Former Chief Judge of the New York Court of Appeals, Sol Wachtler, came up with a lot of good law before he lost it, and one of his ideas has been the subject of much discussion lately.  Yes, Sol wrote the NY high court decision in Quarles, the public safety exception case that allowed the feds to question  Dzhokhar Tsarnaev without Miranda warnings.  The Supremes adopted Sol’s view for their own.

Don’t hate Sol for it. He was really quite a good judge, and a very decent guy before his life fell into the toilet.  If you look behind the Quarles decision, which didn’t involve “terrorism” or prolonged questioning, it made sense, even if it was a bit too outcome oriented for anyone who is more concerned with doctrinal integrity than nailing the bad guy. So Sol wasn’t perfect.  Still, his court held firm against a Supreme Court determined to undermine anything favorable to the defense in its own jurisprudence. Give him credit where due.

We haven’t heard much from Sol lately, but he appeared last weekend in a  Newsday op-ed to defend his honor for his finger in the Quarles decision.

Some 20 years ago, when I was a judge on the New York Court of Appeals, I wrote a decision in a case where the police were told that a man in a supermarket in Queens had a loaded gun. When Benjamin Quarles was apprehended, he had an empty holster and the police asked where the weapon was. After the suspect showed the police where he had hidden the gun, he was arrested and charged with criminal possession of a weapon. It was argued that his incriminating statement about the gun was elicited in violation of his Miranda warnings.

My opinion in that case, later embraced by the Supreme Court, created the “public emergency exception” to Miranda. It allows the police to interrogate a suspect before administering the warnings, in order to protect the public in an unfolding and potentially dangerous situation.

Not to endorse the reasoning, but note that Quarles dealt with a very discrete bit of information needed for safety, the location of his gun.  They knew he had a gun. They didn’t know where it was. It presented an imminent threat.  The case Sol decided not only had a very specific “public safety” question, but a very discrete answer: here’s the gun, exception over.

Mind you, the need to find the gun and the use of the statement against Quarles at trial are separate issues. That the importance of finding the gun exceeded the concern about giving Miranda warnings is completely understandable. So don’t warn. But lose the statement. That’s life in a constitutional democracy. But no, not this time.  Not anymore.

Tsarnaev was a very different case, and concern, than Quarles.  But even so, the un-mirandized statement should not have been an issue from a doctrinal point of view.

It should be understood, first and foremost, that the failure to give the Miranda warnings does not result in a case being dismissed. It only results in the inability of the police to use an elicited confession against the accused. Indeed, the overwhelming majority of successful criminal prosecutions do not involve confessions. And no confession would have been needed to try and successfully convict Tsarnaev of the heinous crime he is accused of in Boston. It’s hard to imagine a case where so much evidence of guilt is at hand.

This is basic to Miranda analysis, that the only remedy for its violation is that the statements can’t be used at trial. This is either a flaw or feature, according to your perspective. In your concern over the violation of constitutional rights is more important that interrogation at will, then it reflects a failure of the remedy, designed with the notion that the only concern in violating constitutional rights is its subsequent impact at trial.  There is no remedy that compels law enforcement to honor the Constitution just because it’s the Constitution. You know, sworn oath and all. Instead, it’s just an obstacle to circumvent.

But then Sol slams the Magistrate Judge who appeared to do magisterial judge-type stuff.

The federal magistrate who interrupted the interrogation to administer Tsarnaev’s Miranda warnings was well intentioned, but it appears to have been an unwarranted interference with an important investigation.

This contention reflects the sort of rookie mistake non-lawyers make all the time, and even though Sol technically falls into the non-lawyer category now, it’s hard to cut the former Chief Judge a break on that count.  But since  County of Riverside v. McLaughlin was decided in 1991, a year before his fall from grace, when he was still a lawyer, not to mention Chief Judge, he’s got no excuse for not knowing it.

In McLaughlin, the Supreme Court put some meat on the bones of Gerstein v. Pugh, holding that the Fourth Amendment required a defendant in custody to be brought before a neutral magistrate for a probable cause determination as soon as reasonably possible.  In McLaughlin, the Court concluded the systemic outer limit as 48 hours.  Tsarnaev was captured Friday night. The Magistrate Judge arrived at the hospital Sunday night. Do the math.

So while Sol may be (and the word “may” is used instead of “is” deliberately) correct that his beloved Quarles public safety exception was properly invoked to interrogate Tsarnaev, though he fails to address the duration of the questioning or its invocation in the absence of any basis to believe there was any imminent harm, like Ben Quarles’ missing gun, that was so potentially dangerous, his castigation of the Magistrate Judge comes at the expense of another constitutional right, not to be indefinitely detained without a judicial determination of probable cause.

And even if Sol, as the Chief Judge of the New York state courts rather than federal, he should have known that a year before McLaughlin, Supreme Court Justice Brenda Soloff had ruled that under New York’s more protective constitutional scheme, arrest to arraignment delay was limited to 24 hours.  The ruling was upheld in a  per curiam opinion in March, 1991 by a court whose Chief Judge was still Sol Wachtler.

It’s a rookie mistake to focus on one piece of the puzzle but ignore another, and Sol Wachtler is no rookie.