Will Delay Harm Shahzad Prosecution?

By Josh Gerstein
|  Friday, May 21, 2010  |  Updated 7:00 AM EDT
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Some Fear Delay Could Harm Shahzad Prosecution

U.S. Marshal's Service

This undated booking mug released by the U.S. Marshal's Service shows Faisal Shahzad. The man accused of plotting a car bombing in New York's Times Square made his first appearance Tuesday, May 18, 2010, in a Manhattan courtroom where he was told by a magistrate judge that he had the right to remain silent. Authorities say Faisal Shahzad's willingness to talk kept him out of court for two weeks, speeding up the progress of an investigation into his May 1 plot to set off a homemade car bomb. The hearing lasted only 10 minutes. Shahzad, 30, a Pakistan-born U.S. citizen, confirmed with a "yes" that his financial affidavit was accurate, permitting him to be appointed an assistant public defender, Julia Gatto, who declined to comment afterward. (U.S. Marshals Service)

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In the attempted Christmas Day bombing case, Republicans accused the Obama administration of cutting off the interrogation of the suspect too soon.

Now, some lawyers are asking whether U.S. authorities questioned the Times Square car bomb suspect for too long — before taking him in front of a judge, in effect delaying the suspect’s first court appearance for nearly 15 days after he was arrested.

And defense lawyers and ex-prosecutors agree that the delay could render some of the statements Faisal Shahzad made to investigators during that period inadmissible if the case against him goes to trial.

These lawyers, however, say that prosecutors most likely concluded that in the first hours of questioning Shahzad, they got enough information from him to win a conviction, even if the remainder of his comments and evidence derived from them are jettisoned from the case.

“Somebody should be presented to a magistrate within six hours, and if you go beyond that time and the delay in presentment is considered unreasonable, any statement taken outside that six-hour time period is supposed to be suppressed,” said David McColgin, a federal defender in Philadelphia who argued and won a Supreme Court case on the issue last year. “One thing that’s clear is a delay for further questioning is not reasonable.”

Shahzad was arrested on the night of May 3 aboard a Dubai-bound plane at New York’s Kennedy Airport, two days after he allegedly parked an SUV loaded with an improvised bomb in Times Square.

Prosecutors initially announced he’d be taken before a judge on May 4, but that never happened. He was finally presented to a magistrate Tuesday. The top federal prosecutor in Manhattan, Preet Bharara, told reporters last week that the suspect signed waivers on a daily basis, agreeing not to be taken to court immediately.

Bill Burck, a former federal prosecutor in New York who later worked in the White House counsel’s office under President George W. Bush, argues that the waivers should protect the government’s right to use Shahzad’s statements. “You can waive almost any right. ... You can waive your right to an attorney, your right to remain silent. I’m not sure why this right would be any different,” Burck said.

 

McColgin agreed that a defendant can waive his or her right to appear in court for a period of a few days but said there is little legal precedent addressing a more protracted delay.

“It’s definitely stretching the waiver to its outer limits, whether it’s reasonable or whether it’s just implicitly coercive. If at some point he comes in and says it wasn’t voluntary, there’s some concern that the longer that goes on, the more credible that claim becomes,” said McColgin.

“That’s really problematic,” Cynthia Orr, president of the National Association of Criminal Defense Lawyers, said about the 15 days it took to bring Shahzad before a judge, a process that normally takes a day or two at most. “It’s very murky. It’s very puzzling. ... He’s going to have a lot to complain about, probably legitimately.”

Prosecutors told the court last week that Shahzad had been informed each day of his Miranda rights and his right to a prompt court appearance. In the letter unsealed Thursday, prosecutors insisted that “it is well-settled” that a defendant — even one without an attorney — can waive his right to be taken in front of a judge.

The Obama administration is considering supporting legislation that would explicitly allow prosecutors to delay terrorism suspects’ first court appearances, a congressional source said.

One proponent of the idea said that while Shahzad’s prosecution may not be jeopardized by the tactic, it’s unwise to force prosecutors to decide between questioning a suspect and preserving their court case.

“It’s this horrible devil’s choice,” said Ben Wittes of the Brookings Institution. “Do you cut off questioning in a setting that may cost you vital interrogation that could bear on a lot of people’s lives — or continue to question and potentially complicate your criminal case?”

Burck said he thought a judge would reject any attempt to throw out any of Shahzad’s statements but said prosecutors took a calculated risk. “They decided to roll the dice a little bit,” he said.

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