Letters To My Country: Some Brief Legal Commentary On The Decision Not To Mirandize The Surviving Marathon Bombing Suspect
The USAO has indicated that they will not be Mirandizing the Marathon bombing suspect, invoking the public safety exception established by New York v. Quarles. Here’s what the public safety exception is, and what it isn’t.
The public safety exception is an exception to the general rule from Miranda v. Arizona that police must inform a Defendant of their right to remain silent, and of their right to assistance of counsel, before engaging in a custodial interrogation. A custodial interrogation is a course of questioning by law enforcement officials which takes place “after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The importance of these two factors: (1) custody and (2) questioning by law enforcement, lays in the combined potency. A person who is asked questions by police, but is not in custody, is theoretically free to ignore their questions and walk away. A person who is in custody, but is not being questioned, is not being unfairly compelled as a witness against themselves.
But when both factors are present, the coercive nature of being detained by police creates psychological pressures which may cause one to speak where one would ordinarily not do so voluntarily. Thus, Miranda warnings ensure that the Defendant knows they don’t have to speak to the police, even if their custodial environment may cause them to feel compelled to do so.
The public safety exception was issued by the Supreme Court in New York v. Quarles. In this case, a woman approached two police officers and told them she had just been raped. She described her assailant, and told the police that the man had just entered a local supermarket with a gun. One of the police officers entered the market and spotted the suspect. The officer stopped him, frisked him, and discovered an empty gun holster. Upon discovering the empty gun holster, the officer asked the suspect where the gun was. The suspect nodded towards some empty milk cartons, where the officer later found the gun. The suspect was arrested, and later read his Miranda rights.
The Court decided that under these facts, a “public safety exception” to Miranda was justified. They noted the Miranda Court’s acknowledgment that the risk of fewer convictions was a price worth paying to ensure that Defendants were not treated unfairly by police. However, the Court noted that in cases where an imminent threat looms at large, the police may dispose with Miranda rights and conduct a brief line of questioning if they believe it will help them neutralize the imminent threat. In this case, the imminent threat was the possible presence of a handgun in the supermarket, which the Court said “posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it.”
The public safety exception has been expanded in later cases, and often goes hand-in-hand with the “Constitutionally Dubious 48-Hour Hold,” wherein police hold a suspect for 48 hours without charge or bail, so they can continue their investigation of criminal activity. The public safety exception was expanded by the Second Circuit Court of Appeals in United States v. Khalil, where two Defendants affiliated with Hamas were intercepted while trying to blow up a train. They were both “disabled” by federal agents in a shoot-out, and were interrogated at the hospital without Miranda rights being read to them. The Second Circuit held that despite the fact that the Defendants were obviously not free to leave the hospital, and were in pain from their injuries, their statements were not coerced, and the public safety exception applied.
The exception was more recently expanded in relevant part by the District Court for the Southern District of New York in United States v. Abdulmutallab, where police conducted a pre-Miranda interrogation of the 2009 Shoebomber for 50 minutes while he was in a hospital bed being treated for burns. The court found that despite the unusually long length of time, the statements made by the shoebomber were admissible, since he was not in any significant pain, and other indicia of his mental state seemed to point towards lucidity. Furthermore, since the questions they were asking concerned the background details of a spoiled terror plot, the court felt that the public safety exception applied.
So under current case law, there is support for the idea that the police don’t need to Mirandize a suspect before interrogating them, so long as they are only asking questions that concern imminent threats, whether in the immediate area, or to individuals or places someplace else. The purpose of the public safety exception is to allow police to establish facts necessary to stop an imminent threat to life, limb or property before it comes to fruition.
This is where the admissibility of the Marathon bomber’s statements could become a sticky issue. If the police stick to questions that focus on imminent threats: e.g. the presence of additional bombs; the presence of accomplices; whether there are additional weapons or firearms stashed somewhere; whether there are any unfinished plots that are currently in motion; and so forth; if the feds ask only these types of questions, they will be under no obligation to Mirandize the Defendant. Furthermore, if federal prosecutors do not plan to use any of his statements against him at trial, then Miranda warnings become a moot point anyway. The government need not waste its time on Miranda warnings if it doesn’t intend to use the Defendant’s custodial statements against him anyway.
This is where the decision not to Mirandize the Defendant may cause problems for the Government. If they find it convenient to slide from questions about public safety into questions bearing narrowly on the Defendant’s substantive guilt, then the policy behind the public safety exception no longer applies. While there is obviously overlap between questions involving public safety and questions involving the Defendant’s substantive guilt in a terrorism case, important differences remain. Thus, the Government runs the risk of “poisoning the tree” by deciding not to Mirandize him, and rendering some of his more useful statements inadmissible in Court. This may be irrelevant depending on the crimes that he is charged with, but nonetheless, it does potentially close a small door to the prosecution during the interrogation process.
Obviously I’m no fan of the public safety exception. I understand the logic behind it, but I view the privilege against self-incrimination to simply be too important to water down with exceptions that quite literally accomplish what Miranda was supposed to forbid: allowing police to perform custodial interrogations prior to advising the Defendant of their Fifth and Sixth Amendment rights. But whether I like it or not, it’s the law of the land, and the federal courts will no doubt be unafraid to apply it in the case of the marathon bombings.
New Orleans Police Chief Says Curfew Enforcement Isn’t Racially Biased
New Orleans Police Superintendent Ronal Serpas says his city’s curfew policies are put in place because children “are less likely to get hurt or hurt someone else” if they are at home during the nighttime. But youth advocates are arguing curfew enforcement disproportionately targets poor, African-American youth.
Serpas denies his officers engage in profiling youths when they enforce curfew laws but data analyzed by The Times-Picayune found that in 2011, 93 percent of youths detained at the city’s curfew center were black.
A 2000 study of New Orleans’ curfew law concluded that it did not deter crime. The Times-Picayune summarizes the report:
[The study called] “Do Juvenile Curfew Laws Work? A Time-Series Analysis of the New Orleans Law” found that the city’s ordinance was ineffective because it didn’t cover older adolescents and young adults, who often perpetrate crime; and it excluded what are called the “afterschool hours,” when minors are most likely to commit offenses.
U.K. police hope to sniff out pot growers with marijuana-scented cards
Thousand of houses in the United Kingdom are being sent marijuana-scented “scratch and sniff” cards in a new bid to track down marijuana growers.
In a press release, the charity group Crimestoppers explained the cards were designed to educate residents about the smell of marijuana. They hope once people can recognize the smell of cannabis plants, they will be able to help law enforcement officials identify illegal growing operations.
“The Crimestoppers campaign will help members of the public to recognize the signs and smell of a cannabis farm. The police will use the intelligence generated by the campaign to help build on recent successes in tackling this issue,” said Andy Bliss of the Association of Chief Police Officers.
“We also know that many people don’t realize that the empty, run down house or flat on their street with people coming and going late at night may actually be a commercial cannabis farm. It’s not just the stereotype of the remote rural set or disused industrial estate unit.”
The green-and-black cards also provide other signs to look out for, including homes that have “visitors at unsociable hours” or buildings that generate an excessive amount of heat. Homes with closed blinds should be under suspicion as well, according to the leaflet.
Saudi Arabia delays execution of seven facing crucifixion and firing squad
Well, here’s my new example when students in my human rights class insist that different cultures just have different — but equally valuable — understandings of human rights and thus that no government should tell any other government how to treat its citizens:
The executions of seven Saudis sentenced to death by crucifixion and firing squad have been postponed for a week.
A Saudi security official said King Abdullah would review the sentences. He met families of the seven on Sunday.
The official said the ruler of the south-western province of Asir, Prince Faisal bin Abdel Aziz, had ordered the postponement.
The seven were juveniles at the time they were arrested for armed robbery, a capital offence in Saudi Arabia. One told Associated Press by telephone from prison that they were tortured to force them to confess and denied access to lawyers.
Saudi Arabia was one of eight countries that originally abstained during the General Assembly vote on the Universal Declaration of Human Rights in 1948.
Georgia rushes to carry out executions before lethal drug supply expires
The state of Georgia is scrambling for legal permission to proceed with two scheduled executions before its supply of the drug that would be used to kill the prisoners reaches its expiration date on 1 March.
Georgia has death warrants currently served on Warren Hill and Andrew Cook, convicted murderers who have been on death row since 1991 and 1995 respectively. Hill’s death warrant runs until 26 February and Cook’s until 28 February – the final day before the state’s stock of pentobarbital runs out.
The attorney general of Georgia – the state’s chief prosecutor – is hurriedly trying to overturn stays of execution that have been imposed this week on the Hill and Cook executions. The courts intervened after it was found that pentobarbital was being ordered by the corrections department for use as a lethal injection without a prescription from a doctor – a breach of federal rules over the distribution of a controlled substance.
Obama’s Gun Control Plan Could Worsen School-to-Prison Pipeline
Tucked into President Obama’s gun control proposal is a benign and seemingly uncontroversial call to improve school safety by staffing up schools with more police officers and counselors. It’s one of the big umbrella areas of his plan, announced today. But that initial policy proposal has civil rights advocates worried that instead of making for “more nurturing school climates,” as Obama says he wants to work toward, he’ll be exacerbating the school-to-prison pipeline, another issue which Obama has worked proactively to address.
Obama is calling on Congress to fund schools to hire up to 1,000 more counselors, psychologists, social workers, and school resource officers, among other initiatives. While the name “school resource officers” is a rather benign term, they are actually typically sheriff’s deputies dispatched to patrol schools. As experience shows, more law enforcement officers do not necessarily make for safer school environments, and in fact can contribute to dynamics which push students out of school. As law enforcement officers who are called on to serve a disciplinary function in schools, they are a central part of the school-to-prison pipeline machine, an apparatus so-named for the ratcheting up of school discipline in the nation which has funneled youth, a disproportionate number of them black and Latino, out of schools and into the criminal justice system.
“We have several concerns about the administration incentivizing police departments and school districts to put more police officers in schools,” said Laura W. Murphy, director of the ACLU’s Washington legislative office.
“We fear that neutral sounding safety policies, such as putting more cops in school will lead to the over-incarceration of school-age children, especially students of color and students with disabilities, who are disproportionately arrested and prosecuted for issues that would normally be handled by school administrators when law enforcement is introduced into schools.”
It is exactly this policy proposal which advocates had warned the Obama administration to avoid. The proposals are the result of a quickly assembled White House task force on curbing gun violence in the wake of the Sandy Hook Elementary School shooting in Newtown, Connecticut last month, when 26 people were killed. Obama’s gun control initiative will be taken up by Congress, where it faces stiff odds.
“If there’s even one thing that we can do to reduce this violence, if there’s even one life that can be saved, then we have an obligation to try,” said Obama at a news conference today. “And I’m going to do my part.”
Georgia presses US supreme court to overturn Warren Hill's stay of execution
The state of Georgia has applied to the US supreme court to overturn a stay of execution for Warren Hill, the intellectually disabled prisoner who came within half an hour of being put to death on Tuesday night.
Georgia’s attorney general has filed a petition with the highest court in the US, arguing that Hill is not entitled to a stay of execution, because of the fact that he has exhausted all legal remedies. The petition states that his lawyer’s argument that the prisoner is “mentally retarded” is not new, and has been rejected by previous courts.
In a riposte to the supreme court, Hill’s attorney Brian Jammer countered that the appeal is indeed based on new evidence – the decision of three doctors to change their testimony that has transformed the case.
It now remains to be seen whether the nine justices of the supreme court wish to become embroiled in this particular challenge. In similar cases, the court has wished to remain above the legal fray, leaving the argument to be fought out by the lower courts.
Georgia has until 26 February to execute Hill, after which deadline it will have to apply for a new death warrant. That may help explain its urgency in trying to overturn the stay.
Hill was put on death row for the 1990 murder of a fellow prisoner, Joseph Handspike. He was already on a life sentence for having killed his girlfriend, Myra Wright.
He was scheduled to be executed at 7pm on Tuesday, With about 30 minutes to go before Hill was injected with a fatal dose of the sedative pentobarbital, two separate courts stepped in to impose a temporary delay in the proceedings.
The federal appeals court in Atlanta ordered that the execution should be delayed for at least 30 days, while a Georgia court of appeals imposed its own stay to give the courts more time to consider the propriety of the single lethal injection as a method of killing.
This was the second time in seven months that Hill has come close to the death chamber: last July he was spared by just 90 minutes and the experience was repeated on Tuesday night with just 30 minutes to go.
Provisions in the New York State gun law of 2013
—Further restrict assault weapons to define them by a single feature, such as a pistol grip. Current law requires two features.
—Make the unsafe storage of assault weapons a misdemeanor.
—Mandate a police registry of assault weapons.
—Establish a state registry for all private sales, with a background check done through a licensed dealer for a fee, excluding sales to immediate relatives.
—Require a therapist who believes a mental health patient made a credible threat to use a gun illegally to report the threat to a mental health director who would then have to report serious threats to the state Department of Criminal Justice Services. A patient’s gun could be taken from him or her.
—Ban the Internet sale of assault weapons.
—Restrict ammunition magazines to seven bullets, from the current 10. Current owners of higher-capacity magazines would have a year to sell them out of state. An owner caught at home with eight or more bullets in a magazine could face a misdemeanor charge.
—Require that stolen guns be reported within 24 hours. Otherwise, the owner would face a possible misdemeanor.
—Increase sentences for gun crimes including for taking a gun on school property.
—Limit the state records law to protect handgun owners from being identified publicly. The provision would allow a handgun permit holder a means to maintain privacy under the Freedom of Information law.
Lawmakers ‘unjustifiably focus’ on illicit drugs rather than alcohol: report
Lawmakers around the world “unjustifiably” treat illicit drugs as if they were a greater public health concern than alcohol, according to a report published online Wednesday in the Journal of Psychopharmacology.
Alcohol is at least as harmful as illicit drugs, according to Jan van Amsterdam of the Laboratory for Health Protection Research in the Netherlands and psychiatrist Wim van den Brink at the University of Amsterdam. In their report, van Amsterdam and van den Brink call for a “more balanced drug policy” that focuses on harm reduction and doesn’t neglect alcohol abuse.
All things considered, excessive alcohol consumption is more harmful to public health than illicit drug use, the two researchers said. However, this is due to “the high absolute number of problem drinkers,” van Amsterdam told Raw Story in an email. “One should realize that if people would use marijuana or ecstasy as much as they drink alcohol, we would also have a significant problem.”
Alcohol has been linked to neurological problems, cardiovascular disease, cancer, liver diseases, and gastrointestinal disorders. Additionally, alcohol has been associated with worker absenteeism, violent crime and relationship conflicts, among other social ills.
The two researchers noted that alcohol addiction was also a significant public health problem.
“Indeed, much more people (absolute number) have an alcohol disorder [compared to other substance abuse disorders], and 80-90 percent of those in addiction clinics are alcohol dependent subjects,” Amsterdam told Raw Story. “Alcohol is potentially very addictive; as addictive as nicotine and heroin, though most people (quite a large number) manage to drink socially without relevant problems. So, we should not criminalize alcohol either.”
When an expert panel in 2010 ranked alcohol, tobacco, and 17 other illicit drugs from most to least harmful, alcohol came in fourth place after crack cocaine, heroin, tobacco. The expert panel concluded that alcohol and tobacco were more harmful than many illegal drugs, with the exception of heroin and crack. A similar study, published in 2007, also found alcohol to be one of the most harmful recreational substances.
Yet, significant discrepancies exist between the scientifically-established harms associated with recreational drugs and their legal status. Two of the most harmful drugs, tobacco and alcohol, are legal, but less harmful drugs like marijuana and LSD are prohibited.
A Macon police officer who fatally shot a man outside a supermarket Friday had been disciplined more than a dozen times, according to Macon police files.
The complaints against Clayton Sutton range from cruiser accidents to failing to appear in court to alleged threatening to jail a woman over a bad check.
… Sutton was also one of several officers who received an “award of merit” at this month’s annual Macon police awards banquet.
Can you guess what the race of the shooting victim was? And whether he was armed?
If you guessed unarmed Black male, you’d be very correct.
(via letterstomycountry)Matt Taibbi: You Can Go to Prison for Pot While Big Banks Get Away With Laundering Drug Cartel Cash
The banking giant HSBC has escaped indictment for laundering billions of dollars for Mexican drug cartels and groups linked to al-Qaeda. Despite evidence of wrongdoing, the U.S. Department of Justice has allowed the bank to avoid prosecution and pay a $1.9 billion fine. No top HSBC officials will face charges, either. We’re joined by Rolling Stone contributing editor Matt Taibbi, author of “Griftopia: A Story of Bankers, Politicians, and the Most Audacious Power Grab in American History.” “You can do real time in jail in America for all kinds of ridiculous offenses,” Taibbi says. “Here we have a bank that laundered $800 million of drug money, and they can’t find a way to put anybody in jail for that. That sends an incredible message, not just to the financial sector but to everybody. It’s an obvious, clear double standard, where one set of people gets to break the rules as much as they want and another set of people can’t break any rules at all without going to jail.”
Jailed without conviction: Behind bars for lack of money
The teenager opened her neighbor’s unlocked car, grabbed the iPhone off the armrest and ran home, a few doors away in her downtown neighborhood here.
Perchelle Richardson still isn’t sure why she took the phone. Just five days earlier, for her 18th birthday, her mother had given her a standard, no-frills cellphone. But she loved the way iPhones looked, and her little brothers had seen this one through the car window as they played outside.
The high school student, with no previous criminal record, was arrested and, because her family couldn’t raise the $200 to spring her, would spend 51 days in jail, missing school, before she got her day in court. Her public defenders unsuccessfully asked the judge to release her without court fee and after that could do little beyond bringing her school worksheets, which she craved, she says, because they helped to break her boredom.
Ms. Richardson is symbolic of a little-known criminal-justice crisis that affects the millions of low-income Americans each year who languish behind bars in city and county jails. On any given day, three-quarters of a million people are jail inmates and two-thirds of them haven’t been convicted of anything, according to US Department of Justice statistics. They are awaiting trial, and an estimated 80 percent of them cannot afford to pay bail.
Most won’t go to prison: Overall, 95 percent of those booked into local jails in 2010-11 were not subsequently sent to prison, says Timothy Murray of the Pretrial Justice Institute (PJI). And 75 percent of felony defendants will be judged innocent, given probation, or sent to rehabilitation programs and never end up being sentenced to prison, says longtime correctional researcher James Austin.
Richardson’s stay would have been longer, but an aunt helped the family put together the court fee. She was released two weeks before she was arraigned in court.
Many defendants, like Richardson, serve more time waiting for trial than the sentence they receive for their charges – particularly for petty or probation-worthy offenses. Yet in New Orleans, like other cities across the nation, there are countless stories about how the lives of poor people were set back while they sat in jail, all for the lack of a relatively small sum of money. There’s the dishwasher stopped on a traffic-ticket warrant who lost his job while waiting for trial; the jailed fast-food worker who couldn’t reach her landlord, was evicted, and lost her possessions, which were stacked on the curb.
“Every case of unnecessary pretrial incarceration is much more than simply an effective and unjustifiable waste of taxpayer money – it has direct and tragic human costs,” says Judge Truman Morrison III, who has sat on the Washington, D.C., Superior Court bench for 30 years and is PJI’s board chairman. Judge Morrison says that even though courts have in recent decades developed pretrial programs in which most defendants return to court without problem, the ways that the justice system sets bail haven’t changed. “Most judges spend their days saying, ‘$200, $500, $1,000.’ They have no idea if these people are getting out,” he says.
And for the local jurisdictions who pay for those jail beds, needless pretrial incarceration costs billions each year, according to Justice Department estimates.
Former Secret Service agent is a candidate for the local sheriff position, but his candidacy has been put on hold because he has now been arrested for plotting to kidnap a judge
Sheriff Candidate Charged With Attempted Kidnapping of a Retired Judge.
James Bartee is charged with solicitation to commit a felony.
A judge released Bartee on a personal recognizance bond on Thursday morning.
The judge said he does consider Bartee a flight risk. Bartee was required to surrender his passport and can have no contact with the alleged victim in the case.
WYFF News 4 was the only news organization there when Bartee was led into jail.
Solicitor Chrissy Adams said evidence was captured on audio surveillance, and Bartee gave a person money to buy items needed for the kidnapping.
Bartee, who is a retired U.S. Secret Service agent, is one of four candidates for Oconee County sheriff. He is accused of trying to arrange to have retired circuit Judge James C. Williams Jr. kidnapped.
Bartee is accused of trying to arrange the kidnapping after Williams filed an action asking for a judgment on whether Bartee was qualified to run for sheriff. The action also asked for an injunction against creating ballots with Bartee listed as a candidate.
Williams’ filing claims that Bartee is ineligible to run for sheriff because he was never a certified law enforcement officer under state law.
The decision on Bartee’s candidacy was to be made by Judge Cordell Maddox.
How Corrupt Prosecutors Get Away With Sending Innocent People to Jail
May 15, 2012 | Prosecutors are arguably the most powerful figures in the American criminal justice system. They decide which charges to bring, what plea bargains to offer, and what sentences to request. Given their role in the system and the broad powers they exercise, it is critical that they discharge those duties responsibly and ethically.
But according to attorneys and criminal justice reform advocates, prosecutors across the country are misbehaving — and getting away with it. While the most common forms of prosecutorial misconduct are hiding exculpatory evidence and engaging in improper examination and argumentation, another form of intentional misconduct is the knowing use of false testimony to win convictions.
“Perjury can easily undermine a defendant’s right to a fair trial,” said Chicago criminal defense attorney Leonard Goodman.
He ought to know.
In 2009, Goodman represented Brian Wilbourn in a federal narcotics case in which prosecutors knowingly allowed an informant to testify that Wilbourn sold crack cocaine out of a penthouse apartment over a three-year period when he was in fact nowhere near the scene at any time.
“Mr. Wilbourn was safely locked away in prison when the informant testified that Wilbourn was selling drugs at the penthouse between 2002 and 2005,” Goodman explained.
The US 7th District Court of Appeals overturned Wilbourn’s conviction because of the perjured testimony.
“When the government obtains a conviction through the knowing use of false testimony, it violates a defendant’s due process rights,” wrote Judge Daniel Manion as he ordered the reversal.
And when a prosecutor knowingly allows perjured testimony to be heard, that’s prosecutorial misconduct. In the Wilbourn case, Assistant US Attorney Rachel Cannon knew that her informant’s testimony was false — because Goodman told her so before the trial — yet she has not been sanctioned in any way. That’s not unusual.
Legal experts say most prosecutors dedicate themselves to do an ethical and professional job, but that some prosecutors repeatedly commit misconduct because they realize they most likely will never face serious punishment. Prosecutors have immunity from civil liability for their misbehavior, and the legal system seems unable or unwilling to effectively police itself.
Prosecutorial misconduct can have serious financial consequences for state and local governments. Taxpayers take the hit to retry cases thrown out because of misconduct, and they take another hit when states pay compensation to the wrongfully imprisoned.
But despite the seriousness of the issue, there has been little research done nationwide on the scope of prosecutorial misconduct. What research there is suggests that even misbehaving prosecutors have little to worry about.
New York isn't the only place where cops can use condom possession to justify arrest, but sex worker advocates there are pushing a new bill
Among New York’s most contradictory sets of policies is this: Since 1971, the city has pushed aggressively for condom use, distributing more than 200 million free condoms, turning the NYC condom into an icon with its own tag line (NYC Condom: Get some!), even creating an iPhone application that helps users locate the nearest distribution site. In the same time frame, however, city police have destroyed or confiscated thousands of condoms found in the possession of suspected sex workers, using condom possession to justify arrest.
Sex workers and their advocates say this practice has had a dangerous, chilling effect, causing many who engage in prostitution to stop carrying and using condoms. A bill written by State Senator Velmanette Montgomery would change that, barring the use of condoms as evidence of prostitution in criminal cases.
