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http://www.cnn.com/2013/04/22/opinion/frakt-boston-court/
*Vengeance Shouldn't Guide Prosecution*
by David Frakt, Special to CNN
Mon., April 22, 2013
(CNN) -- The Boston Marathon bombings were horrific and senseless
crimes. Thus far, all the publicly released evidence suggests that the
crimes were the work of just two individuals, the Tsarnaev brothers.
The elder brother, Tamerlan, is dead, and the younger brother,
Dzhokhar, is in serious condition at a Boston hospital.
Assuming that he recovers and is mentally fit, Dzhokhar Tsarnaev must
face trial. The question is where: in state court or federal court?
Both are legitimate possibilities. As with the Oklahoma City bombing
in 1995, the acts of which he is accused constitute a variety of
crimes under both state and federal law.
There have been numerous calls to prosecute Tsarnaev in federal court
because federal law offers the possibility of the death penalty, but
Massachusetts law does not. This would be a very poor basis upon which
to make the choice.
The decision of where to prosecute should be based on which
jurisdiction has a greater interest in the case, not where the
potential for vengeance is greater.
In the Oklahoma City bombing, the federal prosecution was given
priority because Timothy McVeigh was motivated by hatred of the
federal government to directly attack it, destroying a federal
building and killing scores of federal employees and their children in
the process.
There does not appear to be a similar federal interest here. The
Boston Marathon is the quintessential Boston event, and the victims
were predominantly Massachusetts residents. Those killed by the blast
were a local restaurant manager, a schoolchild and an international
student attending Boston University. The law enforcement officer
victims were an MBTA Transit Police officer and an MIT campus police
officer.
The crimes, in addition to the bombings, included an attempted
convenience store robbery and a carjacking, crimes typically
prosecuted in state court.
The elected representatives of Massachusetts have rejected numerous
attempts to reinstate the death penalty since it was invalidated by
the state's Supreme Judicial Court in 1984.
Gov. Deval Patrick and other state authorities should resist allowing
the passion and grief of the moment to override the will of the people
of Massachusetts not to execute its citizens by turning the case over
to the feds.
Comments by Mayor Thomas Menino expressing a hope that the U.S.
attorney will "throw the book" at Tsarnaev, although understandable
after what his city has been through, do not represent the sober
reflection we expect of our leaders.
Of course, we do not yet know what motivated the bombers. If
investigation reveals that the attack was an attempt to terrorize the
United States as a whole as part of some jihadist ideology, then the
federal interest in prosecution would be stronger. But at the moment,
the Commonwealth of Massachusetts has a much stronger claim to
prosecute.
One option that clearly should not be on the table is any effort to
treat Tsarnaev as an enemy combatant. He is an American citizen. Just
like McVeigh, he is entitled to all the rights and privileges afforded
citizens under the U.S. Constitution and does not forfeit them because
he appears to have committed heinous crimes.
We must resist the tendency to treat every act of violence as an act
of war just because we are in a "war on terror" and to reflexively
label every criminal of foreign origin or Muslim faith as a terrorist.
And if and when Tsarnaev is well enough to be questioned, the
interrogation should start with a Miranda warning. Now that the crisis
has passed, there is no urgent need to invoke the New York v. Quarles
"public safety exception" as a means of circumventing this young man's
constitutional rights.
Boston is the cradle of American liberty and is justifiably famous for
its rejection of oppressive and tyrannical government. Let us not
sully that reputation by sacrificing Tsarnaev's civil liberties in the
heat of the moment.
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Editor's note: David Frakt is a visiting professor at the University
of Pittsburgh School of Law, a lieutenant colonel in the U.S. Air
Force Reserve JAG Corps and a former lead defense counsel with the
Office of Military Commissions. He also previously served as a
military prosecutor and special assistant U.S. attorney.
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Please Note:
In select newsgroups my post will be followed by an out-of-date, cut-
and-paste, SHRIEKING ranting and raving post by Bob Milby Jr., aka
Patriot Games, aka Buster Norris, aka 10,000s of Sockpuppets -- Winner
of The alt.usenet.kooks Awards: Palmjob Paddle (July 2008)*, KO0k of
the Month (Sept. 2012)**, and the Order of the Holey Sockpuppet (Oct.
2012)!***
* This award is given to the person who gets spanked (as in,
thrashed) the most in a given month by other posters or even himself.
** Given to someone whose Kookery is judged to have surpassed all
others.
*** For those most prolific in the art of, abiet thinly,
disguising their net.presence behind whatever nose and glasses they
can concoct.
We hope to return you to more rational posting after this brief,
psychotic interruption.
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