Civil Liberties and Criminal Attorney Alan Dershowitz claimed in a MSNBC interview that authorities will "regret" not reading Dzhokhar Tsarnaev his Miranda rights and "may have blown the death penalty."
MSNBC ANCHOR: Authorities decided to withhold reading Dzhokar his Miranda rights, invoking a public safety exception. As time passes, does the justification for this wear off? And, in your opinion, does the U.S., do investigators stand to regret that?
DERSHOWITZ: They will regret it, I think. A: There was never a basis for the public safety exception. As you know, when they announced it, the police had already announced that the public safety danger was over, they had arrested everybody. They didn’t think there was any further risk to the public. So they were using it as a subterfuge.
Why will they come to regret it? Because they think that this case is going to be made based on videotapes the physical evidence. Bu there are two elements to every crime: The actus reus, that is the crime itself, which they will have no problem proving. And the intention. Now in order to get the death penalty they have to prove a terrorist intention. Now, in order to do that, they may get the information from him without having Mirandized him. And that information may be kept out of a trial. So they may have blown the death penalty, by not giving him his Miranda rights.
DERSHOWITZ: And I do that there will be a price to be paid for it. I know the courts in Boston, I practiced in front of the federal courts in Boston. They're very tough on insisting that the rules be followed. And if they try to circumvent these rules by not giving him his Miranda rights, I can easily see a federal court saying, 'you can't use any of his statements that he gave you in writing in the hospital.' They may not be able to use them anyway because he may be not be competent to provide incriminating statements while he is in and out of sedation.
I respect Dersowitz as a legal mind, however, I disagree with him in this case. As he stated in the article, actus rea will be easy enough to prove because of the plethora of evidence, but he goes on to say that "in order to get the death penalty they have to prove a terrorist intention."
Mens rea (actus non facit reum nisi mens sit rea) can be proven even if the court rules the prosecution cannot use the suspect’s statements. The carjacking victim has told authorities the suspect claimed they were headed to New York to commit more attacks and also claims he wasn't killed because he wasn't an American.
United States Law Code defines terrorism in part as "the term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents."
Premeditation will be a slam dunk...the politically motivation part of the definition can be proved by the simple fact they verbalized their intention to kill Americans exclusively to the carjacking victim. That in and of itself will satisfy the political motivation requirement.
The defense will no doubt try to cast doubt on the credibility of the witness, but I surmise the jury will see through the tactic. Muslim terrorists often film farewell videos of themselves before they commit their crimes, so if the government finds evidence of such a video, that will help satisfy the political motivation requirement and premeditation as well.
There is so much evidence that will be accumulated before trial and I'm convinced it will be enough to convict and sentence the suspect to death.