Some Rules Don’t Have Exceptions
Amongst the outrageous outrages being spread the last few days about the treatment of the Boston bombing suspect is that he was purportedly “prematurely Mirandized” by a federal magistrate judge at his initial hearing on Monday. At minimum, it is certainly clear that there are federal law enforcement agents who are upset that they did not have more time to interrogate the suspect under the guise of the “public safety exception” to the Miranda warning requirements before the magistrate judge showed up. But that is about the only thing that is correct about this meme. The notion that the magistrate judge – or the Obama Administration, for that matter – afforded this suspect any more rights or privileges than the bare minimum required by the Constitution or Federal Rules of Criminal Procedure is, quite frankly, ridiculous.
The key paragraphs that are being emphasized in connection with this meme are:
The FBI filed a federal criminal complaint against the 19-year-old on Sunday, and federal District Court Judge Marianne Bowler arrived at the hospital where he is being treated to preside over his initial hearing Monday, when she read him his Miranda rights….
Two officials with knowledge of the FBI briefing on Capitol Hill said the FBI was against stopping the investigators’ questioning and was stunned that the judge, Justice Department prosecutors and public defenders showed up, feeling valuable intelligence may have been sacrificed as a result.
The FBI had been questioning Tsarnaev for 16 hours before the judge called a start to the court proceeding, officials familiar with the Capitol Hill briefing told Fox News. Moreover, the FBI informed lawmakers that the suspect had been providing valuable intelligence, but stopped talking once the magistrate judge read him his rights….
Some Republican lawmakers have criticized the Obama administration for deciding against treating Tsarnaev as an enemy combatant, which would allow more time for interrogating him. The public safety exception to Miranda lasts only 48 hours.
One thing that is clear is that if the suspect qualified as an “enemy combatant,” then under current law (however dubious that current law may be) he could be placed in military custody with few due process rights and could be interrogated pretty much as long as the government wished. However, the notion that this suspect could be deemed an “enemy combatant” without any evidence of direct and substantial ties to al-Qaeda is absolute hogwash; more importantly, even the leading proponents of designating him as such acknowledge that he would still need to be tried in civilian court.
Second, we need to keep in mind that the requirement for Miranda warnings is a rule of evidence, not a rule about when a defendant obtains the rights contained in those warnings. As long as he is to be tried in civilian court, the right to counsel and the right against self-incrimination attach, at the latest, the moment a defendant is placed under arrest, as do the rights to a speedy trial and to being informed of the charges against him. If the government does not wish to allow these rights to attach to a suspect to be tried in civilian court, then it can’t place him under arrest, which means he is technically free to go.
In this case, it is absolutely impossible to imagine that Dzhokhar Tsarnaev was anything other than “under arrest” the moment he was apprehended.
Upon being arrested, he has certain rights, regardless of whether he is Mirandized, and regardless of whether the “public safety exception” to the Miranda warning rules applies. Moreover, he immediately become subject to the Federal Rules of Criminal Procedure, which in part codify the protections of the Fifth and Sixth Amendments.
Rule of Criminal Procedure 5 is especially important in this regard. It states that “A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise.” Moreover, where, as here, the defendant is arrested without issuance of a warrant, “a complaint meeting [the] requirement of probable cause must be promptly filed in the district where the offense was allegedly committed.” Last but by no means least, during that initial appearance, the magistrate judge must, in pertinent part: (a) advise the defendant of the complaint and probable cause affidavit; (b) advise the defendant of his Fifth and Sixth Amendment rights (ie, must Mirandize him); and (c) permit the defendant to consult with counsel. Unlike the exclusionary rule for failure to provide a Miranda warning, there is no “public safety” exception to the requirement that the complaint be “promptly” filed and the defendant brought before a magistrate judge “without unnecessary delay.”
Furthermore, the 48 hour rule referenced in the article above is not a formal rule specific to the “public safety exception,” but is instead a rule imposed by the Supreme Court dictating the length of time a defendant may be held under arrest without a determination of probable cause by a federal magistrate.* County of Riverside v. McLaughlin, 500 U.S. 44 (1991). As a practical matter, this creates a limit on how long a suspect may be held without being Mirandized, since once the case is before a magistrate and the suspect in custody, the initial hearing must be conducted “without unnecessary delay,” and at that hearing the defendant must be Mirandized and must have access to counsel.
This 48-hour rule is quite rigid,** and may be breached only where there is a “bona fide emergency or other extraordinary circumstance.” Since, in this case, law enforcement was confident fairly early on that it had neutralized any bombs or weaponry placed by the suspect and had no evidence of any imminent threats the suspect could disclose, it is inconceivable that this would have qualified as an “extraordinary circumstance.” Regardless, allowing a judge to determine whether that “extraordinary circumstance” exception applied is not a risk the government would ever want to take. As a result, the magistrate executed the Complaint in this case at 6:47 on Sunday evening, almost exactly 48 hours after the arrest.
Having made that determination on Sunday evening, and with the suspect having been under arrest since Friday evening, the only step remaining was for the defendant to be brought before the magistrate for an initial appearance under Rule 5 “without unnecessary delay” – in other words, pretty much as soon as a judge would be available to conduct the hearing, which of course was Monday morning.
Finally, we should also remember that the magistrate judge is a member of the judicial branch of government and is not a party to law enforcement’s investigation – her sole relevant duty here is to make sure the rules are followed as closely as possible. Meanwhile, the consequences of law enforcement and the prosecution failing to comply with these rules can range from the suppression of evidence obtained due to the violation to, in rare but especially egregious cases, outright dismissal of the charges. Additional sanctions, such as holding the prosecuting attorney in contempt, could also be on the table.
Ultimately, the point is that, even to the extent the “public safety exception” to Miranda is relevant, there is simply no sense in which this suspect was “prematurely Mirandized.” If you really want to insist that the feds should have been given additional time to question this suspect, then you’ll need to figure out a persuasive argument that he should not have ever been subject to the jurisdiction of civilian courts, and you need to make such an argument in a manner that couldn’t just as easily be applied to anyone has ever been charged under the terrorism statutes.
*Some bloggers on the Right have further suggested that the hearing was prematurely held because, they claim, the 48 hour rule permits the authorities to question a suspect for 48 hours; this is wholly untrue and incorrect – the rule has nothing whatsoever to do with the length of time a suspect may be interrogated, and everything to do with how long he may be held under arrest without a determination of probable cause.
**In case you’re a conservative who wants to complain about the rigidity of this rule, it’s worth noting that Justice Scalia has advocated for an even more rigid 24 hour rule. On the other hand, if you’re a liberal who loves to hate Scalia, it’s worth pointing out that this is one arena in which Scalia is uniquely on the side of the angels.
[UPDATE: Doug Mataconis makes a number of the same points as I have here]