Toobin: High-profile cases have law of their own
ATLANTA, Georgia (CNN) -- A judge is holding a hearing to determine whether statements made by sniper suspect Lee Boyd Malvo during a six-and-a-half-hour interrogation can be used at his trial this fall.
Malvo and John Allen Muhammad, 42, are accused in 20 shootings, including 13 deaths, in Virginia, Maryland, Alabama, Georgia, Louisiana and the Washington, D.C. area.
Fairfax County Police detective June Boyle testified Monday that Malvo was laughing when he described the shooting death of 47-year-old Linda Franklin, an FBI analyst who was gunned down October 14 outside a Home Depot store.
Malvo's attorneys contend that the interrogation November 7 by Fairfax County, Virginia, police was illegal, saying Malvo invoked his right to legal counsel. Prosecutors say Malvo never asked to see an attorney.
CNN legal analyst Jeffrey Toobin offered his perspective to correspondent Leon Harris.
HARRIS: First of all, I have to ask about that comment, about the quote from Malvo, saying 'do I get to see my attorney?' and this not being interpreted by prosecutors as a request for an attorney. What do you make of that?
TOOBIN: I've read the court papers, and there is a factual dispute between two sides. That's why there are witnesses today, about what precisely Malvo did say about wanting access to a lawyer. It's a very peculiar situation.
If you recall, what happened was he was moved, Malvo was moved from Maryland, where he clearly did have a lawyer, to Virginia, where new charges were filed, and it was in this transition period, where he was switching from one jurisdiction to another, from one actual lawyer to a potential lawyer, when he was questioned. It's a questionable tactic by police, but it's the kind of thing that courts often do overlook and allow the confession to be admitted.
HARRIS: Your thinking here is that it will be admitted?
TOOBIN: You know, judges don't like to admit this, but high-profile cases kind of have a law of their own. This case is so important. The crimes were so monstrous, and the confession, based on what we've seen in the court papers, was so explicit, it's going to take a judge being really, really offended by the police to say to the jury, look, this is relevant, important evidence in a horrible crime, but I won't let you see it. I don't see it happening in a very law enforcement-oriented district like Virginia.
HARRIS: You brought up the thing about the judge being offended, because I was going to ask you about that. It seems that some of the things that Malvo said could be interpreted, basically could be taken as so offensive, that wouldn't there be a danger -- I'm a defense attorney here -- wouldn't there be a danger [that] no judge would turn away after hearing something like this come directly out of this guy's mouth?
TOOBIN: That's what makes this so difficult. Because I think there is the possibility that a judge could be offended by the police conduct here. In fact, I'm certain some judges would be. But when you compare that to the magnitude of the case, and the horror of what went on in Virginia and Maryland, and Malvo's apparently laughing recounting of these sorts of monstrosities, I just have to believe that a judge in any sort of close case is going to give the benefit of the doubt to the government and let the jury hear the confession.
HARRIS: All right, now, speaking of all that and all the news out about the comments from him that have been quoted in the press for some time and now this particular hearing, is it possible that this man can get a fair trial there in Virginia?
TOOBIN: Boy, it's going to be really tough. Because when you think about something like the Laci Peterson case, when there is all that publicity in Modesto, you could move that to San Diego, which is hundreds of miles away. Sure, there is a lot of publicity, but you know, California is a very big state. There are a lot of places you can move it.
I don't know what do you in Virginia. I think it is likely to be moved out of Fairfax because the publicity there was so intense. But where do you go? Do you go to Richmond? Richmond is only about an hour away. It's going to be very difficult to get these guys fair trials.
I think the key thing is going to be the jury selection process, closed questioning of potential jurors for bias. But, boy, I don't think it's going to be easy, no matter where you go in Virginia.