Mirandizing Tsarnaev — the left strikes again

I have never practiced criminal law (except briefly at the international level) and have not studied it since 1974. Thus, like most Americans, much of what I think I know about criminal procedure comes from watching television and movies.

My viewing experience does not include any instances in which a judge read a criminal defendant his or her Miranda warning in the middle of police interrogation. Thus, I was shocked to learn that this happened in the case of the surviving Tsarnaev terrorist.

According to various reports, the younger Tsarnaev was interrogated for about 16 hours in his hospital room, and was providing helpful information, when a magistrate and representatives from the U.S. Attorney’s Office entered the room and read him his Miranda rights. After that, reportedly, Tsarnaev immediately stopped cooperating.

We’ve all seen the Hollywood scenario in which the police is making progress with a suspect, only to be thwarted by the theatrical entrance of defense counsel. But in this case, it was a magistrate judge, with a prosecutor in tow (or, more likely, the other way around), who thwarted the information gathering.

But are judges supposed to read suspects their Miranda rights while they are in police custody? I wouldn’t have thought so, and not just because I haven’t seen it done on TV. As Bill Otis reminds us, Miranda restricts the government’s ability to use evidence collected absent the warning. But it’s the government’s call as to whether it wants to run the risk of having evidence excluded in order to obtain potentially valuable evidence from a suspect.

Accordingly, John Yoo argues that it violates the separation of powers for a judge to decide to Mirandize a suspect:

It is not for federal judges, or worse yet their assistants [i.e., a magistrate judge], to rove around looking for criminal cases in which to act as law enforcement agents. The decision whether to read Miranda lies up to the executive branch. The right of the courts to affect the warnings and conditions of interrogation stems only from their control over the criminal trial of the suspect. Miranda itself is only a declaration by the courts that they will exclude from evidence any confessions received without a warning. Under the Constitution, the President is responsible for the enforcement of the laws, not the courts — the courts’ constitutional job is to decide cases and controversies that arise under those laws.

Exactly. But in this instance, the magistrate judge apparently was not “roving around.” She was accompanied by an assistant U.S. attorney — i.e., a prosecutor.

I can’t help but suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn’t it the prosecutor who brought the judge to Tsarnaev’s hospital room in the first place? And isn’t it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the higest level of the Justice Department? Line prosecutors don’t make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.

The party line is that the magistrate judge made the decision to Mirandize the terrorist because she deemed her appearance in the hospital as constituting an appearance in court by Tsarnaev. This strkes me as ridiculous, unless the prosecutor characterized the event as the equivalent of a court appearance.

But why would the prosecutor do such a thing while the suspect was still being interrogated by the police? Unless, of course, the prosecutor’s bosses, at the highest level, wanted the suspect Mirandized.

At a minimum, the Obama Administration apparently did not protest very hard against the judge’s violation of separation of powers. But why would it protest? As Yoo points out, the left has consistently insisted that judges intervene in military and national security decisions that have never fallen within the review of the courts in any previous war.

The end of the FBI’s ability to obtain information from Tsarnaev is only the latest consequence of the left’s exaltation of undue process over considerations of national security and public safety. For congressional lawmakers who are demanding an explanation for the handling of the Tsarnaev interrogatory, there it is.


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