FAIRFAX, Va. - Defense lawyers for sniper suspect Lee Boyd Malvo clashed with Virginia prosecutors yesterday over the admissibility of one of the most damning pieces of evidence against him: the teen-ager's confession, in which he reportedly laughed and boasted about gunning down victims.
If allowed in his trial, scheduled for November, the Nov. 7 confession and police descriptions of it would provide jurors with chilling details, such as how Malvo found it funny that a riding lawn mower kept rolling on its own after James "Sonny" Buchanan Jr. fell from it after being fatally shot Oct. 3 in Montgomery County. In another incident, he described shooting at a child and missing so narrowly that the bullet "almost parted his hair," police said.
The latter reference is believed to be to a shot that pierced the window at Michaels arts and crafts store at 5:20 p.m. Oct. 2 in the Aspen Hill area of Montgomery County - a bullet that could have made the child the first area sniper victim. About 40 minutes later, James D. Martin, killed in the Shoppers Food Warehouse parking lot nearby, became the first.
Fighting hard to have the confession thrown out, Malvo's lawyers contend that the then-17-year-old was improperly whisked out of Baltimore and into Northern Virginia after federal charges were dropped without his lawyers' knowledge. Meanwhile, his federally appointed lawyers hunted for him. Defense lawyers say Malvo was duped into talking to investigators while the attorney who would act as his guardian at the next day's court hearing was barred from seeing him.
But Fairfax County prosecutors argue the Jamaican native is so savvy that he told county Detective June Boyle that he would not sign his waiver of rights because writing would be self-incriminating. Written threats were found near the scene of one of the fatal shootings. Prosecutors say Malvo waived his rights to keep quiet and to have an attorney present during questioning by signing with an X on a waiver describing him as a homicide suspect.
Boyle said she told Malvo that the federal charges had been dropped, but that he now faced local charges. And she repeatedly asked him if he wanted to speak without an attorney, Commonwealth's Attorney Robert F. Horan Jr. contended. But Malvo's comments, which include "Do I get to see my attorneys?" and "My attorneys told me not to say anything to the cops" are not a demand for a lawyer, prosecutors said.
At the heart of the issue is whether the teen-ager, who followed lawyers' orders to stay silent in U.S. District Court in Baltimore, understood what he was doing when he spoke for about six hours to Boyle and FBI Special Agent Brad Garrett, and whether police and officials followed proper procedures.
Malvo, 18, is charged with two counts of capital murder in the Oct. 14 death of FBI analyst Linda Franklin, who was fatally shot in a Home Depot parking lot. He could face execution if convicted. John Allen Muhammad, 42, faces identical charges in neighboring Prince William County in the fatal shooting Oct. 9 of Dean Meyers of Gaithersburg at a Manassas gas station. They are suspected of killing 10 people and wounding four in the Washington area, but are suspected in killings in other states.
The two were arrested Oct. 24. Malvo's federal charges, brought Oct. 29 in Baltimore, were dropped Nov. 7 in U.S. District Court in Greenbelt without his lawyers one day after Fairfax police obtained a juvenile petition against him. Nevertheless, two lawyers asked by U.S. Magistrate Judge James K. Bredar to represent Malvo testified that they understood an order signed by Bredar on Nov. 7 to mean they should continue looking after his constitutional rights even outside Maryland. Malvo was taken to the Alexandria jail, and then to Fairfax County police headquarters for questioning.
One of the defense exhibits is a Dec. 17 order signed by Judge Catherine C. Blake, then the administrative judge for the U.S. District Court for Maryland, which bars federal prosecutors from dismissing criminal charges there without advance notice to defense lawyers and from taking defendants outside of Maryland. Thomas B. Walsh, one of Malvo's defense lawyers, said that order was issued in response to the Malvo and Muhammad cases. Reached last night, Blake said she could not comment on the order.
In Fairfax police headquarters, while police filled Malvo's request for two veggie burgers with ketchup, Boyle said the conversation turned to such things as vegetarian life. But defense lawyers contended that the talk was designed to elicit information. For example, the subject of raisins came up during the conversation. Prosecutors indicated in January that they had found a bag of raisins with Malvo's fingerprints at a sniper crime scene.
The detective said she did not question Malvo about the sniper cases until after he ate, and said the questioning was audiotaped without his knowledge. The taping came after federal officials said they would not pursue handwriting and voice samples.
The hearing on the confession resumes today, but Fairfax County Circuit Judge Jane M. Roush is not expected to issue an immediate ruling.