutors hoping to impose their spin on the facts. Stress levels are off the charts, rational decision making is hampered, bad decisions are made that can be impossible to recover from.

    Even if you know the rules, you probably don’t know how they work in practice. In short, your rights don’t mean a whole lot if there isn’t someone there to act as advocate and intermediary, not just to protect the accused, but to keep the government honest, which we all benefit from.

  13. emptywheel says:

    @Mike D.: I think she told them on Saturday she’d be by on Monday.

    I’m wondering whether they were mostly treating him until that point, and she gave them 48 hours from the time he was actually talking?

  14. earlofhuntingdon says:

    @bmaz: Wish I could say I was lazing away in Sedona or Ocean Beach. Just keeping my nose to the grindstone. Nice hat tip from Glenn Greenwald; much deserved.

  15. Mike D. says:


    Right, I’m wondering that too. It seems like there are various understandings about the actual interchange from interrogation to hearing going around as well – i.e. people saying she had to barge in on the interrogation and stop it (I think Greenwald said that), that would depend on accounts that it seems unlikely would have been given by people who know. I.e., did the agents understand she was coming, but believe their 48 hours per the memo of intel interrogation under the exception beyond actual outstanding threat (setting aside the propriety of that claim) was still running due to the injury delaying when the questioning could begin? Understanding she was coming and that he would have an attorney (thus basically mooting the concern about the effect of giving him a Miranda warning), did they dutifully step aside when she arrived, or did they somehow resist? Who would know – and who would say? Would the agents talk to reporters about trying to prevent a magistrate from holding an I/A/ for a charged suspect? Or maybe are we leaping to conclusions about what happened at the hospital?

  16. earlofhuntingdon says:

    It’s worth mentioning that we have a common law, adversarial system of justice here, unlike, say, continental Europe, where the judiciary takes a much more direct role in investigating and prosecuting cases, or China, where criminal trials are largely legal theater, the decision as to guilt or innocence having been taken off-stage, as it were.

    Here, the judge mediates between claims of opposing counsel, who battle over procedure, facts and evidence (not the same thing), and how they are presented to a jury and the court. The system presupposes conflict. The inherently greater power of the state is offset by the rules and by the presumption of innocence, but someone has to be there to argue those things on any defendant’s behalf, lest we regress to a system of justice and guilt based on the ever popular presidential and parenting nostrum of, “Because I said so”.

  17. Mike D. says:

    @Mike D.:

    …Or perhaps his attorneys described the scene? What are the accounts we actually have of the scene at the beginning of the hearing?

  18. Peterr says:

    Great piece, bmaz.

    The remaining question I’ve been pondering is about responsibility. I am sick to death of misdeeds being attributed to “DOJ” or “the White House” or “Congress”. When a suspect is detained, who is ordinarily responsible for making sure the presentment is done in an expeditious manner? The DA (state) or US Atty (federal)?

    Assuming in this particular case that it would ordinarily be the USAtty because this is a federal case, either the USAtty decided to ignore the legal situation unilaterally (highly unlikely, IMHO), or someone at Main DOJ overruled the USAtty and decided to slow things down? Holder? Criminal Division head (an acting person right now, IIRC)? Someone else?

    I want names.

    When Bush’s White House was relying on its bizarre legal memos, the criticism didn’t really catch hold until names were attached to them. John Yoo. Jay Bybee. Stephen Bradbury.

    I want names.

  19. bmaz says:

    @Peterr: I would look at Holder, John Carlin, Virginia Seitz and Lisa Monaco for starters. with a little Kathryn Ruemmler thrown in for good measure. They are not as attackable on their face as AGAG, Yoo, Bybee et. al were.

  20. harpie says:

    I don’t know how to get the link for this:

    Jeffrey Toobin ‏@JeffreyToobin 2h
    This is a big deal. Breaking: Atty for Jared Loughner, Tuscon mass murderer, added to Tsarnaev defense team. Legend Judy Clarke #wcvb

    Retweeted by Glenn Greenwald

  21. Peterr says:


    Carlin is Acting. No way an Acting AAG makes this call on his own.

    Seitz is confirmed head of OLC. She might have provided advice, but she didn’t make the call.

    Monaco and Ruemmler are both advisers to the President — not in the decisionmaking chain of command for the DOJ. Like Seitz, they probably advised, but didn’t make the call.

    I’m only seeing two names on my list: Holder and Obama.

  22. Mike D. says:

    @Peterr: What is the delay of concern here? That the charges were sworn in so close to the end of the 48 hour window (the 46th hour if I am counting correctly)? Or the 12-hour delay before the judge came to the hospital? Did a person at DOJ (to avoid diffusing responsibility) prevail upon Bowers not to go to the hospital Sunday night? Are you sure the 48 hours window being breached was not due to her decision to go ahead Monday morning?

  23. earlofhuntingdon says:

    Among the questionable delays is, once the defendant explicitly asked for a lawyer, the government’s repeated failure to halt questioning and arrange for the defendant to obtain defense counsel.

  24. Peterr says:

    @Mike D.:

    From the post:

    But the 48 hour limit was not honored, in either spirit or letter, by the federal authorities in charge of the detention and interrogation of Dzhokhar Tsarnaev. The formal taking into custody of Tsarnaev, the arrest, was effected and announced at 8:45 pm EST Friday night April 19 and, as evidenced by the complaint cover sheet filed with the court, Tsarnaev was immediately in federal custody. The criminal complaint signifying the formal charging of Tsarnaev is noted by Judge Bowler to have been sworn out to her at 6:47 pm on Sunday, April 21. So, Tsarnaev was charged within 48 hours of his arrest, but he was not given his initial appearance within 48 hours, as required by Rule 5 FRCrP, County of Riverside v. McLaughlin and Corley.

    There’s also the bolded part of the Oct 21, 2010 memo: “Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.”

  25. Mike D. says:


    Okay, I’m just trying to isolate what the failure was. Was it the failure to charge in time that an appearance inside the window could be arranged? Or was it failure to cause a magistrate to appear at the hospital sometime over the weekend, regardless of when the charge was made?

    This is also from Riverside:

    Where an arrested individual does not receive a probable cause determination within 48 hours, the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance, which cannot include intervening weekends or the fact that in a particular case it may take longer to consolidate pretrial proceedings.

    Isn’t it possible that the judge determined that the hospitalization was such an extraordinary circumstance and decided that holding the hearing Monday morning constituted a “prompt” probable cause determination given the circumstances?

  26. bmaz says:

    @Mike D.: Heck, that is really the question, and we have no clue what the mechanism is. It will be fascinating to see these facts filled in.

  27. Mike D. says:

    …Also, if what Marcy says is right and Bowler (‘scuse for getting the name wrong above) informed them she’d be coming on Monday morning in any case, then it seems that she was the one to decide the hearing would happen outside the window, if by just 12 hours or so.

  28. bmaz says:

    @Mike D.: Well, ultimately, that is clearly the case, because she is the court. How, and why, was that the case though? Did she agree? Was she blocked? What?

  29. Quanto says:

    We should realize by now they will do whatever they need to do as long as they win, that’s the name of the game, winning, at any cost. As deeply troubling as this is I am concerned with the Hospital that Tsarnaev was taken to. I cannot imagine anyone that is shot up being able to stay awake for 16 hours of questioning without the doctors pumping him full of speed. If this was the case what ever happened to “do no harm”. In our zeal for revenge (we no longer do justice), were headed down a hole I hope I’m not around to see the bottom of.

  30. bmaz says:

    @stevie g: No, that point was not missed. The law is that exceptional circumstances, including medical conditions, can delay the initial appearance; however, the rule is NOT that the beginning of the 48 hour period is tolled and only starts once the condition is ameliorated. So, legally, there is no basis that I am aware of to support that. He should have been I/A’d within the 48 hr period; if Tsarnaev was able to be interrogated, he was able to be I/A’d.

  31. Thomas says:

    Question: can pre-Miranda evidence gathered from Dzhokar be used in someone *else’s* trial? (E.g., a hypothetical co-conspirator?)

  32. stevie g says:

    thanks for the clarification. sometimes rules don’t make any sense and then common sense must prevail. surely if he were unconscious for 47 hours and then woke up, there would be no violation if he were not IA’d in the next hour.

  33. stevie g says:

    according to a handbook for magistrate judges, there are times that the I/A can be delayed. for example, when the defendant refuses to identify him/herself.


    i think the magistrate judge here made the right call and should not be second guessed. Peter King and others have complained about her not having the “right” to do this!

  34. stevie g says:

    Sorry – comment got submitted prior to finishing!

    Thank God that the judicial system is separate from the legislative (and executive) branches!

  35. bmaz says:

    @stevie g: Correct, that is where the phrase “without unnecessary delay” kicks back in. Actually, it is always in effect, the 48 hrs is simply the outside edge of it. There can be unnecessary delay even within the 48 hr. period.

    In your scenario, it would be soon as feasible after the 47th hour.

  36. Mike D. says:

    ..@bmaz: Also, not to gainsay your concern about the Rule 5 promptness requirement, but this discussion may be distracting due attention from the bigger concern here, which is that/if investigators really were unresponsive to requests for counsel. That should get people really concerned. What is the basis for their thinking they could do that – just not caring, or did they have some convoluted claim? Or did they think that the public safety exempts them from following any laws? WTF is going on at DOJ?

  37. Mike D. says:

    @Quanto: I had the same thought – what is a multiple-gunshot victim doing enduring 16 hours of questioning in a, what, 36-, 42-hour period, including, apparently, all night on Sunday?

  38. Bill Michtom says:

    Again and again and again, bmaz and Marcy give us very important and useful information on the frequent criminal behavior of the USG.

    Thanks so much!

  39. Bay State Librul says:

    Business Insider has a great summary/story of the events that took place
    on April 15th.


    It’s hard to separate the emotion from the legal aspects of this case.
    Somehow, I feel that our justice system will win out in the end and he will be given a fair trial…

    We try to make sense of what happened, but it makes no sense.

  40. emptywheel says:

    @stevie g: Well, as I understand it, the reason you GET 48 hours in the first place is to allow for things like that. So while it may be the clock in this case started when he was well enough to cooperate, it maybe shouldn’t have.

  41. Bay State Librul says:

    Can I tell you how much Ron Paul is a dick

    WASHINGTON — Former US representative Ron Paul has a warning for Americans after the Boston Marathon bombings, and it may come as a surprise.

    The prominent libertarian says citizens should perhaps be more frightened by the police response to the attack — which killed three and injured scores more — than by the explosions themselves.

    In an article called “Liberty Was Also Attacked in Boston,” the former Republican representative and two-time presidential candidate compares the intense April 19 search for Dzhokhar Tsarnaev to “scenes from a military coup in a far off banana republic.”

    “The Boston bombing provided the opportunity for the government to turn what should have been a police investigation into a military-style occupation of an American city,” Paul writes. “This unprecedented move should frighten us as much or more than the attack itself.”

    Paul argues that the Boston case sets a dangerous precedent, recounting scenes of “paramilitary police riding in tanks and pointing automatic weapons at innocent citizens.”

    “Once the government decides that its role is to keep us safe, whether economically or physically, they can only do so by taking away our liberties,” Paul writes. “That is what happened in Boston.”

    During the search, authorities encouraged residents in the Boston area to stay inside their homes.

    It created surreal scenes on the Friday after the attack, with eerily quiet streets.

    Governor Deval Patrick last week defended the decision to shut down the Boston area.

    “I think we did what we should have done and were supposed to do with the always-imperfect information that you have at the time,” Patrick said at a news conference Friday.

  42. Bay State Librul says:


    Yes, we should always be wary.
    But Boston is a Banana Republic and we had a military coup?
    The guy is batshit and he resides in the Senate.
    He’s using this incident to further his political aspirations.
    Paul is fucking nutso

  43. shoirca says:

    @Mike D.:
    “: What is the delay of concern here? That the charges were sworn in so close to the end of the 48 hour window?”

    As the article notes, there is no “48 hour window” the test is whether there was “unnecessary delay” be it 6 hours or 48 hours.

    “While you may have seen mention of “within 48 hours”, the rule itself provides only that an arrested person must be taken before a magistrate “without unnecessary delay”. The “48 hours” standard for first court appearances comes from the 1991 case of County of Riverside v. McLaughlin, which held that 48 hours was the outside limit. The importance of the Rule 5 initial appearance was cemented by the Supreme Court as recently as 2009 in the case of Corley v. United States (which even suggests delays longer than six hours may be presumptively violative).”

  44. A Czech guy says:

    “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).”

    So your government denies a man his constitutional rights, you say. Meanwhile, your government tortures people elsewhere. And on yet another place, extra-judicial drone killings are happening. And after all of that you take whatever they say for granted and accept trial by media? I guess you deserve what is coming your way then.

  45. JoeP says:

    I really enjoyed your post, even though of course it’s an unpleasant and disturbing topic. I find your optimism in response to @phred to be difficult to support, however. Hopefully you’re right and the collapse of the rule of law does not continue indefinitely. I don’t like this aspect of life in America, especially in comparison to previous eras about which I’ve read. To think that we put the Nazi leadership on trial after WW2, and yet now USGOVT often seems to act like fascists (including state and local authoritarian gov’t reps, too)…

  46. Mm says:

    Bmaz–thanks for this. It reminded me that Holder’s whole “due process does not mean judicial process” concerning drones is based on their ignoring the 6th amendment. Of course, the shredding of the 6th has been going on through funding cuts for long time. But the internal and external linkages seem crucial here.

  47. bmaz says:

    @Mm: That statement does continue to stick in one’s craw, no? Never been able to shake that either.

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