Dzhokhar Tsarnaev and the Myth of the Public Safety Exception

The United States of America is rushing headlong into becoming a police state if in fact we are not there already.

The certainty of Dzhokhar Tsarnaev’s conviction and death penalty sentence was set in stone while the accused lay in a hospital bed in critical condition from multiple gunshot wounds with powerful narcotics flowing through his traumatized mind and body, unaware that his brother Tamerlan was already deceased. The outcome of the case against the accused was already a foregone conclusion as early as this, shocking as that may sound to some.

To understand why I say this, one must understand the history of the public safety exception, its relationship to Miranda rights, and how, like the death penalty itself, it is being subjectively applied.

The public safety exception to Miranda originated from a crime that occurred on September 11, 1980. But the decision to interrogate Dzhokhar Tsarnaev under the public safety exception in his hospital bed is nothing more than a feather in the cap of al-Qaeda, born of the fear and desperation generated on a national scale by the spectacular carnage wrought on that other September 11 in 2001.

It is time this nation takes steps to turn back the clock. Our very way of life in this country depends on our ability recognize this and do so before it is too late.

From The Public Safety Exception to Miranda by Carl A. Benoit, J.D., FBI Law Enforcement Bulletin, Feb. 2011:

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.

After 44 years, the Miranda decision stands as a monolith in police procedure. Its requirements are so well known that the Supreme Court remarked, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

And although the Supreme Court has clarified and refined Miranda over the years, its central requirements are clear. Whenever the prosecution seeks in its direct case to introduce a statement made by a suspect while in custody and in response to interrogation, it must prove that the subject was warned of specific rights and voluntarily waived those rights. The penalty imposed on the prosecution for failing to prove that the Miranda procedures were properly followed is harsh. While some secondary and limited uses of statements obtained in violation of Miranda are permitted, such statements are presumed to be coerced and cannot be introduced by the prosecution in its direct case.

The strength of the Miranda decision is its clarity in its nearly unwavering protection of a suspect’s Fifth Amendment protection against self-incrimination. The commitment to this rule is so strong that the Supreme Court has recognized only one exception to the Miranda rule – the “public safety” exception – which permits law enforcement to engage in a limited and focused unwarned interrogation and allows the government to introduce the statement as direct evidence.

According to the Supreme Court, the public safety exception is triggered when police officers have an objectively reasonable need to protect the police or the public from immediate danger.

The manhunt to find Dzhokhar lasted eighteen hours. During those critical eighteen hours, all was quiet on the western front, save for the ruckus created by hundreds of law enforcement and FBI-types running around town looking for him. Dzhokhar was unarmed at the time he was apprehended.  He had no gun, no explosives, he wore no suicide vest. He was non-combative, attempting to surrender when he was forcibly pulled down from the boat where he stood in full view of law enforcement. When questioning began, not by police officers but by FBI agents, he had been hospitalized and in critical condition for more than a day and during that time, with his brother deceased, the streets of Boston and the surrounding communities had remained quiet.

If there had been other bombs and other people ready to detonate them, it would have become apparent while Dzhokhar and everyone else was still in close proximity to David Henneberry’s backyard. This would have been the time and place to take out a multitude of police officers, FBI and innocent civilians sheltering in place in the surrounding houses. As it turned out, the police, after firing hundreds of rounds into the boat where an already-wounded Dzhokhar lay hiding, later reported they had, in fact, returned fire.

The only explosions came from the flashbangs tactical units lobbed into the boat in an attempt to encourage surrender.  Flashbangs, which are also called stun grenades, can be, and have been, lethal. The concussive blast of the detonation can still injure and the heat created can ignite flammable materials – such as the fuel often stored in a boat.

Was anyone thinking that night in Watertown or was fear in the driver’s seat and anger the only one fighting to take the wheel?

Once Dzhokhar was in custody, I fail to see what immediate danger the police and public still needed protection from that justified allowing not the police but the FBI to question him under the public safety exception, and not immediately, but all those hours later.

One does not hide detonators, or anything else for that matter, in a hospital gown.

So why did the FBI insist that a public safety exception still existed? I believe the answer lies in what they did with the information they claimed to have received.

They leaked it to the press who leaked it to the public. And twelve members of that same public eventually sat on the jury at his trial – and have so far remained anonymous after rendering a guilty verdict and sentencing Dzhokhar to death.

The fact that they leaked this information is simply extraordinary. Of all the statements most important to protect from leaks in order to preserve the integrity of a case and avoid the appearance of improper conduct that could jeopardize a conviction, un-Mirandized statements have to be at the top of the list.

Since questions are asked under the public safety exception when the need for information is critical to protect police and the public from immediate danger it would be important that they ask the person they knew for sure had the answers.

How would they know who that person is?

One way would be if the person had been caught in the act. Another way would be if one or more eyewitnesses had come forward giving a clear description of the suspect or if so much time had passed in the case that a mountain of evidence now pointed without a doubt to the guilty party.

Had anything like that happened between the time of the explosions at the marathon and the capture of Dzhokhar? No it had not. With so little time between the crime and the showdown at the boat, little had been figured out. The bombing was still a mystery.

When a suspect in custody is questioned while being deprived of their Miranda rights under the public safety exception, the authorities are putting all their eggs in one basket so-to-speak so you’d better hope they are asking for reassurance from the right person.

Reassurance from an innocent party is no reassurance at all.

So why did this happen? I believe the answer is chillingly simple. The FBI already knew when they asked Dzhokhar in his hospital bed that there would be no more explosions. They just needed to have Dzhokhar say it. Afterwards, all that was left to do was leak this so-called bedside confession to the press and call it a day. The mission was a success; the job was done and Dzhokhar would take the fall, forever hiding the FBI’s own involvement.

When the case went to trial, the evidence against Dzhokhar was non-existent making even more extraordinary the fact that his own attorney said “it was him” in the first few minutes of her opening statement. The testimony was conflicting, contradictory and often unrelated to the crime. Much of it was presented to engender fear of and hatred for the defendant, his family and the religion he sometimes observed.

The videos did not show what the prosecution, in all the months leading up to the trial, had claimed they would show. Images were so unclear, far away, shielded from clear view etc that in the end, they had to be explained, which amounted to the jury being told what they were seeing rather than being able to see video proof of who committed the crime with their own two eyes.

And still he was convicted. And not just convicted, but sentenced to death by twelve people who live in a state where the majority of people do not support the death penalty, twelve people who met individually and in-camera (in private, in chambers) with the judge before the case went to the jury in the guilt phase.

If alarm bells are not going off in your head right now, I can only conclude you must suffer from profound mental illness, low IQ, deep-seated bias or some combination of the three.

Back in my high school days, Three Dog Night was a popular rock band. This is part of a lyric from one of their hit songs:

How can people be so heartless?
How can people be so cruel?
Easy to be hard
Easy to be cold

How can people have no feelings?
How can they ignore their friends?
Easy to be proud
Easy to say no

Especially people who care about strangers
Who care about evil and social injustice
Do you only care about the bleeding crowd?

At the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev so much focus was on the victims, the injured, the bleeding crowd, that no one, not even the defense, seemed to notice or care that real evidence was never presented to prove beyond a shadow of the doubt that “it was him.”

The FBI, prosecution, judge and jury got away with murder – literally. It is high time for a higher court to reverse that decision. In full faith, I anticipate the day when it is so ordered.

I was amused to learn that someone with the handle @Boston Justice actually has me blocked on Twitter. Considering the fact that there was no justice in Boston for Dzhokhar, I am not surprised. Rather, I am honored.

2 thoughts on “Dzhokhar Tsarnaev and the Myth of the Public Safety Exception”

  1. Well said, Lynn. A massive injustice perpetrated by our “Justice” system. Clearly the DOJ, FBI et al suffer from extreme arrogance, the belief that they can do whatever they want – to an innocent party – and get away with it, laws and requirement of proof of guilt beyond a reasonable doubt be damned. It is now up to the higher court of appeals to prove that a chance of Justice may still be had in this country. Hope they are up to the task.

  2. This is fantastic Lynn!! This should be on the front page of a Boston newspaper to educate those who “suffer from profound mental illness, low IQ, deep-seated bias or some combination of the three,” which seems to be most of the people in Boston, (you know the whole #bostonstrong crowd.) It’s shocking to see the lengths the FBI will go through to convict and kill one skinny innocent teenager, with the full backing of the US government.

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