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Right Decisions Made in Boston Bombing Venue, Miranda Delay

By William Peacock, Esq. on April 22, 2013 | Last updated on March 21, 2019

It's a fine line between domestic terrorism and enemy combatant, isn't it? Dzhokhar Tsarnaev allegedly took up arms against the people of the United States. He committed despicable acts of terrorism and, some might argue, treason. For that, he will face charges in a civilian federal criminal court in the First Circuit, despite calls from many lawmakers to try him in a military commission. It's the right choice.

He is an American citizen who committed an act of terrorism on American soil. So did Eric Rudolph and Timothy McVeigh. They received the benefits and protection of the civilian criminal justice system. So do serial killers. Mass shooters, like James Holmes, do too, if they survive that long.

White House spokesman Jay Carney, in announcing the decision to file in federal court, stated, "We will prosecute this terrorist through our civilian system of justice. Under U.S. law, United States citizens cannot be tried in military commissions."

He's probably correct. The Supreme Court has never directly addressed the issue. Even still, when you have as much evidence as the authorities seem to have, and when federal statutes allow you to seek out the ultimate punishment (the death penalty), what real benefit is gained from using a military commission? Is it worth the risk of having to refile the case in a civilian court in seven years after an appeals court rules the such commissions are improper venues for U.S. citizens?

The other question swirling over the weekend was whether the government should utilize the public safety exception to the Miranda rule. All indications are that they will, indeed, skip Miranda warnings for now. We don't know for sure if Tsarnaev and his brother, Tamerlan Tsarnaev, were acting alone. We don't know for sure that all of their explosives have been located and properly disposed of. We don't know what happened during the six months Tamerlan spent in Russia and/or Chechnya.

In New York v. Quarles, the Supreme Court held that "overriding considerations of public safety" could excuse a Miranda delay. Just last week, the Sixth Circuit allowed statements about a pipe bomb, made by a defendant, with no Miranda advisement, to be used against that defendant, as the questions asked were narrowly tailored to public safety interests and pertained directly to things (bombs, armed accomplices, etc.) that could harm the officers executing a search warrant on his residence.

If Tsarnaev is actually able to make any statements (the Boston Herald reports that he was shot in the throat), those presumably could come in, Miranda or not, so long as the questions are related to the public safety concern. Then again, considering all of the physical evidence in the case, as well as the surveillance footage, witnesses, and the semi-confession made to a victim during a carjacking, his statements might not be necessary for a conviction.

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