- The Washington Times - Thursday, May 8, 2003

Almost all of sniper suspect Lee Boyd Malvo’s confession to Fairfax County detectives will be allowed as evidence during his trial, Judge Jane Roush ruled yesterday.The judge ruled that Mr. Malvo was fully aware of his rights, and that his rights were not violated during a seven-hour interrogation Nov. 7, 2001, when he reportedly laughed about taking part in some of the sniper shootings, including the one that killed Linda Franklin. The 47-year-old FBI analyst was shot outside a Home Depot in Falls Church on Oct. 14. Mr. Malvo’s capital murder trial is scheduled to begin Nov. 10. If convicted, he could be executed.County Circuit Court Judge Roush granted only a small part of a motion by Mr. Malvo’s attorneys that said detectives violated Mr. Malvo’s constitutional rights by interrogating him without an attorney present and without his consent.”He was ‘meticulously informed by authorities of his right of counsel, and of the consequences of any choice not to exercise that right.’ His waiver of the right to counsel was voluntary, knowing and intelligent,” wrote Judge Roush.Judge Roush said she considered the “totality of circumstances” in deciding whether Malvo’s statement was voluntary. Among her considerations was the fact that Mr. Malvo has a 12th-grade education and “reads for pleasure.”“He was told at least four times that he had the right to have an attorney present with him during the questioning. He did not ask for an attorney. He was not upset or crying. He was calm. At some points, he laughed when describing some of the shootings. He was given the opportunity to stop the interview but he chose to continue,” Judge Roush wrote.Mr. Malvo’s attorneys said in a statement yesterday that the ruling sets a precedent for the violation of prisoners’ rights. But they added that the admission of the testimony may help them “point out inconsistencies and lies in Mr. Malvo’s statements concerning his involvement in these shootings, as well his motivations for making them.”Commonwealth’s Attorney Robert F. Horan Jr. scoffed at defense team’s statement.”It’s cluttered nonsense. They have had those statements since early January. If they’re so good for them, why did they fight all this time to keep them out?” he asked. “The case couldn’t be in a better posture than it is now, as far as I’m concerned.”Mr. Malvo, who was 17 at the time of the shootings but is now 18, 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. On Nov. 7, federal charges against Mr. Malvo were dropped, and he was taken to Fairfax County.Mr. Malvo and Mr. Muhammad 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 testified April 29 that they were not told when the federal charges were dropped or where their clients had been moved. Todd G. Petit, the court-appointed guardian for Mr. Malvo, was alerted of the interrogation and tried to stop it, but he said he was stonewalled by law-enforcement officials.Mr. Malvo’s attorneys say authorities orchestrated events so they could question him alone, without legal counsel present.”How an arrestee is treated cannot be determined by the crime of which he is accused,” they said.Judge Roush wrote, “Certainly the events of November 7 and the rapidity with which they transpired created a difficult situation for Malvo’s Maryland attorneys and for Petit.” But she said that no evidence exists to prove that Fairfax and federal authorities conspired “to spirit Malvo away” from his lawyers in Maryland to interrogate him alone.”The police are not required to refrain from exploiting opportunities to interview suspects so long as … they do not violate any of the suspect’s constitutional rights,” she wrote. “The police took full advantage of this situation and questioned Malvo extensively after fully advising him of his rights and after he waived” them.Judge Roush agreed to suppress the first two hours of testimony, from about 4 p.m. to 6 p.m., in which lead Fairfax County detective June Boyle discussed background issues with Mr. Malvo while he was waiting for a dinner of two veggie burgers. The judge ruled that Mr. Malvo was not advised of his Miranda rights until after eating, and that some of the questions Mrs. Boyle asked were beyond customary booking questions. “How did you meet Mr. Muhammad?” was one of the questions Mrs. Boyle asked Mr. Malvo.Mr. Horan said Mr. Malvo did not make any admissions of guilt during those two hours.”There’s nothing in that portion that I would have used. It was essentially small talk,” he said.

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