Legal questions riddle Boston Marathon case

The capture of the Boston Marathon bombing suspect raises a host of freighted legal issues for a society still feeling the shadow of 9/11, including whether he should be read a Miranda warning, how he should be charged, where he might be tried and whether the bombings on Boylston Street last Monday were a crime or an act of war.

The suspect, Dzhokhar A. Tsarnaev, 19, was taken, bleeding, to a hospital on Friday night, and it remained unclear on Saturday whether he was conscious.

The authorities would typically arraign a suspect in a courtroom by Monday, a process that involves his being represented by a lawyer.

Most experts expected the case to be handled by the federal authorities, who were preparing a criminal complaint, including the use of weapons of mass destruction, which can carry the death penalty because deaths resulted from the blasts.

"I think we can expect the prosecution to put together a meticulous case based on the forensic evidence, the videos, eyewitness test and any statements that the surviving defendant makes to the authorities," said Kelly T. Currie, who led the Violent Crimes and Terrorism section in the Brooklyn U.S. attorney's office from 2006 to 2008, where he supervised a number of terrorism prosecutions.

"I would think it's going to be a very strong case, and ultimately all the pieces put together are cumulatively going to show a pretty full mosaic of this defendant's actions leading up to the attack and in its wake," Currie said.

Massachusetts has no death penalty, so a defense attorney in this case might seek to have the case tried in state court. State and county officials might also be eager to prosecute the defendant in the deaths of four of their residents.

President Barack Obama described the attack that Tsarnaev and his older brother, Tamerlan, 26, were accused of committing as "terrorism." Tamerlan Tsarnaev was killed.

The administration has said it planned to begin questioning the younger Tsarnaev for a period without delivering the Miranda warning that he had a right to remain silent and to have a lawyer present.

Normally such a warning is necessary if prosecutors want to introduce statements made by a suspect in custody as evidence in court, but the administration said it was invoking an exception for questions about immediate threats to public safety. The Justice Department has pressed the view that in terrorism cases the length of time and type of questioning that fall under that exception is broader than what would be permissible in ordinary criminal cases, a view upheld by a federal judge in the case of the man convicted of trying to bomb a Detroit-bound airliner in 2009.

Civil libertarians have objected to the more aggressive interpretation of the exception to the Miranda rule, which protects the constitutional right against involuntary self-incrimination. Anthony D. Romero, the executive director of the American Civil Liberties Union, said that it would be acceptable to withhold Miranda before asking whether there were any more bombs hidden in Boston, but that once the FBI went into broader questioning, it must not "cut corners."

But some prosecutors suggested that if any confession was unnecessary to convict him, then the FBI might keep him talking without a warning without ultimately invoking the more disputed version of the public-safety exception to introduce it in court.

"I see a fairly strong case against this young man based on a great deal of evidence so, as a prosecutor, the top of my list would not be necessarily to Mirandize him and get a usable confession," said David Raskin, a former federal prosecutor in terrorism cases in New York.

At the same time, some Republican senators, including John McCain of Arizona and Lindsey Graham of South Carolina, argued that using the criminal-justice system was a mistake and that Tsarnaev should instead be held indefinitely by the military as an "enemy combatant," under the laws of war, and questioned without any Miranda warning or legal representation, in order to gain intelligence.

By New York Times

Source: The Tampa Bay Times