Tuesday, April 30, 2013

Whither the Sixth Amendment?

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. ("Amendment VI" to the U.S. Constitution. Emphasis added)

A couple days ago, I happened upon an article in my home-town rag, The Los Angeles Times. One brief passage in particular about the pre-Miranda interrogation of Dzhokhar Tsarnaev caught my eye:

Until that point, Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. (Emphasis added)

Wait, what?

The 'Public Safety Exception' to the Miranda rule does not allow the government to deny suspects their rights, e.g., to remain silent or to counsel. It does allow the government to put aside temporarily its obligation to read suspects those rights. In other words, Tsarnaev had the right to an attorney, whether he was advised or not, and he attempted to exercise that right by requesting an attorney.

If the Times' reporting is to be believed, the government chose to ignore Tsarnaev's request for an attorney and kept right on questioning him.

I'm not an attorney, more like an attorney manque, nurtured on episodes of Perry Mason and Law and Order. But from where I sit, the government willfully violated Tsarnaev's right to an attorney. The Public Safety Exception never allows the government to deny suspects their rights. It only allows the government to delay informing suspects of their rights for a brief period. There is a difference.

As soon as Tsarnaev requested an attorney, whether during the Public Safety Exception or otherwise, the Sixth Amendment required the government to provide him with access to one. So, please, someone, anyone, tell me the U.S. did not jeopardize its entire case by violating Tsarnaev's Sixth Amendment rights.

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