FAIRFAX, Va. - Lawyers for teen-age sniper suspect Lee Boyd Malvo lost a crucial fight yesterday when a judge ruled that nearly all of his confession - in which police said he laughed as he detailed killings - can be used in his capital murder trial here.
The 23-page ruling by Fairfax County Circuit Judge Jane Marum Roush will let prosecutors use the most incriminating of Malvo's own words against him at his Nov. 10 trial.
Malvo spoke to investigators in Fairfax on the evening of Nov. 7, hours after federal charges were dropped but before he was arraigned the next day on new charges in Virginia. Malvo and fellow sniper suspect John Allen Muhammad had been whisked from Baltimore to Northern Virginia that afternoon.
Roush ruled that, contrary to the defense's contentions, Malvo's Maryland lawyers no longer represented him when he was questioned by police and that Malvo did not yet have a right to a lawyer in Virginia. Even if he did, she ruled, he had waived it.
Fairfax County Detective June Boyle testified in a hearing last week that Malvo laughed as he pointed a finger to his head when he discussed the fatal shooting of FBI analyst Linda Franklin on Oct. 14 in a Home Depot parking lot - the charges on which he is being tried in Fairfax County - and was amused to see a riding lawn mower keep rolling after he killed its driver, James "Sonny" Buchanan Jr., on Oct. 3 in Rockville.
"Having considered the totality of the circumstances surrounding the police interrogation of Malvo on Nov. 7, I conclude that his statement was made voluntarily," Roush wrote.
But she tossed out the first two of about six hours of questioning because Malvo had not been advised of his rights to remain silent and to an attorney during what police characterized as chitchat. The period included no specifics on crimes. But he told investigators, "I'm in this situation because I failed." He also said then that signing a Miranda form would be self-incriminating, though he later marked it with an "X."
Everything after that can be used at trial.
"It is a great piece of evidence. As a result of the judge's ruling we will be able to get into evidence a tape that goes on for some two hours," Fairfax County Commonwealth's Attorney Robert F. Horan Jr. said.
The impact of the confession will be two-pronged, said Ronald J. Bacigal, a University of Richmond law professor and expert in criminal procedure.
Not only will Malvo's own words be used against him as prosecutors try to prove he killed Franklin, but their significance will be heightened as jurors consider execution if they convict him.
"It makes him look like a cynical killer," Bacigal said.
Malvo's defense team viewed the ruling as a "bitter pill" that could set a bad precedent for the rights of juveniles accused in Virginia. When questioned, Malvo was 17.
"From our perspective, the actions taken by law enforcement with regard to Mr. Malvo's detention, transport to Virginia and interrogation were deliberate and designed to circumvent his constitutional rights," they said in prepared remarks.
They said they plan to "point out the inconsistencies and lies in Mr. Malvo's statements concerning his activities and involvement in these shootings, as well as his motivations for making them."
Roush wrote that there was no exact precedent in Virginia for deciding when a juvenile has a right to a lawyer, so she relied on federal cases. Legal experts disagree whether Roush's ruling will hold up on appeal.
The judge ruled that Malvo's query, "Do I get to see my attorneys?" and his statement that his lawyers told him not to talk until they arrived, did not constitute requests for a lawyer. Boyle told him that there were new charges in Virginia and that she and FBI Special Agent Brad Garrett wanted to get some information from him.
"What the court missed is just how crucial the constitutional right to counsel is for a 17-year-old indigent defendant," said Douglas L. Colbert, a criminal and constitutional law professor at the University of Maryland. Colbert said that questioning should have stopped once Malvo mentioned lawyers.
But John G. Douglass, a University of Richmond law professor and former federal prosecutor in Baltimore, disagreed.
Malvo's inquiring about his lawyer "is the kind of statement that federal courts have ruled to be ambiguous," he said.
Of the questioning of Malvo, Douglass said: "I am suggesting that it may have been opportunistic, I am not suggesting illegal."
Malvo and Muhammad are suspected of fatally shooting 13 people and wounding others in several states, including suburban Maryland. Muhammad, 42, is scheduled to go on trial Oct. 14 in Prince William County, Va., in the fatal shooting of Dean Meyers on Oct. 9. Federal officials decided to try the suspects first in Virginia in part because Maryland and the federal courts bar execution of minors, but Virginia does not.
At issue before Roush was whether officials acted illegally in obtaining the confession and whether Malvo knew what he was doing when he waived his rights.
The question of access to lawyers made for compelling testimony at last week's two-day hearing on the admissibility of the confession. While Malvo's lawyers alleged that authorities created a window of opportunity in which to question him without a lawyer, Horan said he didn't know until 11 a.m. Nov. 7 - the day the suspects were transferred to Virginia - that Malvo's first prosecution would be his.
With federal charges dropped in a judge's chambers in U.S. District Court in Greenbelt without their lawyers' knowledge on the morning of Nov. 7, Malvo and Muhammad were transported to Alexandria, Va. Their lawyers later found them at the city jail but couldn't get inside and faxed letters advising the U.S. attorney in Alexandria that they represented the two suspects, the lawyers testified before Roush.
Joshua R. Treem, one of Malvo's federally appointed lawyers, testified last week that it was at his direction that Malvo kept silent in federal court. Furthermore, he said, he and the other lawyers understood that an order signed Nov. 7 by U.S. Magistrate James K. Bredar in Baltimore kept them on the job.
Yesterday, Roush ruled that the lawyers in the dropped federal cases had no authority in the Virginia case, despite the order. But Malvo had no right to local counsel that afternoon either, she ruled. Even if he did, he waived it, she decided.