Over the course of the last week, we have all heard repeatedly about the “Public Safety” exception to the constitutionalized, standardized Miranda warnings. In actuality, this exception has been used rarely and on a fairly limited basis. It may also be subject to rigorous challenge in the months to come. I have a different idea on how we might want to deal with a potential enemy combatant such as Master Dzhokhar Tsarnaev.
Why not retain one of the most skilled criminal defense attorneys in Boston, dispatch him or her to the site of the Boston Marathon bomber’s bedside, and have him or her negotiate directly with the United States Department of Justice and the FBI. In exchange for life without parole, instead of death by lethal injection, Mr. Tsarnaev tells the government everything he knows as quickly and as comprehensively as possible. This approach might actually work better and not put any prosecution of Mr. Tsarnaev in jeopardy down the line. It might be a protocol worth trying in other cases in the future.
An Administrative Judge of the federal Merit Systems Protection Board has overturned the suspensions of two prosecutors for their actions in connection with the 2008 trial of the late Senator Ted Stevens. Judge Benjamin Gutman ruled in a 29-page opinion that the Department of Justice violated its own procedures when it suspended Joseph Bottini and James Goeke for 40 days and 15 days, respectively.
Pursuant to the rules of the Professional Misconduct Review Unit, the actions of Messrs. Bottini and Goeke were to be reviewed by a rank and file attorney. That attorney, Terrence Berg, decided that while the prosecutors made mistakes in the Stevens case, those mistakes did not rise to the level of misconduct. Mr. Berg’s supervisor, Kevin Ohlson, disagreed and overruled Mr. Berg’s decision. It was this decision by Mr. Ohlson that Judge Gutman found improper. The Justice Department has the right to appeal Judge Gutman’s decision, but it is unclear whether it will do so.
Senator Stevens was convicted in 2008 for failing to disclose that an oil services firm remodeled his home free of charge. Senator Stevens’ conviction was thrown out upon the request of Attorney General Eric Holder when it came to light that prosecutors failed to disclose exculpatory evidence, including prior inconsistent statements of witnesses.
Judge Gutman’s full opinion is available at: http://www.documentcloud.org/documents/681231-bottini-mspb-initial-decision.html
