Under the U.S.Supreme Court: Dzhokhar Tsarnaev entitled to a lawyer?

WASHINGTON, April 28 (UPI) -- The FBI and the rest of a crack U.S. interrogation team wanted to question the remaining marathon bombing suspect in his Boston hospital room without his lawyer because of what they fear: undiscovered explosive devices that could still kill and possible accomplices who might decide to carry out more terror.

But how do you get around the U.S. Supreme Court's Miranda requirements for a lawyer and the right to remain silent, the constitutional guarantee against forced self-incrimination?

Dzhokhar Tsarnaev, 19, is an ethnic Chechen but a naturalized U.S. citizen arrested on U.S. soil.

He was Mirandized by a federal magistrate only 60 hours after being taken into custody. He reportedly told investigators quickly, before being Mirandized -- writing on a tablet because of a neck wound -- there were no more explosive devices and he and his brother acted alone. He apparently went silent after being read his rights.

A Supreme Court ruling in 1984, far less famous than the Miranda ruling in 1966, allows law enforcement to question a suspect without a Miranda warning when "concern for public safety" is involved.

Whether this exception applies to Tsarnaev the courts and ultimately the Supreme Court may have to decide.

Tsarnaev was formally charged last week with conspiring to use a weapon of mass destruction and "malicious destruction of property by means of an explosive device resulting in death."

Tsarnaev had his initial court appearance from his hospital room, the U.S. Justice Department said.

The statutes under which Tsarnaev was charged allow for life in prison or the death penalty upon conviction.

The two Boston Marathon bombings killed three people and injured more than 260. After the brothers were identified from surveillance cameras, Dzhokhar Tsarnaev was injured during a confrontation with police that left his brother, Tamerlan Tsarnaev, 26, dead. The younger Tsarnaev was injured a second time as police closed in on him later in the day. Officials suggested he may have shot himself in the throat but later said he had no weapon when he was arrested.

Officials also said the older brother may have been killed because the younger brother ran over him in an attempt to get away in a stolen sport-utility vehicle.

During the hunt for the suspects, the brothers were suspected in the shooting death of Sean Collier, a Massachusetts Institute of Technology police officer, in his patrol car.

The younger Tsarnaev was captured after hiding for hours in a boat stored in a backyard in Watertown, a Boston suburb.

But what about Dzhokhar Tsarnaev's Miranda rights?

The 6-3 Miranda ruling in 1966, written by Chief Justice Earl Warren, said the prosecution "may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination."

Warren said the "atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice."

Warren summed up what has come to be referred to as the Miranda rights: "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him."

If a suspect indicates he wishes to remain silent, Warren said, the interrogation must stop. If he says he wants a lawyer, the interrogation must stop until a lawyer is present.

Justice John Harlan, joined by Justices Potter Stewart and Byron White, dissented.

"I believe the decision of the [Supreme] Court represents poor constitutional law and entails harmful consequences for the country at large," Harlan said. "How serious these consequences may prove to be only time can tell."

Conservatives immediately condemned the ruling, and in 1968 that opposition led Congress to enact a statute that purported to overturn Miranda, at least in federal cases. The statute said statements could be used, even without a Miranda warning, if they were made voluntarily.

However, in 2000, the U.S. Supreme Court, in a 7-2 vote, struck down the statute.

The majority opinion by Chief Justice William Rehnquist said "Miranda and its progeny" was a "constitutional decision by the court" and as such could not be overturned by Congress.

"We hold that Miranda, being a constitutional decision of this [Supreme] Court, may not be in effect overruled by an act of Congress," Rehnquist said, "and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this court govern the admissibility of statements made during custodial interrogation in both state and federal courts."

The majority opinion evoked a bitter dissent from Justice Antonin Scalia, who was joined by Justice Clarence Thomas.

"Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results will doubtless greet today's decision as a paragon of moderation, since it declines to overrule Miranda vs. Arizona," Scalia wrote. "Those who understand the judicial process will appreciate that today's decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda [as of all cases]: the rationale that gives it a permanent place in our jurisprudence."

To "justify today's agreed-upon result, the court must adopt a significant new, if not entirely comprehensible, principle of constitutional law," Scalia said. "As the court chooses to describe that principle, statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this court that 'announced a constitutional rule.' ... The only thing that can possibly mean in the context of this case is that this court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful 'prophylactic' restrictions upon Congress and the states. That is an immense and frightening anti-democratic power, and it does not exist."

Which brings us back to 2013 and Dzhokhar Tsarnaev, mutely writing answers to interrogators' questions on a pad in his hospital room.

The Supreme Court has said the right to a Miranda warning, and the right to having a lawyer present during questioning, is not absolute.

In 1984's New York vs. Quarles, two police officers on road patrol in Queens were approached by a young woman who told them she had just been raped. She gave them a description: black, about 6 feet tall, wearing a black jacket with "Big Ben" in yellow letters on the back. She told the officers the man was carrying a gun and had just entered a nearby supermarket.

One officer confronted Benjamin Quarles in the supermarket and arrested him after a chase. The officer frisked him, found an empty holster and asked him where he had put his gun. Quarles "nodded in the direction of some empty cartons and responded, 'The gun is over there.'" The officer retrieved a loaded .38-caliber revolver from one of the cartons, formally placed Quarles under arrest and read him his Miranda rights from a printed card.

Court records said Quarles indicated he would answer questions without an attorney present and told the officer he had bought the gun in Miami.

Quarles was charged with criminal possession of a weapon A judge excluded Quarles' initial statement and the gun because he had not yet been given the Miranda warnings, and said his other statements were excluded because they were tainted by the Miranda violation. New York appeals courts upheld the judge.

But on review, Rehnquist said in the Supreme Court's majority opinion: "This case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda."

Rehnquist said the "doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, so long as the gun was concealed somewhere in the supermarket, it 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."

If Miranda warnings had deterred responses to the officer's question "about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting [Quarles]. An answer was needed to insure that future danger to the public did not result from the concealment of the gun in a public area."

The ruling reversed the New York courts and sent the case back down for a new hearing to conform with the majority opinion.

Justice Thurgood Marshall, joined by Justices William Brennan and John Paul Stevens, dissented.

"Once the suspect was in custody and found to be unarmed, the arresting officer initiated an interrogation," Marshall said. "Without being advised of his right not to respond, the suspect incriminated himself by locating the gun. The [Supreme Court] majority concludes that the state may rely on this incriminating statement to convict the suspect of possessing a weapon. I disagree. The arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel. By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in Miranda vs. Arizona, ... and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly and in direct conflict with this court's longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions."

The Obama administration is citing the Quarles exemption in the initial Dzhokhar Tsarnaev interrogation.

Not everyone is happy with the approach.

Vincent Warren, executive director of the Center for Constitutional Rights in New York, issued a statement that said: "The Miranda warnings were put in place because police officers were beating and torturing 'confessions' out of people who hadn't even been formally accused of a crime. We cannot afford to repeat our mistakes. If officials require suspects to incriminate themselves, they are making fair trials and due process merely an option and not a requirement. To venture down that road again will make law enforcement accountable to no one.

"Like [President] Obama's expanded killing program and his perpetuation of indefinite detention without trial at Guantanamo," he added, "this is yet another erosion of the Constitution to lay directly at the president's feet. Obama's Justice Department unilaterally expanded the 'public safety exception' to Miranda in 2010 beyond anything the Supreme Court ever authorized. Each time the administration uses this exception, it stretches wider and longer. However horrific the crime, continuing to erode constitutional rights invites continued abuse by law enforcement, and walks us down a dangerous path that becomes nearly impossible to reverse."

The National Association of Criminal Defense Lawyers issued a statement saying it "supports the use of America's civilian criminal justice system. NACDL also opposes any expansion whatsoever of the 'public safety exception' to Miranda vs. Arizona."

NACDL President Steven D. Benjamin said last week: "The 'public safety exception' is precisely that -- an emergency exception. It cannot become the rule for any category of alleged criminal conduct without undermining the Constitution. Dzhokhar Tsarnaev, a U.S. citizen arrested on U.S. soil, has been in custody for nearly three days and the government will have a heavy burden to show that any further questioning without a reading of his Miranda rights is justified. In addition, the suggestion that Tsarnaev be treated as an enemy combatant or diverted out of the civilian criminal justice system" -- something opposed by Obama -- "would amount to a radical suspension of due process and NACDL opposes it. All crime is by definition an attack on civil society and the civilian population. Distinctions in degree, breadth or inhumanity do not distinguish these crimes from the conduct that our criminal justice system is designed to prevent and punish."