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Malvo interrogation { November 13 2002 }

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   http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A46178-2002Nov12¬Found=true

http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A46178-2002Nov12¬Found=true

John Lee Malvo's Interrogation




Wednesday, November 13, 2002; Page A26


THE ZEAL TO EXECUTE John Lee Malvo, the teenager facing capital charges in connection with the sniper murders, is understandable enough. He is accused of horrible crimes. But Mr. Malvo, at 17, is legally a child. His treatment at the hands of federal and Virginia authorities -- which would have been aggressive even if Mr. Malvo were an adult fully capable of protecting his own interests -- is wrong.

In general, authorities are not permitted to initiate questioning of a suspect without his lawyer's consent if the suspect has been charged and his right to counsel invoked. Yet Mr. Malvo, after being transferred to Fairfax County on Thursday afternoon, was briefly without a lawyer. Federal charges against him had been dropped -- and the lawyers appointed to represent him on those charges had, in any event, no power to represent him on the Virginia charges. Mr. Malvo was not due to appear before a judge on the Virginia charges until the following morning. So a brief window existed in which there was no clear constitutional bar to the police talking to the young man on his own. Meanwhile, Mr. Malvo's court-appointed guardian was denied access to him; Virginia law does not ensure that parents or guardians are present when minors are interrogated. Efforts by his prior lawyers to stop the interrogation also were not heeded.

After the interrogation, sources told The Post that Mr. Malvo had confessed to being the triggerman in some of the killings. Fairfax County Commonwealth's Attorney Robert F. Horan Jr. stated yesterday that some of the reports concerning Mr. Malvo's interrogation -- including some of the young man's reported statements -- "quite simply [weren't] true." We do not purport to know what Mr. Malvo said. What is clear, however, is that a minor was isolated from counsel and anyone else who might protect him while police sought to coax his confession to capital crimes.

All of this may prove to be legal. Mr. Horan contends that as long as Mr. Malvo waived his right to have a lawyer present, the interrogation was proper. But there is good reason why investigators generally are kept away from charged suspects without their lawyers' permission. Once the state charges a person, it is no longer a neutral investigator but has undertaken an adversarial confrontation with the goal of punishment. Lawyers are the critical insulation that protects people from abuse in this circumstance. This is all the more true with minors, who are particularly vulnerable and who are also particularly apt to confess falsely. Getting a child to confess in the hours immediately before counsel is appointed may seem like good, aggressive police work. But it risks unfairness to especially vulnerable targets -- which can, in turn, jeopardize evidence or even convictions on appeal.

It also risks causing authorities to get the wrong answer on critical questions -- as the recent revelations in the Central Park jogger case in New York make vividly clear. In that case, several juveniles were convicted after implicating one another; recent DNA evidence suggests that they all may be innocent. In a case such as Mr. Malvo's, in which the nuances of his relationship with his alleged partner are unclear, it seems particularly important to proceed carefully and make sure the facts are fully understood.



2002 The Washington Post Company



Malvo interrogation { November 13 2002 }
Shameful treatment
Voiding confession { February 27 2003 }

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