Judge says sniper suspect's alleged confession can be used

FAIRFAX, Va. -- Sniper suspect Lee Boyd Malvo's laughing confession to two of the deadly attacks can be used against him at trial this fall, a judge ruled Tuesday in a decision experts say gives prosecutors a key weapon in their push for a death sentence.

Virtually the entire statement Malvo gave to police Nov. 7 can be admitted as evidence, Circuit Judge Jane Marum Roush ruled over defense objections that Malvo was denied access to a lawyer.

The judge said Malvo's questions about his lawyer were "at best a request for a clarification of his Miranda rights."

Roush did toss out the first two hours of the six-hour interrogation that occurred before Malvo signed a form with an "X" waiving his right to a lawyer and his right to remain silent. Police characterized that portion of the interview as chitchat, though it did include discussion of Malvo's relationship with fellow suspect John Allen Muhammad.

The most damning parts of the interrogation, though, will be admitted as evidence. Some of the interrogation was taped by police, but prosecutors have not specified which parts could end up being played for a jury.

Defense attorneys said the ruling sets a dangerous precedent regarding the rights of juveniles during police questioning. Malvo was 17 at the time of his interrogation.

Malvo, 18, and Muhammad, 42, are accused in at least 20 shootings, including 13 deaths, in Virginia, Maryland, Alabama, Georgia, Louisiana and Washington, D.C., last year. Both could face the death penalty if convicted.

Prosecutors say the shootings were part of a scheme to extort $10 million from the government. The two were captured at a Maryland rest stop Oct. 24, and Malvo arrived in Fairfax County on Nov. 7.

During questioning that day, Malvo recounted two deadly attacks, including the Oct. 14 shooting of FBI analyst Linda Franklin outside a Home Depot store in front of her husband.

"I asked where he shot her. He laughed and pointed at his head," Fairfax County homicide detective June Boyle testified during a hearing last week.

Malvo also "was laughing about" the fatal Oct. 3 shooting of a man mowing grass in Maryland, Boyle said. "After he shot the man the lawn mower just kept going down the street," she recalled him saying.

Malvo's defense lawyers had asked a judge to suppress the statement, arguing that Malvo had effectively been denied his Miranda rights. But Roush sided with prosecutors, who argued that police reviewed Malvo's rights with him at length.

"Having considered the totality of the circumstances surrounding the police interrogation ... I conclude that his statement was made voluntarily," Roush wrote.

'Weigh heavily on a jury'

Because prosecutors already have circumstantial evidence linking Malvo to the attacks, legal experts say Tuesday's ruling may prove most significant during the sentencing phase if Malvo is convicted. Prosecutors have vowed to seek the death penalty.

"The fact that he was so callous ... is definitely going to weigh heavily on a jury," said Joe Bowman, a defense lawyer who has handled death-penalty cases in Virginia.

Malvo's lawyers called the ruling "unfortunate."

"From our perspective, the actions taken by law enforcement with regard to Mr. Malvo's detention, transport to Virginia and interrogation were deliberate and designed to circumvent his constitutional rights," the defense said in a statement.

The defense cannot appeal Roush's ruling until after the trial.

Malvo's lawyers had argued that police and prosecutors conspired to keep Malvo away from his lawyers when federal charges were dropped and he was transferred to Virginia from Maryland.

However, the judge said there was no evidence Virginia authorities "colluded with federal authorities to spirit Malvo away to Virginia without the knowledge of his Maryland attorneys."

Roush also said Malvo had no right to counsel Nov. 7 because federal charges had been dropped and Virginia charges were not formalized until the next day. And even if he had the right to a lawyer, the judge said, he knowingly waived it during questioning by police.

Boyle acknowledged that at the beginning of the interview, Malvo asked, "Do I get to see my attorneys?" Boyle said she answered yes, and Malvo responded, "Because my lawyer said not to talk to the cops until they get here."

Boyle answered that Malvo was facing new charges in Virginia and they needed to get information about him. She also said she told Malvo numerous times he had the right to remain silent and have an attorney present during questioning.

She said Malvo responded, "If I don't want to answer, I won't."