Boston bombing interrogation: Will prosecutors have a Miranda problem?

In recent years, the Justice Department seems to have decided to expand the public-safety exception to include other types of intelligence, Birckhead says.

She cites a 2010 DOJ memorandum to the FBI obtained by The New York Times, which stated that after all public-safety questions may have been asked, “agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”

How that intelligence gets used is also open to question.

For example on Thursday, New York Mayor Michael Bloomberg and New York Police Commissioner Raymond Kelly said that during the interrogation of Mr. Tsarnaev, he indicated he and his brother Tamerlan, who was killed, had planned to go to New York to set off bombs in Times Square.

Both officials appeared to be talking about possible evidence in the case, obtained without the suspect receiving a Miranda warning.

“There are limits on what you can say,” says defense attorney Joshua Dratel of Dratel & Mysliwiec in New York, speaking about Mayor Bloomberg and Kelly’s press conference. “They are not supposed to talk about this, so it’s already a major problem,” Mr. Dratel says.

If the information that the FBI received is “intelligence,” asks Dratel, who is a leading terrorism defense lawyer, “Why is it bandied about in public?”

One argument for not reading Tsarnaev his Miranda rights is that the government might never get important information about future attacks.

But now that Tsarnaev has been read his rights, it doesn’t mean that he won’t eventually cooperate with the government, Birckhead says. A large percentage of those charged with crimes tend to cooperate with the government in return for the possibility of a lesser sentence, she says.

“It could be that months ahead, Dzhokhar and Miriam Conrad [a federal public defender and his lead defense counsel] conclude it makes sense to sit down with the prosecutor,” she says, in return for the prosecutor taking the death penalty or even life in prison without parole off the table.

Birckhead thinks one reason the FBI decided to question Tsarnaev for 16 hours could have been to establish precedent – so the next time a terrorism suspect is arrested, they can also be questioned at length.

“I would imagine someone involved in the prosecution and investigation is thinking ahead,” she says. “Lawyers do that: They are always asking, ‘Are we setting precedent down the line?’ ”

Dratel says that possibility is chilling to him. “It is letting the genie out of the bottle,” he says. “It fills criminal defense lawyers with dread.”

• Staff librarian Leigh Montgomery contributed to this report from Boston.

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