from: http://www.washingtonpost.com/wp-dyn/articles/A10692-2003Apr11.html
Fairfax Police, FBI 'Tricked' Malvo, Attorneys Claim
Questioning Said to Violate Rights
By Josh White
Washington Post Staff Writer
Saturday, April 12, 2003; Page B01
Sniper suspect Lee Boyd Malvo's constitutional rights were violated repeatedly during an interrogation by Fairfax County police and the FBI, who "tricked" him into giving up important and incriminating details of last fall's slayings without his lawyers present, his attorneys argued in court papers filed yesterday.
Meanwhile, in Prince William County, attorneys for sniper suspect John Allen Muhammad said in court that their client may have been exposed to nerve gas or chemical agents when he served as an Army engineer in the 1991 Persian Gulf War. A Prince William judge yesterday approved the hiring of two investigators to work with Muhammad's defense, and one of their jobs will be to investigate that possibility.
In Malvo's case, his attorneys argued that statements elicited during a six-hour interview Nov. 7 should not be used at his capital murder trial because police had no right to be questioning him at all.
Michael S. Arif and Craig S. Cooley wrote that Malvo invoked his rights to remain silent and have an attorney present when he was charged in October in federal court and that he retained those rights even after being moved to Fairfax. Even though police knew that, they purposefully misled Malvo into talking to them, the attorneys said. Malvo then asked whether he could see his attorneys and was told that he could, but still, the police continued to question him, they argued. Finally, when asked to waive his rights altogether, the attorneys say, Malvo refused to sign his name. Malvo was 17 at the time; he has since turned 18 .
Fairfax Commonwealth's Attorney Robert F. Horan Jr. did not return calls about the motion. He has until April 21 to respond to the court, and a hearing is scheduled for April 28 on the admissibility of Malvo's statement.
Malvo's attorneys wrote that even as the interrogation continued, the teenager's federally appointed lawyers and guardians were scrambling to jails and police stations in Virginia to get to him, urging police not to ask him any questions and trying to invoke his right to counsel.
The 40-page motion filed in Fairfax Circuit Court alleges that authorities engineered Malvo's transfer from federal custody in Maryland to local custody in Virginia to circumvent his right to have an attorney present during questioning. The motion states that police didn't follow procedures, violated Malvo's constitutional rights and broke international laws during the interviews.
Malvo is charged with capital murder in Fairfax County in the Oct. 14 slaying of FBI analyst Linda Franklin, 47, outside a Home Depot in the Seven Corners area. Malvo was first charged in federal court in Maryland after his Oct. 24 arrest, but those charges were dropped and he was moved to Virginia to face local charges. Muhammad, 42, who allegedly joined Malvo in a string of 13 shootings in the Washington area that killed 10 people, is charged with capital murder in Prince William in the Oct. 9 slaying of Dean H. Meyers, 53, at a gas station near Manassas.
Yesterday's motion could play a significant role in both cases, as Malvo's statements to Fairfax Detective June Boyle and FBI Special Agent Brad Garrett yielded detailed descriptions about several of the shootings. Malvo's statements -- which law enforcement documents indicate were wide-ranging and outlined a meticulous plan to extort millions of dollars from the government -- implicate both himself and Muhammad. In them, Malvo said he fired the shots that killed Franklin and some of the other victims, according to the law enforcement documents.
Although authorities say they have circumstantial evidence linking the suspects to the shootings -- including fingerprints, DNA, computer files, vehicle sightings and the gun linked to the slayings -- Malvo's interrogation appears to fill in many of the gaps in the story. Muhammad refused to talk to police when he was transferred to Virginia.
The motion says Malvo asked if he would get to see his attorneys before questioning. He was told that he would but that he first should answer some background questions. When the conversation shifted to the attacks, Boyle and Garrett provided Malvo with a form asking him to waive his rights. Malvo said he didn't want to sign it because it would be incriminating; the snipers left handwritten notes at some of the shooting scenes, and police believe that he didn't want to show his handwriting. The investigators asked whether he would place an "X" on the form instead of signing it, and Malvo agreed -- an action that Arif and Cooley wrote is a clear indication that he didn't want to talk. The attorneys also allege that Malvo wasn't read a portion of the form that allows a juvenile to have a parent or guardian present.
"Mr. Malvo asked, 'Do I get to see my attorneys?' " Malvo's defense team wrote. "Mr. Malvo then said his lawyer told him not to talk to the cops until they got there. . . . In fact, the police lied by telling Mr. Malvo that he would see his attorneys before proceeding to ignore his request."
Malvo later indicated that he would talk with investigators, and he did so over six hours.
"The clear intention was to catch Mr. Malvo off-guard and lead him into incriminating information," Arif and Cooley wrote.
The attorneys questioned why Malvo's consent wasn't recorded, as was most of the interview, and is "seemingly completely dependent on the recollections" of the detectives. Everything after that point was recorded.
They also allege that investigators violated the terms of the international Vienna Convention because Malvo, a Jamaican citizen, wasn't informed of his rights as a foreign national. They further allege that investigators never told the Jamaican Consulate that Malvo was being moved to Virginia or that he was being charged with crimes there.
In Muhammad's case, Prince William Circuit Court Judge LeRoy F. Millette Jr. yesterday granted the defense team two investigators to look into Muhammad's past.
Attorney Jonathan Shapiro said he believes there is evidence that Muhammad was exposed to nerve gas or a chemical agent when he served in the Army in the Gulf War. A sergeant who supervised Muhammad in 1989 said yesterday that Muhammad's job as an engineer -- clearing minefields, disabling tanks and vehicles, clearing tank trenches -- could have exposed him to such things.
In Alabama yesterday, where Muhammad and Malvo also are charged with capital murder, the state's court of appeals ordered a hearing to determine what should happen with pieces of mail that arrived at a local jail addressed to the suspects.
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