Faisal Shahzad, an American Citizen born in Pakistan, sits in custody charged with attempting to explode a bomb in Times Square. There is debate on whether this bomb could have caused any harm, but let's assume it would have hurt, maimed, or killed dozens, maybe hundreds.
I hope that if it is proven beyond a reasonable doubt that Shahzad was the driver of the SUV that contained the bomb, or created the bomb, or was attempting to kill people, or a combination of all three, that he is convicted and sentenced to life in prison.
Yesterday, like many others around the country, I wondered if he did it, why he did it, who he was trying to harm, and whether this will happen in other cities.
But that wasn't the main question being asked by our politicians or the general public.
Republicans Use Faisal Shahzad Arrest To Renew Miranda Rights Debate
Faisal Shahzad Was Read Miranda Rights After Initial Questioning
Miranda rights and alleged Times Square bomber: questions linger
Was It Right to Read Bomb Suspect His Rights?
Miranda Rights: Times Square Bomber Reignites Debate
Marco Rubio, Republican candidate for U.S. Senate and a Florida lawyer who apparently skipped Criminal Law the day they taught it in law school, opines that he doesn’t support any action that could interfere with the U.S.’s attempt to prevent terrorism – including giving Shahzad a Miranda warning of the right to remain silent and have a lawyer.
“If this individual has information that could help us prevent future attacks and loss of life nothing should stand in the way of that, including Miranda,” said Rubio, a favorite of the tea party movement. “If they stop talking, people can die.”
Marco, there is no evidence that Miranda stops suspects from talking. Seriously, I should know.
John McCain, who wanted to be President, and Rep. Peter King (R., N.Y.), "also expressed concern over the decision to read the Miranda warning to Shahzad before finding out as much information as possible about the plot and others involved."
McCain, said the immediate use of Miranda rights is a “mistake.” “Don’t give this guy his Miranda rights until we find out what it’s all about,” he said.
McCain was apparently also very busy reviewing the Federal Code:
There's probably about 350 different charges he's guilty of, he said.
350? Wow. Must be an exception to Miranda there.
King, who never misses an opportunity to appeal to hysteria and hate, said simply:
I know he's an American citizen but still.
So lets just throw in a little law.
"Miranda," comes from Miranda v. Arizona, a United States Supreme Court case. A case that every American knows because they either read it in law school, use it in cases as prosecutors and defense lawyers, or get giddy when they see it on T.V. 9 times a day on Law & Order.
So for fun, I re-read Miranda.
It begins with Chief Justice Warren stating that the cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself
Now, for all the lawyers, and you non-lawyers can play along too, where do you see the words "except," or "terrorism," or "Muslim," or "Islam," or, well, never mind.
In holding in 1966 that Miranda was entitled to know his rights before interrogation, the Supreme Court gave some bad news to our politicians of today who view the Constitution as a "problem:"
Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.
Ernesto Miranda wasn't told he had the right to remain silent, or that he had the right to a lawyer. He did. He did because of this little gem:
THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
And there's also this little annoyance:
THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Sure, bring up the public safety exception created in New York v. Quarles. But in Quarles, there was a missing gun, here, the bomb had already been found, the car impounded.
No person. That includes Shahzad. It's not about the crime, it's about the law. In Miranda, the Court said that:
...the prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement.
Rep. Steny Hoyer weighed in:
This is a U.S. citizen, arrested on U.S. soil, and subject to the constitutional protections and constraints of every U.S. citizen. He is obviously suspected of committing a crime, of putting together a device to kill people and harm U.S. property. Even Glenn Beck says he's a U.S. citizen and deserving of constitutional rights," Hoyer said.
Even Glen Beck:
He is a citizen of the United States, so I say we uphold the laws and the Constitution on citizens," the bombastic Fox News host said to the stunned co-hosts of "Fox and Friends". "If you are a citizen, you obey the law and follow the Constitution. [Shahzad] has all the rights under the Constitution.
They were stunned. Stunning.
I don't know about you, but if Shahzad confesses, or gives information, I'd like a jury to evaluate it, instead of a court saying years from now that it's inadmissible and as a result the case is weakened to the point that there can be no adjudication on the merits.
But I'm about the law, I'm not about the grandstanding.
I fear terrorism. I also fear politicians who believe the Constitution has exceptions which do not exist, and that those who follow the Constitution and Supreme Court precedent, are anti-American.
Shahzad is an American citizen, being prosecuted in an American court.
The big secret, is that any cop worth his badge, reads Miranda to a suspect. The good ones get the confession, regardless.
Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter
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