- The Washington Times - Tuesday, November 12, 2002

A Supreme Court decision last year, little known to the public, may allow John Lee Malvo's statements to police to be used against him in court, even though the 17-year-old sniper suspect's attorneys say the use of such statements is unconstitutional.
A suspect has the right to have an attorney present during police questioning. But the Supreme Court ruled in a Texas case that the right does not extend to questioning about a "separate offense" related to the crime a suspect is being charged with.
The April 2001 ruling let the jury hear Raymond Cobb's murder confession made when police questioned him about a burglary, in his attorney's absence. Cobb admitted he stabbed burglary victim Margaret Owings when she tussled with him over her stereo, and buried alive the woman's baby, Kori Rae, beside her mother's body. Cobb led police to the bodies and was sentenced to die.
The 5-4 decision in Texas v. Cobb would be of particular help to prosecutors in Fairfax County, where Mr. Malvo reportedly gave an ambivalent confession at times admitting to pulling the trigger to kill FBI employee Linda Franklin outside a Home Depot store, and firing the Bushmaster rifle in two other Virginia slayings from an old police car rigged with a sniper's nest in the trunk. Fairfax prosecutors so far have charged Mr. Malvo in Mrs. Franklin's death only.
While adult companion John Allen Muhammad, 41, refused to tell a jailer even his name, the young follower he nicknamed "Sniper" talked for seven hours with Fairfax County detectives.
Mr. Malvo's attorneys said they clamored at the door Thursday night to stop what they called "an unconstitutional interrogation of our client." Malvo attorney Michael Arif said yesterday that his new client had made statements.
Defense lawyers not involved in the sniper cases say that even if courts rule that Mr. Malvo's Miranda rights have been violated and block use of his confession at his own trial, tainted statements may be introduced in the Muhammad case. They likely also could be used to impeach any testimony Mr. Malvo gives, and to counter claims for mercy in the sentencing phase.
Assuming suspects are read routine Miranda warnings, they may waive their Fifth Amendment right to remain silent. But if the person in custody already has an attorney, he historically would be shielded from questioning without that lawyer present.
The high court ruling in Cobb altered that rule. The opinion, written by Chief Justice William H. Rehnquist, said the right of a person in custody to have an attorney during questioning is "offense-specific" and that it unnecessarily hinders police to require an attorney on one charge to be present for questioning on related issues.
Cobb's appellate attorney, Roy Greenwood of Austin, Texas, predicted yesterday the decision that put Cobb one step closer to execution might help Virginia authorities, particularly since the Virginia sniper cases involved separate jurisdictions and crimes not charged in federal or Maryland courts.
"I can see some differences between the Cobb case and this sniper situation, [but] you can bet police and prosecutor are going to [certainly] try to make Cobb govern," Mr. Greenwood said in an interview.
Would the Supreme Court ruling apply if either man didn't say in so many words that he wanted an attorney?
"Absolutely. But if the defense lawyers are sharp, they're going to say, 'How do we get around this?' I hope they see the distinction between remaining silent under the Fifth Amendment and asking for counsel under the Sixth," said Mr. Greenwood, who submitted a new Supreme Court appeal for Cobb on Fifth Amendment grounds on Saturday.
The federal government, which sent the sniper suspects to Virginia in a transfer that avoided extradition hearings, thus facilitated the questioning by a mechanism that the Solicitor General's Office had defended before the Supreme Court.
"The Court's resolution of that question [in the Texas case] will affect the conduct of interrogations by federal law enforcement officers and the admissibility in federal prosecutions of voluntary statements taken in comparable circumstances," the government said in asking the court to allow Cobb's confession.

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