FBI agents violated the rights of Boston Marathon bombing suspect Dzhokhar Tsarnaev by continuously questioning him while he lay in pain in a hospital bed, even after he had asked for a lawyer 10 times and authorities had determined there were no other bombs or threats to public safety, defense lawyers argued in court documents filed Wednesday.
The attorneys asked a Boston federal judge to suppress all statements Tsarnaev made to law enforcement while he was hospitalized at Beth Israel Deaconess Medical Center in Boston.
"The questioning continued for hours, in what was obviously an effort to extract as much incriminating information as possible, without regard for the protections of the Fifth Amendment," his lawyers wrote in the 21-page filing. At the time, Tsarnaev could not talk because of his injuries, so he answered questions in writing.
The lawyers also say that his hospital statements should be suppressed because they were involuntary. Tsarnaev was heavily drugged and in pain while he was being interviewed, they argue. His left eye was sutured shut, his jaw was wired closed and he was unable to hear out of his left ear. At times, his pen trailed off the page, indicating that he fell asleep or lost motor control.
Tsarnaev, 20, is charged in the April 2013 bombing that killed three people and wounded more than 260 others. He and his brother, Tamerlan, who was killed during the ensuing manhunt, are suspected of leaving two pressure-cooker bombs near the marathon finish line.
Law enforcement officers had said when they arrested Tsarnaev that they would not read him his Miranda rights, citing a "public safety exception" that can be invoked when the suspect may have information of urgent concern to public safety. His lawyers say the questioning should have stopped once he asked for a lawyer.
One legal expert said "there's some probability" that Tsarnaev's lawyers would win this motion. Mario Barnes, a professor at the UC Irvine School of Law, said the judge would have to determine whether there were relevant threats to public safety that necessitated the long periods of questioning.
The judge will have to address whether "the threat was more significant than the harm that comes to you from the failure to give you the [Miranda] warning," Barnes said.
The court filing brings up long-simmering questions on the use of the public safety exception when interrogating terrorism suspects. Some law enforcement officials came under fire in 2009 for reading Umar Farouk Abdulmutallab, the "underwear bomber," his Miranda rights after an initial interrogation, after which he stopped talking. The Nigerian was convicted of attempting to detonate explosives on a Detroit-bound jetliner.
At the time of Tsarnaev's arrest, Sens. Lindsey Graham and John McCain said he should be declared an "enemy combatant" and denied a defense attorney. Others, including the American Civil Liberties Union, protested the decision not to read Tsarnaev his Miranda warning.
"Denial of rights is un-American and will only make it harder to obtain fair convictions," the ACLU said in a statement after Tsarnaev's arrest.
Tsarnaev was in critical condition when he arrived at the hospital about 9 p.m. on April 19, 2013, with serious injuries from gunshot wounds to his head, face, throat, jaw, left hand and both legs. Less than 24 hours later, after he underwent emergency surgery, FBI agents began questioning him.
The interrogation, as the court filing calls it, continued for about 27 hours, with some breaks, until April 22, when a lawyer was appointed for Tsarnaev. Two lawyers from the federal public defender's office had tried to meet with Tsarnaev before he was questioned but were turned away, the filing says.
Because he had a tracheotomy tube in his throat, Tsarnaev could not talk, so he wrote answers in a notebook. He assured agents that no one but him and his brother were involved in the bombings, and that there were no remaining bombs, the defense says. He wrote the word "lawyer" 10 times, and circled it.
Agents asked Tsarnaev how the bombs were made and about his beliefs about Islam and U.S. foreign policy. They also asked about his brother and told him Tamerlan was alive, the filing says.
"Is my brother alive I know you said he is are you lying?" Tsarnaev wrote on the paper, according to the filing.
"These questions went well beyond even the Department of Justice's own written policy regarding use of the public safety exception to interrogate members of terrorist organizations," defense lawyers David Bruck and Judy Clark argued.
Citing Tsarnaev's medical condition, they noted that he wrote his Cambridge address incorrectly in the notebook. He also wrote, "I'm exhausted," "Can we do this later," and "I need to throw up."
The public safety exception comes from a 1984 Supreme Court ruling that allowed police to ask a suspected rapist what had happened to a gun that a witness had seen him with earlier. The court decided the public safety threat posed by the missing gun caused more harm than the lack of reading him his Miranda warning did.