The bombs in Boston almost wrecked the Miranda warnings. When Dzhokhar Tsarnaev was arrested, skeptical questions of whether he deserved to be read those warnings quickly returned to America's cultural narrative.
Public opinion suggested that Miranda might be doomed. Many people thought Tsarnaev should be questioned without any warnings. A New York state senator said he should be hit with a baseball bat.
Before Miranda is abandoned, however, we should pause to contemplate what the Bill of Rights means to our democracy and our quality of life.
When the Supreme Court reversed Ernesto Miranda's conviction for kidnapping and raping a 17-year-old girl in its iconic 1966 decision, it decreed that police must affirmatively advise any suspect in custody of basic constitutional rights before asking questions. Miranda has since become so routine that just about anybody who's watched "Law and Order" can recite the warnings right along with Detective Lennie Briscoe.
In the late 1960s, when they were still new, Miranda warnings were real and substantial. They all but guaranteed that if a suspect in custody chose to waive his 5th Amendment privilege against self-incrimination and his 6th Amendment right to counsel, his decision to answer questions would be "knowing, intelligent and voluntary."
From the beginning, police deeply resented the warnings. A generation of determined detectives, prosecutors and sympathetic judges worked together to weaken and marginalize Miranda.
Routine methods of evading Miranda developed over time. The typical interrogator's unchanging goal is to sidestep a suspect's constitutional rights, induce him to talk to a cop before he talks to a lawyer, and to extract a confession that can be used in court.
For example, police will claim that Miranda does not apply because a suspect blurted out a confession without being asked a single question. Or it might be asserted that the defendant was not yet in custody when he confessed and thus was not entitled to Miranda warnings.
Because Tsarnaev was in custody, police resorted to what's known as the public safety exception. This very narrow exception first arose in a New York case where police frisked a suspect they had just arrested, noticed he was wearing an empty holster and asked him where his missing gun was located. His answer was allowed at trial on the theory that a quick question was permissible because police needed information to deal with a genuine emergency.
The public safety exception was significantly expanded, to 50 minutes, in the case of Umar Farouk Abdulmutallab, the underwear bomber who seriously injured himself in a failed Christmas 2009 attempt to blow up a U.S.-bound airliner. Although he was in severe pain and heavily sedated, information developed during the 50 minutes he spent confessing to the FBI before any Miranda warning was allowed.
In Boston, alleging that they were dealing with an emergency that might last indefinitely, FBI interrogators ignored Miranda warnings completely and questioned Tsarnaev for 16 hours, stopping only when a judge intervened, conducted an arraignment and appointed defense counsel.
If the government is correct, and if the public safety exception can be summarily expanded from a few seconds to almost an hour and then to an indefinite period of time, Miranda is dead.
If the Constitution doesn't protect everyone, it won't protect anyone. When we scrupulously protect the rights of even the most despicable suspects, such as Ernesto Miranda and Dzhokhar Tsarnaev, we protect the rights of all Americans.
And what ever became of Miranda himself?
After the Supreme Court reversed his rape conviction, his case was sent back to Phoenix for a new trial. The prosecutor was forbidden to use his confession, but Miranda was convicted all over again. Fair and square.
Terence L. Kindlon is an Albany defense lawyer. His email is tkindlon@aol.com.