Technicalities

One thing longtime fans of the "Law & Order" Series seem to enjoy doing is watch the police procedural portion of the show to watch for the point where the cops will make a mistake which will later cause the district attorneys difficulty when evidence or statements obtained as a result of the mistake are thrown out of the case. The cops don't get it wrong in every episode, but because these are dedicated, passionate enforcers of the law, they sometimes get a bit over-eager to search a certain location before anyone has a chance to destroy evidence or to keep a suspect talking in hopes of gaining a confession.

According to an article in the New York Times, it looks like some real-life detectives may have exhibited a similar weakness when they finally had caught the DC-area snipers and had a chance to question Lee Malvo, the then 17-year-old co-defendent in the case.

Lee Malvo, the younger man charged in the Washington-area sniper attacks, indicated that he wanted to talk to a lawyer at the beginning of an interrogation last fall in which law enforcement officials say he confessed to several of the shootings, according to a summary of the interviews produced by the police in Fairfax County, Va.

Mr. Malvo, who has turned 18 since his arrest late last October in the shootings that terrorized Washington and its suburbs, told a Fairfax County detective that he had been promised that he would get to see his lawyers, according to the summary.

The detective, June Boyle, a 21-year veteran of the Fairfax police, told Mr. Malvo that he would be allowed to speak with his lawyer, but that she wanted to ask him a few questions about his background as a part of the booking process. Law enforcement officials say that in the hours of interviews that followed, which are recorded on five tapes, Mr. Malvo confessed to shooting several people, including Linda Franklin, an F.B.I. analyst whose death led to the capital murder charges that Mr. Malvo faces in a trial scheduled to begin in November.

It doesn't appear that this "error" is fatal to the case - there is other evidence tying Malvo to the killings - but it does raise the question of why a detective - especially one with 21 years of experience - would engage in such a violation of a suspects rights and risk losing the admissability of any confession that might result.  In a case as high-profile as this one, you'd think that they'd want to take every precaution they could to preserve every piece of evidence possible - especially any statements made by the suspect while he's still recovering from the shock of being arrested.

It appears that part of what allowed the interrogation to happen in the first place is that John Ashcroft had ordered Malvo transferred from federal custody in Maryland to the local authorities in Virginia.  Malvo's public defenders in Baltimore, however, had not been told that their client was being transferred, and Virginia had not yet appointed a public defender for him in their state.  In addition, his court-appointed guardian had requested to be able to speak with him prior to the interrogation by the Virginia law-enforcement officers, but was denied.   I suspect a good defense attorney may be able to make an argument that federal and local law-enforcement officials were deliberately trying to deny Malvo the right to have an attorney present at his interrogation - whether this was intentional or simply a major bungling of one of the more important aspects of a case like this. 

Something else the article mentioned that I found very interesting is that it appears likely that the summary this information was taken from was leaked by the police themselves.

Mr. Malvo's chief lawyer, Michael S. Arif, did not return a call for comment on the summary. But John Spario, a lawyer for Mr. Muhammad, said that information about the summary fit into a pattern of leaks, presumably by the police, that threatened to derail both cases.

An investigator involved in the case said today that the sniper task force did not object to the leak because there was a strong likelihood that the statements would will be suppressed anyway. "This way at least the public will know what he said," the investigator said.

 Whether that's the case or not, the anonymous investigator quoted above may have just helped shoot another hole in the prosecution's ability to try this case.  In general, the motive for one side or another in a major case to leak information to "the public" that may not be usable in court is to reach any potential members of the jury pool.  The police know that they may not be able to get the interviews - and Malvo's apparent confession - into court becuase of the procedural violations. 

Getting the information out there now, however, get the idea that "he confessed" into people's minds.  While juries aren't supposed to consider anything other than the evidence presented to them in the court room, if they're heard that "he confessed", that can have a big impact on how they view any other evidence.  Weak evidence from the prosecution may be judged to be stronger because they know "he confessed" - and even strong evidence from the defense may become more dismissible to the jury for the same reason.    The defense may actually be able to gain some leverage from this, and it shows significantly poor judgement on the part of those who made the leak and those who seem to approve of it.

This is a case that needs to be closely watched.  Personally, based on what I've heard and read, I feel pretty strongly that they've got their men.  I don't have much doubt about the guild of Malvo or Muhammad.  I would hate to see the case, then, fall apart because the police were sloppy or didn't care about respecting the rights of either suspect at the time of the arrest, and now are showing disregard for the ability of the defendents to have an unprejudiced jury.