Pretrial wrangling between federal prosecutors and lawyers for accused Boston Marathon bomber Dzhokhar Tsarnaev has raised questions about FBI conduct — questions as important as whether the defendant is innocent or guilty of the charges against him.
On May 7, defense attorneys filed a motion to suppress an interrogation of Tsarnaev done shortly after his arrival at Beth Israel Deaconess Medical Center in April of last year. Throughout the questioning the FBI never read Tsarnaev, an American citizen, his Miranda rights, which would supposedly prohibit prosecutors from using any statements he made before he was instructed of his rights.
What most Americans do not know is that the rights accorded an arrestee by the Constitution have been seriously eroded in recent years. The Tsarnaev case is a dramatic example of the declining protection federal law accords to the two rights sought to be protected by Miranda: the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to be represented by a lawyer in a criminal prosecution.
Consider the conditions of his interrogation. Tsarnaev was arrested on April 19, 2013 and immediately brought to Beth Israel, where doctors had to intubate him to keep him alive. He then underwent emergency surgery for serious injuries to his brain, face, throat, jaw, hand, and legs. He was recovering in the intensive care unit and on narcotic pain medication when the FBI began interrogating him without a lawyer present, approximately 20 hours after he arrived at the hospital. Tsarnaev was shackled to the bed (as if he were in good enough shape to escape!) and kept awake while agents questioned him on and off for 36 hours, with intermittent short breaks.
He repeatedly asked for an attorney, but was denied one. Though federal and state public defenders went to the hospital to offer their services, they were turned away.
How could federal prosecutors possibly seek to admit into evidence arguably incriminating statements made under such conditions? The answer lies in a 1984 Supreme Court decision in the case of New York v. Quarles, in which the Court made a major change in the law and held that there was a “public safety exception” to the Miranda rule. The exception allows pre-Miranda warning statements to be admitted as evidence under some circumstances.
In the case, a police officer — in the course of arresting Benjamin Quarles — asked him where he had stashed his gun, and Quarles said, “The gun is over there” before the officer read him his Miranda rights. Courts below had suppressed Quarles’ answer as to the whereabouts of his gun, but the Supreme Court unpredictably ruled that the statement could be admitted by reasoning that “overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.”
Tsarnaev’s attorneys argue that as broadly as the “public safety exception” has been interpreted post-Quarles, it should not apply to Tsarnaev’s statements made during the hospital interrogation. After all, Tsarnaev dispelled concerns about a continuing threat to public safety in the first few minutes of the interview. Agents nonetheless went on to perform a drawn-out, unrecorded interrogation of Tsarnaev about such non-urgent topics as his sports activities, religious beliefs, future career goals, and school history.
Prosecutors have now informed Tsarnaev’s attorney that they do not plan to use the hospital statements at the trial, despite the “public safety exception” that they believe legitimized the FBI questioning. However, under another exception carved into the Miranda rule by the Supreme Court, should Tsarnaev choose to testify at his trial the prosecutors have reserved the right to introduce portions of those hospital interviews in their rebuttal case. (The order of a federal criminal trial is that the prosecutors open, the defense responds with any evidence it has, and the prosecutors then get a shot at rebutting the defense case.)
This imbroglio over the admissibility of Tsarnaev’s statements made in the hospital invokes clear and important questions about Fifth and Sixth Amendment rights against self-incrimination and the right to counsel. But there was another, equally troubling aspect of the hospital interrogation at issue in the defense’s May 7th motion, one that received little attention: How can it be that in a supposedly civilized nation, a defendant in the physical and mental condition of the hospitalized Tsarnaev may be interrogated at all? Much less while handcuffed to a bed, without any non-prosecutorial party there to witness whether the bounds of acceptable conduct are being exceeded?
One of the co-authors of this piece has previously raised the issue of the uncivilized treatment accorded by federal authorities in the case of former speaker of the Massachusetts House of Representatives Salvatore DiMasi, who is serving an eight-year sentence for corruption. The Federal Bureau of Prisons assigned DiMasi to a distant Kentucky prison against the pleas of his family and the recommendation of his sentencing judge, who expressed concerns about DiMasi’s heart condition and his wife’s cancer. Once incarcerated DiMasi found lumps in his neck and a prison doctor recommended further testing for cancer. Instead, the FBP took DiMasi on a 900-mile out-of-the-way bus trip with the apparent goal of making a cooperating grand jury witness out of him.
By the time DiMasi returned, his heart had not given out, but the undiagnosed cancer that was lurking when he first arrived at prison had progressed to stage IV metastatic tongue and lymph cancer. Such mistreatment is arguably a form of torture and a criminal violation of a prisoner’s civil rights. Though Dzhokhar Tsarnaev has seemingly recovered from his injuries, DiMasi’s chances at surviving the government’s attempt to extract the testimony it desired are not as good.
The suppression issue raised by Tsarnaev’s lawyers thus goes to the heart not only of what Miranda protections should be afforded to arrested suspects, but more broadly to the question of whether the government should be bound by certain standards of civilized conduct in their dealings with a person whose health is in serious danger. A society can be judged, after all, not by how it treats its model citizens but by how it treats its most unsympathetic members.
Harvey Silverglate is a criminal defense and civil liberties trial lawyer in the Boston firm Zalkind Duncan & Bernstein LLP, and the author, most recently, of Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, updated second edition 2011). Juliana DeVries, Silverglate’s research assistant, will begin law school in the fall. The assistance of research assistant Daniel Schneider is gratefully acknowledged.
