Speaker 1: 0:00

Welcome to arrested the only five and local show that takes you into the belly of our criminal justice system, cohosted by Mike Brooks and Atlanta criminal defense attorney Dan conaway of Conway and strictly pc. Good morning everyone. Welcome to arrested with your host, Mike

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rucks and criminal defense attorney Dan conaway. Dan, how's everything going this morning?

Speaker 3: 0:21

It's gone. Great, Mike. Good to see you.

Speaker 2: 0:23

You know it. It's been a busy last two weeks. Uh, we know that a week ago this past Friday, the FBI announced and arrest in the serial male bombing case, if you will, of Caesar Cya, Say York siack will say, stay essay on it. Stay on because his name and I'm now at the time they said he was responsible for 14. And after that we've now received another one here in Atlanta, uh, at the postal facility down on pryor street that was addressed to CNN, the CNN center. Uh, so now he's going to be Cha Cha, I guess facing an additional charge. But, um, he was charged with a number of different kinds. But before we get to the, what he's charged with right after he was arrested, he was arrested about, uh, about 10 something on Friday, last two weeks ago, Friday, and when he was arrested by the FBI, they said that, uh, there had been an exception to Miranda. Now we talked a little bit last week about the criminal justice system do process and what your rights are and when everyone's arrested, you're usually advised of your rights. And that is a miranda warning. But in this particular case, Dan, they said that there was an exception to Miranda because they needed to find out quickly if there were any more bombs out there. And that's why apparently they were able to talk to him with an exception to Miranda. How does that work?

Speaker 3: 1:58

Uh, Mike, that's a great question. Um, and it's interesting because generally, again, generally miranda, me, and so if you're in custody, right? And certainly if you've been arrested and in the situation to say, doc, he was definitely in custody. Then at that point you're supposed to read your Miranda rights. Uh, but there are three exceptions. A very quickly the first who is the routine booking question exception. Well, what the heck is that? Yeah, really that's where you're being booked in and they have to ask you basic information about who you are, right? Name, date of birth, stuff like that. So they can identify. The second one is more interesting. That's the jailhouse informant exception. Jailhouse informant exception. That one. Ideally what I tell my clients is when you're in jail and okay, what kind of jail it is. You only talk about sports, the weather and the food. That's it. You don't talk about anything else. Why? Because if there's a jailhouse informant in there,

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were there usually for the state prison, federal penitentiary, you're going to have him in.

Speaker 3: 3:02

They're everywhere because they want to get time off their on sentence. Uh, so if you talked to one of them and say something incriminating against yourself, right? And guess what? It's not covered by Miranda and they can use it to prosecute you. So keep your mouth shut. Not only when you get arrested, but also when you go to jail and talk about what food, whether sports. That's it. And finally, all those jailhouse calls to your friends and relatives, they're all being recorded now. They can use those to now let me get to the exception of public safety exception. That's the exception that the case is about. What is it? It's very simple. It means if there's a major public safety issue, right? Then there's an exception to Miranda, like a pipe bombs, pipe bombs in the mail. There you go. Perfect reception. All right, so why is it, why does it exist? Well, without getting too esoteric, you have to think of your rights as being balanced by a thing called public safety. For instance, for example, you cannot cry, fire or scream fire in a public theater movie theater. Why? It's not free speech. The public safety exception overrules. You're right to say that. So there are limits to free speech, just like there are limits to anything. You can't go by a nuclear bomb and put it in your basement. Why? Because we asked the second amendment as strong and gives you the right to bear arms. But there's also the public safety rule, which is a balancing test. Okay, so here we have a balancing test with Miranda between public safety and the right to remain silent while in custody of the police. So in this case, in this situation, our supreme court has decided that Gus, what public safety trumps Miranda.

Speaker 2: 5:03

Okay, so let's say they, the FBI, they snatched him up there in the parking lot of the auto zone in plantation. Florida was living out of his van and right away they asked him these questions and let's say he's, he's decides he's not going to say anything and he's going to lawyer up as a say. Can they continue asking him about the possible bombs that are still out there?

Speaker 3: 5:31

Yes. There's an interesting interesting twist in that is that the supreme court has been a little fuzzy on this and the circuit courts have ruled on this issue and basically it kind of says that, well, kind of in between, meaning you can probably still ask him some questions even though he invoked his right to a lawyer. He's requested a lawyer. So the idea is how long, how much, how many about what? That's all kind of fuzzy and gray. It's a gray area in the law.

Speaker 2: 5:59

Gosh, you're listening to arrested with Mike Brooks and criminal defense attorney Dan conaway. We're talking about the exception to Miranda. So there's public safety. So basically if he says he wants to lawyer up and they're using this public safety exception, they can keep asking him to an extent. Okay.

Speaker 3: 6:19

To some extent it's that kind of wonderful. It's like the balancing test, right? Public safety versus free speech versus Miranda. Sure. Well, you know, they measure it out. That's what they do. Um, and uh, it's similar here where if a lawyer shows up, uh, then, uh, he certainly has a right to have a lawyer, but they can still ask them questions. It's interesting because sometimes the lawyer may say, look, you might want to answer their questions because it could help you. Uh, for example, in this case with respect to it, let's just take the federal statutes. Sure. Whether the charged federally will get charged later. This was focused on that. Yeah. So it's back to that. There are actually a issues there concerning cooperation, help providing substantial assistance. There are all these different concepts within the law, within the federal law as that may help him as far as with respect to what sentence he receives, a punishment he gets if he's an aiding and assisting law enforcement after the fact meetings, there's a, there's pipe bomb headed to cnn and he tells them about it, but our Topeka, Kansas or wherever it is or wherever, right. It doesn't just do, it could be some out there. We don't know. We don't know. It could be anywhere. So, um, so these things are all like that. And he could get himself some points in his lawyer might say, look, you might want to start talking because it may help you and then they can discuss that. So sometimes a lawyer, because they understand the law defense lawyer can actually help aid their client if their clients just fully resistant to anything because sometimes that resistance is based upon not understanding the law and what's good. What's the writer, bad choice, right, right. Because they don't know the law shore. So having the lawyer there as the defense lawyer may actually help just depends.

Speaker 2: 8:04

Now, you know, um, if he, if he said, hey, he wanted an attorney, would he be, would he, he didn't have an attorney. He, he had, he has a lengthy criminal record, so he's been in and out of the criminal justice system that we talked about last week. But, um, if he, if he's indigent, you know, he's living in his van, would he, even though he's charged with federal crimes, would he also, uh, get a public defender? Yes.

Speaker 3: 8:32

Uh, yeah, he would receive assistance through the federal defender program and received assistance in that situation. So the Federal Defenders Office works with people. They're also private attorneys who handle indigent cases and that's what they do. And so there's a good chance it would be in this case, he'll be represented by the Federal Defenders Office. That makes perfect sense. Um, beyond that, there's, there's interest. I don't want to get too hyper technical here, but um, but with respect to, uh, if, if you remember the Boston Marathon bomber,

Speaker 2: 9:02

absolutely. The value of brothers.

Speaker 3: 9:04

Yes, yes. Well, in that situation when they faced the same issue because they wanted to know if there are more bombs, uh, and there were some rulings in that case and basically the ruling was, was that they could basically use whatever they wanted. Um, it fell under the public safety exception to meaning they did not have to mirandize and they could ask them questions and one of the things they decided was that some of these statements, uh, as long as they're not admitted, as long as you're not trying to admit the thing into the case at trial. Right. It's one thing to get a statement. It's another thing to use that statement against the defendant at trial. Gotcha. Right. So if the government does not, does not intend to use that piece of evidence at trial, then you really don't have to get into public safety exception. It's only if they want to use the defendant's statement at trial that then you have the judge would have to rule on this public safety issue.

Speaker 2: 9:57

Gotcha. Now how far can they go, you know, of if he, if you won't tell you. And can I still keep asking other questions not related to public safety, if you will, until they, until he is mirandized.

Speaker 3: 10:14

Well that's a great question because um, then you get into the fishing expedition issue, which is always an issue in, in, in criminal cases. And that is, are we trying to gain information that is truly relevant to public safety or are we trying to get her information that uh, that has nothing to do with public safety. Like maybe had 22 parking tickets, maybe you know, you sleeping in his van. Yeah, we've got a bunch of parking tickets, right? Because he's parked in the wrong side of the road or whatever. I don't know. Uh, so, you know, is that a public safety issue? Probably not. So maybe they couldn't ask them about that.

Speaker 2: 10:45

Yeah. But you know, at the time I think they weren't sure whether or not he was living in his van. Uh, they thought maybe he had been staying with his mother for some time, but she hadn't seen him before for a long time. And then come to find out, now we know that basically that van was a mobile bomb making center for, you know, for him

Speaker 3: 11:07

like a mogul mobile criminal lab or something. One of the things that's interesting that I think supports the public safety exception to Miranda and is really one of the things that the courts look at is that practically speaking and pragmatically speaking, a lot of this deals with domestic terrorism and with domestic terrorism, what you've got your many times have actors that nobody knows much about, especially today, say with

Speaker 2: 11:37

the Internet. And, and this guy had been on law enforcement's radar before, just for the fact that the, you know, back in 2002, he had made a bomb threat to Florida power and light. But when it came to making pipe bombs, they had no idea. No that, that was him. And the guys sitting around like the, you know, you think about it, somebody used domestic terrorists. We're like sitting around there on the Internet. They're living in a van. They're living someplace way off in the woods. God knows who they are or where they are. And so that's part of the idea of public safety exception to be able to get this information so that they can help stop further problem. Now we know that he had been planning this since back in July and he actually had a list of over a hundred targets. You're listening to arrested with Mike Brooks and Dan conaway on the new talk one. Oh, six seven. We will talk about his charges coming up next.