Should Malvo's Confession Be Tossed?

Attorney Andrew Cohen analyzes legal issues for CBSNews.com.

Add in the fact that the teenager didn't apparently spill his guts to the police last Nov. 7 until he had powered down two veggie burgers and you know this isn't a case about a wizened criminal suspect. It's a case about a teenager -- and not a particularly seasoned one at that -- who stands accused of committing senseless crimes and then laughing about them. It's a case where jurors will have to believe their ears -- what prosecution witnesses tell them -- and not their eyes -- what they see about the defendant in court -- if they are to convict Malvo and then recommend that he die for his crimes.

Even the most convoluted hearings sometimes generate clarity. Malvo's suppression-of-evidence hearing Monday clarified two of the more central questions of the case.

First, as the defense suggests, police and prosecutors did intentionally keep the young man away from his attorneys at a time when he probably needed them most.

Second, as prosecutors suggest, Malvo had plenty of opportunities to keep his mouth shut even after the net was cast around him. The problem for the defense is that the first truth, by law, isn't likely to keep the second truth from being a justification for allowing Malvo's shocking statements into the trial. They are likely to come in, I think, and if they come in, it's not hyperbole to say, Malvo is pretty much doomed.

As for Truth No. 1 -- the three-card Malvo trick played by authorities -- remember all that talk last fall about how unusual and unseemly it was that all those jurisdictions were fighting over Malvo and his alleged cohort John Allen Muhammad to see who would get to try them first? Well, this hearing has offered insight into how that jurisdictional tussle created real advantages for prosecutors and big trouble for the defendant. Fairfax County Detective June Boyle (the good cop) and FBI Agent Brad Garrett (the figurative bad cop) would never have been able to be in a position to talk with Malvo if there weren't multiple jurisdictions involved in the case. These jurisdictional "options" allowed police and prosecutors to move Malvo last Nov. 7 from federal custody in Maryland to federal custody in Virginia and finally to Fairfax County custody without giving his lawyers a chance to catch up.

Because these attorneys never were able to catch up to their client that day, they weren't able to tell him to continue to remain silent; to remind him that the police weren't being nice to him just for kicks; and to reinforce the notion that just because one case against him (the federal case in Baltimore) had been dismissed (without prejudice, which means it still could be re-opened), it didn't mean that he was free and clear of all the other possible cases. Not only that, but those earnest defense attorneys weren't even given a fair chance to keep up -- they weren't told that Malvo was being moved from Baltimore or even that the federal charges against him were dismissed until after these things happened.

Fairfax County says that it had no notice that Malvo was coming its way that day, but I'm not sure that any reasonable person would buy that story. First, their stated lack of knowledge and notice goes against all that talk we heard last fall about all the police and prosecutors talking among themselves about the fate of Malvo and Muhammad. To think that as monumental a decision as the one that led Malvo to Fairfax County would be done on the spur of the moment, without telling Fairfax County about it, begs credulity.

Meanwhile, we learned in court Monday that on Nov. 6,, a day before Malvo was transferred from Maryland to Virginia, the ubiquitous Det. Boyle was ordered to write up a capital murder petition alleging that Malvo had committed murder and terrorism in Fairfax County. Why would she be asked to do that then? Can the timing truly be a coincidence? Or did the authorities let the transfer unfold the way it did in order to confuse Malvo, keep him from counsel, and then take another crack at talking with him?

Perhaps the most vivid example of how Malvo was isolated from those who could help him most occurred with respect to his guardian, Todd Petit, who ran from building to building within the judicial/police complex in Fairfax County trying to gain access to Malvo on the evening of Nov. 7. Petit knew what was happening to Malvo -- or what was about to happen -- but he couldn't breach the Blue Wall of police and he couldn't even shame Fairfax County prosecutors into getting involved to stop the interrogation. Prosecutors say that Petit wasn't officially Malvo's guardian until the next day, when it didn't really matter anymore, and Judge Jane Marum Roush is likely to agree. But that doesn't mean that the government ought to be proud of the way it handled Malvo's transfer.

As for Truth No. 2 -- Malvo's apparent insatiable desire to talk -- it's now clear that something inside Malvo changed from the time he appeared in court with his federal lawyers in Baltimore in late October to the time he found himself with Boyle and Garrett in Fairfax County in early November. Was it the two veggie burgers that gained his trust? Did Det. Boyle offer some maternal appeal that led Malvo to relax and start talking? Maybe we will never know. We do know, though, that he did ask: "do I get to see my attorneys" and he did tell Boyle that those attorneys had told him "not to talk to the cops." But then he didn't wait for those attorneys to find him and he certainly didn't heed the advice about not talking to the cops. Was he bored? Was he trying to brag? Trying to be too cute by half? Did he think he could say some incriminating things but not incriminate himself?

Whatever he was thinking, Boyle and Garrett had Malvo right where they wanted him. They had him alone. They had fed him -- exactly what he wanted even though it took nearly an hour to import veggie burgers to Fairfax County -- when he was ravenously hungry. They had spent time small talking with him. They had done nothing about his interest in seeing his attorneys. And they asked him over and over if he was sure he wanted to talk. Textbook interrogation stuff and, to their credit, Boyle and Garrett delivered the goods. And what goods! Prosecutors dream of statements like the ones Malvo purportedly made while talking to the police. They are precisely the sorts of statements that de-humanize a defendant in a case where de-humanization is necessary to convince jurors to vote for death.

So if it comes in as evidence, Malvo's laughter about the death of Linda Franklin, the FBI analyst he is charged with murdering, will be a lynchpin of the prosecution's case at trial. And so will Malvo's mirth about the little boy who narrowly escaped death when a sniper shot was fired so close to his little head that, in Malvo's words, the kid swatted the air as though a bee had flown by. And so will the other story we heard Monday about Malvo; that he laughed when he saw a lawnmower keep going down the street after the man who had been mowing the lawn just seconds before had been shot and killed by the snipers. These comments, if true, suggest an incomprehensible lack of compassion and respect for human life -- a, yes, childlike divorce from the reality of violence.

All of which leads to this one-sentence summary: Malvo clearly didn't get all the rights to which he was entitled last Nov. 7, but there are an awful lot of people who really don't care.

By Andrew Cohen