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Malvo statements without lawyer { May 7 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A22593-2003May6.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A22593-2003May6.html
Malvo Statements Ruled Admissible
Judge Rejects Claim That Teen Sniper Suspect Was Illegally Manipulated
By Tom Jackman and Josh White
Washington Post Staff Writers
Wednesday, May 7, 2003; Page A01
Virtually all of sniper suspect Lee Boyd Malvo's detailed statement to investigators in Fairfax County may be used against him, a judge ruled yesterday, concluding that Malvo willingly agreed to discuss the October shootings even after he was advised of his rights.
Fairfax prosecutors said the ruling will allow them to play for the jury an audiotape of Malvo's statement, during which, authorities say, Malvo laughed and remorselessly discussed the shootings of 13 people, 10 of them fatal, during a three-week period.
Defense attorneys said the ruling ignored governmental manipulation to skirt Malvo's rights and set a bad precedent for the handling of other juvenile suspects.
Fairfax Circuit Court Judge Jane Marum Roush discarded arguments by Malvo's attorneys that the suspect, then 17, had requested a lawyer at the outset of questioning Nov. 7, that police illegally kept Malvo's attorneys away from him and that he should have been provided with an attorney, whether he asked for one or not, because he had been charged the previous day.
"I conclude," Roush wrote, "that Malvo's statement, 'Do I get to talk to my attorneys?' was not a request for counsel."
Malvo's attorneys expressed disappointment, but not surprise, at Roush's 23-page ruling. The lawyers also said they will challenge the "inconsistencies and lies" in Malvo's statement at trial, "as well as his motivations for making them."
"What may now appear to be the answers everyone has been seeking," the defense lawyers said in a statement, "we believe will in fact pose many more questions as this case progresses."
The defense cannot appeal Roush's ruling now but could raise it in a post-conviction appeal.
Fairfax Commonwealth's Attorney Robert F. Horan Jr. said yesterday that Roush's ruling validates the police handling of Malvo and that Malvo was not coerced into speaking about the shootings for close to seven hours Nov. 7.
Malvo, now 18, is charged with the Oct. 14 killing of Linda Franklin, 47, outside a Home Depot store in the Seven Corners area. He was arrested Oct. 24 with John Allen Muhammad, 42.
Muhammad is facing capital murder charges in Prince William County in the Oct. 9 slaying of Dean Harold Meyers, 53, near Manassas. Malvo and Muhammad have been charged with murder in all 10 fatal sniper shootings in the Washington area. Prosecutors allege that Malvo and Muhammad tried to extort $10 million from the government in exchange for stopping the shootings.
Although rulings on the admissibility of a defendant's statement often launch plea negotiations between prosecutors and defense lawyers, Fairfax prosecutors have indicated no willingness to negotiate with Malvo. Virginia was chosen by U.S. Attorney General John D. Ashcroft for the first trials in part because of the availability of capital punishment in Malvo's case.
"Nobody's mentioned a plea agreement to me," Horan said. "It's very, very doubtful in a capital case."
To obtain a death penalty recommendation from a jury, prosecutors are supposed to show either that a defendant's conduct was particularly vile or that the defendant would pose a danger if not executed. Fairfax prosecutors have said in court filings that Malvo was laughing and boastful as he described killing Franklin and others. That information could be used in death penalty arguments.
Horan said yesterday's ruling will allow the jury to hear, "in the defendant's own words, what he did and how he did it." He said he would play for the jury most or all of a two-hour audiotape that was begun in the middle of Malvo's interrogation.
Prince William prosecutors said Roush's ruling essentially has no bearing on the case against Muhammad. Commonwealth's Attorney Paul B. Ebert said he has not yet decided how -- or if -- he would use Malvo's statement at Muhammad's trial, scheduled for October. Horan said the statement probably could not be used unless Malvo agreed to be cross-examined about it.
"We'll cross that bridge when we come to it," Ebert said, adding that any use of Malvo's statement against Muhammad probably would involve arguments in Prince William County Circuit Court. "It's certainly possible that the defense would want to attempt to use that statement."
During Malvo's interrogation by Fairfax detectives and, later, by Prince William investigators, he did not mention Muhammad's name, and he appeared to take responsibility for a number of the Washington area shootings. But according to law enforcement documents, Malvo referred to his "friend" several times and answered investigators' questions about "John" with statements such as, "We wanted you to know it was us."
Peter D. Greenspun, one of Muhammad's defense attorneys, declined to comment on the ruling.
Malvo and Muhammad were first held in federal custody after their arrest at a Frederick County rest stop. But on Nov. 7, federal charges against them were dropped, and they were shipped to Virginia. Malvo arrived at Fairfax police headquarters about 4 p.m. and was taken to an interview room by Detective June Boyle and FBI Special Agent Brad Garrett.
At a hearing last week, Boyle testified that for the first 90 minutes, she and Garrett made small talk with Malvo. One of Malvo's first comments, according to Boyle, was, "Do I get to talk to my attorneys?" Boyle said she told him yes. "Because the lawyers told me not to talk to the cops until they get here," Malvo said.
The conversation continued. About 5:30 p.m., Boyle said, she began questioning Malvo more specifically about the sniper shootings. At 5:55 p.m., Boyle said, she read Malvo his Miranda rights to remain silent and to have a lawyer present. She said after reading each right, she asked Malvo, "Do you understand?" and that each time he said yes. Malvo signed a form, waiving his Miranda rights, with an X. Boyle testified that she then asked Malvo four times whether he was certain that he wanted to talk without a lawyer present and that each time Malvo said yes.
Roush ruled that everything Malvo said before he signed the Miranda rights form could not be used at his trial. "The Miranda warnings should have been given earlier in the interview," the judge wrote.
But Malvo's statements after he signed the Miranda form are more specific, according to a summary obtained by The Washington Post. "She came into my range and within two seconds I fired," Malvo allegedly said of the Franklin slaying. "He got hit good, dead immediately," Malvo allegedly said about the shooting of Meyers.
"Malvo never 'expressed' his wish for the particular sort of lawyerly assistance that is the subject of Miranda," Roush ruled. "Having considered the totality of the circumstances surrounding the police interrogation of Malvo on November 7, I conclude that his statement was made voluntarily."
Malvo's attorneys said federal and state prosecutors contrived to arrange for a gap in Malvo's legal representation by dropping federal charges in Maryland and moving him to Virginia. Roush ruled that there was no evidence of collusion between Fairfax and federal authorities and that detectives may exploit such an opportunity as long as they do not violate the suspect's rights.
Malvo's trial is scheduled to begin Nov. 10. Muhammad's trial in Prince William is set for Oct. 14.
Also yesterday, Prince William prosecutors wrote that in proving their capital case against Muhammad, they intend to use all 10 slayings in the Washington area and two September slayings in Alabama and Louisiana.
The Montgomery, Ala., shooting of Claudine Parker has developed into a major element of the investigation. Authorities say the evidence from that shooting includes Malvo's fingerprints, visual identification of both suspects at the scene and a bullet fired from the Bushmaster rifle allegedly used in the Washington area sniper slayings. The suspects also allegedly referred to that crime in a phone call to a Richmond priest at the height of the sniper shootings.
© 2003 The Washington Post Company
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