Dzhokhar Tsarnaev should be Mirandized

April 21, 2013

Sunday, April 21, 2013

I write today to defend a fellow citizen’s Fifth Amendment right to remain silent during a custodial interrogation and his Sixth Amendment right to consult with counsel and have counsel present during a custodial interrogation. He has not been questioned yet due to his medical condition.

Dzhokhar Tsarnaev is a naturalized United States citizen in custody for his suspected participation in a scheme that detonated two bombs killing 3 people and injuring many more along the Boston Marathon race course on April 15, 2013. He is also a suspect in the murder of a law enforcement officer on the campus at the Massachusetts Institute of Technology after the bombing.

He is not an enemy combatant who attacked United States military personnel on foreign soil.

Dzhokhar Tsarnaev should be advised that he has those rights before law enforcement agents attempt to question him and no interrogation should take place, unless he voluntarily waives those rights and agrees to answer questions. No less is required by the SCOTUS decision in Miranda v. Arizona, 384 US 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

If an interrogation proceeds without the advice of rights and voluntary waiver of those rights required by Miranda, then anything he says should be suppressed and cannot be used against him in a court of law.

He has the right to be charged and prosecuted in the United States criminal justice system, rather than before a military tribunal, and accorded all of the rights that would be accorded to any other defendant charged with a crime.

The United States Department of Justice has announced that he will be prosecuted in the civilian criminal justice system and that is a proper decision.

However, despite an acknowledged lack of any evidence or reason to believe that Tsarnaev is part of a larger plot with plans to commit other terrorist acts, the Justice Department has announced that it intends to interrogate him without Mirandizing him.

This decision is an intentional violation of Miranda that not only violates the suspect’s rights, it potentially jeopardizes the prosecution.

There is no reason ever to sacrifice due process of law and this casecertainly provides no compelling reason to consider making an exception.

For more information, read this informative article by Josh Gerstein at Politico.

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Thank you,

Fred


Does A Seven-Year-Wait Behind Bars Violate The Sixth Amendment Right To A Speedy Trial?

March 9, 2012

What were you doing in March, 2005?

On February 27, the Georgia Supreme Court denied Khanhn Dinh Phan’s request to dismiss the death penalty case pending against him. Such an order under ordinary circumstances would not merit comment, but these are not ordinary circumstances. Khanh Dinh Phan has been locked up in the Gwinnett County Jail in Georgia for seven years without a trial.

In addition to rejecting his argument that the State of Georgia has violated his Sixth Amendment right to a speedy trial (See: Barker v. Wingo, 407 U.S. 514 (1972); Strunk v. U.S., 412 U.S. 434 (1973)), the Court removed his court-appointed counsel and appointed new counsel over his objections, even though his lawyers did not cause the delay in bringing him to trial and did nothing wrong. In fact, they did what they were required to do and what I would have done if I had been representing Mr. Phan in order to provide him with effective assistance of counsel, which is what the Sixth Amendment requires (See Gideon v. Wainwright, 372 U.S. 335 (1963); Strickland v. Washington, 466 U.S. 668 (1984)).

The Facts

Mr. Phan is charged with intentionally killing Hung Thai and his two-year-old son by shooting them in the head execution-style, allegedly as punishment for Hung Thai’s failure to pay a gambling debt. Mr. Thai’s wife, Hoangganh Ta, was also shot in the head, but she survived and returned to live in Vietnam after emerging from a coma seven months after the shooting. She has identified Mr. Phan as the shooter and she also provided law enforcement with information regarding the alleged motive.

The trial court appointed two lawyers to represent Mr. Phan, which is standard operating procedure in a death penalty case. The two lawyers were Chris Adams, who was the Director of the Georgia Capital Defender’s Office at that time, and Bruce Harvey, a lawyer in private practice.

The Pretrial and Mitigation Investigation

Adams and Harvey did what any qualified and experienced death-penalty lawyers would have done in this case. After establishing a relationship of confidence and trust with their indigent client, they asked the trial court to authorize the expenditure of reasonable funds to travel with an investigator to Vietnam to interview Hoangganh Ta about the homicides and to interview members of Mr. Phan’s family, friends, and others who knew him in Vietnam such as neighbors, teachers, employers, counselors, and doctors who might have provided him with medical treatment. The former is routine pretrial investigation that should be conducted in any case and the latter, which we call mitigation investigation, is required in all capital cases so that no stone is left unturned in the effort to discover evidence about the defendant, or the circumstances of the crime, that might in fairness or mercy potentially cause a juror to vote for a sentence of less than death (See Porter v. McCollum, 130 S.Ct. 447 (2009)).

The mitigation investigation must be conducted prior to trial, which is necessarily before the defendant has been acquitted or convicted, because, if the defendant is convicted, the case would proceed to a sentencing phase immediately after the jury returned the guilty verdict, or within a few days, not allowing sufficient time to conduct the investigation. Clients rarely understand the necessity to pry deeply into their past history and relationships searching for clues to explain seemingly unexplainable homicidal behavior that they are adamantly denying. They regard the investigation as a form of rape and it is very difficult for the lawyers to establish a relationship of trust and confidence when the client wants to hear the lawyer say, “I believe you when you say you are innocent and I will do everything that I possibly can to win this case.”

This tension explains why a death-penalty case is much easier to handle, if the client admits guilt. Most clients, however, deny guilt inevitably generating conflict in the attorney-client relationship over the necessity for and wide ranging scope of the mitigation evidence. From the results of post-conviction DNA testing and reinvestigation, we now know for certain that a significant percentage of death-penalty defendants are innocent (approximately 20%). The attorney-client conflict generated by the mitigation investigation is an additional, but no less valid reason to abolish the death penalty.

In this case, Mr. Phan’s lawyers appear to have navigated successfully through the minefield.

Gwinnett County Cannot Afford To Pay For What The Law Requires

Mr. Phan’s case went off the rails when Gwinnett County could not afford to pay for the trip to Vietnam. Defense counsel could not agree to forego the necessary trip and they could not reasonably or legally be expected to finance the trip themselves.

Contrary to long established United State Supreme Court precedent, Gwinnett County also refused to pay for a defense expert regarding the effect of gunshot injuries to the brain on memory (Cf Ake v. Oklahoma, 470 U.S. 68 (1985)).

Since defense counsel could not adequately prepare for trial, the trial could not go forward. And so, Mr. Phan languished and continues to languish in jail waiting for his day in court, a day that may never come.

The Georgia Supreme Court’s Decision

Notwithstanding the passage of seven years without a trial, due to the trial court’s failure to pay for reasonably necessary defense costs to prepare for trial that it is required to compensate (Cf, Ake v. Oklahoma, 470 U.S. 68 (1985) and its progeny), the Georgia Supreme Court not only refused to dismiss the case for violation of Mr. Phan’s right to a speedy trial, it aggravated the situation by dismissing his lawyers replacing them with public defenders who will cost less because they are already paid a salary, regardless of how many hours they work, rather than an hourly wage.

Rather than requiring the Gwinnett County Circuit Court to pay the necessary and reasonable expenses for counsel to defend Mr. Phan, an obligation imposed by long-standing United States Supreme Court precedent, the Georgia Supreme Court fashioned a ‘solution’ to save money by destroying an existing attorney-client relationship by appointing new lawyers. Presumably, the Court believes that the financial savings can free-up sufficient funds to pay for the reasonably necessary expenses that must be paid for the trial to go forward.

Whether and when that will happen is anybody’s guess.

Conclusion

The prosecuting attorney in Gwinnett County should not be seeking the death penalty in a case when the circuit court cannot afford to pay for the reasonably necessary expenses to defend the case.

Ultimately, of course, it is the State of Georgia’s responsibility to budget and pay for the reasonable and necessary expenses that the county circuit courts must pay to fund indigent defense. Death penalty cases are expensive and, if Georgia wants to kill people, then Georgia must bear the cost of prosecuting, defending, and killing them.

Savaging and scavenging a successful seven-year attorney-client relationship to free-up money to pay for reasonably necessary defense expenses is a willful and intentional destruction of Mr. Phan’s right to counsel and a gross denial of his right to a speedy trial — all of which has been done to fund a robbing-Peter-to-pay-Paul scheme.

The Georgia Supreme Court’s decision is little more than a variation of the Ponzi Scheme. That it would employ such a tactic to kill someone speaks volumes as to its regard for the United States Constitution, the Sixth Amendment, and the Rule of Law.

If the right to a speedy trial means anything, it means that no one should be forced to rot in jail for seven years without going to trial. After all this time, he is no closer to trial than he was after he was arrested in 2005.

Shameful and disgusting.

For additional information, see John Rudolph’s article at the Huffington Post.


Occupy: What To Do If You Are Subpoenaed To Testify Before A Federal Grand Jury

October 23, 2011


Lawyers, Guns, and Money by Warren Zevon

Author’s Note: I published this at Firedoglake/MyFDL on October 6, 2010 just after people, who had protested at the Republican National Convention in Minneapolis in 2008, were subpoenaed to testify before a federal grand jury in Chicago investigating them to determine if they had provided material support to terrorists and/or a terrorist group.

I am reposting it here a little over a year later because I suspect it may be useful information to some of our readers, especially those in the Occupy Everywhere movement.

I was a criminal defense lawyer for 30 years and a law professor for 3 years. I represented many clients over the years in federal court, so I have a lot of experience representing people subpoenaed to appear before a grand jury.

State grand juries generally work the same way but are significantly less often used aggressively as federal prosecutors typically use them.

Namaste Read the rest of this entry »


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