Constitutional scholar and Harvard Law professor Alan Dershowitz said Monday on MSNBC that the decision made by federal law enforcement on Friday not to immediately read Dzhokhar Tsarnaev his Miranda rights will come back to haunt them as they seek the death penalty.
Dershowitz explained to host Thomas Roberts that invoking the public safety exception will be a problem, since prior to his arrest, Boston officials gave the all-clear signal to Boston residents.
“They will regret it, I think,” Dershowitz said. “A — there was never a basis for the public safety exception, because when they announced it, the police had already announced that the public safety danger was over, they had arrested everybody. They didn’t think there was any further risk to the public. So they were using it as a subterfuge. Why will they come to regret it? Because they think this case is going to be made based on videotapes and the physical evidence. But there are two elements to every crime: The actus reus — that is the crime itself, which they will have no problem proving and the intention.”
But for the death penalty, Dershowitz said they will have to use information they had gotten out of him before giving him his Miranda right.
“Now, in order to get the death penalty they have to prove a terrorist intention,” he continued. “Now, in order to do that, they may get the information from him without having Mirandized him. And that information may get kept out of a trial. So they may have blown the death penalty, by not giving him his Miranda rights.”
Later in the segment, Dershowitz referred to his knowledge of the federal courts in Boston and added that ignoring the Miranda procedure will not go unnoticed by those courts.
“He has the right to remain silent right now,” Dershowitz said. “He just doesn’t know about it. We’re trying to trick him into disclosing information and that was precisely what Miranda was designed to prevent. If it’s allowed today with him, an American citizen, where will it stop? And I don’t think we need this exception. I don’t think the exception is justified, and I do think that there will be a price to be paid for it. I know the courts in Boston.”
“I practiced in front of the federal courts in Boston,” Dershowitz continued. “They’re very tough on insisting that the rules be followed. And if they try to circumvent these rules by not giving him his Miranda rights, I can easily see a federal court saying, ‘You can’t use any of his statements he gave you in writing in the hospital.’ They may not be able to use them anyway because he may be not be competent to provide incriminating statements while he is in and out of sedation. I understand why they want to get this information, but the constitutional rights are there for a reason.”
