Holder and Cops Talking Out of School

A headline reads: "Faisal Shahzad confesses to Times Square terror plot; admits he trained for 5 months in Pakistan

Memo to Attorney General Eric Holder:
Re: U.S. v. Faisal Shahzad
From : TalkLeft.com

Dear Mr. Holder:

You and law enforcement agents investigating the Times Square failed car bomb attempt have released information about the content of post-arrest incriminating statements Mr.Faisal Shahzad made to authorities. Your statements are improper extrajudicial comments that fail to comport with both the mandatory ethical rules professional conduct and the suggested ABA Standards on Prosecution Functions and Criminal Justice.

Example 1:

Shahzad, 30, confessed to the Saturday night plot to ignite a fireball in crowded Times Square after he was arrested late Monday at JFK Airport, said Attorney General Eric Holder.

Example II: [More...]

Shahzad also admitted spending five months in Pakistan receiving bomb-making training before the botched attempt to terrorize the Crossroads of the World, according to the 10-page complaint.

It's time you and your agents took another look at the Rules of Professional Conduct:

Rules of Professional Conduct: Rule 3.6 Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

© Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;....

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.


Standard 8-1.1 Extrajudicial statements by attorneys

(a) A lawyer should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding. (b) Statements relating to the following matters are ordinarily likely to have a substantial likelihood of prejudicing a criminal proceeding:

(1) the prior criminal record (including arrests, indictments, or other charges of crime) of a suspect or defendant;
(2) the character or reputation of a suspect or defendant;
(3) the opinion of the lawyer on the guilt of the defendant, the merits of the case or the merits of the evidence in the case;
(4) the existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make a statement;
(5) the performance of any examinations or tests, or the accused's refusal or failure to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(6) the identity, expected testimony, criminal record or credibility of prospective witnesses;
(7) the possibility of a plea of guilty to the offense charged, or other disposition; and
(8) information which the lawyer knows or has reason to know would be inadmissible as evidence in a trial.

© Notwithstanding paragraphs (a) and (b), statements relating to the following matters may be made:

(1) the general nature of the charges against the accused, provided that there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty;
(2) the general nature of the defense to the charges or to other public accusations against the accused, including that the accused has no prior criminal record;
(3) a request for assistance in obtaining evidence;
(4) information necessary to aid in the apprehension of the accused or to warn the public of any dangers that may exist;
(5) a request for assistance in obtaining evidence;
(6) the existence of an investigation in progress, including the general length and scope of the investigation, the charge or defense involved, and the identity of the investigating officer or agency;
(7) the facts and circumstances of an arrest, including the time and place, and the identity of the arresting officer or agency;
(8) the identity of the victim, where the release of that information is not otherwise prohibited by law or would not be harmful to the victim; (9) information contained within a public record, without further comment; and
(10) the scheduling or result of any stage in the judicial process;....


Standard 8-Standard 8-2.1 Release of information by law enforcement agencies

(a) The provisions of Standard 1.1 should be applicable to the release of information to the public by law enforcement officers and agencies.

(1) the deliberate exposure of a person in custody for he purpose of photographing or televising by representatives of the news media, or
(2) the interviewing by representatives of the news media of a person in custody except upon request or consent by that person to an interview after being informed adequately of the right to consult with counsel and of the right to refuse to grant an interview.

Trials take place in public courtrooms which the public and media may attend. Criminal investigations take place in private. You and law enforcement agents have been giving out information about Mr. Faisal Shahzd that flies in the face of these rules.

At this juncture, as you well know, charges are mere one-sided allegations. It is a blatant violation of the rules for you to tell America and the World what Mr. Shahzad said in his post-arrest "interview" -- whether he was or was not Miranda-ized. This kind of statement has no business being released by law enforcement.

A Pakistani-American man arrested in the failed Times Square car bombing has admitted his role in the attempted attack and said he received explosives training in Pakistan, the authorities said Tuesday.

Please use your able skills to teach by example. Stick to the rules and let the information and evidence comes out in a court of law, where it belongs, and not in the court of public opinion, where its dissemination carries a great risk of prejudicing the accused.

If you must talk about something, please explain the "two significant lapses in the security response of the government and the airline that allowed him to come close to making his escape."


< Why Waziristan? | Obama Cuts Ad For Blanche Lincoln >
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    Thank you, and good on you for saying so. (5.00 / 1) (#1)
    by Compound F on Wed May 05, 2010 at 01:55:22 AM EST
    I commend your respect for the law and due process.

    In 1999, Congress enacted (none / 0) (#19)
    by Peter G on Wed May 05, 2010 at 10:53:23 AM EST
    a federal statute, called the Citizens Protection Act (a/k/a "the McDade Amendment" after acquitted Congressman Joseph McDade of PA) making the ethical standards that TL quotes in this post (and all others adopted by the jurisdiction where the prosecutor operates) binding legal obligations of federal Dept of Justice attorneys.  

    Jeralyn, this isn't the Bush Administration. (none / 0) (#2)
    by Gerald USN Ret on Wed May 05, 2010 at 04:22:47 AM EST
    Don't forget these are the "good guys."

    You need to show a little more deference, and work to get them re-elected.

    They need to show off after stopping a "Terrorist!"  

    The perpetrator is already convicted by everyone.

    The only thing left now is the "hanging."

    I think that Times Square is the appropriate forum.

    is there any doubt ... (none / 0) (#25)
    by nyrias on Wed May 05, 2010 at 12:23:23 PM EST
    that Shahzad is the guy? They have hard evidence right?

    If it is the case, i am no problem "hang" Shahzad high and dry. He did try to blow up people in NYC and the only thing that got in his way is his incompetence.

    A person like that ... I am zero sympathy for. Give him life without parole.


    No one is saying you can't - or shouldn't - (none / 0) (#26)
    by Anne on Wed May 05, 2010 at 12:42:54 PM EST
    withhold your sympathy from anyone accused of a crime, but I don't understand why you have so little respect for due process that you would advocate ignoring it altogther - instead just want to throw out the rules based on your - or some authority figure's assessment - of whether someone is guilty or not, that may or may not constitute the totality of the facts and/or evidence.  

    You may like the idea of just sending people directly to jail without involving the courts when you believe they are guilty, but how much do you like that idea when you don't agree with the conclusion that someone is guilty, or when you or someone you know is the one who would be on the receiving end of that treatment?  Why do I think you'd be screaming your head off about your or their rights?

    And if you would scream your head off for your own rights, why shouldn't you feel that way about everyone's rights?

    I really just don't get people who think like you do.


    Are you sure (5.00 / 1) (#27)
    by sarcastic unnamed one on Wed May 05, 2010 at 12:46:15 PM EST
    nyrias is advocating ignoring due process?

    I am certainly NOT ... (none / 0) (#28)
    by nyrias on Wed May 05, 2010 at 12:53:23 PM EST
    the guy will get his day in court and if it is proven that he is guilty ... preferably with overwhelming evidence, and not just based on some shaky testimony.

    However, if EVERYONE is sure that this is the guy, AFTER due process, i think he would have no excuse and he should be locked up for life.

    I am not saying we should not follow the rules. I am saying that we should NOT lose sight that the perpetrator (whoever he is) tries to BLOW UP PEOPLE and the due process is to facilitate punishing the RIGHT person, and NOT letting the right person OFF.


    I'm sorry if I did not understand your (none / 0) (#33)
    by Anne on Wed May 05, 2010 at 01:55:56 PM EST
    comment the way you intended it; as I responded to sarcastic unnamed one, it wasn't at all clear to me that you were advicating for due process.

    In my mind, due process is not so much about punishment and/or exoneration, but about justice being given a greater chance to prevail; the more we make exceptions for the government, the more we twist and pervert the rules to get the outcome someone has decided is best, the less chance that happens.

    In a perfect world, the innocent would always go free and the guilty would not.  But, we don't live in a perfect world, which means that the system isn't perfect, either; if making the government observe the law means that sometimes the guilty do go free, that's a price I'm willing to pay to make sure the government does not hold all the power.


    no problem .. (none / 0) (#40)
    by nyrias on Wed May 05, 2010 at 05:32:05 PM EST
    since it is clear now.

    In my mind, due process serves two purposes. The most important one is to establish guilt. I deplore punishing the wrong person as much as you do.

    Secondly, it is to establish the "proper" punishment once guilt is established. But in THIS CASE, the crime is SO horrible that, personally, i think that the punishment should be as harsh as possible.

    It is premeditated attempted mass murder. I can't think of a mitigation circumstances that would make me uncomfortable to give the perpetrator the harshest penalty.


    There was no mention of due process (none / 0) (#30)
    by Anne on Wed May 05, 2010 at 01:34:53 PM EST
    in nyrias' comment, just a reference to the assumption of hard evidence; I've read the original comment several times, and appreciate his/her further explanation, but it wasn't clear to me that there was much advocacy for due process.

    I was hoping not to have to spell it out. (none / 0) (#31)
    by sarcastic unnamed one on Wed May 05, 2010 at 01:50:16 PM EST
    You jumped on him pretty hard, and were wrong. A simple "Sorry, nyrias, I jumped the gun." would seem like a courteous thing to do...

    All I can do is read what people write, (none / 0) (#34)
    by Anne on Wed May 05, 2010 at 02:09:17 PM EST
    and draw conclusions from what they actually say, not what they meant to say.  

    I am sorry that I did not read nyrias' comment as one that supported due process, and I have delivered that message in a direct comment to him.

    I would not have called what I wrote "jumping the gun," as I had no way of knowing he had more to say, or a better explanation of his comment.  

    Should I have asked, "what does this mean?"  Well, only if I didn't think I understood what he was saying - but I thought I did.  

    As it turns out, based on what he responded, I'm not sure he and I agree on the meaning of due process, but rather than "jump the gun," I chose to offer only my view of what due process means, both for the immediate and for the bigger picture.

    I hope my comments have met with your approval and that you won't be further burdened with having to spell anything else out for me.


    We already have one squeaky here, (none / 0) (#35)
    by sarcastic unnamed one on Wed May 05, 2010 at 02:27:01 PM EST
    but do as you wish, of course.

    Wow (none / 0) (#36)
    by squeaky on Wed May 05, 2010 at 02:31:48 PM EST
    OK...  nice drive by...

    last resort of a scoundrel?


    Really? That's where you want to go? (none / 0) (#37)
    by Anne on Wed May 05, 2010 at 02:45:03 PM EST
    I don't think there is anything about my comment history at TL that even remotely deserved that, so I will just assume you are having a bad day; it's okay - we all have them.

    I think if nyrias has a problem with what I have said directly to him, he will let me know, and I think he and I can work through it.


    If you are interested in my unsolicited (none / 0) (#38)
    by oculus on Wed May 05, 2010 at 03:00:20 PM EST
    opinion, it is that you read into Nyrias' comment that he/she did not support vigorous due process for those accused of terrorism, especially if suspect confessed.  

    I think I have already (none / 0) (#39)
    by Anne on Wed May 05, 2010 at 03:31:53 PM EST
    explained what I did to both the person to whom I originally responded AND the person who decided he needed to step in to set me straight, apologized for the incorrect interpretation, and attempted to expand on MY own views of what due process is all about.

    I'm not usually given to completely and purposely misreading the comments of others; I was apparently off the mark on this one, taking what nyrias said at what I thought was face value, and in light of the comment to which nyrias was responding.  The previous commenter said: "the perpetrator is already convicted by everyone - the only thing left now is the hanging" and nyrias responded with essentially: "is there any doubt that he's the guy? do they have strong evidence?  Okay then, give him life without parole!"  

    Evidence presented in a court of law?  Doesn't say.  With or without the pre-Miranda statements?  Doesn't say.  Did nyrias say, "wait a minute, we need to give this guy his day in court, and if he's convicted, sure, lock him up for life?"  No.  He essentially supported the notion that it was okay for "everyone" to have convicted him if there was no doubt and hard evidence, but there was no mention of the whole due process thing.

    I can't read what isn't there.  Enough already.


    it is ok ... (none / 0) (#41)
    by nyrias on Wed May 05, 2010 at 05:33:44 PM EST
    it is the internet.

    SOME misunderstanding will tend to occur.


    Well done. (none / 0) (#51)
    by sarcastic unnamed one on Thu May 06, 2010 at 08:35:30 AM EST
    um, yeah, right. (none / 0) (#3)
    by cpinva on Wed May 05, 2010 at 06:57:42 AM EST
    i seriously doubt AG Holder is going to be personally prosecuting this case, that's what he has minions for. you make valid points, good for a discussion in an ethics class in law school. that said, prosecutors do this all the time, all over the country, with little or no repercussions.

    mike nifong is the only example i can think of, who actually suffered, due to his big mouth. that was only because: a. his case was such a total clusterf*ck to begin with., and b. he had the misfortune to be dealing with defendants who had the financial werewithal to flay him in public, and hire excellent private counsel. had the accused been of lesser economic means, they'd even now be in the appeals process.

    i am curious as to how they plan on getting some of these "voluntary" statements admitted as evidence. from what i've read, he was taken into custody, questioned, made the statements, then mirandized.

    to argue that he wasn't a suspect, until he made the statements, and he was free to leave at any time, prior to being mirandized, should be an entertaining show. so far, there's been no mention that he had legal counsel at his side, as he was being questioned, pre-miranda. i'm guessing not.

    of course, it's possible he just blurted everything out, as soon as they pulled him off the plane. i kind of get the distinct impression, in spite of his education, he isn't the brightest bulb in the box.

    we shall have to wait and see.

    "Immediate public danger" (none / 0) (#8)
    by gyrfalcon on Wed May 05, 2010 at 08:20:29 AM EST
    They're allowed to question a guy for a limited time and purpose pre-Miranda if there's a potential for immediate danger to the public, which there certainly is in the case of somebody believed to have attempted to blow the public up with a bomb in Times Square.

    so your position is (none / 0) (#9)
    by cpinva on Wed May 05, 2010 at 09:03:18 AM EST
    that they had reasonable cause to believe he might have set other bombs to go off, elsewhere? seems to me that's an affirmative position, subject to reasonable evidence, on the part of the state, not merely their say so.

    Mr. Ticking Time Bomb finally showed up, (none / 0) (#15)
    by Anne on Wed May 05, 2010 at 10:02:42 AM EST
    I guess; maybe he's supposed to be grateful that he wasn't subjected to enhanced interrogation techniques, and we're supposed to once again ignore another rule-of-law oversight and just be grateful the guy didn't do a good job making his car bomb.

    Not that I'm not glad the attempt failed; I am.

    But I'm tired of all the excuses for why we continue to ignore the law; we have done nothing to stamp out this culture of authoritarianism-masquerading-as-"National Security," so it continues to grow.  

    And that's what happens when you never look back to fix the mistakes of the past and hold the appropriate people accountable.


    Yup, Mr. T. T. Bomb his own self (none / 0) (#43)
    by gyrfalcon on Wed May 05, 2010 at 06:08:23 PM EST
    However, it really is not right to say the feds or whoever "ignored the law."  This exemption to the Miranda requirement is per the Supreme Court.  We may not like that, but it most definitely is the law.

    You missed (none / 0) (#45)
    by BackFromOhio on Wed May 05, 2010 at 09:25:24 PM EST
    what Anne was referring to, i.e., the Code of Conduct applicable to prosecutors.

    The code of conduct (none / 0) (#49)
    by gyrfalcon on Wed May 05, 2010 at 10:51:09 PM EST
    ain't a law, though.

    Two days later is not what (none / 0) (#16)
    by Peter G on Wed May 05, 2010 at 10:20:08 AM EST
    the Supreme Court meant by "immediate public danger."  I doubt those statements can or will be found usable in court.  Of course, when the FBI does this, it is a calculated tactical decision, made in consultation with prosecutors, that they'd rather have the information now than have the use of the statements later as in-court evidence.  And if the guy winds up pleading guilty -- which is a 90+% chance in any federal criminal case -- the admissibility of the statements is moot anyway.

    Two days later than what, please? (none / 0) (#42)
    by gyrfalcon on Wed May 05, 2010 at 06:05:51 PM EST
    Than the crime he is suspected of having committed and was being arrested for? You're the lawyer, not me, but what on earth has that got to do with anything?  Honestly, no rational person would suggest that it is irrational or unjust to suspect a guy believed to have left a car bomb set to go off in Times Square and skedadled might possibly have, oh, say, left a booby-trap behind in his car, his house, the Starbucks down the street, before he headed for the airplane?

    Give me a break.


    You Seem Confused (none / 0) (#44)
    by squeaky on Wed May 05, 2010 at 06:26:21 PM EST
    Perhaps this, this,  will clarify your thinking about Miranda.

    The requirement is that police cease questioning after Miranda rights are read, not that they are required to read Miranda rights.

    As Jeralyn has put it, it is their duty to read Miranda rights.


    Two days later than the dangerous crime (none / 0) (#47)
    by Peter G on Wed May 05, 2010 at 09:48:33 PM EST
    was committed; yes, exactly.  The kind of "immediate public danger" that exists when the suspect is apprehended before the crime scene is brought under control, and the suspect is very likely in possession of information to aid in resolving that safety issue, is exactly the circumstance for which the Supreme Court created this (controversial) exception to the Miranda decision.  In that case, NY v Quarles (1984), a gunpoint rape had just occurred, the suspect was located where the victim said he had gone, but ran away.  P/O gave chase, but was not able to keep suspect in sight during entire chase.  When suspect was caught moments later, he was wearing an empty shoulder holster but not in possession of gun.  "Immediate public danger" there was the need to locate and secure that gun.  S.Ct. majority said it was a "narrow exception" where demonstrable "exigency" requires questioning to secure the safety of the arresting officer or the public.  Your suggested standard, on the other hand -- that a criminal caught two days after the fact trying to flee "might possibly" have created some other, entirely speculative, dangerous or even deadly situation does not describe a "narrow exception," but rather a gigantic loophole that would in practice swallow the rule.

    OK, I take your point (none / 0) (#50)
    by gyrfalcon on Wed May 05, 2010 at 10:56:59 PM EST
    but I'd be real surprised if the SC objected to having that exemption applied to terrorism, which is also obviously a safety issue.  If you're going to make an exception to Miranda for public safety -- and I'm not sure I think there should be, but I don't get to make that call -- I can't think, frankly, of any more urgent public safety issue than the possible exixtence of the not so proverbial ticking time bomb, considering the perp in custody is being arrested for exactly that, can you?

    If there were evidence -- not proof, perhaps, (none / 0) (#52)
    by Peter G on Thu May 06, 2010 at 11:44:34 AM EST
    like Quarles' empty shoulder holster and the rape victim's eyewitness report that he had been in possession of a gun less than an hour earlier -- but at least some evidence, of a "ticking time bomb" or its equivalent, I would expect the Supreme Court to agree with you. I should have added to my prior description of the Quarles precedent the further fact that the P/O's question ("Where did you ditch the gun?") was asked immediately upon Quarles' apprehension, on the spot.  The Court did not seek on this basis to justify an extended but unwarned interrogation, in custody, back at the FBI offices.

    If they waited until (none / 0) (#53)
    by gyrfalcon on Thu May 06, 2010 at 03:27:58 PM EST
    they got him back to the FBI offices, that's a whole different deal, I agree.  By definition, that would seem to me to cancel the "urgent" part of the equation.

    But do we know that's what they did?  I would have assumed they'd just hustled him right into a room at the airport to talk to him.


    I haven't noticed that fact being disclosed (none / 0) (#54)
    by Peter G on Thu May 06, 2010 at 04:26:33 PM EST
    yet, one way or the other.

    Well, Given Democratic Incompetence On (none / 0) (#4)
    by seabos84 on Wed May 05, 2010 at 07:39:00 AM EST
    Messaging - They gotta look tough before the righties lie about them ... well, the righties lie anyway ... but ...

    Of course, those Dems who are just politically incompetent can't do effective message against fascist lies cuz they're DLC Clintonian Sell Outs!

    AIG-Goldman-AHIP-PHARMA-Tauzin-Rahm-Summers-Geithner-Bernanke ...

    When the fascist string pullers don't have raygun-cheney-bush liars and thieves in charge, they got the next best thing -

    DLC clintonian-obama sell outs using right wing tactics.


    Willpower in the face of peer pressure (none / 0) (#5)
    by vicndabx on Wed May 05, 2010 at 07:48:56 AM EST
    These folks seriously lack it. It's not like the public is all up in the AG's face asking questions.

    All of that, plus (none / 0) (#6)
    by ruffian on Wed May 05, 2010 at 07:50:55 AM EST
    Isn't it just tactically stupid to let any possible co-conspirators in Pakistan know he may be talking? I was throwing stuff at the radio this morning when I heard Holder.

    What should/can Holder say if (none / 0) (#7)
    by observed on Wed May 05, 2010 at 08:06:34 AM EST
    he wants to allay public anxiety about the attempted attack?

    Did You Read This Post (5.00 / 1) (#11)
    by squeaky on Wed May 05, 2010 at 09:29:16 AM EST
    He should say, we have caught a suspect who we believe is responsible. He is coo