Dress Rehearsal For Teen Sniper Case

John Lee Malvo headshot, suspect in Washington DC area sniper shootings, photo 2002/11/19
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

There was something for just about everyone at the hearing this week for Lee Boyd Malvo [also known as John Lee Malvo]. The young sniper suspect's lawyers, prosecutors, and juvenile court judge all knew going into the inquest that Malvo ultimately would face capital murder charges in adult court in Virginia. But they all stuck to their respective scripts and probably feel better than they did one week ago about their prospective positions.

That's because the two-day hearing essentially was a mini-trial of the case; a dress rehearsal right down to the emotion offered by a victim's spouse for what we ought to expect when Malvo comes to trial for real on capital charges sometime later this year. And there is nothing that defense lawyers, district attorneys and judges love more than a little certainty in the otherwise chaotic world of criminal justice.

Sure, there will be some significant differences between this week's show and the real thing. The prosecution's burden of proof will be different. It was the slight "probable cause" standard this time around — the lowest available in criminal cases — and at trial it will be the "reasonable doubt" standard, the highest. There were no jurors to evaluate the evidence this week as there will be whenever the Malvo trial begins for real. The defense, because of the nature of the hearing, wasn't nearly as thorough or aggressive as Malvo's attorneys will be when the show truly is under way. Oh, and there are always a few Perry Mason moments each side throws in that can never truly be predicted before the heat of trial.

But for the most part the hearing presages much of what will go on at trial and the advantages all sides gained from this exercise far outweigh the negatives. Prosecutors now know what to expect of their witnesses; Malvo's attorneys now know how Fairfax County is coming after their client; and Malvo's juvenile judge can rest easy now that he's passed this high-profile, high-headache case on to another judge who will now have to deal with pre-trial motions and voir dire [a preliminary examination of a witness or juror] and media requests and the like.

The prosecution comes away from the hearing with virtually everything it could have hoped for. Juvenile Court Judge Charles Maxfield most importantly ruled that there was enough good evidence against Malvo to send his case on up to a grand jury, which means he'll face capital charges in "adult" court just like all the prosecutors had hoped for in all those jurisdictions in Virginia, Maryland, the District of Columbia, and Alabama. Prosecutors also got to evaluate the strength and weaknesses of their own witnesses in order to ensure that their presentation at trial is as good as it can be. That's no small tactical advantage and I'm sure Fairfax County lawyers quite soon will be working with their witnesses, subtly of course, to correct the in-court hems and haws and the like.

Prosecutors also got to deliver the message of their case to prospective jurors in Fairfax County via the media. It's hard to imagine that there are a lot of people in or near that courthouse who weren't paying particular attention to the story of Linda Franklin's husband, William, who testified in chilling detail Tuesday about the last moments of his wife's life. It is the sniper murder of Linda Franklin that forms the gravamen [grievance] of the prosecution's case against Malvo and if even one juror remembers William Franklin's story when the case goes to trial the government will have an even bigger built-in advantage than appears likely today.

Malvo's attorneys, meanwhile, now know pretty much what they'll be up against at trial and this will help them significantly as they prepare for their uphill battle. They know that Fairfax County prosecutors are likely to present a circumstantial case against Malvo that focuses upon ballistic and other scientific evidence linked together via a complicated chain of custody. Malvo's lawyers also know that prosecutors intend to intersperse amid this dry, technical testimony the stories of sniper victims because there is nothing like victim testimony to rouse jurors from their collective stupor.

The defense will attack the reliability of the circumstantial case against Malvo and the reliability of the law enforcement folks who gathered it up from the woods of Virginia. It will try to convince Malvo's trial judge to limit as much as possible victim testimony unless it is absolutely necessary to the prosecution's case. And the defense will focus on the fact that there are no apparent eyewitnesses to the crimes with which Malvo has been charged.

Even Judge Maxfield agreed that "there is no eyewitness at any of the four crime scenes" and you can expect Malvo's attorneys to use that as their first and last defense. They'll likely use it first when trying to establish that there is reasonable doubt about Fairfax County's case. And then they'll use it last, if they have to, when they tell jurors during a potential penalty phase that a man shouldn't be sentenced to death in the absence either of a confession (which will be the subject of a whole other hearing) or several reliable eyewitnesses or both.

Thanks to this week's hearing, the Malvo trial's first draft already has been written. The only part that is unscripted, and will continue to be until the very last minute, is when jury gets to make the call and what that call ultimately is. It ought to be fascinating to watch unfold.

By Andrew Cohen