Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

BOSTON’S FEDERAL COURT BEGINS TO DEAL WITH DZHOKHAR TSARNAEV’S MASSACHUSETTS MURDER AND TERRORISM MATTER

Ok, I admit it. Since all the action with the Boston Marathon bombing, Attorney Sam’s Take has been fairly quiet. No, it is not that there have been no further drug, gun or assault arrests in the Commonwealth. It is not even that there was a dearth of things to talk about. And, no, simply because the bombing took place on April 15th, I was not detained by the IRS. There have been other reasons which we might get to some other day.

If I had been writing about the bombing and surviving suspect, Dzhokhar Tsarnaev, (hereinafter, the “Defendant”), I would have been warning you about issues that have arisen anyway.

The Defendant’s case is pending in Boston’s Federal District Court. His alleged crimes are federal crimes because of how they were carried out. A simple shooting during the Boston Marathon would likely have been prosecuted in state court. However, when terrorism is involved, not to mention the use of weapons of mass destruction…the federal system steps in.

Any regular reader of this back-to-being daily blog knows how I have ranted about the issues that have arisen the case of James “Whitey” Bulger. It has seemed that the prosecutors, and to some degree the court itself, has handled the matter with different rules than in all other cases. Perhaps it is because of the high level of media coverage Maybe it is because Mr. Bulger seems to personify for many the opposite of presumption of innocence. Whatever the reason, basic tenants which we hold sacred under our Constitution seem to be suspendable in that case.

Enter the case of the Defendant and his deceased brother.

A great deal of media coverage? Absolutely.

High level of public acceptance of immediate guilt? Certainly.

And so, once again, the Constitutional issues have come up in the case as it now is pending in Boston’s federal court.

One of the first such issues, which folks continue to debate, is that of the Defendant’s being in custody for more than 60 hours before being advised of his Miranda Rights.

Under the law, once a suspect is in custody, Miranda Rights must be given before questioning. Otherwise, the prosecution cannot use the statements against the defendant. The Rights include the right to remain silent, the right to a lawyer and that the statements will be used against him.

There are, of course, exceptions to this rule. One such exception, known as the “public safety exception” to Miranda, was invoked in the Defendant’s case. The exception has, since 2010, been considered to include questioning when “the government’s interest in obtaining…intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”

In this case, citing that the public might still be in danger, the Justice Department held off from giving the Miranda warnings.

As time went on, more and more repeated assurances by numerous public officials that there is no imminent threat or danger to public safety were made. The Justice Department, however, argued that, particularly in the early hours after the Defendant’s apprehension, that public safety concerns remained, along with the possibility of accomplices or additional explosive devices.

Finally, the federal court itself stepped in and a magistrate showed up to arraign the Defendant. At that point, it was no longer questionable as to whether he had the right to a lawyer or the Miranda Rights.

Upon his being advised of those rights, he invoked them.

In fact, the debate of the Defendant’s Constitutional rights has become more basic than that. Many people contend that the matter should not even be handled in civilian court but would be more appropriately handled by a military tribunal. To do so, the Defendant would have to be declared an “enemy combatant”.

Senator Lindsey Graham, a Republican from South Carolina and Arizona’s Senator John McCain have argued that President Obama should consider abandoning civil proceedings in the Defendant’s case. “Now that the suspect is in custody, the last thing we should want is for him to remain silent.” The statement continued, “Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel.”

The Defendant immigrated to the United States legally. He is an American citizen. He attended American school and, by all accounts, was the typical American kid. The investigation thus far has indicated that he may have gotten involved in his older brother’s beliefs and followed the brother’s lead in performing the atrocious acts from which many survivors are still being treated and other innocents lost their lives.

While I know that the pesky United States Constitution is often a thorn in the side of law enforcement..it is what our officials are sworn to defend. It is, after all, considered the supreme law of the land.

One might even say it is…important.

More important, even, than any one case.

Even this one.

Want a bit more analysis of the issues here and how they relate to you and other criminal cases? Stay tuned to my next posting.

For the original story upon which this blog was based, please go to http://tv.msnbc.com/2013/04/21/doj-continues-to-withhold-miranda-protections/

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