So my good friend (former career and decorated police officer) calls today and asks how we can treat the Boston Marathon Bomber differently than other persons who are accused of committing crime. He’s like: “Dude . . . don’t we all have constitutional rights?” “How can we treat the Marathon Bomber differently by not reading the guy Miranda or by keeping him locked up for a week being questioned by trained interrogators just because he’s from a foreign country?”

We argued about these issues for about 45 minutes (probably until we were both tired of hearing each other talk). I disagreed with his premise that Dzhokhar Tsarnaev was being treated differently from other persons similarly situated. I believed if federal investigators had failed to read Tsarnaev his Miranda rights, it was for tactical reasons. In other words, if the FBI did not care to use Tsarnaev’s statements against him in criminal court, then there was no reason to inform him he had the right to remain silent. They could freely interrogate him for intelligence related to terrorism activities. Further, I wondered how this was any different from a Texas state criminal investigation where the police interrogate a suspect for hours, get a confession, then read Miranda, and then get the suspect to confess again on tape. It’s a tactic that depends upon law enforcement’s intended use of the incriminating information they obtain through custodial interrogation.

We never reached a consensus about whether the Marathon Bomber was being treated differently from other persons accused of a crime. We may not have even reached a consensus on what the ultimate issue was. But I promised my friend I’d post this, throw it up, and see what stuck. Your thoughts and comments are welcomed.


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


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