Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Nicolaus Czarnecki/Boston Herald via AP Defense lawyers demand federal arraignment for bombing suspect

Defense lawyers are asking a federal magistrate to make sure that New York and New Jersey bombing suspect Ahmad Rahami has a court appearance Wednesday where he would be advised of his right to an attorney and to remain silent.

"I request Mr. Rahami’s prompt presentment on the criminal complaint, so he may be informed of the federal charges and have access to counsel," Federal Defenders of New York Executive Director David Patton wrote in a letter filed late Tuesday night with Magistrate Judge Gabriel Gorenstein.

Rahami was arrested Monday morning after a shootout with police in Linden, N.J., that left him and two officers injured. He was charged in a county complaint Monday with five counts of attempted murder relating to the shootout. Bail was set at $5.2 million, but Rahami was hospitalized at University Hospital in Newark after the shooting and remains there.

Patton's letter stems from a federal criminal complaint filed Tuesday evening in U.S. District Court in Manhattan, charging Rahami with five felonies including use of a weapon of mass destruction in connection with the bombing Saturday in the Manhattan's Chelsea neighborhood, which injured more than 30 people.

Late Tuesday, Rahami was also charged in a separate complaint in federal court in New Jersey with six felonies relating to the bombs left in Seaside Park, near the route of a road race and outside an Elizabeth, N.J. train station.

"Mr. Rahami has already been held on extremely serious state charges in New Jersey for over 36 hours without the benefit of counsel. He is receiving treatment for gunshot wounds at a hospital in Newark, New Jersey. He has been held and questioned by federal law enforcement agents since his arrest on September 19, 2016. The Sixth Amendment requires that he be given access to counsel on the federal charges, and that he be presented without delay," Patton wrote.

The defense attorney asked that an initial court appearance be schedule for Rahami on the New York charges Wednesday "at the earliest possible time."

"If Mr. Rahami is not able to travel to Manhattan because of his medical condition, our office is available to meet with him in New Jersey and represent him at a telephone or videoconference presentment at any time," Patton wrote. The letter did not address the New Jersey federal charges. It's unclear if Patton was aware of them.

Rahami is reportedly not cooperating with investigators, but it's unclear whether he was advised of his Miranda rights. Sen. Lindsey Graham (R-S.C.) and former Justice Department lawyer John Yoo have said Rahami should not be read his rights or have access to an attorney, but be deemed a suspected enemy combatant and subject to military questioning.

In other terrorism cases, defense attorneys have sometimes complained that prosecutors took steps to delay suspects' first court appearances, where they would be put in contact with an attorney.

When Faisal Shahzad was arrested at JFK Airport in 2010 on suspicion of planting a vehicle-borne bomb in Times Square, authorities managed to keep him out of court for 15 days.

After nine days, prosecutors wrote to the chief federal judge and magistrate in Manhattan to advise that Shahzad had waived his rights both to an attorney and to a prompt arraignment. Six days later, prominent New York defense attorney Ron Kuby sent the top judge a letter complaining about the delay in Shahzad's appearance.

"A suspect buried in the bowels of a Manhattan version of Guantanamo, who has no 'next friend' to file on his behalf, is essentially without power to compel the government to comply with" the rules, the defense lawyer wrote."As a member of the bar, I call you to your duties under Article III of the United States Constitution, and request that you compel the government to present Mr. Shazad (sic), forthwith."

Later that day, Shahzad was brought to court and arraigned.

Rahami's situation is different in that he is injured and receiving medical treatment. But initial court appearances sometimes take place even in those circumstances.

In 2013, Boston Marathon bombing suspect Dzhokhar Tsarnaev was arraigned at his hospital bed three days after he was arrested following a shootout with police in Watertown, Mass. At the arraignment, Tsarnaev was suffering from a gunshot wound to the face and neck and was on significant medication, but the magistrate deemed him competent to respond to questions and be advised of the charges against him.

UPDATE (Wednesday, 8:06 A.M.): This post has been updated with the New Jersey federal complaint.