When a Suspect Likes to Talk, and Talk

James A. Cohen in The New York Times, May 06, 2010

Media Source

By WILLIAM GLABERSON

Days after his arrest, the Times Square bombing suspect has not been seen in court, though American law provides a right to be charged promptly before a magistrate, usually within 48 hours.

But like a lot of legal rights, that one can be waived. Lawyers and former prosecutors said it could be some time — anywhere from a little while to a long while — before the suspect, Faisal Shahzad, who has been talking with prosecutors and investigators, stands in some baggy jail outfit before a judge.

“It’s not the normal course of things, but it’s not unprecedented,” said Daniel C. Richman, a Columbia law professor who is a former federal prosecutor. He said there was no clear outer limit to how much time might pass before a court appearance, as long as Mr. Shahzad properly waived his legal rights.

It may suit both sides to keep their momentum going, whether it is full cooperation, boasting or something in between. For prosecutors and investigative agents, the interrogation of a helpful defendant can be a kind of alchemy that works best roped off from the world.

A court appearance can break the spell, said Anthony S. Barkow, a former federal terrorism prosecutor in Manhattan who is executive director of a criminal law center at New York University.

“All kinds of wheels get set in motion that sometimes makes it difficult to continue the discussion” after an arraignment, Mr. Barkow said.

Having a defense lawyer, for example, can be a major impediment. Federal prosecutors declined to comment Thursday on whether Mr. Shahzad has yet consulted a lawyer. He could waive that right as well.

Accused people sometimes insist on going it alone for a variety of reasons, including vanity and hubris. Some Islamic prisoners who view themselves as political captives have spurned American lawyers.

From the prosecution’s vantage point, a defense lawyer can be a double-edged sword. The presence of a lawyer can limit later claims that a defendant was duped by interrogators, mentally unstable or coerced into saying something false.

But on the other hand, a defense lawyer can get in the way. Since the Sept. 11 attacks, one of the staple arguments in the debate about what legal system to use for terrorism prosecutions has been whether the right to counsel may be a luxury the country cannot afford during investigations like the one now under way.

The questioning of Mr. Shahzad certainly has both law enforcement and national security aspects. Investigators want to know not only who else might be prosecuted for a role in the failed attack, but also how to try to stop the next one, and where military or intelligence operations might be most useful.

“For the government to be able to get at the person directly, without counsel interposed, is something they want,” said Ramzi Kassem, a lawyer for terrorism suspects who is a professor at the City University of New York School of Law in Queens.

There are some legal risks in a delay in getting the case into court. Mr. Barkow, the former terrorism prosecutor, said investigators would be careful to document that Mr. Shahzad was acting voluntarily in all his dealings with them, perhaps by signing statements or taping his interviews.

“If he waived his rights and that can be demonstrated,” Mr. Barkow said, “there’s really not much of a legal risk” in delaying a court appearance.

But other lawyers said that could be a big if. Over time, defendants have a way of changing their minds when confronted with the reality of long prison terms and former allies turned enemies.

If Mr. Shahzad’s case travels that route, this period of isolation could become a point of contention, said Professor Richman of Columbia. Should Mr. Shahzad later decide to disavow what he is saying now, he could claim he was mistreated or manipulated while out of reach of the courts. The rule requiring prompt arraignments is rooted in part on an American aversion to people vanishing into secret interrogations.

“The longer the period of time is,” Mr. Richman said, “the more plausible will be a claim down the road that any waiver of his rights was not fully voluntary.”

James A. Cohen, a criminal law professor at Fordham Law School, said that in the usual case a defendant generally makes it to court quickly. The Times Square case is not the usual case.

The exceptions can be for any number of reasons. Informers sometimes stay out of court to keep their legal troubles from new targets of their testimony. Mobsters who switch sides sometimes see secrecy as a way to stay alive.

Professor Cohen said Mr. Shahzad’s government handlers are probably focused right now on keeping him talking. “It could be weeks,” he said. “It depends upon the quality of the information he is supplying and how easy or hard it is to confirm.”