FAIRFAX, Va. - Battling to bar their client's reported confession from reaching a jury, lawyers for teen-age sniper suspect Lee Boyd Malvo yesterday argued that he was denied access to lawyers Nov. 7, even as several tried to find him and block police questioning.
Although defense attorney Mark J. Petrovich said he was not alleging that federal and state authorities plotted to violate Malvo's constitutional rights, he contended that the upshot of what went on that day was a "knowing circumvention of his right to counsel." He also alleged "overall impropriety" in the way federal charges in Maryland were dropped without the knowledge of Malvo's lawyers and Malvo was moved from a Baltimore jail to Virginia, where he was accused of capital murder and questioned.
But Fairfax County Commonwealth's Attorney Robert F. Horan Jr. maintained that Malvo knew what he was doing when he spoke at length with Fairfax Detective June Boyle and laughed as he recounted his role in several of last fall's Washington-area fatal shootings.
"There is not a scintilla of evidence that there was any force, compulsion or coercion" to get Malvo to talk, Horan told Fairfax County Circuit Judge Jane M. Roush yesterday.
Horan's statement came at the end of a day-and-a-half hearing on the defense bid to throw out Malvo's statements to Fairfax County, Va. police.
Roush said she will rule in a week to 10 days on whether the questioning, coming a few hours after federal charges were dropped but before Malvo was processed through juvenile court in Fairfax County, was legal.
Malvo, who turned 18 in February, is charged with two counts of capital murder in the Oct. 14 fatal shooting of FBI analyst Linda Franklin in a Home Depot parking lot. Police and prosecutors say he admitted killing her. His trial is scheduled for November.
Fellow sniper suspect John Allen Muhammad, 42, faces identical charges in neighboring Prince William County, where he is accused in the Oct. 9 fatal shooting of Dean Meyers at a gas station. Arrested Oct. 24, the pair is accused of gunning down 10 people and wounding four in the Washington area, and are suspected in slayings in other states. Prosecutors allege that the men tried to extort $10 from the government to end their shooting spree.
U.S. Attorney General John D. Ashcroft last year moved the cases to Virginia, where both could be executed if convicted.
Horan contended that Malvo chose to talk to Boyle, who testified that she asked him four times if he was sure. He signed a Miranda warning form acknowledging he understood his legal rights, including the rights to remain silent and to have any attorney present, with an "X" because he did not want to incriminate himself with handwriting, Boyle testified. A handwritten note was found near one of the crime scenes.
Horan also argued that Malvo had no right to an attorney. Although Todd G. Petit had been asked Nov. 7 to act as the guardian for the then-17-year-old Jamaican native, the appointment did not start until the next afternoon in juvenile court and Malvo had already waived his right to a lawyer, Horan said.
Horan maintained that Malvo was familiar with Miranda warnings by Nov. 7. He said that after his arrest on Oct. 24, Malvo refused to sign a form indicating that Montgomery County police explained his rights to him; that on Oct. 24 and 29 he remained silent in U.S. District Court in Baltimore; and that on Feb. 12 of last year, when he and Muhammad were suspected of shoplifting from a Tacoma, Wash., grocery, Malvo acknowledged understanding his rights.
But Thomas B. Walsh, one of Malvo's lawyers, argued after the hearing that the events of Nov. 7 were as a whole were troubling.
"Something's rotten here," Walsh said. "You can't circumvent the system the way they did."
He also said only about half of the questioning was audiotaped and that Malvo's waiver of his rights was not. In addition, the defense said that what police and prosecutors described as conversation as they awaited Malvo's veggie-burgers was about the shootings, with questions about using maps and being in Washington State. They should be thrown out too, the defense attorneys argued.
Walsh said Malvo's query, "Do I get to see my attorneys?" as well as statements that his lawyers told him not to talk to police until they arrived, should be interpreted not only as requests for lawyers, but an expectation of seeing those who had represented him in U.S. District Court in Baltimore.