21 April 2013

The Boston bombings and the shortcomings of citizen journalism

Consider this article from the Washingon Times's "Communities" section (bold in original article):
Now, the DOJ has announced that Tsarnaev will not be read his Miranda rights, citing the “public danger” exception in the 5th Amendment. But the language in the amendment doesn’t remotely apply to this situation, nor is it even related to the protection against being a witness against oneself. It reads:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
First of all, Tsarnaev is not in the Army, Navy or militia. Even if he were, the language would only have applied if Tsarnaev had been observed with the bomb in his hands just before committing the crime. The exception gives law enforcement the power to arrest him without first getting a Grand Jury indictment under those circumstances. It doesn’t release the government from the prohibition against compelling Tsarnaev to be a witness against himself after his arrest, which is the basis for Miranda.
If Tsarnaev is guilty, then the public danger was over once he was arrested. The government has no authority to waive any of its obligations for due process. He should be read his rights and allowed to remain silent without molestation. He should have an arraignment where he is given the opportunity to hear the charges against him and enter a plea of guilty or not guilty. If he is unable to afford a lawyer, one should be assigned to him at public expense. His guilt should be decided by a jury of his peers, not the government or the media.
This article confuses the "public safety" exception to Miranda (as articulated in New York v. Quarles, 467 U.S. 649 (1984) with the "public danger" phrase of the Grand Jury clause of the 5th Amendment, which means that members of the armed forces are not entitled to grand juries. No one is claiming Tsarnaev has anything to do with the military, or that he isn't entitled to a grand jury  This has zero, zilch, nothing, to do with Miranda, which (in the 5th Amendment context) has everything to do with the right against self-incrimination. Even the ACLU agrees the public safety exception applies (although they would construe it very narrowly).

Most of the commenters agree uncritically with the article's premise. Not one person (save my comment) addresses the fundamental error that absolutely sinks the author's premise. And few people read the Communities page disclaimer:
This is the Communities at WashingtonTimes.com. Individual contributors are responsible for their content, which is not edited by The Washington Times. The opinions of Communities writers do not necessarily reflect nor are they endorsed by the Washington Times.
Sigh.
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