THE BLOG
05/09/2013 03:16 pm ET Updated Jul 09, 2013

Miranda, McVeigh, and the Boston Marathon Bombing: Where's the Distinction?

"You have the right to remain silent. Anything you say can and will be held against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you."

Anyone who has ever seen Law & Order, CSI, or any other police drama can cite this Hollywood version of the Miranda warning by heart.

In America, you have rights. You fight for your rights. You know your rights.

At least, you thought you knew.

When suspected Boston Marathon bomber Dzhokhar Tsarnaev was taken into custody after two gunfights and a nearly 24-hour lock-down of the nation's 20th most populous city, police invoked a little known clause that allowed them to question the suspect without informing him of his rights to keep silent and to have an attorney present.

Many Americans wondered, "Wait. What? Can they do that?" Others, meanwhile, seemed red with vengeance.

Though most Americans want the government to throw the book at Tsarnaev, many are left wondering if this move is even in the playbook at all.

In 1966, the Supreme Court ruled 6-3 that a suspect in a criminal case must be informed of his or her right to remain silent and his or her right to have an attorney present during an interrogation. Thus the precedent was set: being informed of these rights is integral to the preservation of one's Fifth Amendment protection against self-incrimination.

However, in the mid-1980s, the Court carved out an exception to the rule. Miranda warnings, the right to remain silent to avoid self-incrimination, and the right to an attorney during questioning were no longer absolute rights. According to the U.S. Supreme Court, the safety and protection of the nation's citizens trumps the individual rights of a suspect.

The case that prompted the decision involved Benjamin Quarles, a man accused of raping a woman at gunpoint. An officer frisked Quarles and noticed an empty holster. Without informing the suspect of his rights, he asked Quarles where the gun was located. Quarles told the officer where he left the gun, in essence incriminating himself.

The Court ruled this was an acceptable omission of the Miranda warning: finding the firearm was paramount to the safety of any innocent bystanders who may have come across the discarded weapon.

Fast forward nearly 30 years, and the FBI and the Obama administration use the Quarles exception to question a 19-year-old man lying in serious condition in a Boston hospital.

The Boston bombings killed three -- two young women and an 8-year-old boy--and injured more than 250 others. Investigators said that, in the interest of public safety, Dzhokhar Tsarnaev would not be informed of his Miranda rights.

He would not be notified of his right to remain silent, and he would not be informed of his right to an attorney -- not until investigators determined whether or not any other explosives or incendiary devices had been planted. Not until it was determined whether or not Tsarnaev and his older brother Tamerlan Tsarnaev acted alone or whether there were accomplices waiting in the wings.

When Dzhokhar Tsarnaev was stable enough to answer the FBI's questions, he told them he and his brother had, in fact, acted alone. He let them know there were no other explosive devices. When investigators had their answers and Tsarnaev had already incriminated himself, only then did they read him his rights. He immediately fell silent, protecting the rights previously denied him.

But was public safety still at risk? How do we determine whether or not the public safety exception should apply in any given situation?

More than three days had passed between the Boston Marathon bombing and the next incident involving the suspects, the Tsarnaev brothers. It seems reasonable that if there was imminent danger requiring the public safety exemption to the Miranda ruling, something would have happened in the interim. Even between the death of one suspect and the discovery a day later of the second suspect lying bleeding and gravely injured in a boat in someone's yard, nothing else happened.

So what made the Quarles exception allowable in this case? A comparison to another American tragedy is very telling...

In 1995, Timothy McVeigh left a U-Haul truck filled with explosive fertilizer in front of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. The blast killed 168 people and wounded more than 680, and was the deadliest act of domestic terrorism in the United States.

McVeigh was arrested 90 minutes later for driving without a license plate and illegally carrying a weapon. He was soon connected to the Oklahoma City bombing. He was not, however, deprived of his Miranda rights.

After all, McVeigh was an American-born citizen and a Gulf War veteran, even if he was an American militia-sympathizer who hated the Federal government.

That same government did not find it necessary to enforce the public safety exemption to the Miranda rule in McVeigh's case. They did not ask him, without notice of his constitutional rights, if there were other trucks parked in front of other buildings. They did not jump the gun to ask him if there were co-conspirators who might be endangering the public safety while McVeigh was behind bars.

What is the difference between citing the Quarles exception for Tsarnaev when it was not considered necessary in McVeigh's case?

Remember, Dzhokhar Tsarnaev is an American citizen too, although naturalized rather than native. He is entitled to every single right that comes with that designation.

As a criminal defense attorney, I make my living protecting the constitutional rights of others. But by excluding those constitutional rights, even in the name of public safety, the government is on a slippery slope toward eroding the very rights and protections outlined in the Fifth Amendment to the United States Constitution.

Where do we draw the line?

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