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Miranda and Dzhokhar Tsarnaeve….Apologies in Criminal Law….More on the Koch-Bros & the LAT


Of course we want the feds to have gotten everything possible our of Dzhokar Tsarnaev before he started clamming up. But is that merely an emotional position or a legally justifiable one? (Do remember, that the rights we give away in exceptionally moments often tend to stay given away.)

Dzhokhar Tsarnaev talked for 16 hours before he was read his rights. Emily Bazelon of Slate thinks that’s too long. Here’s a clip from her discussion-provoking essay on the matter.

According to the AP, Dzhokhar Tsarnaev answered questions for 16 hours before he was read the Miranda warning that he could remain silent and could ask for a lawyer. Once Tsarnaev was told that, he stopped talking. (So much for the idea that everyone has heard Miranda warnings so many times on TV that they have become an empty ritual.) The AP also reports that the investigators questioning him were “surprised when a magistrate judge and a representative from the U.S. Attorney’s office entered the hospital room.” The investigators “had planned to keep questioning him.”

Wow. That’s bad no matter your point of view. If you think Tsarnaev doesn’t deserve the normal protections American law affords criminal suspects, then you’d want the FBI to keep at him as long as they chose. Or if, like me, you’re worried about how far the Obama administration’s Justice Department has stretched the limited “public safety” exception the Supreme Court has allowed for questioning suspects about ongoing danger without Miranda warnings, 16 hours sounds expansive.

It’s true that Miranda offers protection only after the fact. Technically, the rule is violated not when investigators fail to give the warnings, but when they try to introduce in court a confession or other facts a suspect revealed before he was read his rights. It’s also true that given the mountain of evidence against Tsarneav, he could be convicted without his own statements. But that may not be true with the next terrorist suspect—or the next hated man for whom the government decides to stretch the public safety exception. The Justice Department is setting a precedent here. And how does that precedent directly involve public safety, when all of law enforcement reassured the public that safety had been restored once Tsarnaev was captured Friday night, and that the authorities strongly believed he and his brother, Tamerlan, had acted alone?

Read on. There’s a lot more.


This research paper on the value of—and legal difficulty with—apologies by defendants in criminal court, by Professor Michael Jones of the Phoenix School of Law, covers an interesting question.

Here’s the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question. This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

An here’s the full paper if you’d like to take a look.

(A thank you, once again, to the excellent Doug Berman of Sentencing, Law & Policy, for flagging this paper.)


Now that the shock of the Koch duo’s possible purchase of the LA Times and other Tribune Corp papers is nearly a week old, a whole second wave of reactions has been surfacing, some of them….odd.

Take, for example, this somewhat untethered column by the Washington Post’s Steve Perlstein in which Perlstein breathlessly suggests that he knows a sure fire way that the LAT employees can save the paper from the marauding Koch-sters.


Everyone should quit. (Right, Steve. That’d show ’em.)

“If the Times journalists,” he writes…

….”….decide collectively to walk out the door one day, the readers and advertisers are almost certain to follow.

“A new owner, of course, could hire new journalists, and certainly there are plenty of them out there looking for a job. But it would take time to attract them, get them working as a team and weed out the inevitable clunkers…

“And in the meantime, competing news organizations would be quick to pick up Tribune’s stars and use them to lure away readers and advertisers at a time when circulation and revenue are already under pressure. Hell, in the age of the Internet, the rebellious journalists could easily start their own news organizations and grab a good chunk of their old readership within weeks.
This is a rare moment for Tribune’s beleaguered journalists. For the first time in a long time, they actually have leverage. They’d be crazy not to use it….”

This is, of course, quite nuts.

But read the rest anyway.


Washington Post columnist Herold Meyerson spent years as a political journalist in LA, so it’s understandable that he would feel moved to weigh in on the possibility of the Koch brothers as buyers for the LA Times, and about the necessity of remembering that a newspaper isn’t just a business; it’s also a civic trust.

Here’s a couple of clips:

On May 21, Los Angeles voters will go to the polls to select a new mayor. Who will govern Los Angeles, however, is only the second-most important local question in the city today. The most important, by far, is who will buy the Los Angeles Times.

The Times is one of the eight daily newspapers now owned by the creditors who took control of the Tribune Co. after real estate wheeler-dealer Sam Zell drove it into bankruptcy. Others include the Chicago Tribune, the Baltimore Sun, the Orlando Sentinel and the Hartford Courant. The Tribune board members whom the creditors selected want to unload the papers in favor of more money-making ventures.
Fans of newspapers are a jumpy lot these days. And in the past couple of weeks, their apprehension has gone through the roof with word that right-wing billionaires Charles and David Koch are looking to buy all eight papers.


Being human beings, all newspaper owners have politics of their own. Since the 19th century, however, most haven’t gone into business primarily to advance a political perspective. Profit, professional and civic pride, and recognition have largely motivated them. It’s hard to see how any of these factored into the Koch brothers’ calculations.

In their very brief no-comment on the sale rumors, the Kochs took care to note, “We respect the independence of the journalistic institutions” owned by Tribune, but the staffs at those papers fear that, once Kochified, the papers would quickly turn into print versions of Fox News. A recent informal poll that one L.A. Times writer conducted of his colleagues showed that almost all planned to exit if the Kochs took control (and that included sports writers and arts writers). Those who stayed would have to grapple with how to cover politics and elections in which their paper’s owners played a leading role. It’s also unclear who in Los Angeles, one of the nation’s most liberal cities, would actually want to read such a paper, but then the Kochs don’t appear to view this as a money-making venture.

Though slimmed down from its glory days, the L.A. Times remains a great newspaper, as its recent stories on increasing employer surveillance of blue-collar workers illustrate. But the paper that, under the reign of publisher-owner Otis Chandler in the 1960s and ’70s, moved to the apex of American journalism has suffered a string of indifferent-to-godawful owners, ranging from Mr. Chandler’s cousins to Mr. Zell — that rare journalism mogul who actively hated journalism and journalists….

MEANWHILE…Marcelle Pacatte writing for Crains Chicago Business urges his fellow Chicagoans not to be afraid of the “big, bad Koch Brothers.”


  • The LA Times is a left wing rag. Somehow those “writers” view themselves as centrist. In fact they once wrote that Sen Feinstein is a centrist. That show how far out of the mainstream most of them are. There are some good reporters there but too much of the Times is really devoted to left wing talking points. Hopefully the Koch brothers buy the LA Times and the NY Times and get some sanity and truth back in so called news.

  • Regarding the Miranda isssue for Dzhokhar Tsarnaev, journalist Emily Blazeon needs to realize something simple: since 9/11, we live in a significantly changed era of threats, as such, our government has a DUTY to due whatever it can to protect us. In this case, 16 hours IS NOT too long to ensure that we obtained all the information of potential other targets the Tsarnaev brothers had in mind or how they hatched their plan.

    For a better perspective, Ms. Blazeon should ask one of the maimed victims of the Boston bombing if they think 16 hours is too long to be questioned by nice nvestigators to ensure our safety and prevent further attacks…

  • The information reportedly gained during interrogation of intensive care unit hospitalized Dzokhar Tsarnaev is unbelievable, invalid and useless.

    In addition, the transfer by government officials to the media of information attributed to the interrogation of Tsarnaev has not furthered any national security or public security purpose.

    The official transfer and the anonymous govt. official transfer to the media of statements attributed to the interrogation has been calculatedly drawn out over days.

    This was a shameless and naked effort by the FBI to maximize the intensity and duration of media exposure for the only discernible purpose of creating judicial prejudice, poisoning the potential jury pool and ensuring Tsarnaev the denial of due process as a future defendant of criminal prosecution.

    We cannot glean anything applicable to enhancing our discussion of Miranda from the Tsarnaev interrogation scenario because there is nothing we have been told that is reliable and nothing has been verified.

    We should not hold our breath waiting for the F.B.I to provide reasonable verification for the dubious product of the suspect interrogation.

    The FBI admits that Dzokhar Tarnaev hasn’t actually said anything to them. The serious nature of Tsarnaev’s injuries precluded him from engaging in spoken response, any information provided the F.B.I was written.

    We can only guess at the meaning of “written” in this case.

    The FBI anticipates the public’s emerging criticism over the agencies prior interest in the Tsarnaev brothers having failed to identify any latent component of danger.

    Therefore, we have an FBI predisposed to bias towards the elicitation and interpretation of Tsarnaev’s interrogation responses.

    We have the interrogation subject, Dzokhar Tsarnaev, sedated following surgery for gunshot wounds received after several days on the run. We can assume Tsarnaev at the maximum level of physical and mental exhaustion and pain coupled with opiative sedation, then undergoing 16 hours of
    interrogation using unspecified methodology.

    It is possible that Tsarnaev stopped talking as a result of being Mirandized – but the evidence provided is far from conclusive regarding that connection.

    It is equally as possible that Tsarnaev stopped providing answers because the FBI agents all rose to their feet upon seeing a U.S. Marshall enter the hospital room – including the interrogator who had spent the previous 16 hours asking questions while seated on Tsarnaev’s chest.

  • Once again Mo, you’ve got the inside scoop on what really happened. You also know how to handle any and every situation that arises better than any and all agencies involved.
    Mo, you have proved to us all that YOU are the smartest, wittiest, deepest thinking blogger that ever touched a keyboard. It’s amazing that you’re not working at the highest level of law enforcement in the land, traveling the country and training these simple minded idiots. If they would just consult you first, or have you train their people, every problem with every case would be solved.
    It’s amazing they can’t see what a genius you are.

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