Harvard
law professor Alan Dershowitz tells Newsmax that federal investigators will be
on “shaky constitutional grounds” if they try to interrogate the surviving
Boston Marathon bombing suspect without first reading him his Miranda rights,
and that there is no “absolutely” no grounds to hold the suspect as an enemy
combatant.
Speaking in an exclusive interview, Dershowitz said that,
while he personally likes Sens. Lindsey Graham and John McCain, “they absolutely
should go back to school and
study
their constitutional law” if they persist in calling for 19-year-old terror
suspect Dzhokhar Tsarnaev to be held as an enemy combatant.
Dershowitz,
whose clients have included Mike Tyson, Patty Hearst, and Jim Bakker, said that
he does not believe federal investigators have any basis to interrogate Tsarnaev
under the so-called public safety exception, which officials have cited as a
basis for not immediately Mirandizing the suspect when he was taken into police
custody on Friday following a dramatic manhunt that ended in a boat described as
a 22-foot Seahawk cruiser with a fiberglass hull parked outside a Watertown,
Mass. home.
“He’s probably now unconscious or incommunicative. So I think
he doesn’t have to be charged,” explained Dershowitz, who lives
close
to the shootout that took place with police, but was not home at the time. “I
think the shaky constitutional grounds begin to emerge when they start
questioning him and they don’t give him his Miranda warnings.”
He said
that he does not believe that the public safety exception does not pertain in
this case and any statements the suspect makes would probably be ruled
inadmissible.
“In this case the two defendants have been apprehended. One
is dead. The other is under surveillance. They have access to his home. They
have access to all of the explosives,” Dershowitz said. “The police chief has
said there’s no continuing danger. What they’re seeking is information —
intelligence information — and the public safety exception simply doesn’t
apply
to that.”
One possibility is that investigators do not believe they need
to use Tsarnaev’s statements to get a conviction.
“They have a videotape
of him planting the bomb. They have his statements — or his brother’s statements
. . . to the person who’s car was hijacked. They have fairly overwhelming
forensic evidence of his guilt,” Dershowitz explained. “So they don’t need the
statement.”
A Newsmax contributor, Dershowitz’ most notable cases include
his role in overturning the conviction of Claus von Bülow in 1984, and as
appellate adviser for the defense in the O.J. Simpson murder trial.
If he
were preparing the defense, Dershowitz said that he would not try to accentuate
the suspect’s youth and mental state in as some legal experts have
suggested.
“That’ not going to work when you have a video of him planting
a bomb in front of an 8-year-old boy who died. You’re not going to get any
sympathy for him at all,” he said. “I think that may be something that they will
want to tell the jury in terms of whether he gets the death penalty or not. But
even that’s not going to be particularly sympathetic.”
Dershowitz said a
better approach for the suspect’s defense would be to challenge federal
jurisdiction for the case. He would argue that the alleged offense is a domestic
murder case.
“This is not a federal terrorism case because we don’t know
his motive. We don’t know whether he was just angry at America. We don’t know
whether he was seeking something. We don’t know if this was part of a jihadist
campaign,” said Dershowitz. “Unless the government can demonstrate that he had
the intention that makes the act a terrorist act under the statute it becomes an
ordinary state crime.
“In Massachusetts, murder is not punishable by the
death penalty.”
If the case is tried in federal court, Dershowitz said,
prosecutors are likely to seek the death penalty.
“I think on balance the
government will seek the death penalty in this case and I think they’ll get it,”
he said. “Remember, you get a tremendous advantage when you seek the death
penalty. You get a jury which excludes anybody who has a moral, conscientious
scruple against the death penalty, so you tend to get a conservative jury. And
the jury is more likely to convict and more likely to sentence to
death.”
While he believes it would be difficult to try Tsarnaev in Boston
for obvious reasons, he said that it is likely the suspect could be tried in
Springfield, Mass., which is only several hours away.
“I think he would
get as fair a trial as possible under the circumstances,” Dershowitz explained.
“When you commit horribly heinous offenses you’re only entitled to the fairest
trial that your alleged offenses justify.”
He added that “this is the
worst possible case for seeking any kind of combatant status” as some lawmakers
have requested.
“It’s foolish to try it in this case,” Dershowitz
asserted. “Now if you had somebody who was arrested abroad for blowing up an
American embassy or something like that you can make that case, but you can’t
make it in a situation where the crime is so domestic as this one is.”
One
thing is certain, he insisted, whoever represents the suspect will instantly
become recognized for the case.
“He’ll probably be one of the most
unpopular people in America, particularly if he tries to zealously defend him,
and tries to win the case,” according to Dershowitz. “Americans love when
lawyers represent unpopular defendants as long as they don’t win.”
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