Should we try Tsarnaev in the USA?

[Dragoonster]

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.

Oh. So Russia dispenses with due process whenever? They call random murderers enemy combatants? Russia has a base in Cuba where they've kept innocent people for over a decade? Just what "better system and culture" do we have that Russia doesn't?

Hell, sending him there might be a boon to him, considering the atrocities in US courts/holding facilities.


P.S. Ariel Castro--kidnapper/raper/beater of three women. Murderer of fetuses by punching. Seems obviously guilty to me. But should we actually try him in a court? Or should we send him to uh, Mexico ("Ariel Castro" so I assume he's of Mexican origin). Or just immediately hang him?

I don't remember the Constitutional provision of "obviously guilty, so just exile/kill him". Maybe you can cite it.

 

[Jodie]

From what I understand, the Russians had his family under surveillance and reported such to the US long before this happened. I don't think they would be all that welcoming. I say let it be there problem, not ours.

 

[newyorkguy]

<snip>

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

Miranda though, isn't it more than merely the right to remain silent and to have a lawyer present? Isn't it also the right to an attorney and, if you can't afford one, to have one provided without charge? When do they need to tell you that? When I was arrested I don't remember being read my rights. I don't even remember anyone asking me if I had a lawyer. It's been twenty-five years, though, and quite a while since I've even thought about it.

Btw, I have a relative who is a police detective and has been a member of NYPD for over twenty-five years. I don't see him too often. I actually know quite a few cops. When I get a chance I'm definitely going to be asking them how they do it. Or what their department's procedure is. As you might imagine, I usually pump them for stuff anyway!

Finally, if you don't mind my asking. I understand you're an attorney, are you a criminal lawyer?

 

[Jodie]

Probably a real estate lawyer, if I had to guess.

 

[newyorkguy]

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...

Jodie when I related the story of the man arrested as (supposedly) a part of a Three-card Monte crew, I mistakenly said the judge found him guilty at the arraignment. They can't do that.

I think what happened was, the defendant not being able to afford either a lawyer or bail, decided to plead guilty and serve forty-five days rather than be bound over for trial and spend one hundred and eighty days on Rikers Island.

Is that justice?

But what you're suggesting -- conviction without trial, conviction by...proclamation -- scares the heck out of me. Because once you grant that right in one case the danger is it gets established in law. Who's next?

Whatever power you give officials, the law of averages tells us, that someone will then abuse that power. As night follows day.

You have to resist the urge to give in to emotion. Why do you think the ACLU defends groups like the American Nazis? Because if 'they can do it to them' they can do it to you and me. Not right away, but down the road.

 

[Dragoonster]

Miranda though, isn't it more than merely the right to remain silent and to have a lawyer present? Isn't it also the right to an attorney and, if you can't afford one, to have one provided without charge? When do they need to tell you that?

When they arrest you. Not just have you in custody (which you can escape with "are you arresting me or am I free to go" words).

They don't need to ever tell you that, as long as they don't need to ever present whatever you say to them in court. If they do want your words presented, they have to first Mirandize you.

When I was arrested I don't remember being read my rights. I don't even remember anyone asking me if I had a lawyer. It's been twenty-five years, though, and quite a while since I've even thought about it.

Not sure when that SCOTUS Miranda case went through. But it's slightly possible that your arresting officer sucked, your lawyer sucked, your judge sucked, and you were unfortunately not aware enough to point this out.

Btw, I have a relative who is a police detective and has been a member of NYPD for over twenty-five years. I don't see him too often. I actually know quite a few cops. When I get a chance I'm definitely going to be asking them how they do it. Or what their department's procedure is. As you might imagine, I usually pump them for stuff anyway!

Cool indeed (seriously, I do actually like cops. Good ones do an incredibly tough job, and help people). But just don't assume their claims are accurate. Or that "procedure" has any real bearing on "action".

I'm too inebriated to properly find/link this, but there's a big thing about NYPD's stop-and-frisk policy. And one officer stopped about 180 people. Only charged 6. All were non-white. We can't just assume cops are good, or truthful. Or follow technical procedure.

 

[Dragoonster]

From what I understand, the Russians had his family under surveillance and reported such to the US long before this happened. I don't think they would be all that welcoming. I say let it be there problem, not ours.

Not that welcoming? Even Russia would have an actual trial. And then he'd be in their prison, where he may have less chance of torture than US prisons and prisons the US outsources prisoners to.

"all that welcoming"? What, as soon as we exile him to Russia they'd execute him, as by the way, you'd like to have done even in America?

Your position is phenomenal. You want him immediately executed or exiled. Despite any court process and Constitutional rights. Despite many people "confessing" and after the fact they didn't actually commit the crime, and despite his confession was not under Miranda/allowed evidence.

Sure, I think he's guilty too. 99.99% think it. But this country has a legal process. To advocate that it should be irrelevant is to expose yourself for a hater of American Law and Constitution.

 

[SezMe]

From what I understand, the Russians had his family under surveillance and reported such to the US long before this happened. I don't think they would be all that welcoming. I say let it be there problem, not ours.

Maybe, maybe not. If he got to an Islamic nation, he would be feted as a hero and do a victory tour around the Islamic world. How would you like them apples?

 

[triforcharity]

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

No, no. Absolutely no.

 

[triforcharity]

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

Not true. Some attorneys charge very little for retainers. Mine charged $750, and here's a crazy thing, allowed me to pay it over weeks.

 

[linusrichard]

Miranda though, isn't it more than merely the right to remain silent and to have a lawyer present? Isn't it also the right to an attorney and, if you can't afford one, to have one provided without charge? When do they need to tell you that? When I was arrested I don't remember being read my rights. I don't even remember anyone asking me if I had a lawyer. It's been twenty-five years, though, and quite a while since I've even thought about it.

It's a little tricky. Here's how it plays out. The Fifth Amendment guarantees you, among other rights, a right against self-incrimination. The reasoning of Miranda runs more or less like this: You can't be compelled to talk to the police. If you talk to the police, the statements can only be admissible if they are voluntary. But interrogation in police custody is an inherently coercive environment. So when you speak, you are waiving a constitutional right--the right not to speak. And your waiver of constitutional rights can only be valid if you know what those constitutional rights are. So police are required to make sure you understand your rights. First, they have to tell you that you have the right to remain silent. Then, you have to understand the consequences if you do speak--that anything you say can be used against you. The Court also held that it's not an informed waiver if you don't know that you are allowed to have an attorney present, and also held that that last one isn't meaningful to indigent suspects unless they also know that they have the right to an attorney at public expense. So that's the four Miranda warnings. But notice that they all are aimed at protecting one thing: The right against self-incrimination found in the Fifth Amendment.

Now. The Sixth Amendment guarantees, among other rights, a right to counsel. That is a right to counsel during the criminal prosecution process. It does not include arrest or interrogation. The right to counsel "attaches" (in lawyer-speak) at arraignment.

So--you have a Fifth Amendment right to counsel during police interrogation, and you have a Sixth Amendment right to counsel starting at arraignment. (And both of these include a right to counsel at public expense.) The difference is that the 5A right is there to protect another right, whereas the 6A right is a right for its own sake.

And just like there's no need to Mirandize if there's no interrogation, so too is there no need to inform you of your Miranda Fifth Amendment right to counsel if there's no interrogation. Because that right only goes to protect your self-incrimination right. If you were never interrogated, then I'm not surprised that you didn't receive the Miranda warning about a right to counsel.

But when you were arraigned, you had a 6A right to counsel, and should have been asked if you had a lawyer, or should have been assigned a defender.

Btw, I have a relative who is a police detective and has been a member of NYPD for over twenty-five years. I don't see him too often. I actually know quite a few cops. When I get a chance I'm definitely going to be asking them how they do it. Or what their department's procedure is. As you might imagine, I usually pump them for stuff anyway!

I would be interested to hear what he says.

Finally, if you don't mind my asking. I understand you're an attorney, are you a criminal lawyer?

I do mostly federal habeas work, which involves looking back at a criminal proceeding and asking whether the defendant's constitutional rights were violated. I also do some criminal appeals in state court. These issues come up.

Probably a real estate lawyer, if I had to guess.

Sure, good guess.

 

[newyorkguy]

...Cool indeed (seriously, I do actually like cops. Good ones do an incredibly tough job, and help people). But just don't assume their claims are accurate. Or that "procedure" has any real bearing on "action".

<snip>

Some of the cops I know I've known since before they became police officers. With the exception of our nephew all the ones I know are uniformed cops not detectives. They're actually more forthcoming than you might imagine.

One story my buddy Kenny tells that I got a real kick out of, illustrates the human side of police work.

Kenny started with NYPD and then transferred to a police department in a suburban city where he still works.

One night, when he was on patrol, a woman called police headquarters to complain that she had been waiting at a red light. There was a police car in the lane next to her. As the light turned green a car barreled through the red light, forcing her to jam on her brakes. That the police officer also had to jam on his brakes yet he took no action. She was very irate and she had the police car's number.

It was Kenny!

He told me what happened was, he was on 'meal.' That on patrol, when you sign in they give the officers a computer printout that lists, among other things, what time is your meal period. The supervisors don't like it if an officer misses his meal period.

Anyway, Kenny said he had already called in an order to a takeout Chinese restaurant. He was a block away from the restaurant when the car went through the light. He said, "I'm not delaying my meal for something like that. You know how many people run lights?"

When he came in the next afternoon they told him the patrol lieutenant wanted to see him. The lieutenant told Kenny about the complaint, Kenny said he didn't remember seeing a car go through a light. He said the lieutenant asked him, "What time was your meal yesterday?" He answered, at 7:20 PM or whatever it was. Same time as the complaint. Kenny said he wondered if the lieutenant was going to ask where he ate, but he didn't. All the lieutenant said was, "Okay, I just wanted to ask you about it." Kenny said the lieutenant knew anyway. He'd probably done the same thing.

I got a kick out of this story because, especially, it illustrates the mundane nature of a lot of police work.

 

[Jodie]

Not true. Some attorneys charge very little for retainers. Mine charged $750, and here's a crazy thing, allowed me to pay it over weeks.

Was he any good? You know you get what you pay for when everything is said and done.

 

[Jodie]

Maybe, maybe not. If he got to an Islamic nation, he would be feted as a hero and do a victory tour around the Islamic world. How would you like them apples?

Not just any country, Russia where he was born, and I don't think they care for him too much or are overly smpathetic with the muslim cause.

 

[Jodie]

Oh. So Russia dispenses with due process whenever? They call random murderers enemy combatants? Russia has a base in Cuba where they've kept innocent people for over a decade? Just what "better system and culture" do we have that Russia doesn't?

Hell, sending him there might be a boon to him, considering the atrocities in US courts/holding facilities.


P.S. Ariel Castro--kidnapper/raper/beater of three women. Murderer of fetuses by punching. Seems obviously guilty to me. But should we actually try him in a court? Or should we send him to uh, Mexico ("Ariel Castro" so I assume he's of Mexican origin). Or just immediately hang him?

I don't remember the Constitutional provision of "obviously guilty, so just exile/kill him". Maybe you can cite it.

I think Russia would do a better job of knocking some sense into him for a quick reality check. He might realize he had it good here after all.

Why would I need to cite a reference for a personal opinion? Is it a rule? Then I suppose I broke the rule.

I think Ariel deserves sentencing immediately bypassing trial. If he happens to be in a state where the death penalty is allowed, then by all means put him in the electric chair tomorrow or strap him down for his lethal injection.

 

[SezMe]

Not just any country, Russia where he was born, and I don't think they care for him too much or are overly smpathetic with the muslim cause.

Sending him to Russia does not guarantee he stays in Russia. Would you mind responding to my question.

 

[Jodie]

Then let him go to the middle east and experience the culture there, I don't think he will like it. They might consider him a hero but one wrong move or word on his part and Allah's retribution would reign down on his head. I doubt he would be trusted having grown up here in the U.S. Assassins are usually not trusted by anyone and eventually end up assassinated themselves.

 

[newyorkguy]

Then let him go to the middle east and experience the culture there, I don't think he will like it. They might consider him a hero but...

You'd be willing to see him go to the Middle East even if it meant he went scot-free for the Boston Marathon Bombing? Even if it meant he went from facing life-without-parole or the death penalty to being treated as a hero?

 

[triforcharity]

Especially considering his home town in Russia, is a hotbed for Islamic radicalism.....

 

[Babbylonian]

I think Ariel deserves sentencing immediately bypassing trial. If he happens to be in a state where the death penalty is allowed, then by all means put him in the electric chair tomorrow or strap him down for his lethal injection.

At least you're consistent in your hatred of the US and its Constitution. Ya know, you might be exactly what a radical terrorist group is looking for...