OUTSIDE of 24, the FBI doesn’t usually interrogate a suspect who’s just been shot in the head, pumped full of opioids and shackled to his hospital bed.

But that’s what happened to Dzhokhar Tsarnaev on April 20, 2013 — and the questioning, by the FBI’s high-value interrogation group, went on with breaks all night and again the following night. Tsarnaev’s jaw was wired shut, one of his eyes was sutured closed, but he communicated via notepad and repeatedly asked for a lawyer. Not only was one not provided, but lawyers sent by the federal and state public defenders to represent Tsarnaev were turned away at the hospital door. Now his lawyers say his statements during that questioning should be excluded at trial, planned for November.

So why didn’t the FBI read Tsarnaev his Miranda rights? According to the government, the reason is that he didn’t have any. In 1984, the Supreme Court in New York versus Quarles held that there is a “public safety” exception to Miranda: when the police need immediate answers not to make their case but “to insure that further danger to the public [does] not result,” law enforcement officers can temporarily choose not to administer the familiar warnings. Given that the police had good reason to believe that Tsarnaev and his brother had blown up the finish line at the Boston Marathon, shot a Massachusetts Institute of Technology police officer in cold blood, and may have been headed to New York, the FBI says it was entitled to invoke the public-safety exception.

Who’s right? On the surface, the answer seems simple. If a terrorist attack doesn’t count as a public-safety exception to constitutional rights, what does? The Tsarnaev brothers had literally set ticking time bombs at the marathon finish line. Surely it was justifiable for the police to ensure that no more had been set. And surely, when lives might have been at stake, it was plausible to deny Dzokhar the right to remain silent or to have an attorney present who might have advised him to shut up.

On closer examination, though, the circumstances of the questioning of Tsarnaev look very different from the public-safety exception as defined by the Supreme Court. In the 1984 Quarles case, the police apprehended a suspect in a supermarket. The suspect was wearing an empty holster. The police, with “every reason to believe” that he had just taken off the gun in the supermarket and that it could be used by an accomplice, asked the suspect where the gun was, and he told them. There was no allegation of pressure or coercion. In explaining why the exception wasn’t too expansive, the Supreme Court said, “We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.”

Tsarnaev was captured on the evening of April 19, 2013 and spent most of that night in surgery for gunshot wounds to his head, face, throat, jaw, left hand and his legs. He went into the surgical ICU on the morning of the 20th, and the questioning began about 12 hours later. Thus, it had been roughly 24 hours since he was captured. His brother Tamerlan was dead, though the FBI apparently told Dzhokhar otherwise.

The questioning was therefore highly deliberate — and it extended well beyond the question of whether there were other immediate threats to public safety. The FBI made no recording of the interrogation, itself a remarkable fact, suggesting concern about how the interview would look to the public if later released. The written FBI report asked not only about where and how he had made the bombs, but also, according to Tsarnaev’s lawyers, “his beliefs about Islam and US foreign policy, as well as his sports activities, future career goals, and school history”. The report doesn’t report questions and answers, but Tsarnaev’s handwritten responses suggest he made repeated requests to sleep, rest, and speak to an attorney.

Complicating the FBI’s approach further is the background of partisan criticism that the Obama administration has been subjected to for administering Miranda warnings to Umar Farouk Abdulmutallab, the so-called Christmas bomber, after his arrest in Detroit in 2009. Had the FBI read Tsarnaev his rights, it would have run the risk of similar critiques. Yet unlike Abdulmutallab, Tsarnaev is a US citizen, and his alleged crimes took place in the US.

The best answer to this puzzle would require us to go beyond the present doctrine of the public-safety exception. It’s necessary to give the FBI room to interrogate suspects without Miranda when genuine threats to public safety might exist. But if the purpose is genuinely public safety, the police and the prosecutors should be willing to forgo the chance to use what they learn at trial. From the premise that the interrogation should be allowed, it doesn’t follow that the fruits of the interrogation should be admissible in court.

If necessary, the courts could clarify that when a suspect asks for a lawyer or is coerced by his circumstances and physical condition, the public-safety exception wouldn’t allow the admission of evidence. This seems particularly relevant when a suspect has been given high doses of drugs that would in any case undercut the reliability of what he had to say.

In the Tsarnaev case, the courts may not have to reach the issue. According to a footnote in the brief filed on the accused’s behalf, federal prosecutors have emailed the defence lawyers to say that the government doesn’t “intend to use” the hospital statements “in its case-in-chief at trial or sentencing”. This falls well short of an absolute promise not to use the evidence at all. But it would be a wise move, legally and ethically, for the prosecutors to try and keep the bedside interrogation out of court.

—By arrangement with the Bloomberg-The Washington Post

Published in Dawn, May 16th, 2014