Should we try Tsarnaev in the USA?

[newyorkguy]

And specifically how fiscal realities affect the defense of Dzhokhar Tsarnaev.

The lawyers defending Boston Marathon bombing suspect Dzhokhar Tsarnaev are dealing with federal budget cuts that are forcing them to take three unpaid weeks off, even as they prepare a defense for the high-profile case.

The office of federal defender Miriam Conrad in Boston has been appointed to represent Tsarnaev. The office must complete the furloughs before the end of September because of cuts of around 10 percent.

link

 

[triforcharity]

You don't believe it?

No, I don't, and I'm not alone apparently.

No offense but that's because you don't know what you're talking about.

And yet, I've schooled you on more than a few occasions.

You can't be sentenced in criminal court unless you plead guilty? Seriously?

The judge can't just randomly sentence people. There must be a hearing where a defendant pleads guilty, or no contest, or requests a trial by judge. Then the judge listens to the evidence, and decides a verdict. However, just randomly sentencing people is not allowed under any sort of court.

He pleaded Not Guilty. He was found guilty.

So, he requested a trial by judge. Ok.

Nothing gets "tossed" unless an appeal is filed.

Correct.

That co$t$ buck$.

A few, yes. However, in this specific case, I can guarantee an attorney would take it no charge, (if it's really as you describe) it's a guaranteed win for the attorney, and a very easy one too. Not to mention a person who is found indigent by the courts, can have those fees waived.

That's out of the reach of many defendants. Lawyers don't work on installment plans. Either you pay upfront what they ask for or....find yourself another lawyer.

Usually, yes. But, as an American, if your court appointed attorney is ineffective, the court must rectify the situation.

Go to a big-city criminal court sometime. Like in Miami or Tampa. Sit there for a couple hours. They'll let you in. Citizens can go in sit down and watch. Find out how it really works.

I've been in more courtrooms and testified before more grand juries than you'll ever see. Thanks for the help though.

 

[triforcharity]

I have no idea what you're talking about. I don't know what your legal books say or how they do it in Lansing Michigan. I went through this process. I know other people who went through this process. You get arrested. You go to the precinct. They take your fingerprints and mug shot. Then at some point they transport you downtown to Criminal Court. If you can't make Criminal Court before they close you go to the House of Detention on Centre Street. The next day they take you to court. You go to an anteroom off the courtroom. You meet with your lawyer. They ask you how you want to plead.

Then the case is called and you go before the judge and they ask you how you plead. If you plead Not Guilty the judge asks the arresting officer to step forward. He explains why he made the arrest. What evidence he has. That's it. Then the judge asks a couple questions and decides the case. Judges in New York City brag about how many cases they can dispose of at a single sitting.

This claimed process violates a defendants rights as guaranteed under the US Constitution. Wanna read it?

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.

My emphasis.

Do you see where it says jury? A jury is not a single person sitting on a bench. There's also another part that is being bypassed, thereby violating a defendants rights.
compulsory process for obtaining witnesses in his favor

Do you see why it's seems....off?

These are misdemeanors. You don't get a drawn out legal procedure in New York City for a misdemeanor. Trial by jury for a misdemeanor? In New York City? That's fantasy.

No, that's called law. In fact, if this is actually occurring as claimed, (which I am doubtful) the State needs to step in a stop it, and order an investigation.

The way things work...there was a guy in the Bronx charged with murder. He was in detention for five years awaiting trial. Another lie?

Nope, that's not unusual.

 

[linusrichard]

tri: A state doesn't have to give a jury trial if the punishment is less than six months.

 

[triforcharity]

Citation?

 

[newyorkguy]

But they aren't applied fairly and evenly, are they?

That rather depends on who you ask. But the system does reach suspiciously disparate outcomes, unfavorable to the poor and minority groups. No one really knows whether this is down to wider social problems, bias within the system, a lack of funding or the disparate effect of particular procedures....

A big part of it is lack of funding for public defenders. A case that vividly illustrates this was the Corsicana Texas man executed for an arson fire that nationally recognized experts say wasn't arson in the first place. The experts say the local fire marshal's analysis of burn patterns that proved an accelerant was present, is junk science of the worst kind. And I'm not exaggerating their opinion.

The man was represented by a public defender who complained before, during and after the trial that he in no way had adequate funds available to mount an effective defense.

One issue was bringing in experts to counter the fire marshal's testimony. He couldn't afford to do it. Experts charge fees. The defense has to pay their air fares, hotel accommodations. It can quickly run into thousands of dollars. The public defender had a finite budget. I believe he actually got it increased but it was still not adequate. I think he eventually found a Texas professor who was called as a witness to challenge the fire marshal's testimony but it apparently was not effective. Or effective enough. Since the defendant was ultimately convicted and executed.

Dzokhar Tsarnaev is lucky. Because of the high profile of this case the federal governments seems to be bending over backwards to ensure Tsarnaev has adequate defense. He has three federal public defenders. Presumably that doesn't cost anything because they're on salary anyway. Another attorney, Judy Clarke a death penalty specialist, has been brought in, and she sometimes waives her fee.

But the cost of preparing motions, doing investigations, testing evidence, and all the other things that go into ensuring a defendant -- even one like Dzokhar Tsarnaev -- has a vigorous and effective defense will probably run into a lot of money.

Jonathan Sheldon, the public defender who represented D.C. sniper John Allen Muhammad says

It looks likely Dzokhar Tsarnaev was involved - but how involved?" says Sheldon. To find that out, the attorneys may well need to travel to Dagestan, where the brothers' parents lived, and parts of Russian where Tamerlan reportedly visited in 2012.

Attorney Stephen Jones who represented Timothy McVeigh, estimates

that defending the accused bomber will likely cost "several million dollars."**

** - Jodie isn't going to like that!

 

[arromdee]

Miranda rights make clear no suspect can be questioned without informed consent.

That's not really true, even ignoring the public safety exception. Miranda rights may mean that the subject's words can't be used in court, but if the police want to question him for some other reason and don't care about not being able to use his words in court, they can.

 

[Babbylonian]

That's not really true, even ignoring the public safety exception. Miranda rights may mean that the subject's words can't be used in court, but if the police want to question him for some other reason and don't care about not being able to use his words in court, they can.

What "other reason?" Any evidence they gather as a result of interrogation after a suspect has asked for an attorney under Miranda is useless unless the suspect has an attorney present. Suspects aren't typically interrogated by the police purely for funsies and the fruit from that tree remains poisonous even if said fruit is something other than words.

Example:
ME - "I want a lawyer."
COP - "Where did you hide the murder weapon?"
ME - "Behind a barn off route 12, turn right at mile marker 6."
JUDGE - "The knife is excluded."

IANAL but this part of Miranda isn't that complicated.

 

[linusrichard]

Citation?

District of Columbia v. Clawans, 300 U.S. 617 (1937)

Baldwin v. New York, 399 U.S. 66 (1970)

 

[linusrichard]

What "other reason?"

Preventing future crimes. Solving other unsolved crimes. Finding and destroying contraband. Your error is in assuming that the only purpose of police interrogation is to get evidence to use at trial.

Let's say there were no public safety exception. They arrest Tsarnaev, Tsarnaev says, "I won't answer any questions; I want a lawyer." The police say, that's nice, tell us where the other bombs are. Tsarnaev (and I'm doing a hypothetical here) says there are two other bombs at X and Y locations. The police go and find those bombs, defuse them and save thousands (hey, it's my hypothetical!) of innocent lives.

Now, if there were no public safety exception, Tsarnaev's statement about the other bombs would be inadmissible. But are you really going to say it's useless?

Any evidence they gather as a result of interrogation after a suspect has asked for an attorney under Miranda is useless unless the suspect has an attorney present. Suspects aren't typically interrogated by the police purely for funsies and the fruit from that tree remains poisonous even if said fruit is something other than words.

Yes, I disagree with "useless," and posit that there are other reasons to interrogate a suspect than evidence-gathering and "funsies." I know it often seems like the police are an investigative arm of the prosecutor's office, and in many ways I suppose they are, but in many ways they are not.

Example:
ME - "I want a lawyer."
COP - "Where did you hide the murder weapon?"
ME - "Behind a barn off route 12, turn right at mile marker 6."
JUDGE - "The knife is excluded."

COP - "But because we found the knife, someone else didn't find it and, since there was a children's playground behind the barn (now I'm hijacking your hypothetical) that's a very good thing even though we can't use it as evidence."

Of course, in real life, the prosecutor would make an argument under Quarles, and it would not be nearly so cut and dried as you lay it out. But if it's a knife and not a gun, and there's no reason to believe that it is in, say, a children's playground, then I think you're right about the outcome. It probably is excluded.

 

[triforcharity]

District of Columbia v. Clawans, 300 U.S. 617 (1937)

Baldwin v. New York, 399 U.S. 66 (1970)

Thank you, that is very interesting reading. However, as we've discovered, the original post which brought this about, was inaccurate, so the entire discussion is moot. Thanks for the correction either way!

 

[newyorkguy]

...They arrest Tsarnaev...

Normal police procedure is to Mirandize the suspect at the time they are arrested, isn't it? So normally arresting Dzokhar Tsarnaev would have included reading him his Miranda rights.

Except in this case I think officers had decided (or had been told) prior to his arrest, they would not be Mirandizing him, that they would be taking the public safety exception.

But as to the Miranda requirement, at what point must police inform an arrested person of his Miranda rights? Is there a clear legal requirement? That other than for the public safety exception, at what point police are required to give a person arrested their Miranda rights?

 

[linusrichard]

Normal police procedure is to Mirandize the suspect at the time they are arrested, isn't it?

No, not that I've ever heard. Why would it be? Normal police procedure, as far as I've ever heard, is to Mirandize the suspect before interrogation. There are at least two reasons not to Mirandize the suspect at the time of arrest. First, the point of Mirandizement is not to recite a magical incantation. The point of Mirandizement is to make sure the suspect understands his constitutional rights. So you don't want to do it at a time when you have a lot of other stuff going on. You want to make sure you have his undivided attention. Second, there's a fear that by reminding someone he has a right to remain silent, it will cause him to actually want to be silent. Unsolicited statements (that is, if the suspect tells the police something but the police didn't ask) are admissible regardless of Miranda, so why discourage the suspect from making unsolicited statements before interrogation begins?

So normally arresting Dzokhar Tsarnaev would have included reading him his Miranda rights.

Except in this case I think officers had decided (or had been told) prior to his arrest, they would not be Mirandizing him, that they would be taking the public safety exception.

But as to the Miranda requirement, at what point must police inform an arrested person of his Miranda rights? Is there a clear legal requirement? That other than for the public safety exception, at what point police are required to give a person arrested their Miranda rights?

Before interrogation. That's it. If there is no interrogation, then the suspect never needs to be Mirandized.

 

[Dragoonster]

Linus is right.

Of course, that cops interrogated him prior to Miranda does mean his confession should be inadmissable (something Jodie may want to realize btw). This seems the same "problem" that information brought out by torture is being not used by federal prosecutors in actual enemy combatant cases (the few that are actually headed for trial).

The idea that a public safety exception should be used to interrogate a suspect, with immediate fear more important than future prosecution, is dangerous.

What if that Ricin letter guy was done so? (And I don't see any difference between him and these guys)

What if that guy who enslaved three girls in Ohio was done so? With an "exception" claim that maybe he has more girls elsewhere.

None of the above seem to have had any other immediate threats/plans/bombs/girls.

If Mirandized it could well be each confesses. If they confess unMirandized, then someone reads them their rights, they may realize their prior confession was dumb and become mute.

 

[Jodie]

No offense, but that's your own fault, entirely of your own making.

You, even as a young person, should have known your rights and protections under the law. That you didn't, falls mostly on you, but also on the school system, and your parents.

No offense, but it's your own fault. Don't attempt to place 100% of blame on the defense attorney.

The blame goes on the attorney, that's why we have attorneys, or so I thought.

 

[Jodie]

I don't believe that a judge can sentence someone right there, when they didn't plea guilty. That violates the man's rights to due process so blatantly, it's not even debatable. His conviction would be tossed so quick it'd look like a gazelle was loose. The rest is somewhat irrelevant and off topic. My advice? Have a lawyer on retainer. /OT

And one would need to be upper middle class or higher on the socioeconomic ladder to afford to retain an attorney.

 

[Jodie]

I completely agree with you that there are, in effect, two different legal systems - one for the rich and one for the poor schlub on the street. That's just not right.

But your solution is to lower the bar....to downgrade the system. I'd rather we maintain our values in this case and strive to better the process for the poor.

I agree with that, but I still think when you have the evidence to back up a confession all that is needed is to decide the sentence. I think in this case the judge should be allowed to be creative. To me, sending him back to Russia where he was born would be a good solution. He might learn to appreciate our system and culture much more, not to mention the guilt he would have to deal with once he had a chance to make that realization.

 

[Jodie]

This claimed process violates a defendants rights as guaranteed under the US Constitution. Wanna read it?

Maybe the judiciary system in New York City, and every other underfunded system in the country, need to reread it. As I said, there is the ideal and then there is the reality of the situation.

No matter, we will go through the motions with this guy just to get the same outcome.

 

[Jodie]

No, that's called law. In fact, if this is actually occurring as claimed, (which I am doubtful) the State needs to step in a stop it, and order an investigation.

Who will pay for that investigation? If the system can't afford to provide equal due process then how will it pay anyone to investigate the lack of a process?

 

[Jodie]

Dzokhar Tsarnaev is lucky. Because of the high profile of this case the federal governments seems to be bending over backwards to ensure Tsarnaev has adequate defense. He has three federal public defenders. Presumably that doesn't cost anything because they're on salary anyway. Another attorney, Judy Clarke a death penalty specialist, has been brought in, and she sometimes waives her fee.

But the cost of preparing motions, doing investigations, testing evidence, and all the other things that go into ensuring a defendant -- even one like Dzokhar Tsarnaev -- has a vigorous and effective defense will probably run into a lot of money.

Jonathan Sheldon, the public defender who represented D.C. sniper John Allen Muhammad says


Attorney Stephen Jones who represented Timothy McVeigh, estimates


** - Jodie isn't going to like that!

Nope, I don't like it all, take the money and apply it to some of our less criminally inclined citizens who don't receive equal due process.