Prejudice, What Prejudice?

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

There is nothing illegal about the stunt Virginia prosecutors pulled this week. And there apparently is no court order in place prohibiting the dissemination of such information before a judge has decided whether it is admissible or not at trial.

So Fairfax County Circuit Court Judge Jane Marum Roush may or may not scold prosecutors when she presides over a hearing in the case on Monday. But she ought to. Malvo is in enough trouble relating to the October 14, 2002 death of FBI analyst Linda Franklin without prosecutors unfairly fomenting anger toward him with potential jurors.

On Monday, responding to standard written requests for information by Malvo's attorneys, prosecutors took advantage of the questions asked of them by responding with bombshells. For example, Team Malvo asked for "any oral or written statement made by any alleged participants or any other witnesses during police investigations and inquiries … which is exculpatory in any matter as to the defendant." In response, Fairfax County prosecutors disclosed "[I]t is noted that the Defendant has told more than one person that he personally shot Mrs. Franklin in the head in the Home Depot killing which is at issue in this case."

Now, you don't have to be an attorney to know that this paraphrased statement, which may or may not be true, isn't "exculpatory" to Malvo -- it obviously doesn't help him. And you don't need to be a journalist to know how such a statement likely would play in those areas most directly affected by the sniper attacks last fall.

Sure enough, the Washington Post, The New York Times and the Associated Press all transformed these prosecution responses into ersatz "admissions" by Malvo. The effect of such publicity before trial is incalculably bad for Malvo and his already slim chances of getting a fair trial.

Likewise, when Malvo's attorneys asked for "any information from any person … that the defendant was not involved in or was not the actual cause of the death of the victim…" the prosecution, instead of merely responding "no," wrote: "The defendant has admitted on more than one occasion that he shot Mrs. Franklin in the head at the Home Depot. He has also admitted to killing a number of other victims himself with the aid of his co-defendant who acted as his spotter and helper."

Again, this alleged "statement" by Malvo may or may not ultimately be admitted into evidence at trial. But the involved, evidentiary hearing to resolve that issue hasn't even been scheduled, much less resolved, so prosecutors essentially got to paint Malvo the way they want him painted to potential jurors without any judicial safeguards.

In many cases, such information is kept under seal until the suppression hearing so as not to improperly taint the perspective some potential jurors might bring with them into the jury room. If ever a case needed such precautions, needed such a blank slate to ensure the fairest jury possible, this is the case.

Perhaps the most vivid example of how prosecutors manipulated the discovery process to get across their pre-trial message came when Malvo's attorneys asked them to provide "all memoranda, documents and reports to, from and between the investigative staff of the prosecution…" The government responded as follows: "In the instant case it is submitted that the Defendant confessed to killing Mrs. Franklin.

This confession was uncoerced and completely voluntary. There were no threats or promises made to the Defendant in the course of his admissions. In fact the Defendant was calm and rather boastful of his doings in this case. In the face of the Defendant's admission to this killing, among others, which contains a fantastic amount of detail in support of its validity it escapes the Commonwealth as to how evidence of other 'suspects' that were investigated by the police is even arguably exculpatory."

These responses, alone, represent an interesting development in this case. But just two days after prosecutors made them, they told Judge Roush that they were agreed with the defense team in opposition to "the open telecast of the pre-trial and the trial. Jury selection will be difficult, in all probability. Daily telecasts will surely enhance that difficulty and will affect the potential jury pool both for this case and probably other trials in this region of this defendant and his co-defendant."

Surely, television cameras would influence potential jurors in ways that might make them more biased at trial. But you have to wonder where all that prosecutorial concern for Malvo's fair trial rights was two days earlier. On Monday, at the hearing, Judge Roush ought to ask Malvo's prosecutors if she should believe what they say or believe what they do.

By Andrew Cohen