ACLU, Miranda, and the Boston Bomber

By Rich Kozlovich

On April 20, 2013 Mike Lillis posted an article discussing “the American Civil Liberties Union (ACLU) is calling for the Obama administration to read the suspect in the Boston Marathon bombings his legal rights.  The Department of Justice indicated Friday that the administration would not read 19-year-old Dzhokhar Tsarnaev his Miranda rights, citing a public safety exception.”

He went on to quote the “ACLU's executive director, said Saturday that the immediate threat is over and that Tsarnaev, an ethnic Chechen who became a naturalized U.S. citizen last year, should now be treated like any other suspected criminal”, saying “Every criminal defendant is entitled to be read Miranda rights," He also said that,"The public safety exception should be read narrowly. It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule.”

Even a stopped clock is right twice a day, but that doesn't seem to apply to the ACLU.  Given the previous posts showing how government tramples on long held understanding of rights under the Constitution you might think I would agree with them.  However, rights under that Constitution aren’t a suicide pact for the nation, or as Judge Watchler stated in the Quarles case (the foundation for the exception rule), "Miranda was never intended to enable a criminal defendant to thwart official attempts to protect the general public against an imminent, immediate and grave risk of serious physical harm reasonably perceived."

First of all, most of us didn't realize there was that kind of exemption of Miranda, including me.  Miranda has been around for about 45 years and is now part and parcel of law enforcement.  It has been a source of contention for all of those years, even though little is said now because we have come to accept the fact that criminals, who are clearly guilty and deserve to be stripped of their liberty, are going to be released due to failures by police to follow procedure.  I don't like it, but the purpose of Miranda was to protect the innocent from falling prey to police pressure.   Under interrogation it is not uncommon for the innocent to plead guilty to crimes they didn't commit.  We have seen how even Mirandized youngsters have admitted to serious crimes for which they were innocent; how much more of this happened before Miranda? 

Are the police and prosecutors to be trusted?  Absolutely not! The Nifong example is one that still rankles me.  Here was a prosecutor, Michael Nifong, in Durham County, North Carolina who prosecuted six Duke University lacrosse players.  I remember reading at the time that Nifong wanted to continue in office for at least one more term in order to get his retirement benefits.  He also had a strong black contingent he felt he had to appease in order to be reelected.   This case was to be his “gold mine of free advertising” to promote his reelection.   

This was clearly a racial case, and initially he had total and complete support from the leftist media and academia.  The woman, who was a stripper and black, claimed she was raped by six white members of the 2005–2006 Duke Lacrosse team.  Therefore the boys were white, they were rich, and they must be punished.  Guilt or innocence was immaterial. 

The only problem was that the stripper who made the claims lied, and the boys really were innocent.  But they were white, they were rich, and they must be punished.

As time went by it became clear that Nifong was also lying.   He tried to hide, twist or manipulate the evidence, and after an investigation into his conduct was started the charges were dropped, and he was later referred to as a “rogue” prosecutor.  Later he had his license to practice law stripped, he pleaded guilty to 27 of 32 charges against him, involving "dishonesty, fraud, deceit and misrepresentation."  Outrageously, he only served ‘one day’ in jail and was fined $500.00.  The players families incurred $3 million in legal bills. 

When he was sued by the families of the Duke players he actually asked the “state attorney general's office and the Administrative Office of the Courts to pay his legal fees and help defend him, but both offices refused on the grounds that Nifong's actions involved "fraud, corruption (and) malice."  “In response, Nifong's attorney quoted Nifong as saying, "I don't know why I continue to expect people to do the right thing."  All of a sudden “the right thing” became extremely important to him.  It didn’t bother him that these boys would have spent years in prison if found guilty, and if they hadn’t been from wealthy families they would have.  It is clear that the courts, the prosecutors and the police can’t be trusted to “do the right thing”.

So this brings me back to the Miranda exception known as the “public safety” exemption.  What happens when law enforcement is “confronted with an emergency that may require interrogating a suspect held in custody about an imminent threat to public safety without providing Miranda warning”, such as acts of terrorism, which may involve more people than those immediately arrested?

The origin of the public safety exception to Miranda, is the case of New York v. Quarles, began in the early morning hours of September 11, 1980. While on routine patrol in Queens, New York, two New York City police officers were approached by a young woman who told them that she had just been raped. She described the assailant as a black male, approximately 6 feet tall, wearing a leather jacket with "Big Ben" printed in yellow letters on the back. The woman told the officers that the man had just entered a nearby supermarket and that he was carrying a gun. 

The officers drove to the supermarket, and one entered the store while the other radioed for assistance. A man matching the description was near a checkout counter, but upon seeing the officer, ran to the back of the store. The officer pursued the subject, but lost sight of him for several seconds as the individual turned a corner at the end of an aisle. Upon finding the subject, the officer ordered him to stop and to put his hands over his head. As backup personnel arrived, the officer frisked the man and discovered he was wearing an empty shoulder holster. After handcuffing him, the officer asked where the gun was. The man gestured toward empty milk cartons and said, "The gun is over there." The officer found and removed a loaded handgun from a carton, formally placed the man under arrest, and then read the Miranda rights to him. The man waived his rights and answered questions about the ownership of the gun and where it was purchased.

After a great deal of litigation the U.S. Supreme court determined a “public safety” exemption was appropriate to Miranda saying, “Miranda need not be strictly followed in situations "in which police officers ask questions reasonably prompted by a concern for the public safety."  “According to the Supreme Court, the public safety exception is triggered when police officers have an objectively reasonable need to protect the police or the public from immediate danger.”

“When police officers are confronted by a concern for public safety, Miranda warnings need not be provided prior to asking questions directed at neutralizing an imminent threat, and voluntary statements made in response to such narrowly tailored questions can be admitted at trial. 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.”

To me at least, it appears the immediacy of the moment is the logical foundation for this exception, and I think rightly so.  The only concern one should have is how this could be twisted and construed in ways to completely obliterate Constitutional rights, but the principle is sound, and it seems to me that if the events involving Quarles in a potential supermarket robbery is justification for an exemption to Miranda, then I would think this clear case of Islamic terrorism is even more justified.   

Editor's Update: Duke Rape AccuserGot 160 TV News Stories on Accusation, 3 on Murder Conviction November 27, 2013 - By Michael W. Chapman – When Crystal Mangum falsely accused several Duke lacrosse players of rape in 2006, there were 160 television news stories in the first five days after the players were arrested, but in 2013, when Mangum was convicted of murder and sentenced to 14 years in prison, there were only 3 television news stories, a difference in coverage of 5,233%.   When the Duke lacrosse-rape story broke in March/April 2006, it was huge news, garnering massive, widespread coverage by the networks ABC, CBS, and NBC, as well as by FOX, CNN and MSNBC, and the print press, such as USA Today, New York Times and Washington Post.