Police officers guard the entrance to Franklin street during an active crime scene search for the suspect in the Boston Marathon bombings, Friday, April 19, 2013, in Watertown, Mass. (AP)
A former U.S. Department of Justice prosecutor says the federal government made a mistake in not immediately reading captured Boston Marathon bombing suspect Dzhokhar Tsarnaev his Miranda rights and instead invoking a public safety exception.
Justice Department officials confirmed to multiple news outlets Friday night that Tsarnaev did not receive a Miranda warning and instead will be questioned by a special interrogation team in the hope that he could give up more information, such as whether he and his brother acted alone or if they received training or direction from anyone abroad.
But Aitan Goelman, who served as a Justice Department attorney for nine years and prosecuted the Oklahoma City bombing case, said Saturday that he thinks the government is taking a risk in invoking the exception that says police do not need to give Tsarnaev the well-known warning and can still introduce any statements he makes in court -- because it might not hold up.
"The government is taking a chance in interviewing the suspect without reading his Miranda rights," Goelman said on Fox News.
The public safety exception originated in a 1980 New York case where a police officer was arresting an individual matching a suspect description from a woman who said she had just been raped. When the officer frisked the man, he found he was wearing an empty shoulder holster, and after handcuffing him, asked where the gun was. The man gestured and said, "The gun is over there," at which point the officer discovered a loaded handgun. The U.S. Supreme Court ultimately ruled that the immediate need to protect the police or public from danger permitted the officer to question the man right away -- and made his pre-Mirandized statements admissible in court.
"In that case the danger to the public was immediate," Goelman said on Fox News. "Here I think we're talking about potentially interviewing this guy when he wakes up in a hospital after the police have been satisfied that the immediate danger is gone. I think it's a risk...there is a chance that any statement he makes after giving an un-Mirandized statement might be suppressed [in court]."
Goelman noted that suppressing any statements from Tsarnaev -- who became a naturalized U.S. citizen on Sept. 11, 2012 -- might not be completely detrimental to the case because the government appears to have a lot of other evidence against him already.
The public safety exception is not permanent, and is meant to run out once the questions are no longer about stopping an immediate danger to the public. Additionally, it's still unclear when Tsarnaev will be questioned -- he is said to be hospitalized in serious condition following injuries sustained in a shootout with police Thursday night, and possibly during his capture on Friday.
"There is a public safety exception in cases of national security and potential charges involving acts of terrorism, and so the government has that opportunity. Right now, though, I believe that the suspect has been taken to a hospital," U.S. Attorney Carmen Ortiz told reporters Friday night.
In the hours after Tsarnaev's capture, Glenn Beck on his Twitter account said he should absolutely be given a Miranda warning.
Sen. Lindsey Graham (R-S.C.), who had said the government should hold Tsarnaev as an "enemy combatant" and not read him his Miranda rights, released a joint statement late Friday with Sen. John McCain (R-Ariz.) reiterating that point.
"Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. We need to know about any possible future attacks which could take additional American lives. The least of our worries is a criminal trial which will likely be held years from now," Graham and McCain said. "Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks."
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