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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