Erwin Chemerinsky is the dean of the UC Irvine School of Law according to the Los Angeles Times. Chemerinsky wrote a column in that paper today under the headline "Dzhokhar Tsarnaev Has Rights." It makes me wonder what kind of legal education the students are getting at the law school at UC Irvine.
Let's review two important points.
1) Under current law, an American citizen who commits an act of terrorism in the USA cannot be tried by a military tribunal. Congress mandated that such a citizen must be tried in a regular federal court.
2) Miranda rights deal only with obtaining confessions and other information from the questioning of a suspect. They do not affect anything else.
Now let's talk about the Chemerinsky article. Dean Chemerinsky spend half the article arguing why Tsarnaev has to get a Miranda right as a citizen of the USA, but he misses the point. Under the Constitution, Tsarnaev needs Miranda warnings only if the police intend to use the information obtained from him in court against him. With video of Tsarnaev dropping the bomb at the Marathon, with the testimony of the carjacking victim that Tsarnaev told him that he was the Marathon bomber, with eyewitness testimony of Tsarnaev's conduct at the Marathon, with all the bombs and other explosive material at the site of the Watertown shootout, with the shootout with police at the time of capture, and with a whole host of other evidence, the government does not need a confession from Tsarnaev. He is going to be convicted no matter what happens.
On the other hand, it is critical that the FBI learns if there are more bomb making materials or other folks involved in this plot. There could be large numbers of lives at stake. That is why they are questioning Tsarnaev now.
There is an issue whether the public safety exception to the Miranda warnings applies in this case, but it is not an important issue. Tsarnaev will be convicted with or without a confession. He does not need a lawyer right now.
Chemerinsky then spends the other half of his article arguing why Tsarnaev has a right to a trial in federal court. In all his palaver, he fails to mention the clear federal law which requires such a trial.
In short, the Chemerinsky article is totally worthless. It is much more pompous posturing rather than dealing with the actual law.
Let's review two important points.
1) Under current law, an American citizen who commits an act of terrorism in the USA cannot be tried by a military tribunal. Congress mandated that such a citizen must be tried in a regular federal court.
2) Miranda rights deal only with obtaining confessions and other information from the questioning of a suspect. They do not affect anything else.
Now let's talk about the Chemerinsky article. Dean Chemerinsky spend half the article arguing why Tsarnaev has to get a Miranda right as a citizen of the USA, but he misses the point. Under the Constitution, Tsarnaev needs Miranda warnings only if the police intend to use the information obtained from him in court against him. With video of Tsarnaev dropping the bomb at the Marathon, with the testimony of the carjacking victim that Tsarnaev told him that he was the Marathon bomber, with eyewitness testimony of Tsarnaev's conduct at the Marathon, with all the bombs and other explosive material at the site of the Watertown shootout, with the shootout with police at the time of capture, and with a whole host of other evidence, the government does not need a confession from Tsarnaev. He is going to be convicted no matter what happens.
On the other hand, it is critical that the FBI learns if there are more bomb making materials or other folks involved in this plot. There could be large numbers of lives at stake. That is why they are questioning Tsarnaev now.
There is an issue whether the public safety exception to the Miranda warnings applies in this case, but it is not an important issue. Tsarnaev will be convicted with or without a confession. He does not need a lawyer right now.
Chemerinsky then spends the other half of his article arguing why Tsarnaev has a right to a trial in federal court. In all his palaver, he fails to mention the clear federal law which requires such a trial.
In short, the Chemerinsky article is totally worthless. It is much more pompous posturing rather than dealing with the actual law.
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