The benefit of the doubt: Why we give it to the worst of us

A friend of mine from my hometown asked me this yesterday: “Why don’t you write about this? If we’ve got Tsarnaev on film planting a bomb and shooting at police officers, he should be made to talk by any means necessary and then executed. We know he’s guilty, so why should we waste tax money on a trial?”

I don’t mean to set my friend up as a straw man proponent here. He’s a good husband and father, an honest businessman, and a valued member of the community. Like the rest of us, he’s angry and frustrated. Also, I think he raises a fair question. Why is a trial necessary when we already know Tsarnaev is guilty? What are our goals?

Right to a fair trial

The same folks who wrote the 2nd Amendment were also clear on how we should treat criminal defendants:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… nor be deprived of life, liberty, or property, without due process of law….” U.S. Const. amend V

“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 wherein 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.” U.S. Const. amend. VI

Keep in mind that these amendments were ratified in 1791, which means they were born of revolution. The framers were reacting to overzealous prosecutions by the Crown. They were rejecting the inquisitorial system, where guilt is determined by the court’s interrogation of the accused—in favor of accusatorial system, which requires the State to prove its case. 

Innocent until proven guilty

Generally speaking, in any court case, the party who is making the accusation must prove that the accusation is true. In a civil case, if I sue you for breach of contract, say, it’s my responsibility to prove that we had a contract, that you breached the terms of the contract, and that you damaged me in doing so.

Similarly, in a criminal case, the government—also known as the People, you and me—is bringing the suit. Until we make our case against the defendant, who is presumed innocent. While this idea sounds uniquely American somehow, it is an ancient concept of jurisprudence—with roots in the Bible, the Magna Carta, and the sixth century Roman Digest of Justinian. Many modern nations have embraced it as a fundamental ideal of procedural fairness—including, it should be noted, Iran and Colombia.

In many cases, such as Tsarnaev’s, this requires us to suspend disbelief. The right to life, liberty, and property are so important to us as a society that we are unwilling to deprive Tsarnaev of these things unless we clear some very high due process hurdles. We’ve got to be sure.

Beyond a reasonable doubt

Similarly, we’re not just asking ourselves to show that a criminal defendant is guilty—we’re holding ourselves to the highest possible standard of evidence. We’re asking the prosecution to overcome the presumption that the defendant is innocent beyond a reasonable doubt. In other words, has the prosecution proven that the only logical conclusion for a reasonable person to make—based on the facts before the court—is that the defendant committed the crime?

In contrast, civil cases have lower standards of evidence. Depending on the matter, we may ask the plaintiff to prove something by “clear and convincing evidence” (more highly probable such that we can have a firm belief in its truthfulness) or by a “preponderance of the evidence” (more likely true than not). (Now you know why O.J. Simpson was acquitted at his criminal trial but found “responsible” at the civil trial.)

“Beyond a reasonable doubt” is a high standard, of course, but we’ve decided as a society that it’s better to release a guilty person than to imprison an innocent person. See In Re Winship, 397 U.S. 358 (1970) Again, we’ve got to be sure. Our commitment to due process requires it.

What are we trying to prove?

Now that we know that we’re required to prove Tsarnaev’s guilt beyond a reasonable doubt, what exactly are we trying to prove?

We’re already pretty sure that Tsarnaev is a bomber, a terrorist, a bad citizen—perhaps a terrible person, a loser, a sociopath.

All of these things may be true, but the law demands specificity and clarity. Fifth Amendment due process requires that a law must be specific enough so that those who are expected to follow it can understand what the law asks of them—and what it means to violate it. See Connally v. General Construction Co., 269 U.S. 385 (1926).

A criminal statute must define explicitly what conduct is prohibited; otherwise, it is “void for vagueness.” This requirement promotes equal justice under the law—the police can’t show up at your door and arrest you for being a “troublemaker,” “agitator,” “Communist sympathizer,” etc. The law must have been drafted by the legislature—without a specific person or group in mind—and must spell out the elements of the crime. This promotes due process and prevents arbitrary application.

Elements of the crime

All statutes are said to have “elements.” They can be broken down into a list of requirements for breaking them, and all elements must be met or the statute has not been violated.

For example, common law residential burglarly is defined as: “Breaking and entering the dwelling of another with intent to commit a felony therein.”

The elements, then, are:

1) Breaking

2) And entering

3) The dwelling

4) Of another

5) With intent to commit a felony therein

If you haven’t done ALL of these things, you haven’t committed burglary. (You may have committed other crimes, such as trespassing, theft, breaking and entering, etc., but not residential burglary.)

To take this concept to its ridiculous conclusion, this is what constitutes residential burglary:

            1) Breaking (the door can’t be standing open)

            2) And entering (Even if you just stick your arm through the window)

            3) The dwelling (Not a commercial building, say)

            4) Of another (Can’t burglarize your own home!)

            5) With intent to commit a felony therein (Can’t mistakenly enter the wrong house; it’s got to be on purpose. Also, contrary to popular belief, burglary doesn’t require theft—any felony will do.)

If you’ve done every single one of these things, congratulations; you’re a burglar. Seriously, though, no reasonable person could read this statute and fail to understand what it means to commit burglary.

If the prosecution can prove to a jury beyond a reasonable doubt that the alleged burglar’s actions have met all of these elements, the government has met its due process requirements and can proceed with the business of depriving the criminal of his freedom.

Tsarnaev’s crimes

So far, the federal government has charged Tsarnaev with the following crimes (the State of Massachusetts will charge him with a separate set of crimes based on their state’s law):

(NOTE: I’m omitting the parts of the statutes that do not apply OR are not in question.)

1) Use of a weapon of mass destruction 18 U.S.C. § 2332a(a)

“…A person who, without lawful authority, uses… a weapon of mass destruction

…against any person or property within the United States…

...shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for… life”

2) Malicious destruction of property resulting in a death 18 U.S.C. § 844(i)

            “…Whoever maliciously damages or destroys… by means of fire or an explosive, any building, vehicle, or other real or personal property… if death results to any person… shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.”
 See how the elements of these crimes are clearly stated? Anyone can read these statutes and understand what it means to violate these laws and what penalties await those who do. Now, the prosecution can use those videotapes, witnesses, etc., to prove these elements beyond a reasonable doubt. Once you’ve read the elements of the crimes, though, you can see how specific they are—and how far away we are from the very general statement of: “He killed people with a bomb.” The punishment fits the crime My friend is right in this respect: With the wealth of evidence that we have against Tsarnaev, proving that he violated all of the elements of these laws shouldn’t be too difficult. Still, before we impose the maximum penalties (life in prison or even death), we’re going to go one step further and decide what the punishment should be. Should Tsarnaev be sentenced to life in prison or death (be deprived of his 5th Amendment rights to “life, liberty”) or is there any reason to impose a lesser sentence? In other words, are there mitigating circumstances? In this case, frankly, probably not. Tsarnaev is not mentally ill, mentally disabled, underage, etc. While he was probably influenced by his older brother, the influence likely didn’t rise to the level of coercion or duress. In rare cases, we make allowances for criminals who didn’t know any better or couldn’t help it, but Tsarnaev appears to be more like the guy who steals for the sport of it and less like the guy who steals a loaf of bread to feed his starving children. A moot point? It’s too early to speculate, but the case may not go to trial. Most criminal cases don’t. One possible outcome: The prosecution may approach the defense and offer to spare Tsarnaev the death penalty if he pleads guilty and accepts life in prison without possibility of parole. Given the nature of the crime, the high quality of the evidence against Tsarnaev, and the likelihood of a death sentence, he may choose to bargain for his life. As my friend would likely say, at least he was given that choice. It’s a shame his victims were not.

I'm happy to pay for Tsarnaev's attorney. Here's why.

Accused Boston bomber Dzokhar Tsarnaev is awake now, and federal prosecutors have charged him with two things: 1) Use of a weapon of mass destruction 18 U.S.C. § 2332a(a) and 2) Malicious destruction of property resulting in a death 18 U.S.C. § 844(i). (The State of Massachusetts has not charged him yet.) Tsarnaev can be sentenced to death for these federal crimes.

Preliminary hearing

Rather than wait for Tsarnaev to recover enough to appear in court, the People took the unusual step of holding Tsarnaev’s preliminary hearing in his hospital room. In any criminal case, the chief purpose of the preliminary hearing is to ensure that the defendant is not being held unreasonably. In other words, the People must show that they have enough evidence to keep the defendant under arrest.

The preliminary hearing has other important purposes, though. Mainly, the People are required to inform the defendant of the charges, inform him of his rights, and to see whether he has a lawyer or whether he requires that one be appointed (and, yes, paid for) by the government.

(Note: More than one news story called this hearing an “arraignment.” It wasn’t. An arraignment comes later and features a formal reading of the charges after which the defendant is expected to enter a plea.)

Tsarnaev says “no”

Apparently, the defendant was able to utter only one word during the hearing. When the judge asked him whether he could afford an attorney, he said, “No.” As a result, the head of the Boston federal public defender’s office, Miriam Conrad, will represent him. (Notably, she also represented failed shoe bomber Richard Reid.)

I was a little surprised at the tone of some of the headlines. ABC News, for example, reported: “Suspected Boston Bomber Receives All-Star Defense Team.” This overstates the case a little. In any felony case, more than one attorney is likely to help, and in a high-profile case such as this, you’d expect the head attorney to be the team captain with the rest of the office pitching in. I think it’s a little misleading to characterize this as the outlandish appointment of a dream team.

Still, the headlines echo the public’s frustration. We’ve been attacked, and now we’re being asked to pay a lot of money to defend the very person who attacked us.

Who says we have to pay his attorney?

In all criminal prosecutions, the accused… shall have the Assistance of Counsel for his defence. U.S. Const. amend VI

You’ll notice that, while the 6th Amendment clearly states that the accused has the right to a lawyer, it doesn’t say we’ve got to pay for it. It also doesn’t say when this right attaches or how much lawyerly assistance the defendant can expect.

The 6th Amendment was ratified in 1791, but it has taken a surprising amount of time and jurisprudence to settles these issues. It is now clear that the right to counsel attaches as soon as judicial proceedings have begun—including the early stages of interrogation and the preliminary hearing. See Brewer v. Williams, 430 U.S. 387 (1977). Likewise, it is well settled that, if the defendant can’t afford an attorney, the government must pay the attorney’s fees. See Powell v. Alabama, 287 U.S. 45 (1932), and Johnson v. Zerbst, 304 U.S. 458 (1938).

How do we know he’s really poor?

The indigent criminal defendant is required to submit an affidavit in which he lists his income and assets. If the defendant lies, this is considered perjury. In the federal court system, this is punishable by a fine of up to $250,000 and up to five years in jail. The Tsarnaev case is unique, however, because reporters have already dug into his background and have discovered that he has little to no money. Perjury is unlikely here.

Note that Tsarnaev is 19 years old, and so his parents are no longer considered to be financially responsible for him. Likewise, he is single, so there is no spousal income or assets to consider. If they can afford it, Tsarnaev’s family (or anyone else) can hire an attorney, of course, but they cannot be forced to pay for their adult son’s defense. Practically speaking, anyone who can afford an attorney usually chooses to hire a private attorney. While public defenders are good attorneys, they are usually overwhelmed.

Why did the Framers care? While much of U.S. jurisprudence is derived from English common law, keep in mind that the Founding Fathers were revolutionaries who were rebelling against England in some key ways. They rejected the inquisitorial system (guilt is determined by the court’s interrogation of the accused) in favor of accusatorial system, in which the state has the burden of proving the accused’s guilt. The old inquisitorial system brought unjust results for the rich and poor alike. Famously, Mary, Queen of Scots, lamented—prior to being executed for treason—that she did not know the laws of England and that she was “destitute of counsellors.” Why should I care? Oftentimes, I’ve heard people defend our justice system by saying “You’ll be glad the burden of proof is on the state and that you get an attorney IF you ever find yourself accused of a crime!” That’s true, but most of us will never commit a serious crime, so that’s not a good enough reason. Rather, I believe we continue to desire what the Founding Fathers did. We want to live in a society that requires proof, thought, care, and fairness before we deprive anyone of life, liberty, or property. We find the idea of a police state and mob rule abhorrent. We want to be sure. Unlike the criminals, we want justice—real justice, without coercion and favor. We expect more of ourselves—even when and especially when we’re wounded and angry. With that as our goal, it’s hard to imagine a better use of tax dollars.

Questioning Miranda: What do we expect of the Boston investigators?

I wrote a blog post yesterday about the constitutional issues surrounding the possible interrogation of accused Boston marathon bomber Dzhokhar Tsarnaev. Since then, more information has surfaced—along with much more speculation about the constitutional implications of a custodial interrogation. I’ve done some of thinking since yesterday, and I came up with some questions of my own.

Right now, our best information tells us that Dzhokhar Tsarnaev remains in serious but stable condition in a Boston hospital. This means that his vital signs may be unstable and not within the normal range—and that his prognosis is uncertain but death is not imminent. He is said to have leg and throat injuries and is intubated and sedated.

For interrogation purposes, this presents obvious problems. He can’t be questioned right now because he’s asleep and has a tube down his throat, but what happens when and if he gets better?

One commenter wondered whether he could be interrogated at some point even if he cannot speak. What constitutes “questioning”? Another wondered whether police are allowed to question him if he is not fully conscious—can he truly give consent to the interrogation? Can he knowingly and voluntarily waive any rights if he is groggy and vulnerable due to his injuries? Would investigators otherwise violate his rights if they approach him in that weakened condition? In other words, is “coercion” more likely when the suspect is more vulnerable than the average person? (I’m thinking here of interrogations of mentally disabled suspects, who do not necessarily understand what their rights are and which rights they are waiving—and who believe the police when they tell them: If you tell us what we want to know, you can go home.)

Your constitutional rights

Criminal defendants in the United States are afforded a powerful set of rights in the 4th, 5th, 6th, 7th, 8th, and 14th amendments. Among these are the right against self-incrimination (“pleading the 5th”) and the right to a lawyer:

No person shall… be compelled in any criminal case to be a witness against himself…. U.S. Const. amend. V

In all criminal prosecutions, the accused… shall have the Assistance of Counsel for his defence. U.S. Const. amend VI

Miranda, again

The Supreme Court has held that these rights are so important that the police must inform a suspect of them prior to custodial interrogation (questioning while under arrest). See Miranda v. Arizona, 384 U.S. 436 (1966) If the detainee asks for an attorney or if he says that he wants to remain silent, the interrogation must cease immediately. Id. at 445

Miranda, while powerful, is not absolute. This is the so-called “public safety exception” that has been discussed so much in this case. Police can ask questions of a suspect who is under arrest without Mirandizing IF the questions are necessary to protect public safety. See New York v. Quarles, 467 U.S. 649 (1984) (Quarles had just been arrested in a grocery store for a recently-committed rape and was thought to have hidden a gun somewhere in the store. Police said, “Where’s the gun?” before they read him his Miranda warning, and Quarles told them. The Supreme Court held that the gun could be admitted into evidence at the trial even though it was recovered as part of a custodial interrogation without Miranda. The gun in this case is the perfect example of “fruit of the poisoned tree.”)

Remember, though, that Miranda is triggered ONLY when a suspect is under arrest AND police are interrogating.

What is “custody”?

We usually think of “arrest” as being cuffed, put in the squad car, read your rights, taken downtown. That’s certainly an arrest, but one can be arrested without any of those things.

A person is under arrest whenever a reasonable person would form the belief that he is not “free to leave.” See U.S. v. Mendenhall, 446 U.S. 544 (1980) and California v. Beheler, 463 U.S. 1121, 1125 (1983).

Obviously, Tsarnaev easily meets the “custodial” prong of “custodial interrogation.” He was captured by police in a shoot-out and certainly is surrounded by armed officers now. No reasonable person would feel free to leave. Tsarnaev is under arrest.

What is “interrogation”?

We picture a spare, windowless and airless room at the stationhouse. A bare bulb swings from the ceiling, and there’s just room enough for a scarred metal table with the defendant on one side and the good cop, bad cop duo on the other.

In reality, though, interrogation can take any number of forms and can happen anywhere.

In the famous “Christian burial case,” a police officer who was transporting a murder suspect in a squad car mused that it was going to snow that night and that it was awful to think of the victim’s body out in the open somewhere without the benefit of a Christian burial. The suspect cracked and showed police the body. The Court held that this was an interrogation—particularly because police knew that the suspect had a lawyer and had agreed not to question him on the trip. Brewer v. Williams, 430 U.S. 387 (1977).

The ability to speak is not necessary. Interrogation must be “testimonial” but need not be verbal—a nod “yes” is enough. See Schmerber v. California, 384 U.S. 757 (1966). In other words, a handwriting sample, for example, is not testimonial and would not be interrogation with Miranda rights, but writing, typing, texting, nodding, eye-blinking, etc., a confession would be. It’s possible, then, for Tsarnaev to be questioned even if the breathing tube stays in place.

I’ll answer your questions

Of course, a suspect can waive his rights and agree to be answer incriminating questions without a lawyer present. He must, however, waive his rights both voluntarily AND knowingly and intelligently. Miranda at 444.

Frankly, the “voluntary” bar has been lowered significantly. In Colorado v. Connelly, the Court held that the waiver would be considered voluntary unless the suspect is able to show that his choice to speak was the result of some sort of coercion or police misconduct that defeated his free will. 479 U.S. 157 (1986) In Tsarnaev’s case, with this much public scrutiny, police will almost certainly stay well within the bounds of Connelly.

“Knowingly and intelligently” is more problematic. When we say “knowingly and intelligently,” we’re asking whether the suspect understands his rights and appreciates the consequences of what he’s giving up when he waives them.

Tsarnaev does not show any of the impairments that traditionally handicap a suspect’s ability to act “knowingly and intelligently.” He is not mentally ill or mentally disabled, and he has been in this country long enough to speak perfect English and to understand the basic mores of American life. That’s not the problem. Investigators would need to ensure that he is recovered enough and is no longer groggy from the sedation.

Incidentally, the questioning itself—even if Tsarnaev is gravely ill—would not appear to violate his 5th amendment rights. Absent some other civil rights violation, police can interrogate a suspect who lies injured in the hospital. See Chavez v. Martinez, 538 U.S. 760 (2003)

Clearing up misconceptions

I’ve read the following statements during the last 24 hours:

1) “Under the public safety exception to Miranda, police only have 48 hours to question Tsarnaev without reading him his rights.”

The Quarles case does not impose a time limit. Rather, the Court called this a narrow exception that could only be used to ask questions meant to uncover threats to public safety. This could take five seconds (“Where is the gun?”) or much longer. While failing to read a suspect his rights for any amount of time is risky, police are not bound by a deadline.

2) “Miranda has been gutted and no longer really applies.”

No it hasn’t and yes it does.

When people say this, they are usually talking about the Berghuis case, in which the Court held that a suspect who begins talking after a period of remaining silent has not invoked Miranda. Berghuis v. Thompkins, 560 U.S. _____ (2010) In other words, the suspect must either remain silent or affirmatively invoke his right to remain silent: “I don’t want to answer questions,” for example. To me, this is similar to the Edwards holding, in which the Court ruled that a suspect must affirmatively ask for a lawyer: Saying something such as, “Hmm… maybe I should get a lawyer” is not enough. Edwards v. Arizona, 451 U.S. 477 (1981)

3) “Tsarnaev has been appointed a federal public defender. He can probably afford a lawyer, but no lawyer would take his case. That’s why they had to appoint one.”

First of all, Tsarnaev has not been appointed a federal public defender yet. The federal public defender’s office said that it would agree to represent him (assuming they have jurisdiction to do so). Other possible attorneys: The state public defender, of course, as well as lawyers for any number of constitutional rights organizations.

Generally speaking, in the United States, a criminal defendant is appointed a public defender only if he cannot afford a lawyer. Plenty of lawyers—public and private—would take his case, because that’s what lawyers do. Some would do it for free for the challenge, the publicity, or for some other compelling reason.

4) “If they don’t read him his rights, he walks!”

If the police don’t inform Tsarnaev of his rights and he doesn’t properly waive his rights, any evidence that the police get from an interrogation cannot be used as evidence at trial—if the interrogation was conducted outside a Miranda exception such as the public safety exception.

That’s a big difference, although certainly a lack of key evidence could make a conviction harder to get. Still, I think there will be a wealth of evidence in this case, and it’s unlikely that a jury would fail to convict Tsarnaev.

The right to remain silent: Is Miranda in the way?

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present before you answer any questions. If you cannot afford an attorney, one will be provided. Do you understand?

—Typical Miranda warning

No person shall… be compelled in any criminal case to be a witness against himself…. U.S. Const. amend. V

In all criminal prosecutions, the accused… shall have the Assistance of Counsel for his defence. U.S. Const. amend VI

As of Saturday afternoon, 19-year-old Dzhokhar Tsarnaev lies in serious condition at a Boston hospital. (“Serious” apparently means that his vital signs may be unstable and are not within normal limits, and that he’s acutely ill with a questionable prognosis.) With that medical status and an ongoing investigation, things can change by the minute. It doesn’t make sense, therefore, to speculate on what his future may hold with regard to specific criminal charges, state vs. federal, etc.

I’ve sifted through a lot of commentary, however, about the constitutional questions raised by Tsarnaev’s arrest—such as whether he will be read his Miranda rights and whether he’s an enemy combatant. I hope to clear up some of the confusion as I outline the constitutional questions that face us.

What is Miranda?

To protect a criminal defendant’s 5th amendment right against self-incrimination and the 6th amendment right to an attorney, the police must inform a person of these rights prior to an interrogation when the person is under arrest. Miranda v. Arizona, 384 U.S. 436 (1966) If the detainee asks for an attorney or if he says that he wants to remain silent, the interrogation must cease immediately. Id. at 445

You can see why investigators are wary of Miranda in this case. It’s not because it would discourage Tsarnaev from confessing. Arguably, they don’t need a confession from him: They’re likely collecting plenty of incriminating evidence to convict him without one. A key question in this investigation, however, is whether the Tsarnaev brothers acted alone or whether they’re part of a “cell.” Also, did they leave undetonated bombs behind? If they start to question Tsarnaev and he asks for an attorney and/or says he doesn’t want to incriminate himself, the questioning stops and these questions go unanswered.

While most reasonable people understand why it’s important to protect a criminal defendant’s constitutional rights, we’re also naturally concerned about the rights of potential future victims of the Tsarnaev brothers and their accomplices, if any. We’ve got to get this lifesaving information, but we can’t jeopardize a future conviction.

Miranda who?

In 1963, Ernesto Miranda was arrested by the Phoenix police for the kidnapping and rape of a 17-year-old girl. Police interrogated Miranda, who then signed a written confession. Police did not specifically warn Miranda that he had a right to talk to a lawyer, and he was not told that he had the right to remain silent or that his statements could be used against him. The U.S. Supreme Court set aside the conviction, and Miranda got a new trial where he was convicted without the confession. In 1976, after his eventual release, he was stabbed to death in a bar fight in Kingman, Arizona. According to newspaper reports, his assailant fled prosecution—lending credence to the “what goes around comes around” theory. Miranda died with several printed Miranda warning cards in his pocket.

When is Miranda triggered?

Our perception of an arrest is largely shaped by movies and TV. We see the seasoned police detective lead the perp to the squad car: “You’re gonna have to come with me now, son. I’m sure I don’t need to tell you why.” The earnest rookie patrolman then reads the perp his Miranda rights while he’s pushed down into the back seat.

This gives us the false impression that police are required to read a suspect his Miranda rights when they are arresting him. Further, we assume that we’re not under arrest until we hear those words.

In reality, Miranda protects the suspect against self-incrimination in custodial interrogations. Miranda is triggered only when the suspect is both: 1) Under arrest AND 2) being questioned by police. While police officers generally do read the suspect his rights when they’re arresting him, it’s only as a matter of policy to make sure this base is covered—and to ensure that incriminating info can be used in case the suspect gets chatty in the patrol car on the way downtown. In fact, some departments re-read the Miranda rights when any formal questioning begins at the stationhouse and have the suspect sign a written Miranda waiver.

How do I know if I’m under arrest?

You wouldn’t think this would be a gray area—It’s when I’m handcuffed in the back of the squad car, right? It’s unclear in a surprising number of cases, though.

A person is in police custody when a reasonable person would not feel that he is “free to leave.” U.S. v. Mendenhall, 446 U.S. 544 (1980) A reasonable person wouldn’t feel “free to leave” if they are sitting on a curb surrounded by police with guns drawn, for example—or if they’ve been escorted to an office at an airport by DEA agents, as Mendenhall was.

I mention this here because Tsarnaev falls into one of those gray areas. He was transported to the hospital (not jail) in an ambulance (not a squad car). He doesn’t feel free to leave primarily because he’s gravely injured. Still, he’s in police custody because he is surrounded by police—after two firefights with them—and wouldn’t be allowed to move even if he could. A reasonable person would not feel free to leave under these circumstances.

If the police question him, it’s a custodial interrogation and therefore falls under Miranda.

The public safety exception to Miranda

A Department of Justice official who did not want to be named told an NPR reporter that investigators did not plan to read Tsarnaev his Miranda rights now. Instead, they are invoking the “public safety exception.” Police can ask questions of a suspect who is under arrest without Mirandizing IF the questions are necessary to protect public safety. New York v. Quarles, 467 U.S. 649 (1984)

The FBI has used the public safety exception with more than one terror suspect—notably, with would-be 9/11 hijacker Zacarias Mossaoui and with thwarted Times Square bomber Faisal Shahzad. In both of these cases, the FBI appears to have asked questions pertinent to public safety and then read the Miranda warnings before continuing the interrogation. It’s a fine line.

Enemy combatant

Senators Lindsey Graham, John McCain and others are calling for the Obama administration to treat Tsarnaev as an enemy combatant under the Military Commissions Act of 2006 (10 U.S.C.A. 948(a) (2006)), in which case he would be interrogated without Constitutional protections such as Miranda—and could be detained indefinitely at Guantanamo and tried in a military tribunal with no constitutional protections.

Congress passed the Military Commissions Act in 2006 after the Supreme Court held that the Guantanamo military tribunals held by the Bush administration violated both the Geneva Convention and the Uniform Code of Military Justice. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) A key portion of the new, improved Military Commissions Act—in which enemy combatants were prohibited from filing habeas petitions so that their cases could be reviewed by federal courts—was held to be unconstitutional. Boumedine v. Bush, 553 U.S. 723 (2008)

In short, the Guantanamo route is a rocky road—even when the U.S. is trying to prosecute those who fall squarely within the definition of enemy combatants.

Several news articles have suggested that, under the Act, Tsarnaev cannot be defined as an enemy combatant because he is a U.S. citizen. This is not strictly true, as the Act does not limit the designation of enemy combatant to non-U.S. citizens. Still, because Tsarnaev is a U.S. citizen, he is afforded the same constitutional rights as any other U.S. citizen. To treat him as an enemy combatant under the Act would be a clear constitutional violation.

What happens next?

Because the situation is ever-changing, it will be interesting to see how the government’s case evolves. The State of Massachusetts (where there is no death penalty) and the federal government (where there is) are still preparing charges and collecting evidence. Also, given his condition, Tsarnaev may not live long enough for any of this to matter.

Note that even if police don’t read Tsarnaev his Miranda rights, he can still invoke them. Suspects (wisely) do it all the time. If you’re arrested, the first and only words out of your mouth should be “I want a lawyer!” As an American, Tsarnaev has possibly watched enough TV to know that.

Where do you draw the line? Can Georgia move its border and get a drink?

Georgia’s population has doubled since 1940, and nearby waters such as the Chattahoochee River and Lake Lanier can no longer slake metro Atlanta’s insatiable thirst. Meanwhile, the Tennessee River—with its surplus of one billion gallons a day—flows tantalizingly close to Georgia’s northern border. In one spot at manmade Nickajack Lake near Chattanooga, the river is so close that developers and lobbyists can almost taste it.

Normally, of course, it wouldn’t matter how close the river flows to the Georgia line. If the Tennessee doesn’t touch or cross the border, Georgia can’t have access to it—no matter how thirsty the Atlanta suburbs get.

Survey says?

For years, Georgia has argued that its true northern border lies along the 35^th parallel and that an 1818 surveying error caused the boundary to be marked one mile too far south—and out of reach of the Tennessee River. If the border had been correctly marked, Georgia claims, the state line would be a mile north, and parts of the Tennessee River would cross into Georgia such that Georgia could tap into those one billion gallons a day.

Georgia hasn’t seriously acted on this issue until the past few years, when its drought and development have forced its hand. The Georgia legislature has recently passed H.R. 4, which proposes this solution: Georgia will ignore the surveying error for the majority of the length of the state line IF Tennessee will agree to cede about one square mile of land at Nickajack Lake (so Georgia can stick in a straw). If Tennessee fails to agree to this by the close of its 2014 legislative session, Georgia will sue to have the state line put back at the 35^th parallel. (If the state line were moved up to the 35^th parallel, Georgia would gain about 68 square miles and 30,000 new residents—who would presumably be unhappy about being moved to a state that has a state income tax.)

You’re kidding, right?

So far, Tennessee has not taken Georgia’s threat seriously. Gov. Bill Haslam responded vaguely that he’ll continue to protect the interests of Tennessee, while Tennessee state legislators have said: Eh, see you in court. Meanwhile, Chattanooga mayor Ron Littlefield (no relation to me) proclaimed Feb. 27, 2008, as “Give our Georgia Friends a Drink Day,” and had his aide—wearing a coonskin cap—deliver a truckload of bottled water to the Georgia state capitol.

No one appears to dispute that Georgia’s border was originally supposed to be the 35^th parallel. Indeed, due to antiquated surveying equipment and methods and inexperienced crew members, many state lines and other important borders were imprecisely mapped. New York and New Jersey have argued over Ellis Island for years, and a more exact North Carolina/South Carolina line was bad news for a convenience store owner who can now no longer sell fireworks even though his store hasn’t moved.

Tennessee officials are laughing at Georgia’s cockamamie scheme, and it may not matter anyway. The Tennessee Valley Authority (TVA) owns the land and manages the river in the disputed area, and so that federal agency would have final say over whether Georgia can drink the water.

Still, H.R. 4 raises this legal question: If Georgia’s border is supposed to be the 35^th parallel, can Georgia have the border “restored” after all this time?

Jurisdiction

This sounds like the type of dispute that can wind through the courts for years, but a clause in the U.S. Constitution’s Article III offers a direct line to the U.S. Supreme Court: “The judicial power shall extend to… Controversies between two or more states….” U.S. Const. art. III, § 2, cl 1.

The Wall Street Journal interviewed Joseph Zimmerman, a political scientist and expert on interstate disputes, who says the Court almost always takes these cases. The Court then appoints a retired judge as special master, who reviews the facts and makes a recommendation to the Court.

If Tennessee fails to respond timely to Georgia’s demands, then, the state legislature will ask Georgia’s attorney general to sue Tennessee. If the attorney general does so, the case will go to the Supreme Court, who will decide whether the state line can be moved to the 35^th parallel.

Acquiescence

The theory of the case will likely involve acquiescence. Acquiescence in property law means that when one party lets another party infringe on his rights without objecting, the aggrieved party eventually loses the right to claim his rights. The law discourages parties from “sleeping on their rights.”

For acquiescence to apply, the aggrieved party must have had knowledge that its rights were being infringed, and the aggressor party must not be acting with malice aforethought.

Georgia is painfully familiar with acquiescence. In 1990, the Supreme Court held in Georgia v. South Carolina that Georgia had lost the right to an island in the Savannah River—even though the Treaty of Beaufort of 1787 gave the island to Georgia. 497 U.S. 376 (1990). The Court held that Georgia had knowingly slept on its rights—had stood by for years while South Carolina made the island into a peninsula and then levied property taxes. Id. at 380.

I’m awake!

The Georgia legislature has suggested that Georgia should argue that it did not acquiesce—that it complained to Tennessee about the border more than once. This argument will almost certainly fail, because Georgia has not asserted its rights by filing a lawsuit. This is the most direct and obvious path to asserting one’s rights, and Georgia has failed to do it for nearly 200 years.

Tennessee’s response—or non-response—to Georgia’s threat seems reasonable, then. Tennessee can easily argue that it did not maliciously try to take Georgia’s land. (It’s not Tennessee’s fault that the line was drawn wrong.) Also, Tennessee will successfully argue that Georgia had notice: The 68 square miles in question are attached to the rest of Georgia, and so Georgia has had ample notice that residents of this area pay Tennessee property taxes and call themselves Tennesseans. Lastly, Georgia acquiesced: Georgia could have easily disputed the border in the past 200 years, but it has slept on its rights.

The Tennessee River will stay in Tennessee.

Constitution be damned! Can North Carolina establish an official state religion?

If you grew up in a Southern state, you’ve grown accustomed to a certain amount of ridicule. Don’t worry about your detractors’ running out of fuel. Our state legislators are working hard to keep the jeers coming.

Today, North Carolina is in the news. State representatives Carl Ford (R-China Grove) and Harry Warren (R-Salisbury) and nine others have sponsored House Joint Resolution 494, which has passed the first reading and has been referred to committee:

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

It’s pretty easy to say: “Nope! It’s unconstitutional on its face! It won’t stand!”

It’s a lot harder to explain why, so let’s do that instead.

Freedom from religion?

When the lawmakers say the Constitution “does not prohibit states… from making laws respecting an establishment of religion,” they’re talking about the Establishment Clause of the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. I

North Carolina appears to be saying that it’s not Congress, so the First Amendment doesn’t apply to it.

Incorporation nation

Remember that other time Southern legislators argued that the Bill of Rights (the first 10 amendments) applied only to the federal government and not to the several states? In response to that, the 13th, 14th, and 15th amendments—the “Reconstruction Amendments”—were ratified during the five years after the Civil War.

Constitutional law students are taught to rattle off that “the Fourteenth Amendment applied the First Amendment to the states” as if the text of the Fourteenth Amendment says that. This is not entirely true.

Certainly, Section 1 reads in part: “…nor shall any State deprive any person of life, liberty, or property, without due process of law….” U.S. Const. amend. XIV, § 1. This instantly applied the 5th Amendment due process clause to the states, but it took a surprisingly long time—and a lot of Supreme Court rulings—before we could say accurately that the Bill of Rights is (mostly, if not fully) applied to the states.

In fact, the Supreme Court at first ruled that the First Amendment did not apply to the states. U.S. v. Cruikshank, 92 U.S. 542 (1876). Surprisingly, the Court did not reverse itself in part and apply the Establishment Clause to the states until 1947. Everson v. Board of Education, 330 U.S. 1 (1947).

Who cares what the Supreme Court says?

The North Carolina bill, however, specifically rejects the Supreme Court’s authority to apply the First Amendment Establishment Clause to the state. Can North Carolina do that?

The very first case that law students read in Constitutional Law I is Marbury v. Madison. 5 U.S. 137 (1803). Unfortunately for them, this introduction to law school is frankly a boring and nearly unreadable case, but everybody’s got to get through it to extract the key rule upon which everything else is built: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury at 177.

Lawyers often joke that the Supreme Court relies on circular reasoning here to decide that they have the authority… to have the authority… because they have the authority. (Sadly, this is what passes as a joke for many lawyers.)

They’ve got a point, though. While the Constitution establishes the federal court system, it does not explicitly give the Supreme Court the power to review laws passed by Congress and rule them unconstitutional.

Marbury and other cases have held that this power is implied from the Constitution’s Article III and Article VI:

The judicial power of the United States, shall be vested in one Supreme Court…. The judicial power shall extend to all cases, in law and equity, arising under this Constitution…. The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

--U.S. Const. art. III, § 1.

This Constitution… shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding….

--U.S. Const. art. VI, cl. 2.

If anything is well-settled, it’s the concept of judicial review. The Supreme Court has been deciding whether legislation is constitutional for more than 200 years.

Sorry, North Carolina

In the unlikely event that this proposed legislation makes it out of committee and is passed, someone will sue immediately, and the Supreme Court (if the case makes it that far) will strike it down as unconstitutional. It’s hard to imagine that these 11 legislators don’t already know that.