Three-Card Malvo

Lee Boyd Malvo, the young Washington-area sniper suspect, won't necessarily be acquitted if his lawyers succeed in getting his "arguably" incriminating statements tossed from his capital murder case. But he almost certainly will be convicted if his lawyers fail to convince Fairfax County Circuit Court Judge Jane Marum Roush that law enforcement officials played fast and loose with the Constitution when they handled Malvo last November.

So while Malvo's suppression-of-evidence motion, filed Friday afternoon, isn't all that critical to prosecutors it clearly is vital to the defense. Fortunately for the 18-year-old Jamaican national — accused of killing FBI analyst Linda Franklin during last fall's East Coast sniper spree — Malvo's attorneys have some decent facts to work with in arguing that their client's Fifth and Sixth Amendment rights were violated. That doesn't mean Malvo will prevail later this month at a crucial hearing on the matter; it just means that the issues his lawyers are raising on his behalf are more legitimate and serious than the casual observer might be inclined to think.

The defense contends that the cops played the "ol' switcheroo" with Malvo, transferring him from one jurisdiction to another without telling his attorneys in order to isolate him from those attorneys and then confuse him into talking. They base this theory upon the way in which Malvo was transferred from federal custody in Maryland to state custody in Virginia. And they say that the Constitution, in the Commonwealth and elsewhere, precludes prosecutors and law enforcement officials from using the bureaucratic process — i.e., the transfer and booking of a suspect — for tactical and strategic advantage.

Immediately after his sensational arrest, Malvo was held on a federal material witness warrant and then promptly charged with 20 federal crimes. That day, October 24, 2002, he was given both a lawyer and a juvenile guardian. The next day he also was charged in Virginia under state law. Four days later, Malvo — still in Maryland under federal custody — was given two more attorneys and two guardians by the judge handling his case. During this period, the defense contends, Malvo "remained silent at all times, never waiving his 5th Amendment rights" despite repeated attempts by police to question him. Moreover, defense attorneys say they "repeatedly" told prosecutors and police that "no such questioning would be permitted" without their presence, a status quo explicitly acknowledged at the time by at least one judge.

Here is where the story gets a little strange. Three days later, Malvo's federal judge dismissed the Maryland case at the request of federal prosecutors without informing Malvo's attorneys-of-record. Why didn't the judge inform Malvo's lawyers that their client's case had been dismissed? The defense says in its motion that the judge didn't know that they didn't know about the dismissal. Now, prosecutors have complete discretion to dismiss their own cases, of course, but telling opposing counsel about such a move isn't just a courtesy call. The fact that this notice apparently didn't happen here is a fairly outrageous breach of etiquette if not of legal ethics. It effectively froze Malvo's lawyers out of the loop and thus gave prosecutors and police several hours alone with the defendant at a time when he might reasonably have been confused about his custodial status.

Malvo's attorneys say they "informally" found out on Nov. 7 that Malvo was being transferred to Virginia. Sensing what might have been afoot, they say they immediately sent a letter to Paul McNulty, a federal prosecutor in Virginia, "to inform him of the understanding established in Maryland that no law enforcement officers (federal or state) should talk to Mr. Malvo without his attorneys present." Meanwhile, the defense says, Malvo's Virginia guardian desperately was trying to see him upon his arrival in the Commonwealth. The effort did not work. Defense attorneys claim that the guardian was threatened with "trespassing" when he tried to see his client in the Massey Building in Fairfax County.

After being transferred from Maryland to Virginia, after changing from being a federal prisoner into a state one, and after being kept in the dark about the efforts of his attorneys and guardian to see him, Malvo still wasn't terribly interested in talking. He asked his Virginia interrogators: "Do I get to see my attorney?" They said he could but then didn't give him that access. When they asked him to sign a waiver of rights form he said he wouldn't sign his name — "there's a reason I can't write it; its self-incriminating," Malvo reportedly said. But despite the admonitions from his own lawyers that Malvo was "lawyered up" and thus could not be validly questioned on the substance of the case, the two interrogators didn't just stay mute. According to the defense filing, they kept trolling Malvo for information and, eventually, they got some.

All of these actions, the defense concludes, were "covert and intentionally deceptive" and designed to vitiate Malvo's right to counsel and his right to remain silent. All of these actions, Malvo's lawyers say, were designed to subject Malvo to questioning even though he should not have been questioned. All of these actions, they claim, were done to take undue advantage of Malvo's transfer from Maryland to Virginia. We'll see. One thing is fairly clear. The unique nature of the case will afford Judge Roush and her colleagues on the bench in Virginia with a wonderful opportunity to evaluate the limits of the constitutional rights of defendants like Malvo.

In advance of a late-April hearing on this crucial matter, Fairfax County prosecutors will file their response in the next week or so and surely they will have plenty to say about the allegations made by Malvo's attorneys. One point they'll probably make is that whatever Malvo's legal status may have been in Maryland, he was starting from scratch in Virginia and thus wasn't entitled to a hands-off approach from the police. Another point they'll likely make is that the defense filing is full of "technicalities" which diminish the fact that Malvo said what he said. And when it comes time for the hearing, they'll probably have to spend a great deal of time explaining what good the right to an attorney is if no one happens to tell the attorney what is happening to his client.

By Andrew Cohen