Va. judge to allow testimony by Malvo's Supermax guards
By Andrea F. Siegel
A Fairfax County, Va., judge ruled yesterday that jurors may hear testimony from two Supermax prison officers who say that teen-age sniper suspect Lee Boyd Malvo bragged to them about killings, shootings and other near-attacks after he was arrested last fall.
At a hearing in July, the correctional officers testified that two days after his arrest Oct. 24, Malvo, then 17, began revealing details about the random shootings that gripped the Baltimore-to-Richmond, Va., corridor during three weeks in October.
Malvo said he gunned down FBI analyst Linda Franklin in a Home Depot parking lot in the Seven Corners area of Fairfax County because she was "just lazy, standing still," one officer testified. Malvo also said he shot and wounded 13-year-old Iran Brown outside Benjamin Tasker Middle School in Bowie to unnerve Montgomery County Police Chief Charles A. Moose, the other officer testified.
The correctional officers said Malvo told them that while hiding in a trash bin, he had a gun trained on a Baltimore police officer who was talking to his co-defendant, John Allen Muhammad. He also said he would have shot a pregnant woman at a Baltimore cemetery except a police helicopter flew overhead, according to the officers.
Malvo's trial on two capital murder charges in Franklin's death is scheduled to begin Nov. 10. The trial has been moved from Fairfax County to Chesapeake in southeast Virginia. Prosecutors say the motivation behind the fatal shooting, one of 10 in which Malvo and Muhammad, 42, are charged in the Washington area, was to extort $10 million from the government.
"I conclude that the Commonwealth had met its burden to show that Malvo's statements were entirely voluntary," wrote Fairfax County Circuit Judge Jane Marum Roush in a 13-page opinion issued yesterday.
Malvo's lawyers argued in the July 24 hearing that the teen-ager, then in federal custody, had invoked his right to remain silent. They contended that Malvo's comments were not voluntary and that lawyers should have been present.
Commonwealth's Attorney Robert F. Horan Jr. said yesterday that he expects to use the correctional officers' testimony in both phases of the trial: determining guilt and, if convicted, deciding Malvo's fate.
"We thought all along that the law was on our side, and we are delighted with the ruling," said Horan, who declined to comment on how significant the testimony might be.
"It's going to be like icing on the cake. To have guards testify that he literally confessed - you can't get much better than that," said former federal prosecutor Abraham A. Dash, a professor at the University of Maryland School of Law.
In May, the defense lost a bid to exclude the self-incriminating remarks Malvo is alleged to have made to Fairfax County and FBI investigators after he was transferred to Fairfax on Nov. 7.
Craig S. Cooley, one of Malvo's lawyers, said although the defense was disappointed with Roush's decision to allow the officers' testimony, "in the greater scheme of things, it is certainly not the most devastating ruling for us."
He said the testimony will show Malvo's state of mind and the "degree of indoctrination at that time." In court papers, the defense has sought information and evidence that would show Muhammad held Svengali-like sway over the teen-ager. The defense filed motions Friday to bar the death penalty.
Baltimore's Supermax Capt. Joseph Stracke and Cpl. Wayne Davis said that Malvo told them that fasting gets more oxygen to the brain, that he and Muhammad would take their ransom money by drawing $100,000 to $200,000 at a time from automated teller machines, that some of their shootings were to clean up ghettos and that he believed that white people plotted to kill Nation of Islam leader Louis Farrakhan.
Roush also ruled that Malvo's continued questioning by a Montgomery County detective after the suspect indicated that he did not want to talk could not be used because it violated his right to remain silent. The decision has no practical effect; Horan said in July that he would not use the session because Malvo made only gestures and facial expressions, rendering his communication ambiguous.
Stracke and Davis said Malvo began speaking to them Oct. 26, first to ask for some of the fish Davis was eating. Davis gave him a piece. After that, Malvo said he sometimes fasted before "missions" and began discussing the killings, according to testimony.
Marvin D. Miller, a former president of the Virginia Association of Criminal Defense Lawyers, said predictions about the jailers' testimony are premature "because we don't know how the evidence is going to play - the circumstances surrounding the statements as seen by the jury."
But the statements indicate malice and premeditation, elevating their importance enough to make them key factors in a verdict and sentencing, said University of
Baltimore law professor Jose F. Anderson, a former supervising attorney for the appellate division of the Maryland Office of the Public Defender who handled death penalty cases.
Although Stracke said Malvo volunteered the statements, the officer acknowledged in the July hearing that he asked Malvo why he shot the Bowie student. Defense lawyers said the questioning, even as part of a conversation that Malvo initiated, might be vulnerable on appeal.
"I am a little troubled by the fact they asked at least one question - about the case with a little boy - and they do appear to encourage his general dialog with them about the case," Anderson said.
He said it could be argued that the correctional officers helped to keep the chatter going and that such encouragement could be improper coercion, especially in a place such as Supermax.
"All that being said, he did run his mouth way too much," Anderson said.