In the wake of the terrorist attack on the Boston Marathon and the identification, arrest, and charging of Dzhokhar Tsarnaev, I've been feeling very self-conscious. That's because lots of people are talking about federal criminal law and criminal procedure, subjects with which I am somewhat familiar. When they do, I ask myself: when I very frequently talk about things I haven't bothered to learn about, do I sound like that? God help me.
Today: nutty and deliberately ignorant conspiracy theories about Tsarnaev's first court appearance.
As I mentioned early in the week, Tsarnaev made his initial appearance from his hospital bed on April 22, 2013, the first court day after his arrest. At that hearing, United States Magistrate Judge Marianne B. Bowler said this to him:
You have a right under the Constitution of the United States to remain silent. Any statement made by you may be used against you in court, and you have the right not to have your own words used against you.
In other words, Magistrate Judge Bowler informed Tsarnaev of his Fifth Amendment rights.
(The transcript suggests she did so incorrectly and confusingly — the last clause just isn't right unless you modify it to say "you have the right not to be compelled to say things against yourself," because the government certainly can use your words against you if those words aren't compelled. That may mean that the court reporter got it wrong, or that Judge Bowler had the sort of slip of the tongue any of us can have speaking extemporaneously.)
Judge Bowler reading Tsarnaev his rights has caused great consternation in some circles. It has been reported that he initially answered questions but stopped talking after read his rights. Outrageous! Critics want to know: why was he allowed to make a court appearance? Why did the judge read him his rights? More critically, what motive did the judge have to do so?
The jittery and uncombed are eager to rush in to answer that question.
First, I give you the one-vowel-short-of-aptly-named Pat Dollard, whose headline shrieks "SHOCK: JUDGE WHO ENDED INTERROGATION OF BOSTON BOMBER WITHOUT DOJ KNOWLEDGE LINKED TO MUSLIM BROTHERHOOD":
UPDATE: Judge Bowler lists herself as “a dedicated international traveler” on her bio in Business Week. Where does she travel to in such a dedicated fashion? Who does she see there, and what does she do, so regularly as to be self-described as “dedicated”. And, perhaps, “dedicated” to anything in particular? Did she take on a radical Muslim boyfriend in her travels?
International travel is, indeed, suspicious. An international travel is likely to encounter foreigners, some of whom are not even white.
Or take Daniel Greenfield of Frontpage Mag, who has this on "Boston Bomber Magistrate’s Middle Eastern Connections":
As FOX News reported and Robert Spencer noted, Dzhokhar Tsarnaev stopped talking once he was prematurely read his Miranda rights. That helps the authorities establish the lone wolf narrative. Whatever else we might have learned from him is probably lost.
. . . .
While Islamic infiltration of our political system is well known, the infiltration of our legal system is less well known, but operates within similar parameters with foreign contacts being made. There is no way of knowing how much Bowler has been influenced by her connections with the legal and political systems of the Muslim world, but it is telling that her international judicial relations appear to begin and end with the Muslim world.
The very fact that there is no way to know how much Bowler was influenced by Muslims show exactly how shadowy and mysterious Muslims are!
Now, here's why these people are full of shit.
Magistrate Judge Bowler was required by federal law to tell Tsarnaev of his right to remain silent. Rule 5 of the Federal Rules of Criminal Procedure, governing initial appearances, says this:
(d) Procedure in a Felony Case.
(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following:
(A) the complaint against the defendant, and any affidavit filed with it;
(B) the defendant's right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel;
(C) the circumstances, if any, under which the defendant may secure pretrial release;
(D) any right to a preliminary hearing; and
(E) the defendant's right not to make a statement, and that any statement made may be used against the defendant.
And how did Magistrate Judge Bowler wind up holding an initial appearance? The U.S. Attorney's Office — the federal prosecutors, an arm of the U.S. Department of Justice — filed the criminal complaint on Sunday, April 21, 2013, initiating the criminal case. The docket for the case to date is here. Filing a complaint against a person in custody starts the federal criminal process moving, leading naturally to a first appearance. If the feds hadn't filed the complaint, there's no way Judge Bowler could have held a hearing with Tsarnaev without someone filing a habeas corpus petition. Judges can't initiate such federal criminal proceedings on their own.
The Patient Zero for this plague of derangement is Fox News' Megyn Kelly:.
The FBI filed a federal criminal complaint against the 19-year-old on Sunday, and federal District Court Judge Marianne Bowler [emphasis added] arrived at the hospital where he is being treated to preside over his initial hearing Monday, when she read him his Miranda rights.
[FBI officials told The Associated Press Wednesday that Tsarnaev acknowledged to investigators his role in the attacks before he was advised of his constitutional rights. He reportedly said he was only recently recruited by his brother to be part of the attack.]
But Fox News' sources say there was confusion about Bowler's timing, with some voicing concerns that investigators were not given enough time to question Dzhokhar under the "public safety exception" invoked by the Justice Department.
Someone with a saintly level of patience could probably teach prominent journalist Megyn Kelly the difference between a District Court Judge and a Magistrate Judge if she wanted to know for, say, the purpose of reporting accurately about the most important federal criminal case of the year. Maybe the same person could teach her how to use the Google to see which one Magistrate Judge Bowler is.
But Kelly is merely a carrier of the derangement. It is to her credit that she acknowledges being told that Rule 5 required Magistrate Judge Bowler to inform Tsarnaev of his rights — and that she acknowledges being told that the "Judge Bowler initiated the hearing too early" theory is bullshit.
Two officials with knowledge of the FBI briefing on Capitol Hill said the FBI was against stopping the investigators' questioning and was stunned that the judge, Justice Department prosecutors and public defenders showed up, feeling valuable intelligence may have been sacrificed as a result.
Yes, federal agents are often against application of the rule of law. But:
But Justice Department spokesman Dean Boyd disputed the claims, saying that the suspect’s initial appearance was scheduled following the filing of the criminal complaint in a manner “consistent” with procedure – and that the agents were aware.
“The Rules of Criminal Procedure require the court to advise the defendant of his right to silence and his right to counsel during the initial appearance. The prosecutors and FBI agents in Boston were advised of the scheduled initial appearance in advance of its occurrence,” Boyd said.
A federal law enforcement official also told Fox News that the courts, not the Justice Department, made the decision on when and where to hold the hearing.
“The (FBI) agents and prosecutors were notified beforehand,” the official said, claiming those agents had already left the room when the judge came in.
So: some federal law enforcement official says that "the courts" made the decision when and where to hold the hearing. That is almost certainly literally true. But it's almost certain that first, the U.S. Attorney's office informed the court that they were ready for a hearing. Again, the feds initiate cases, and they initiate first appearances by showing up at court with someone in custody or asking the court to hold a hearing. Is it physically possible that Judge Bowler could, on her own initiative, scheduled a hearing after the feds initiated the case by filing the complaint? Yes. But it is an extraordinary claim, requiring some sort of evidence. Unnamed "federal law enforcement officials" are not known for their command of federal criminal procedure.
In short: the proposition that Judge Bowler was motivated by some sleeper-cell jihadist agenda to rush to inform Tsarnaev of his rights in order to shut him up is very stupid.
I recognize that federal criminal procedure is not common knowledge. But it's not hard to figure out either. I figured it out and I'm more than a little dim. A brief call to any first-year Deputy Federal Public Defender or Assistant United States Attorney, let alone any experienced federal criminal practitioner, would have cleared up these imbecilities.
But who wants to do actual research before accusing a judge of being a terrorist parisan? The wild-eyed people sniffing every falafel Judge Bowler ever ate are either (1) crazy (2) lazy (3) stupid or (4) dishonestly partisan, or some combination of those.
Update: A reaction from Pat Dollard:
Perhaps Pat Dollard is not able to understand the difference between an interrogation by law enforcement and an appearance in court. Or, more likely, he doesn't care.
And in the category of "really ought to know better," consider Paul Mirengoff at Powerline:
I have never practiced criminal law (except briefly at the international level) and have not studied it since 1974. Thus, like most Americans, much of what I think I know about criminal procedure comes from watching television and movies.
My viewing experience does not include any instances in which a judge read a criminal defendant his or her Miranda warning in the middle of police interrogation. Thus, I was shocked to learn that this happened in the case of the surviving Tsarnaev terrorist.
. . . .
I can’t help but that suspect that it was the Obama administration that decided Tsarnaev should receive the Miranda warning. After all, wasn’t it the prosecutor who brought the judge to Tsarnaev’s hospital room in the first place? And isn’t it almost certain that the local prosecutor, an assistant U.S. attorney, acted on instructions from the higest level of the Justice Department? Line prosecutors don’t make decisions about how to treat terrorists in high profile cases when there is time to consult the DOJ.
The party line is that the magistrate judge made the decision to Mirandize the terrorist because she deemed her appearance in the hospital as constituting an appearance in court by Tsarnaev. This strkes me as ridiculous, unless the prosecutor characterized the event as the equivalent of a court appearance.
Although Mirengoff might be known for engaging his mouth without engaging his brain, he's not a moron, and not lazy: he's a well-qualified attorney. But his post amounts to saying "please congratulate me for refusing to research and for assuming criminal procedure works like I see on TV." Mirengoff is perfectly capable of researching the Federal Rules of Criminal Procedure and confirming that Rule 5 requires the judge to inform a defendant of their rights. Mirengoff attempt to evade the issue by asking why the judge would "deem her appearance in the hospital as constituting an appearance in court," and calling this ridiculous. It is Mirengoff's response that is both ridiculous and willfully ignorant. If the hearing held in the defendant's room wasn't an initial appearance, what the devil was it? It wasn't a probable cause hearing — the judge had already found probable cause by approving the complaint, and no further probable cause determination was necessary until either an indictment or preliminary hearing. It was run, in every respect, exactly like an initial appearance. Federal courts sometimes conduct initial appearances by video or in a hospital room when the circumstances require, as minimal research would have shown. It's very likely that the U.S. Attorney's Office pushed for an initial appearance in the hospital in order to ward off any future argument that the government failed to take Tsarnaev before the magistrate "without unreasonable delay" as required by Rule 5(1)(A).
If Meingoff is embarrassing, the loathsome and amoral torture-fetishist John Yoo is infuriating:
This is an outright violation of the separation of powers. It is not for federal judges, or worse yet their assistants, to rove around looking for criminal cases in which to act as law enforcement agents. The decision whether to read Miranda lies up to the executive branch.
Like Meingoff, John Yoo is neither stupid nor lazy nor unqualified to research legal issues. At the most charitable interpretation, neither wants to make even the most minimal inquiry about law and true facts when their gut reaction suits their partisan narrative. More likely, they are both deliberately dishonest people.
Last 5 posts by Ken White
- No, Trump Didn't Argue That Protesters Have No Right To Protest or Violated His Rights - April 24th, 2017
- A Pony A Day Keeps the Doctor Away - April 20th, 2017
- Alex Jones And The Rule of Goats - April 19th, 2017
- The Seductive Appeal of the "Nazi Exception" - April 18th, 2017
- The Road to Popehat: Spring Edition - April 17th, 2017