- The Washington Times - Wednesday, April 30, 2003

Lee Boyd Malvo’s attorneys said yesterday that law enforcement authorities in Maryland, the District and Virginia purposefully moved the 17-year-old to Fairfax County to keep his attorneys away and get a confession.
   “The way everything came down … is a knowing circumvention of the Sixth Amendment right to counsel,” attorney Mark Petrovich said.
   But Fairfax Commonwealth’s Attorney Robert F. Horan Jr. said Mr. Malvo, now 18, signed “X” in agreement to his Miranda rights and was told several times he could remain silent and see his attorney.
   Ending two days of hearings yesterday, Circuit Judge Jane Marum Roush said she will announce in seven to 10 days whether Mr. Malvo’s confession can be used at his trial, scheduled to begin Nov. 10.
   Mr. Malvo is to be tried on a capital murder charge in the death of FBI analyst Linda Franklin, 47, on Oct. 14 outside the Home Depot in Falls Church. If convicted, he could be executed.
   He and John Allen Muhammad, 42, were arrested Oct. 24 at a rest stop west of Frederick, Md. They were being held in a Baltimore jail under federal charges when defense attorneys were appointed.
   The two are linked to the 13 sniper shootings, 10 of them fatal, that gripped the Washington area in October. Mr. Muhammad is to be tried in October in Prince William County in the death of Dean Harold Meyers, who was shot at a gas station near Manassas on Oct. 9.
   The three defense attorneys, appointed when the pair were held in jail in Baltimore, testified before Judge Roush that they were not told when the federal charges were dropped or where their clients had been moved.
   Attorney Robert Tucker of the District, who elicited one of the few smiles from Mr. Malvo in court, said he finally “learned from the Internet” that Mr. Malvo had been moved to Fairfax.
   “Nobody had access to him. Nobody knew where he was,” Mr. Petrovich said. “Basically, the entire theme was to obtain information.”
   Mr. Horan rebutted, “These lawyers were never appointed to represent Mr. Malvo in the murder of Linda Franklin.”
   Fairfax Detective June Boyle testified that Mr. Malvo was told the charges in Maryland had been dropped. She said he declared that he would talk if he wanted to.
   “Do I get to see my attorney?” Mr. Malvo asked, Detective Boyle said, and he continued to talk when she started to say, “Yes.” The detective said she told Mr. Malvo at least four times that he had a right to remain silent.
   Mr. Petrovich zeroed in on the statement, “Do I get to see my attorney?” as a request by Mr. Malvo to confer with an attorney.
   But Mr. Horan referred to several Supreme Court rulings that he said confirmed that the question did not amount to an order to meet with an attorney.
   Detective Boyle asked four or five times, “Do you want to talk without a lawyer present?” and Mr. Malvo always answered, “Yes,” Mr. Horan said.
   “On the basis of that evidence, he waived his constitutional rights,” Mr. Horan said.
   But Mr. Petrovich argued that Mr. Malvo was advised of his rights “long after” he had made incriminating statements.
   “It is clear that juveniles have less rights than an adult in the same circumstances,” said Mr. Petrovich, emphasizing that Detective Boyle has 27 years of experience and is thoroughly familiar with techniques to question suspects.
   Mr. Horan countered, “This defendant has been in numerous courts and has never said he needed a lawyer.”
   After lawyers advised him not to talk, even in court, “He was consistently looking the judge in the eye and never answered any questions,” Mr. Horan said, referring to a 52-page court document of confirmation.
   Todd Petit, appointed as a guardian of Mr. Malvo because he was underage, learned that the youth had been moved to Fairfax and questioning began about 5:30 p.m. Nov. 6, after Mr. Malvo had eaten two vegetarian burgers and signed the Miranda form.
   Yesterday, Megan Lustig, a receptionist for Mr. Horan, confirmed Mr. Petit’s testimony. Mr. Petit had come to the Commonwealth Attorney’s Office on Nov. 7, and asked to see Mr. Horan or Deputy Commonwealth’s Attorney Raymond F. Morrogh.
   Mrs. Lustig said the prosecutors were in a meeting, then reported that Mr. Horan had said, “We don’t have time to talk to him.” Then, Mrs. Lustig said, “I told him to leave.”
   In court, Mr. Horan presented documents that Mr. Petit was appointed Nov. 8, the day after he appealed to see Mr. Malvo.
   Mr. Horan said the Virginia defense attorneys are trying “to make the case more complex than it is.”
   “There is not a scintilla of coercion, of force used in this case,” Mr. Horan said. “I think our officers followed the law to the hilt.”

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