Malvo Loses Big

Accused sniper suspect John Lee Malvo leaves the Fairfax County Jail Tuesday, Nov.19, 2002, in Fairfax, Va. Malvo was moved to the jail for a court appearance. A juvenile
Attorney Andrew Cohen analyzes legal issues for

Tuesday's critical court ruling that practically dooms young sniper suspect Lee Boyd Malvo says more about the current state of the law than it does about Malvo, his judge or the way the law enforcement community handled the young man last November.

It says that many of those so-called constitutional "technicalities" tough-on-crime politicians used to bemoan as coddling to defendants now overwhelmingly favor prosecutors and the police. It says that Clintonesque parsing judges once used to give suspects more rights now is used consistently to give them fewer rights. It says that the tide has turned almost completely in a single generation. Whether you think these are positive developments or not there is no denying that the Malvo ruling offers a high-profile look at what this sea change really means in the context of a single case.

Fairfax County Circuit Court Judge Jane Marum Roush found plenty of solid legal precedent for her view that Malvo's constitutional rights were mostly not violated when he was transferred last Nov. 7 from Maryland to Virginia and from federal custody to state control. Her ruling means that the most incriminating of the many statements Malvo made to the police can and will be used against him at his fall trial. It's a crucial, substantive ruling that almost certainly will be upheld on appeal if and when Malvo's lawyers challenge it following the conviction and death sentence that are now virtually certain in the case.

And when appellate judges look at this 24-page ode to established law, they'll find out just how far the government can go to get information from a criminal suspect. They will be reminded, for example, that Virginia law requires a suspect to ask for an attorney with almost scholarly precision. It was not enough that Malvo, who just a few hours earlier had been represented by a handful of lawyers, asked the police: "Do I get to talk to my attorneys?" before being interrogated. Applying her state's prior case law, Judge Roush determined that this request by Malvo was "at best a request for a clarification of his Miranda rights" which the police were free to answer "yes" before continuing to question him. Prosecutors used to argue in favor of common sense and against legalese; now it's defense attorneys who must do so.

When appellate courts look at this order, they'll also learn there is plenty of case law that allows the police to exploit "opportunities to interview suspects," even where the circumstances surrounding the creation of those "opportunities" is a little murky at best. Judge Roush ruled that "there is no evidence that Fairfax police or prosecutors colluded with federal authorities to spirit Malvo away to Virginia without the knowledge of his Maryland attorneys the hopes or intention of interrogating him when he was without counsel or the right to counsel." No evidence, in the judge's view, yet her description of hypothetical events is precisely what actually happened to Malvo.

I don't know why Malvo's attorneys didn't pursue this claim a little further; they were probably fearful that the judge wouldn't allow them to put a prosecutor onto the witness stand. But this aspect of the ruling reminds me of the old adage: Who are you going to believe? Me or your own eyes? Judges used to be much more open to defense claims that prosecutors and the police were unfairly and impermissibly in cahoots to the detriment of suspects. Now they don't want to hear about it unless there is overwhelming proof of misconduct.

Judge Roush herself didn't seem very interested herself in inquiring into the facts behind this claim when there were relevant witnesses on the stand last week. And all she said about this in her ruling was that "the events of November 7 and the rapidity with which they transpired created a difficult situation for Malvo's Maryland attorneys and for [his guardian]. They did everything they could to see to it that Malvo did not talk to the police without counsel or his guardian present." They did, but it was not nearly enough, apparently, to protect his rights.

There were other parts of the ruling, too, that demonstrate how the balance of interests plays out these days. Judge Roush created new Virginia law when she ruled, for example, that the filing of juvenile murder charges against Malvo on Nov. 6 – the day before the interrogation – did not constitute an "adversarial judicial criminal proceeding" that would have required Malvo to be given an attorney. She ruled that the police had no obligation to tell Malvo that his guardian was trying to see him and that law enforcement officials didn't err by first bringing Malvo into an interrogation room instead of before a juvenile judge, which is fairly what a Virginia statute suggests ought to happen.

None of this is to suggest that Malvo has anyone but himself to blame for his current plight. He got himself into this mess, either by being a deadly sniper or by stupidly pretending to be one when he talked to the police. But being smug about his predicament is one thing; being smug about what this case says about individual rights and police power is another. Maybe Malvo deserves whatever he gets. But this same unbending precedent is going to be used again and again and maybe someday in a case where America isn't as convinced as it seems to be now that the right guy is in the dock.