Category Archives: criminal law principles

The cost of Quarles: from Tsarnaev to you

It appears now that Dzhokhar Tsarnaev was begun to be questioned late on Sunday evening, almost 48 hours after he was apprehended, hiding in a boat in a backyard.

There are some things that should be without dispute:

1. That Tsarnaev is an American Citizen;

2. That the Constitution and all of its protections apply to all American Citizens (and, to be sure, to all residents, but that’s not necessary here), and;

3. That, by virtue of 1 & 2, Tsarnaev has the inalienable right to remain silent, to be appointed counsel and to not be made a witness against himself.

It is irrelevant that the privilege against self-incrimination is a trial right, in that if the right is violated, the statements cannot be used against him at his own trial. It is irrelevant that Miranda is prophylactic and isn’t a right in of itself, but an advisement of already existing rights.

The right exists. It is his right; it is my right; it is your right.

And yet we dither and equivocate and we say, but there is an exception. All laws have an exception. This one is called the “we are scared” exception, also commonly known as the “public safety exception”. It is also the exception to swallow the right.

In New York v. Quarles, a 5-4 majority of the United States Supreme Court said that if the police were faced with the “immediate necessity” of obtaining information that would prevent danger to themselves or others they could invoke a “narrow exception” to the Miranda rule and question a suspect about that “immediate” danger without having to advise him of his rights first¹. They further ruled that those statements would then be admissible in court to prove the defendant’s guilt. See also U.S. v. Abdulmutallab [PDF].

The Obama administration, which has put on a clinic [Bazelon at Slate] of how to forcefully and conclusively [FBI memo] encroach on individual liberties [NYTimes], was quick to state [TPM] that they “plan to invoke the public-safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices, and to gain critical intelligence.”

It’s been 48 hours. You know the funny thing? As of 9:00pm on Friday night, there were people lining the streets of Boston, cheering and celebrating as they so much deserved to do.

Had there truly been a immediate necessity and an imminent threat to public safety, would that have been allowed? Should it?

I don’t say the above to participate in the more looney fringes of internet discussion that are sure to crop up arguing that the whole thing was a set up, but rather to point out the obvious: that the “public safety” exception is an excuse used by the administration to rip a hole into the Constitution and drive a truck through it.

Others have written more persuasively than I have about why Tsarnaev should have been read his rights: James Holmes was, Timothy McVeigh was.

What makes Tsarnaev different? His name? The color of his skin? The fact that he used a “bomb” and not a gun?

Is our application of the Constitution dependent on the person who seeks its protection? Scratch that; of course it is. Should it be? Can we sustain our moral superiority as the foremost defender of freedom and liberty in the world if we are so quick to make it a Constitution of convenience?

The cost of Quarles is that we are living in a fear-ridden society; that everything is a “public safety exception”. That the bogeyman at night is now a terrorist with a slightly different colored skin, nevermind the fact that we used to proudly trumpet being the “melting pot of the world”. We are xenophobic and afraid. Hiding in the dark clutching our guns, paralyzed in fear, because the terrorists are out to get us, whoever they might be. We are like a person in the throes of a mental illness whose anxiety and fear have taken over every aspect of their existence.

We are a country that has sacrificed everything we believed in at the altar of a promise of safety:

our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

A safety that is illusory – and if it comes, at what cost? Consider the following quote:

“I think that the good news is we don’t need ‘enemy combatant’ to get all the information we need out of him. No. 1, the court, the one court that has ruled, has allowed a lot of flexibility in the public safety exception before you Mirandize somebody,” Senator Schumer said. “But second, at any time, what’s called a HIG, a High-Value Interrogation Group, composed of the F.B.I., C.I.A. and anyone else, can question him without a lawyer in a secured situation and find out whatever they need.”

A second U.S. Senator (Schumer) had said, with a straight face apparently, that an American citizen can be interrogated after denying him the Sixth Amendment right to counsel “in a secured situation and find out whatever they need”. If that isn’t an euphemism for torture, I don’t know what is.

Tsarnaev – and you and I – has the right, Miranda notwithstanding, to refuse to answer questions. Do you realistically think that is an option here?¹ Either he won’t be aware of that right (in which case the government has subverted a U.S. citizen’s Constitutional right), or he won’t be allowed to exercise that right if he knows it. I don’t know which is more frightening.

And therein lies the problem. We can quibble about the legal realities of the admissibility of his statement, but such a discussion is a mere distraction allowing the Government to get away with much more. They’re making off with our rights and our protections; while you’re staunchly guarding the second, they’ve stolen your fourth and fifth and sixth. They’ve made it impossible to exercise a right, either because you weren’t paying attention or too scared of terrorism.

You want to know something funny? There’s a perfectly legal way for the Government to have its cake and eat it too: they can “question” Tsarnaev under the “public safety” exception, the Mirandize him, then ask him the same questions again and the second statements are now admissible in Court. There. Dispensed with that pesky “Fifth Amendment”.

You think this doesn’t happen every day in police stations across America? You’re wrong. Ask any cop you know about the “pre-interview“. It’s here. It’s real. It’s in violation of your Fifth Amendment right.

If Quarles was about the immediate need to find a gun in a supermarket and Tsarnaev is about finding “critical information” 48 hours later, is there a scenario that isn’t covered?

The Constitution is a document that deserves more than lip service. It is a document that deserves obedience. It is not a suggestion of rights that may be offered, if enough people agree that the recipient is deserving. It is there to protect the worst among us, because if the worst are protected, then the best are protected – and more importantly, the vast majority of us – the only human – are protected.

The rights exist. They are his rights; they are my rights; they are your rights. Do you want your rights to be subject to a popularity vote? To convenience? To the color of your skin?

If the world is full of “terrorists” and “criminals”, then will you abide a judge ruling that the “public safety” exception wasn’t met and suppressing statements? If an “exception” can be so broad, can it be called an exception at all?

And if the exception so swallows the Right, can you be said to have that Right at all?

¹Putting aside entirely the question of whether, had he been Mirandized and then confessed, such a confession would have been voluntarily made.

N.B. 1: If a single one of you so much as suggests that this post in any way implies that I have no sympathy for the victims of the bombings, I will track you down using thermal imaging and shove you inside a boat and leave you adrift on land.

N.B. 2: It seems that the Federal Public Defender of Massachusetts is on standby, waiting appointment. If it were Connecticut (and State court), the police would be required to inform Tsarnaev that he had legal counsel available to provide pertinent legal representation if he chose to, prior to being presented in court and appointed. It is the practice of many public defender offices in CT to fax letters to or call police departments when they know suspects are in custody and may be questioned. State v. Stoddard.

Racism in the death penalty? We’re North Carolina after all!


What do you call people from North Carolina? Whatever that word is, they were faced with a choice: do they appear to be racist murderers or just plain Northeastern Liberal Sissies?

I know what I’d choose and I know what stereotype says that the North Carolinians would choose. And proving that stereotypes are stereotypes for a reason, they chose the former. The Senate just repealed (here‘s the bill) the Racial Justice Act, which allows inmates to use statistics to prove that their death sentences are obtained based on racial injustice.

Just last year I was congratulating the Second in Flight State for a decision reversing the death sentence for a man who proved that racial bias played a significant role in the jury selection process. The opinion by Judge Weeks [PDF] said that:

Race played a “persistent, pervasive and distorting role” in jury selection and couldn’t be explained other than that “prosecutors have intentionally discriminated” against Robinson and other capital defendants statewide, Weeks said. Prosecutors eliminated black jurors more than twice as often as white jurors, according to a study by two Michigan State University law professors Weeks said he found highly reliable.

The opinion relied in part on a study [PDF] by Michigan State University. This was all made possible due to the Racial Justice Act, an avant-garde piece of legislation enacted in North Carolina that did exactly what the United States Supreme Court prohibited a quarter century ago in McCleskey v. Kemp.

The penalties of gun control

Gun Control™ is here and it’s here to stay. This is not about whether we should have reasonable limits on the ownership, sale and transfer of weapons (we should) or even whether the limits proposed are reasonable (eh) or whether some types of weapons should be outright banned (arguable) or whether you’re a moron for waiting this long to realize that the State has been infringing on your rights and whittling away at them for decades (it has).

We can talk about the incomprehensible argument that there should be no limit on the ownership of guns because only criminals use guns in a criminal way (I think there’s a word for this linguistic marvel but I’m too tongue-tied to think of it right now), which is accurate, because once you use a gun in a criminal way, you’re a criminal (but we won’t), or we can talk about just how much you’re going to need a lawyer now that some types of ownership has been outlawed (but that would just be me rubbing it in), so instead I’m just going to complain about how this bill will succeed only in making life worse for my clients.

Because it will do just that.

In which we thank Judge Seeley and go on our way

From time to time, we have to pause in this world of 24 hour news cycles, internet commenters who are like Pavlov’s dogs with keywords and shameless trolling by news organization to get eyeballs on their screens and sift through the sensationalist bullshit and pull out one shining diamond from among the steaming piles of dung.

Judge Hope Seeley is one such diamond. Judge Seeley, former criminal defense attorney extraordinaire (and one-time moot court professor of yours truly even those she did give me a ghastly B- in that class), you see, did something that every judge would do.

When faced with the troubled lives of individuals before her, she took measure of the situation and acted like a human being is supposed to.

But you wouldn’t know it from the coverage by the Hartford Courant – miraculously America’s oldest continuously published newspaper. From the click-bait title “Bristol Man To Watch Baby’s Birth Despite No-Contact Order Protecting Mom-To-Be” to the glaring omission of crucial facts in the article (is it fair to call it an article?), the setup is obvious. It’s written in a way specifically designed to up the outrage of today’s unthinking ADD masses. “Baby”, “birth”, “no-contact”, “Order”, “protecting” “mom-to-be”. Trigger words, all. Cue the outrage!

Because the real story would have the following words in the title “Because Mom-To-Be repeatedly requested that Bristol Man be present for the Birth of His Child”.

Now, anyone who’s covered criminal courts for half a minute would know that there is no judge who is that far out of his or her mind to grant a modification of a no-contact order without any victim input. Far less a new judge, and even far-er less-er a new judge who used to be a criminal defense attorney. So either the reporter was terrible at her job or willfully omitted the key pieces of information. I don’t know which is worse. It wouldn’t have been that complicated to figure out whether the mother objected to or consented to the modification. I suspect all one would’ve had to do was listen to what was being said in court.

But that wouldn’t make a good story, would it? The truth, it seems, is often ill-suited for what passes for modern day journalism.

The woman, who is unnamed, apparently sent a barrage of text messages to the defendant requesting that he be present for the birth.


He wisely did not respond to any of them. However, since it was the birth of his child and the woman was pretty insistent he be there, his lawyer requested a modification from Judge Seeley.

Judge Seeley granted a most reasonable modification. Three hours to see the birth, in the hospital and that’s it.

That’s it. What could’ve been a wonderful human interest story, instead is a half-baked, inaccurately reported anger piece without any redeeming value whatsoever that leaves me with only one firm conviction: never trust another report by Christine Dempsey of the Hartford Courant.

Oh, and that Judge Seeley is going to make a damn fine judge. And sometimes, we need to appreciate that because we don’t need judges who are afraid to do the right thing because of you, mad internet commentor. We need judges who treat the people who come before them as individuals and act accordingly. No matter how hard you try, they’re not going to stop being real people with real lives and real problems and turn into stereotypes.

[For my previous rants about irresponsible and shoddy media coverage, see herehere, here, here and here.]

No trespassing

I'm talking to you, officer.

I’m talking to you, officer.

[Update: See update at end of the post.]

Have you given strangers permission to come to the front steps of your house? Have you given a stranger permission to cross onto your property line and walk to the front door of your house? Certainly, none of us have given this explicit permission – we don’t post a sign at the edges of our property that “all are welcome”, but we have implicitly given some people permission to enter without our prior approval: the mailman, the neighbor borrowing sugar, the girls selling cookies, the cops with drug-sniffing dogs.

Wait, what? That’s precisely what happened in Florida v. Jardines [PDF], decided today by the United States Supreme Court and the State of Florida, along with 4 Supreme Court justices, argued that it was quite all right for cops to bring their drug sniffing dogs onto private property without a warrant in an attempt to sniff out illicit activity. Luckily for us and our individual rights, 5 members of the Court disagreed.

The case itself is an easy one to resolve, as both Justice Scalia’s majority opinion and Justice Kagan’s concurring opinion state: there is a physical intrusion onto your property by government agents:

The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

The rest of the opinion is a good recap of some basic principles: what is a curtilage, was the intrusion unlicensed and that this “physical intrusion” test of Fourth Amendment jurisprudence is in addition to the standard “reasonable expectation of privacy” test of the Fourth Amendment.

And this is where, if this were a TV show, you’d hear the oft-used scratched record sound effect meant to imply halting.

Are you sure?



We put a lot of trust in juries. We pluck every day people, with varying backgrounds and varying life experiences and education levels and skills and throw them into a courtroom where were bombard them with “evidence” and legal arguments and ask them to sift through it all and determine the “truth”, all without giving them any training or a dry run.

And then we trust in their decision, no matter how absurd or inconsistent or strange it is. And that trust – that finality – in their decision is revered, put on a pedestal and those that dare to approach it or question it are roughed up at the pointy end of a bayonet.

But sometimes things happen that made you think: do they really know what they’re doing? Are their decisions really worthy of this level of reverence? (Spoiler: the answer is yes and no.)

As I’ve said before, I’d love to know what a jury is thinking while they’re deliberating and even after they’ve deliberated. I want to have a dialogue with them, to explain why they were wrong or see what I didn’t see. But we never get that chance. We never know if the jurors went home secure in their decision, or if they had a doubt but weren’t sure if it was a reasonable doubt, because who the hell knows what that means. Given the chance, would they undo what they did?