The Recent, Mistaken Ruling in the "Beltway Sniper" Case:
Why Lee Boyd Malvo's Confession Should Have Been Suppressed

On November 7, 2002, Virginia police investigators interrogated then-seventeen-year-old Lee Boyd Malvo in connection with the "Beltway Sniper" killings. According to his interrogators, Malvo confessed. The State of Virginia subsequently charged Malvo with capital murder.

On April 28 and 29 of this year, Virginia Circuit Court Judge Jane Roush heard rigorous oral argument by Malvo's attorneys, and an equally rigorous opposition by the government, on Malvo's motion to suppress his alleged confession. On May 6, Judge Roush denied the motion.

The judge ruled, in a twenty two-page opinion letter, that the young defendant had received his Miranda warnings informing him of his rights, had voluntarily waived those rights, and had not properly invoked his right to have an attorney present. Therefore, she held, all the statements that Malvo made after receiving the Miranda warnings may be offered as evidence at his trial - which is slated to occur later this year.

The ruling was in error. Indeed, it undermines the Supreme Court's ruling in Miranda v. Arizona, the 1966 case that spawned the warnings in the first place.

The History Leading Up to Malvo's Interrogation

One might begin by wondering: How did it happen, in one of the nation's most recent high-profile cases, and a death penalty case at that, a teenager ended up being questioned without a lawyer present?

At Malvo's initial court appearance in Baltimore, Maryland, the Magistrate appointed three attorneys to represent him and, since he was then a juvenile, two more attorneys to act as his guardians ad litem (legalese for "temporary guardians for the case").

With these - count them - five attorneys to protects him, Malvo would probably never have been interrogated without one of them being present, were it not for the political struggle that followed.

Virginia, unlike Maryland, allows for imposition of the death penalty against juvenile perpetrators. Apparently for this reason, charges were dropped in Maryland, but then quickly resurrected in neighboring Virginia. Meanwhile, Malvo, held prisoner, was transferred to Virginia, too. Specifically, he was moved from the Baltimore detention facility, where he had been held without bail, to a similar facility in Fairfax.

The Maryland magistrate ordered the original five lawyers to continue their representation of Malvo until "such time as other competent counsel have assumed responsibility for the representation of your client...." Meanwhile, even before Malvo's first appearance in the Fairfax, Virginia Circuit Court, Malvo was assigned a local Virginia attorney, Todd Petit, to act as yet another guardian ad litem.

Thus, Malvo now had no fewer than six attorneys, three of whom were guardians appointed precisely because he was a juvenile. The Virginia police must have known all this, but they still managed to get Malvo alone, without an attorney, to interrogate him.

As Malvo was being transferred, no one saw fit to inform any of Malvo's six appointed lawyers and guardians where they were taking the youth. Nor did they inform any of them that authorities intended to question Malvo about the killings without an attorney present.

Instead, Malvo's Maryland defense attorneys were "scrambling" to learn his whereabouts.

Desperate to locate him, and in the confusion created - or worse, perhaps intentionally orchestrated - by and between the federal and state agencies as the former relinquished, and the latter accepted, the defendant into custody, one of the previously appointed attorneys in Maryland faxed a letter to the U.S. Attorney for the Eastern District of Virginia. It clearly, unambiguously and appropriately forcefully, advised that "no law enforcement officer make any attempt to interrogate our juvenile client unless we are present..."

The letter was ignored, most likely because the recipient office (federal prosecutors located in Virginia) would not be the agency filing charges against Mr. Malvo, but rather the State prosecutor (or Commonwealth, as it is called in that jurisdiction) instead had accepted the case.

Ironically, no agency had attempted to notify any of Mr. Malvo's attorneys of the change.

Meanwhile, Malvo's Virginia guardian, Petit, caught wind that his new client had been secretly transported into Virginia, and was likely in the midst on a custodial interrogation. Petit sped to the Fairfax detention center. There, after waiting several minutes in the lobby, he was greeted by a person identified as Major Lomonaca. Petit demanded that the interrogation stop at once. The Major responded that he'd relay the message to the appropriate parties. Petit asked, "When will that be?" The Major replied, "When I get to it." Petit was then ordered to leave the building.

A true advocate, the lawyer did not accept defeat, but rather marched over to the appropriate prosecutors office. Once there, the prosecutor refused to emerge. The lawyer shouted "Stop the questioning!" or words to that effect, and was promptly bounced off the premises - again.

Needless to say, the interrogation continued.

What Happened at Malvo's Interrogation

As with most police interrogations, the cops who interrogated Malvo eventually got around to issuing the standard Miranda warning. Then they tried to prompt him to speak to them.

In response, the teenager wiped the last bit of specially ordered veggie burger from his lips and said, verbatim, "Do I get to talk to my attorneys? Because the lawyers told me don't talk until they get here."

Rather than respecting his request, the police slipped a Miranda "form" under Malvo's nose. Typically, such a form sets forth the standard Miranda warnings in writing, and asks whether the person reading the form both understands and relinquishes his rights thereunder.

If the suspect wishes to give up his rights, he is directed to sign the form. But Malvo stated he did not want to sign his name to the consent form because it would be "incriminating." Instead, he merely penned the letter "X" on the signature line.

Then, after a few more bites of his burger, police say, Malvo confessed. Not only did he admit to partaking in the killing, but, according to papers prosecutors have filed in the case, he actually laughed when he recounted two of the shootings.

Of course, if true, that is disturbing, even disgusting. But it's worth remembering that this report comes from the very jurisdiction that wanted to make sure it could take Malvo's case from Maryland so that it could kill him, and that manipulated the system to make sure it could interrogate him alone, without the slew of attorneys it knew he had.

Moreover, we must also remember that even the vilest of defendants is entitled to play by the Constitution's long settled list of rules - the Bill of Rights.

The Requirements of the Constitution, and of Miranda v. Arizona

The Fifth Amendment says that no person shall be "compelled in any criminal case to be a witness against himself," while the Sixth Amendment says that "[I]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."

In 1996, in Miranda v. Arizona, the Supreme Court interpreted these provisions to require that defendants in a "custodial setting" be warned that they have the "right to remain silent," that anything they say can be used against them, and if they cannot afford a lawyer, one will be appointed for them.

A "custodial" setting has been defined as one in which the accused reasonably believes he or she is not free to leave. It is undisputed, here, that Malvo was interrogated in a custodial setting.

Moreover, if the defendant asks for an attorney, or otherwise indicates a wish to remain silent, interrogation must be suspended until an attorney arrives. As the Court itself put it in Miranda, "[i]f a suspect 'indicates in any manner, at any time prior to or during the questioning, that he wishes to remain silent, the interrogation must cease.'" (Emphasis added.)

Here, as noted above, after the police said "We want to talk to you," Malvo said, "Do I get to talk to my attorneys? Because the lawyers told me don't talk until they get here." Plainly, he was "indicat[ing] ... that he wishe[d] to remain silent."

As if that were not enough, Malvo then indicated once again that he wanted to invoke his Fifth Amendment right against self-incrimination - expressing the fear that signing the consent form would "incriminate" him and choosing to place an "X" on the form instead.

These clear signs that Malvo was exercising both his Sixth Amendment right to an attorney, and his Fifth Amendment right against self-incrimination, meant that the interrogation had to stop. But it didn't. Twice, police paid him no mind.

Indeed, not only did the interrogation have to stop, but it couldn't be allowed to resume until Malvo's lawyer was present. As the Supreme Court noted in Edwards v. Arizona, "once a suspect asserts the right [to counsel under Miranda], not only must the current interrogation cease, but he may not be approached for further interrogation 'until counsel has been made available to him,' which means . . . that counsel must be present." (Emphasis added.)

The Argument Against Suppressing Malvo's Confession

The remedy for a Miranda violation is that the resulting statements cannot be admitted at the suspect's later criminal trial. So, given these undisputed facts, how could Malvo's confession possible have been ruled admissible in court?

In court, the controversy turned not on what Malvo had said, but on how to interpret Malvo's statements. The judge ruled that when Malvo said, " Do I get to talk to my attorneys?" he was not requesting counsel, nor expressing a desire to remain silent.

Rather, the judge claimed, he was "at best...request[ing]...a clarification of his Miranda rights." His question was not, according to the judge, "a clear and unambiguous invocation of his right to counsel under either the Fifth or Sixth Amendments."

I couldn't disagree more. Not only did Malvo have the right to counsel at all times during the interrogation, he had actual counsel - six of them, all of whom were trying to reach him, and all of whom were effectively prevented from doing so. The government's failure to properly inform Malvo's counsel of his whereabouts was itself a Sixth Amendment violation - just as surely as the police's failure to honor his request for an attorney was. Either violation independently justifies suppressing Malvo's statements.

Virginia's Strategy May Yet Backfire

Finally, it is worth noting that Virginia's game-playing, constitutional violations, abuse of the transfer it had requested, disrespect for defense attorneys, and manipulation of a teenage boy are all the more flagrant in light of the circumstances. If reports are correct, the confession will not be necessary for a conviction, for physical evidence also strongly implicates Malvo.

Virginia thus did all this not because it felt it had to, but because it felt it could. Now, a Virginia judge has confirmed the impression that in a sufficiently heinous case, police and prosecutors can violate the defendant's rights and get away with it.

Her findings overlook - perhaps intentionally - the fact that Mr. Malvo's "right" had already flourished. Think of it this way: If the "right" to counsel under either Miranda or the Sixth Amendment is an acorn, Mr. Malvo was already enjoying the shade of a mighty oak tree.

If ever there were a proverbial crack between the Miranda right to counsel and the same right conferred by the Sixth Amendment to the Constitution, this ruling serves only to widen it into a gaping chasm through which Mr. Malvo has slipped.

Or perhaps he's been pushed by this Judge's pen.

Indeed, all of this game playing may well backfire - leading to the ultimate reversal of an otherwise just conviction, after trial is over. That, if it happened, would be another tragedy for victims' families that would only compound the crimes themselves.