Will The Jury Hear Malvo's 'Confession?'

John Lee Malvo headshot, suspect in Washington DC area sniper shootings, photo 2002/11/19
Were the constitutional rights of D.C. sniper case suspect Lee Boyd Malvo violated when he allegedly made incriminating statements to police? CBS News Legal Analyst Andrew Cohen weighs in on the fight over what will be allowed into evidence.

The way prosecutors describe Lee Boyd Malvo during a police interrogation last November 7th, you would think that the young sniper suspect was a cross between Dick Cavett and Hannibal Lector. According to Fairfax County attorneys, Malvo was "calm," "relaxed," "intelligent," "educated," "loquacious" and "not the least bit intimidated" last fall when he allegedly "got right down to discussing the killings" with the police.

Not only that, prosecutors say, Malvo "laughed as he described shooting" Linda Franklin, the FBI analyst who was killed in the parking lot of a Home Depot store in Fairfax County. And their brief also includes the new tidbit that Malvo "actually smiled and chortled as he recounted" another shooting incident where he allegedly shot at a child, missed, and then saw the child "[swat] at the air as if a bee had buzzed too close."

For the moment, believe it or not, it is fairly irrelevant whether Malvo actually acted this chillingly or really said such incriminating things shortly after his arrest. That fight may or may not be fought at trial. Right now, just days before an important suppression-of-evidence hearing in the case, the Commonwealth wants to starkly get across its view that Malvo was at the time of his arrest a mature, composed young man who had just acted as a cold-blooded, heartless killer.

That view, prosecutors hope, will help convince Fairfax County Circuit Court Judge Jane Marum Roush that Malvo's post-arrest statements ought to be allowed into evidence at his upcoming trial because Malvo made them knowingly and voluntarily and without a trace of police coercion or duress.

"It is not so much what he said, but rather, how he said it, that best illustrates what Malvo is," prosecutors told Judge Roush in their court filing late last week. They don't want her thinking that Malvo is a "scared child whose will was overborne by the police."

The government's aggressive response in the Malvo case mirrored a thorough defense motion filed a few weeks ago. At that time, the young Jamaican national's attorneys raised several legitimate concerns about the way he was handled around the time he was transferred from federal custody in Maryland - where he first was arrested - to state custody in Virginia.

The written defense points all were designed to convince the judge that Malvo's constitutional rights were violated in a handful of ways: a predicate ruling she would have to make if she were, in fact, going to toss his statements from the case.

With varying degrees of precision, prosecutors now have met each of the defense arguments. If the prosecution's factual arguments sound counterintuitive in some fashion - and they do, probably because Malvo could have been treated more fairly - at least Virginia's attorneys can rely upon the certain advantages in the law.

Supreme Court precedent, and the precedent established by the state courts of Virginia, appear to make it almost impossible for any suspect in any situation to rely upon the 5th or 6th Amendments to limit the use of evidence in a capital case. Still, if the briefs are any indication, it ought to be a down-to-the-wire hearing Monday in Judge Roush's courtroom.

For example, Malvo's attorneys told the judge that their client's sixth-amendment right to counsel had attached in Virginia on November 7. Prosecutors say this can't be correct because "formal adversarial judicial proceedings had not yet been initiated" against Malvo.

The defense also asserted that Malvo's initial Maryland attorneys still represented him when he began to be questioned in Virginia. Prosecutors say this cannot be the case since the charges against Malvo in Maryland were dropped before he ever set foot back in Virginia after his arrest.

Team Malvo also wrote in their brief that prosecutors of various stripes inappropriately pulled a fast one on the young suspect when they arranged to have Malvo's federal charges in Maryland dropped without the defense's knowledge, an unusual move that then allowed Malvo to be transferred to Virginia without allowing his attorneys to remind him that he still had a right to remain silent once he got to the Commonwealth.

To this unsettling allegation, Virginia prosecutors contend that "neither the commonwealth, nor its agents, had any input whatsoever in the disposition of the Federal charges against Malvo in Maryland." The state's attorneys might just as well have said: "He just showed up on our doorstep, your honor, and despite unprecedented inter-prosecutorial cooperation between the states and the feds, we knew nothing about nothing."

There's more. Malvo's attorneys argued that the defendant asked to see "my attorney" shortly after he got to Virginia and that this statement should have counted as a legitimate request for an attorney that should as a constitutional matter have stopped the questioning right then and there.

Prosecutors respond by arguing, with Clintonesque parsing, that Malvo's request is "literally not a request, rather it is a question" and they claim that the law backs them up by requiring suspects to make unambiguous and unequivocal requests for counsel.

To the Malvo argument that he did not, in fact or law, waive his right to see an attorney, prosecutors say he indeed waived that right in a number of ways, from talking to the police after they told him that he faced new charges to signing an "x" on a waiver form. Prosecutors furthermore contend that legally, it makes no difference that Malvo's just-appointed guardian was desperately trying to see him or that his Maryland attorneys may earlier have invoked his constitutional rights on his behalf.

And just in case the import of the preceding 29 pages of the brief is not clear, prosecutors told Judge Roush that "there was simply no coercive behavior or misconduct of any nature whatsoever" by the police who questioned Malvo. "No psychological ploys or deceptions were used in order to attempt to induce Malvo to speak."

We'll see. Whatever else happens Monday, I hope that between the lawyers and the witnesses and the judge someone is able to explain how a capital defendant who by all accounts stood mute in federal court in Maryland somehow transformed himself into a blathering chatterbox by the time he got to Fairfax County a few days later.