I Feel Safer With Miranda Than Ortiz
Carmen Ortiz, the US Attorney for Massachusetts, announced in a news conference following the capture of Boston Marathon bombing suspect Dzhokhar Tsarnaev that he would not be mirandized under the public safety exception. Ortiz you will remember is the ambitious political climber whose prosecutorial abuse drove public access advocate and internet activist Aaron Swartz to suicide.
As Charlie Savage reported back in May 2010, Attorney General Eric Holder was proposing not mirandizing terrorism suspects under the public safety exception to Miranda. Holder argued interrogation of terrorism suspects required more latitude than afforded by Miranda. The proposed mechanism for this suspension of Miranda was the public safety exception.
Miranda was decided in 1966, and almost anyone who has ever watched a police procedural on the big screen or TV can recite its two essential points: "You have the right to an attorney … You have the right to remain silent …" An important exception was made in 1984 in New York vs. Benjamin Quarles . A police officer, chasing an armed rape suspect (Quarles) into a store, briefly lost sight of the suspect before apprehending him. Noting that the suspect had an empty holster, the officer asked where the gun was. The suspect indicated where he had tossed the gun. The officer then mirandized him. The Burger Court in a 6-3 decision written by Rehnquist ruled that a loose gun posed a danger and that the overriding concern for public safety justified the momentary departure from Miranda.
Rehnquist noted the limited nature of the exception but argued that theambiguity it introduced to Miranda would likewise be limited:
In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that, to some degree, we lessen the desirable clarity of that rule.… As we have in other contexts, we recognize here the importance of a workable rule "to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." Dunaway v. New York, 442 U. S. 200, 442 U. S. 213-214 (1979). But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.
The facts of this case clearly demonstrate that distinction and an officer's ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety
In his dissent, Thurgood Marshall noted that finding the gun was not exigent in the Quarles case, that Rehnquist's quest for public safety was chimerical, and that
"a public safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary. The Court's candor cannot mask what a serious loss the administration of justice has incurred."
Marshall went on to challenge Rehnquist's argument that there was a balancing act between public safety and the 5th Amendment protection against self-incrimination:
But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public's safety are less likely to be coercive than other interrogations, the majority cannot endorse the "public safety" exception and remain faithful to the logic of Miranda v. Arizona.
This would never happen because, as Marshall noted, "custodial interrogations are inherently coercive".
Fast forward to the War on Terror, another chimerical quest and inestimable gift to the authoritarian opponents of the Bill of Rights who comprise our elites. In December 2009, the Nigerian underwear bomber Umar Farouk Abdulmutallab was interrogated for 50 minutes before being mirandized. In May 2010, Times Square bomber Faisal Shahzad, a US citizen, was interrogated for three to four hours before he was read his Miranda rights. It was at this time that Holder began his push to suspend Miranda notifications indefinitely in terrorism cases. We see the implementation of this policy with Dzhokhar Tsarnaev, the Boston Marathon bombing suspect.
This is not just a question of Tsarnaev's rights but about the degradation and loss of all our rights. The public safety exception was never anything more than a plausible lie, or as Marshall more diplomatically termed it a "chimerical quest". Quarles was in custody. The police had control of the scene. There was no emergency to find the gun. There was no public safety issue. But the Court manufactured a public safety exception anyway in order to carve out another space where Miranda did not apply. That was the real object of the exercise. The War on Terror simply provided an excuse for the Executive, that is Obama, Holder, and Ortiz, to morph the public safety exception into a complete abrogation of Miranda and the 5th Amendment in terrorism cases. As in the original Quarles case, with Tsarnaev in custody, there are no longer any exigent circumstances. The public safety exception no longer applies, but Obama, Holder, and Ortiz don't care. They want to engage in the coercive interrogation of Tsarnaev and the public safety exception gives them the excuse to do so. This has nothing to do with law or justice. It is all about Jack Bauer and not having time for niceties like the rule of law. And don't look to the Supreme Court to challenge them on this. The Court now is far more conservative, even reactionary, than under Burger. It defers almost completely to the Executive on national security cases (as long as Kennedy the swing vote feels a modicum of deference is paid to judicial turf). The Court for its part has also futhered its own attack on Miranda in Berghuis vs. Thompkins (2010) where it decided that Miranda rights did not presumptively apply to suspects but had to be actively invoked by them. This stood Miranda on its head. Miranda does not confer rights. It is a reminder of rights one already has. One has them whether they are actively invoked or not, only not now due to Berghuis. Only not now due to "public safety".
As Benjamin Franklin is reputed to have said, "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."