Gingrich: ‘Terrible, Terrible Mistake’ to Read Bombing Suspect Miranda Rights

Originally posted by roadgravel

must be focused and limited, involving a situation "in which police officers ask questions reasonably prompted by a concern for the public safety

Wouldn't that possibly be applicable to the shout out situation but not necessarily information from 3 days earlier.

Just wondering how far the 'public safety part' can be stretched.

edit on 4/30/2013 by roadgravel because: typo

According to precedent..

48 hours.

reply to post by NOTurTypical


I wasn't asking your experience as a rhetorical question. That was a legitimate inquiry as to where your expertise comes from. Self educated is fair enough and a good number of us are in that respect.

Yes, exceptions exist. I never suggested they didn't. The Public Safety Exception. Have you read the case it came from? I have. I'd suggest it as interesting and informative reading.

NEW YORK v. QUARLES

I would certainly try and avoid using Wikipedia as your..ahem...sourcing when so many solid references for case law and explanations exist from Cornell, to Westlaw to what I have linked above as just a few.

It doesn't change much though. Exception by no means makes it admissible by itself. In fact, the exception is VERY narrow for focus, circumstance and reasons it may be used by Police.

The "Public Safety" Exception to Miranda

The above link is a Law Enforcement Bulletin created by the F.B.I. for other agencies to take guidance on the use and application of the exception. In it, multiple cases are cited with brief descriptions of just how it was used, challenged in higher court and what those outcomes were. Again, all helpful to read in understanding the issues involved on this.

Then we have a couple other things..

In a statement, several GOP lawmakers - Rep. Peter King, R-N.Y., and Sens. John McCain, R-Ariz., Lindsey Graham, R-S.C., and Kelly Ayotte, R-N.H. - called the decision not to immediately Mirandize Tsarnaev "sound and in our national security interests." However, they expressed concern that "exclusively relying on the public safety exception to Miranda could very well be a national security mistake. It could severely limit our ability to gather critical information about future attacks from this suspect."

Source

Even as Gung-Ho as those guys are, they realized there might be a major problem with how this has already been handled. It's ironic for who was doing the questioning (The FBI), given the 2011 L.E. Bulletin linked above. You'd think they'd know better, of all the agencies involved. After all, if you go over that bulletin for case law and precedent behind their examples....then see what they actually DID...

Dzhokhar Tsarnaev faced 16 hours of questioning before he was advised of his Miranda rights, and investigators say he told them of his role in the two bombings near the Boston Marathon finish line on April 15. He explained that he and his brother, Tamerlan, were angry about the U.S. wars in Afghanistan and Iraq and the killing of Muslims there, according to two U.S. officials who spoke on condition of anonymity because they weren't authorized to discuss the case with reporters.

Source

You'll see quickly here that the questioning ...SIXTEEN HOURS OF IT... Went well above and beyond any realistic application under Public Safety Exception as it's been defined by previous Court precedent.

The fact is..They screwed up by all indications here and got WAY overzealous. Then again, look at the original response....should we be surprised? This is precisely why the exception some are using like a magic wand IS so narrowly defined and not left to subjective judgement of Police involved in a situation.

It INVITES abuse if left to Officer discretion for when Miranda does or does not have to be applied. The guidelines appear to have been blown away just as effectively as the suspect admitted to the bombings and extensive reasoning and background to them. All of that now basically worthless and inadmissible. Is there anything they DIDN'T ask him? I'm wondering after getting more background for this post.

Yeah.. this is the outcome the precedent and clear guidelines are meant to avoid.

reply to post by Wrabbit2000

Dear Wrabbit2000,

You know how much I admire you, and I respect the passion you've brought to this issue. May I make a suggestion for further reading?

I don't know how to link .pdf images, but you can find a 36 page article by searching for Columbia Law Review.... Mirandizing Terrorists? An Empirical Analysis of the Public Safety Exception . . . by Joanna Wright. It was written late in 2012 and looked at over 500 cases. Granted it is only a law review article, but it is a thorough study of how State and Federal Courts have used the PSE since Quarles. Here are some snippets from the 36 page article:

The PSE thus inoculates a large subset of statements previously vulnerable to Miranda’s exclusionary rule, admitting any statement that responds to a question reasonably perceived to be relevant to public safety.

The most striking aspect of Table 1 is its consistency. Divided by court level, the PSE is argued successfully between 75% and 91% of the time. State and federal courts use the PSE to justify admissibility at an identical rate of 80%.

The results in Table 3 suggest that the judiciary did not significantly change its application of the PSE following 9/11. For state appellate courts, the rate at which the PSE was used to admit evidence before and after 9/11 varied by only 2%, increasing from 79% to 81%. In federal district courts, the rate stayed constant. In federal appellate courts, the rate increased by 3%, changing from 89% to 92%. Overall, state courts used the PSE to admit evidence 80% of the time before 9/11 and 81% of the time after 9/11. Perhaps counterintuitive to academic suggestions that courts read the PSE far more “expansively” after 9/11,92 the rate at which federal courts used the PSE to admit evidence dropped from 84% to 79% after 9/11.

To assuage these concerns, an acceptable PSE must authorize the admission of testimony about future crimes and other terrorists obtained during a prolonged interrogation.

Part III.A introduces Quarles case law that displays a clear judicial willingness to use the PSE as long as the danger remains “unabated,” applying it in one case four days after the commission of the crime.

In People v. O’Quendo, the state appellate court explained that: "[The] entire thrust of Quarles is that the police should have flexibility to respond to true emergency circumstances, whether the danger is momentary or ongoing . . . . That purpose would not be served by setting artificial limits as to the time and location of questions that are objectively necessary for the immediate public safety."

Federal courts are equally willing to apply the PSE in an elapsed, ongoing timeframe. In Allen v. Roe, the Ninth Circuit was explicit about its intention to apply the PSE as long the public safety was in danger.

What is the present Administration's position on this? Who knows?

The Obama Administration has wavered considerably in its position on this issue. Initially, the Administration asserted that the PSE provided law enforcement with enough flexibility to properly interrogate suspected
terrorists, rebuffing congressional calls to eliminate suspected terrorists’ Miranda rights.

In an about-face a few months later, the Administration supported proposed legislation modifying Miranda warnings in terrorist interrogations.

Then, last October, the Administration issued an internal Department of Justice (DOJ) Memorandum that cited Quarles as legal authority for directing law enforcement to interrogate suspected terrorists on matters pertinent to public safety before Mirandizing them. This DOJ Memorandum thus seems to disavow previous support for legislative proposals that would revoke suspected terrorists’ Miranda rights.

So, in summary, it looks like the PSE has been around for a long time, is accepted by courts the majority of the time, and doesn't appear to have any significant time limits.

With respect,
Charles1952

reply to post by charles1952


Wow... That was an interesting read. The rather extreme use of footnotes made it a bit shorter than page count might suggest ....but still, not a pamphlet by any stretch. I'll also note for general purposes here that while Columbia Law Review isn't above reproach or error ...it's not that far from it in terms of credibility, so anything further in that direction is a moot point as I'm sure we both agree. I'd source it on something without hesitation, I'll put it that way.

On the specifics of the study. That is disturbing. According to Table 1, page 1315 (It's taken from a larger document, for those wondering about that) I count 371 cases between Federal and State court combined for use of the PSE for exception to Miranda. The vast majority involving firearms, but that's just a piece of data for trivial interest, I'd say. The core issue isn't what weapon was involved. Of those, only 93 saw the statements given, excluded from evidence by the trial judge or appellate court.

As I said... Disturbing, that is. Earlier, it states as part of the established precedent, (I paraphrase) presumption to allow statements under the exception must be given weight, regardless of post facts indicating public safety may not have been a factor.


I would say that 3 things argue in the summary and conclusions of the report not applying here.

1. Obama's administration, as the source of direction to agencies below, has seriously waffled on this, multiple times.

2. As the lead agency for questioning the suspect here, the FBI had issued the L.E. Bulletin themselves in 2011, advising as broad guidance that the rule's focus is narrow, specific and should be used with care. The cases cited support that and clearly as they printed it. As a defense attorney, that would be the #1 piece of argumentative evidence to exclude all which had been said ..and failing that, all which came beyond the direct needs of public safety.

3. The cases cited for specifics by the Columbia report do not, as I read it there, take into consideration a situation where questioning carried across multiple sessions and a total of 16 hours of interrogation. The specific term 'ticking time bomb scenario' isn't used, but language very similar in meaning and intent is used to indicate the spirit and intent of the exception. The specific cases noted both in the FBI report and in the Columbia Law Review study are ones where questioning was immediate and on-scene or in the immediate period following capture while an ongoing threat existed. One dealt with Pipe Bombs and how to diffuse them. A number of them with Firearms not recovered and the need to find them before members of the public did.


You know the problem? Not a thing in those 3 points excludes the use of the PSE in this case. Nor..does it say it will apply due to the very broad nature of the questioning, as reported in specifics through statements and releases/leaks to media. What I think we have here, when this goes to trial (and it'll almost certainly will, given multiple Capital level counts against him) is a guaranteed trip up the appellate system on at least this specific issue, right at the outset.

This is the type of case, I believe now by reading your additional material, future precedent may well be set by.

I think I'd have felt better if your evidence in that review had at least settled it in your direction ...when in fact, it makes more questions and a bigger general quagmire than I'd have thought before. Arguments for, against, and none of them generally cover this case at all ..... yet they ALL cover it, in other ways.

Oh..this is a migraine, I think ..and for both Prosecution and Defense. I wonder if the media will present how large an issue this might really come to be?

Anyway... Thank You for the new data. It sure didn't solve a thing ...but it did wonders for illuminating how uncertain this truly is for the reality of how it goes forward.

Mirandizing Terrorists: An Empirical Analysis of The Public Safety Exception

reply to post by Wrabbit2000

Dear Wrabbit2000,

You're right, "disturbing" is the word for it. About the only thing I'm relatively sure of, and I might have said it before, is that it is a legal issue which could easily be argued either way, and I'm all the way to "Miffed" that the Magistrate stepped in and made the decision before arguments could be presented.

I am bothered by the breadth of what is considered "Public Safety." As it seems to include accomplices, would it include questioning a member of a motorcycle gang? A Militia member? Anyone belonging to a group that AG Holder believes is dangerous? Or, worse yet, that "Big Sis" Napolitano thinks is dangerous?

It seems to be one of those laws that is reasonable but is easily misused. I hate to say it, but I don't think the present Administration is reluctant to stretch laws to the breaking point.

With respect,
Charles1952

reply to post by Liquesence

This is a scary slippery slope and that a politician would condone this is frightening.

Yes, it is.
Gingrich is one of the Seven-Mountain-Dominionists - the New Apostolic Reformation movement. They are actively working to make the USA a Bible-Thumping land from the top down, and want very much to implement their "Dominionist" laws on the entire country.
He IS dangerous.
And also a first-class tyrant and jackass.

I've always been repulsed by that man -

reply to post by NOTurTypical

Why would we need to give him Miranda rights

BECAUSE HE IS an American citizen.
Good grief.

Originally posted by wildtimes
reply to post by NOTurTypical

 

Why would we need to give him Miranda rights

BECAUSE HE IS an American citizen.
Good grief.

So? As mentioned earlier Miranda isn't absolute. There are exceptions, in this case the public safety exception was invoked.

reply to post by Wrabbit2000

You'll see quickly here that the questioning ...SIXTEEN HOURS OF IT... Went well above and beyond any realistic application under Public Safety Exception as it's been defined by previous Court precedent.

Why the ALL CAPS? 16 hours isn't even half of 48. And if their questions went into the Boston marathon bombing and he spoke about it then that particular testimony might not be admissible in court.

If they have the video that they claim to have this guy's statements will be irrelevant in regards to being found guilty. And the authorities know this. The initial concern wasn't in making sure they got a confession of the bombings. The initial concern was if there was a larger attack in the works or other cells he knew about planning future attacks.

reply to post by NOTurTypical


He is still only a suspect. Innocent until proven guilty, and entitled to his rights. He's a KID, for crying out loud! You would rather send him to Guantanamo Bay?

reply to post by Wrabbit2000


Dont worry. If all else fails, Obama can take him out with a precise drone strike.

I'm sure he would easily make that "personal kill list"........

S&F

This is just another attempt to introduce to and condition the American citizen into believing this anti-Constitutional jargon. Why are certain people within the government working so hard to establish something that does not exist? The way they talk about terrorism would make someone who did not know any better think that terrorist attacks took place everyday in the US. Any sensible person is not all that worried about terrorist strikes against the US, especially not enough to give up any of their rights. We have agencies to combat terrorism, and if they cannot do their job without taking away the rights of the citizenry, then we need to find people to replace them, plain and simple.

Originally posted by JiggyPotamus
This is just another attempt to introduce to and condition the American citizen into believing this anti-Constitutional jargon. Why are certain people within the government working so hard to establish something that does not exist? The way they talk about terrorism would make someone who did not know any better think that terrorist attacks took place everyday in the US. Any sensible person is not all that worried about terrorist strikes against the US, especially not enough to give up any of their rights. We have agencies to combat terrorism, and if they cannot do their job without taking away the rights of the citizenry, then we need to find people to replace them, plain and simple.

Anti-Constitutional jargon?

The word Miranda doesn't appear in the Constitution! It was created in 1966.

Originally posted by wildtimes
reply to post by NOTurTypical

 

He is still only a suspect. Innocent until proven guilty, and entitled to his rights. He's a KID, for crying out loud! You would rather send him to Guantanamo Bay?

Straw man.

He's not a "kid", he's 19. And I said nothing about Gitmo, nor did I ever say he should be labeled an unlawful enemy combatant under the Geneva Conventions.

I didn't say any of that, so why would you accuse me of it?

Originally posted by NOTurTypical
reply to post by Wrabbit2000

 

You'll see quickly here that the questioning ...SIXTEEN HOURS OF IT... Went well above and beyond any realistic application under Public Safety Exception as it's been defined by previous Court precedent.

Why the ALL CAPS? 16 hours isn't even half of 48. And if their questions went into the Boston marathon bombing and he spoke about it then that particular testimony might not be admissible in court.

You just kinda like arguing for the sheer joy of arguing, huh? I really get that from your posting in a strong way...?

Since you apparently have never had the displeasure of being interrogated by the FBI, and I HAVE on one occasion (In relation to a major high profile bombing case, as it just so happens) I can tell you as personal experience....those people have a way of making minutes seem like hours and hours seem like weeks.

16 hours left to the tender mercies of the FBI....especially from the rather captive position of a hospital bed, probably seemed like a month to that turkey. Not that I mind one bit...except, as we've been discussing on this thread, the end result may well have done more damage in a legal sense than any positive outcome.

Feel free to come up with another fascinating way to keep an argument going though. You're starting to really impress me with the sheer creativity you have for that particular effort.

reply to post by Wrabbit2000


Now you're going to appeal to emotion?

Looks as though public safety in Miranda is headed down the path of national security - a black box to be used when convenient.

A subject admitting to a still hidden bomb and then being charged related to that might apply. Confessing to the previous bombing doesn't seem to fit the public safety criteria. It seems to me the supreme court allowed for a very narrow set of circumstance that applies, situations still in play, so to speak.

reply to post by NOTurTypical

He's not a "kid", he's 19. And I said nothing about Gitmo, nor did I ever say he should be labeled an unlawful enemy combatant under the Geneva Conventions.

I didn't say any of that, so why would you accuse me of it?

Wow, you're in Repellent mode today, I see.

He IS a "KID"! Being able to vote and buy cigarettes and go off to war does not make a person psychologically an ADULT. The brain does not fully mature until the mid 20s. Clearly this youth was indoctrinated or "used", and if anything he's ALSO a victim of indoctrination - and if it was a jihad-related act, Religious Trauma Syndrome. Very similar to the PTSD that soldiers suffer. Some of them simply from basic training.

And don't try to tell me that soldiers are not indoctrinated - or that Islamist Extremists are not ALSO the products of Religious Trauma Syndrome and strap bombs to themselves because of it. This kid was sucked into some kind of violent cult-think - but of course, you wouldn't be able to see that. You're not really into deconstructing things - only in your "debate terms."

What's wrong with appealing to emotion? Not all of us are devoid of it, or so consistently argumentative and oppositional.

I asked you a question, I didn't accuse you of anything! Do you really enjoy being such a Contrary Carl?

Sometimes your ability to have a discussion is dizzyingly dim. :shk: I see that kid's face, and my heart breaks to think about my own son being subjected to any such malfeasance and used as a tool to commit atrocities. Gingrich himself is a 'terrible, terrible mistake', a monster and a sleaze-bag, and has been for decades.

reply to post by roadgravel

A subject admitting to a still hidden bomb and then being charged related to that might apply. Confessing to the previous bombing doesn't seem to fit the public safety criteria. It seems to me the supreme court allowed for a very narrow set of circumstance that applies, situations still in play, so to speak.

That's what I was about certain of too, based on original case law and what came in a quick search as well as the 2011 FBI bulletin on use of the exception.

Then Charles posted his info and the link I added in the reply going straight to the Columbia Law Review for the study. They really do seem to have used free labor (err.... undergrads getting class credit ..lol) to examine every single case it's been used in.

Frankly? That kinda put a big wet blanket on my whole position, as I understood it to be accurate. It looks like abuse of this sucker goes back quite a bit ...and abuse, to my thinking, carries well into cases the Courts have found the exception did apply well for.

He's got himself some pretty high power defense attorneys now though and Capital case ones at that (usually among the best in criminal work when they're from the private side vs. public defender). I'm thinking this is headed back where it belongs, eventually. The Supreme Court for a determination on just what 'appropriate' use actually IS.

reply to post by Wrabbit2000

I'm thinking this is headed back where it belongs, eventually. The Supreme Court for a determination on just what 'appropriate' use actually IS.

That would make much sense. This needs to be well defined since terrorism has become the crime of the 21st century, a catch all and is emotionally charged.

Exception to the 5th should not be taken lightly.