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Voiding confession { February 27 2003 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2003/02/27/politics/27SNIP.htmlhttp://www.nytimes.com/2003/02/27/politics/27SNIP.html
February 27, 2003
Sniper Case Defense Lawyers Seek Voiding of a Confession
By JAYSON BLAIR
Defense lawyers for Lee Malvo, the teenager charged in the Washington-area sniper attacks, said today that police investigators were aware of a federal judge's order that should have precluded them from questioning Mr. Malvo without a lawyer.
The lawyers say they will seek to have confessions he made during the interrogation thrown out of court next week in Fairfax County, Va.
Investigators have said Mr. Malvo admitted to three shootings during a six-hour interrogation on Nov. 7, the day that Attorney General John Ashcroft ordered him and the other man charged in the shootings, John Muhammad, transferred from federal custody to authorities in Virginia. Justice Department officials say they believe a death sentence could most easily be obtained there in the shootings, which left 10 dead.
Defense lawyers say investigators, led by June Boyle, a veteran Fairfax County homicide detective, were able to question Mr. Malvo outside the presence of his lawyers because his federal public defenders in Baltimore were not told where he had been sent and because the courts in Virginia had not appointed legal counsel there.
In a court filing on Wednesday, Raymond F. Morrough, a deputy commonwealth's attorney in Fairfax County and a member of the prosecution team, wrote that Mr. Malvo confessed to several of the shootings in conversations with police detectives on Nov. 7.
Mr. Morrough emphasized that Mr. Malvo was "calm and rather boastful" about the shootings, and described his admissions as "uncoerced and completely voluntary."
Investigators have said there was nothing wrong with the interrogation because Mr. Malvo was no longer represented by the federal public defenders in Baltimore and that the courts in Virginia had not officially appointed anyone to represent him. The public defenders made several objections that day to Mr. Malvo, who has since turned 18, being questioned without his legal guardian or court-appointed counsel.
But one of the defense team members said yesterday that they now had evidence that detectives "knew that they should not have been questioning him."
That lawyer said that evidence, which they plan to use to try to persuade a Fairfax County Circuit Court judge to throw out the statements, includes a Nov. 7 order signed by a federal magistrate in Baltimore, Judge James K. Bredar, that said Mr. Malvo was still represented by his federal lawyers. That order, which the lawyer said was being signed as Mr. Malvo was being interrogated, was unsealed last week by Judge Bredar. A copy of the order was sent that day to prosecutors working on the case.
Mr. Malvo's lawyers on the federal case, who say they were unaware of their client's location at the time of the questioning, sent a letter to Paul McNulty, the United States attorney for the eastern district of Virginia, demanding any questioning of Mr. Malvo be halted. But Joshua R. Treem, one of Mr. Malvo's federal lawyers, said he was told that investigators no longer believed he had any standing in the case because the federal charges had been dropped.
But Judge Bredar's order said: "While certain charging documents may have been dismissed, you may not have had the opportunity to discuss the significance of those dismissals with your clients" and that "until such time as other competent counsel have assumed responsibility for the representation of your clients" the federal lawyers should continue their representation.
In addition, Todd G. Petit, a lawyer who was appointed to be Mr. Malvo's guardian on Nov. 7, tried to stop the questioning, but has said he was rebuffed by Fairfax County police. Investigators have said Mr. Petit was not officially appointed as the guardian for Mr. Malvo until a court hearing the next day.
Mr. Malvo faces a November capital murder trial in the shooting of Linda Franklin, among the victims whom prosecutors say he confessed to killing. The other defendant in the case, John Muhammad, faces a capital murder trial in neighboring Prince William County in the Oct. 9 shooting of Dean Harold Myers, who was shot outside a gas station in Manassas, Va.
Investigators have said that the admissions are the most solid information that puts Mr. Malvo's finger on the trigger in the shootings. Mr. Malvo is charged with capital murder under an untested antiterrorism law that does not require prosecutors to show who pulled the trigger. But under the more tested, traditional capital murder, to obtain a death sentence prosecutors must show that Mr. Malvo fired a fatal shot.
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