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 Malvo hearing may be 'granddaddy of them all'Comments by teen sniper defendant focus of legal battle
From Mike Ahlers
WASHINGTON (CNN) -- Teen-age sniper suspect Lee Boyd Malvo has appeared in courtrooms almost a dozen times without speaking a word. When Malvo appears in a Fairfax County, Virginia, courtroom on Monday, however, his lawyers will attempt to undo the damage caused by the one time he broke his silence. At issue is whether statements Malvo made during a six-and-a-half-hour interview with investigators last November 7 can be used at his trial next fall. During the interview, Malvo allegedly admitted to participating in many of the sniper shootings and confessed to being the triggerman in the shooting of FBI analyst Linda Franklin. Monday's hearing is going to be, "for lack of a better word, the granddaddy of them all," said Malvo attorney Michael Arif. The decision to admit or throw out the interview "will set the tenor for the rest of the trial." The hearing will be before Fairfax County Circuit Judge Jane Marum Roush. Malvo and co-defendant John Allen Muhammad are charged in of a series of sniper attacks last fall that killed 10 people and wounded four in Maryland, Virginia and the District of Columbia. Investigators also have linked the pair to slayings in Louisiana, Alabama, Georgia and Washington state. Silence during initial period of custodyA Jamaican native, Malvo was non-communicative following his arrest with Muhammad on October 24. Then 17, Malvo remained silent when he was taken into custody, nodding -- instead of speaking -- to acknowledge he understood his rights, according to accounts in court records. At a federal court hearing in Baltimore later that day, he also remained silent. Prosecutors and defense attorneys agree to that much. Prosecutors in motions wrote: "Malvo refused to answer the simplest questions posed by the court. He literally remained mute refusing to acknowledge his identity or his age." Defense attorneys wrote: "Throughout the initial period during which Mr. Malvo was in custody... Mr. Malvo was approached by law enforcement and attempts were made to question him. However, he remained silent at all times, never waiving his 5th Amendment rights." Malvo's first attorney, Joshua Treem, encouraged the silence and "made it clear ... both inside and outside of the courtroom" that Malvo should not be questioned outside his presence, defense attorneys say. On November 7, however, unbeknownst to Malvo's lawyers or the judge, prosecutors dropped federal charges against Malvo and transferred him to Virginia, where he also faced charges. "On that day, Mr. Malvo did not appear in court, he did not see an attorney, and was never told where he was being brought," his attorneys contend. At 2 p.m. that day, one of Malvo's court-appointed attorneys informally learned of the transfer and faxed a letter to the federal prosecutor for Virginia stating that no law enforcement officers should talk to Malvo without his attorneys present. At 4 p.m., Fairfax County Police detective June Boyle and FBI special agent Brad Garrett met with Malvo, who was still clothed in his red federal prisoner jumpsuit. Interrogation's legality challenged
According to court records, Malvo asked "Do I get to see my attorney?" to which Boyle responded, "Yes." Malvo then said that his lawyer told him not to talk to the police until they arrived. Then, Boyle said, "it was explained to him that he was being charged in Virginia with new charges and that the police wanted to get some information from him. He said 'OK.' " After a few minutes of general comments, Malvo made some comments that were "arguably inculpatory" and the investigators advised Malvo of his rights. Malvo signed a form advising him of his rights, signing with an "X" because he feared his signature would be self-incriminating. "After Malvo had eaten and the small talk was finished, he got right down to discussing the killings," prosecutors later wrote. "His demeanor was calm and relaxed. At times during the interview, Malvo laughed or smiled. For example, he laughed as he described shooting the woman [Linda Franklin] at Home Depot in the head. He never expressed or exhibited any fearfulness or nervousness." Defense attorneys contend that the interrogation was illegal, saying that Malvo invoked his right to an attorney at the very beginning. "Had the police simply ignored Mr. Malvo's request, that would be sufficient grounds" to throw out his statement, defense attorneys argue. "In fact, the police lied by telling Mr. Malvo that he would see his attorneys before proceeding to ignore his request." Prosecutors respond that Malvo never requested to see an attorney. "Malvo's question, 'Do I get to see my attorneys?' was not a request for counsel. Likewise, Malvo's statement that 'my attorneys told me not to say anything to the cops until they got there' was not a request for counsel," prosecutors said in court records. The assertion that Boyle lied is wrong, prosecutors said. "In the context of the conversation, her answer was appropriate and accurate," prosecutors said. "There was no plan to deprive defendant of any rights," prosecutors wrote in a court motion. "To the contrary, he was accorded all of his rights here in Fairfax County. He was treated no better and no worse than any other defendant." Juvenile status may shape debateOne likely area of debate Monday will be the exact wording of Malvo's questions about seeing his lawyer. While the investigators tape-recorded the interview, they did not record the conversation leading up to it. Thus, defense attorneys said, "the parties are seemingly completely dependent on the recollections of detective Boyle and agent Garrett to determine what statements were actually made by Mr. Malvo." Another likely debate will be whether Malvo should be given special consideration because he was a juvenile at the time of the offenses, and at the time he allegedly waived his right to remain silent. Malvo's attorneys say the U.S. Supreme Court has long recognized the need to additional scrutiny when considering whether the rights of a juvenile have been violated. Prosecutors say the interview occurred three months shy of Malvo's 18th birthday and that "juveniles are entitled to waive their constitutional rights in the same manner as adults." Prosecutors say the distinction between the Fifth Amendment right to remain silent and the Fifth Amendment right to counsel is an important one. "Where a defendant invokes his Fifth Amendment right to counsel, the police may not re-approach him unless he initiates the contact and validly waives his rights. In the case where a defendant merely invokes his Fifth Amendment right to remain silent, the police are given more leeway with respect to their ability to re-approach the defendant," prosecutors say.
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