Judge Allows Use of Confession in Sniper Trial

The fuling dismisses a defense argument that the confession was coerced and inadmissible in court.

“Having considered the totality of the circumstances surrounding the police interrogation … I conclude that his statement was made voluntarily,” Circuit Judge Jane Marum Roush wrote.

The 18-year-old Malvo and traveling companion 42-year-old John Muhammad are suspected in some 20 shootings, including the sniper attacks last fall that left 10 people dead in the Washington, D.C. and Richmond, Va. areas. The two are also suspected to be behind shootings in Georgia, Alabama and Louisiana.

In his first trial, Malvo faces charges of capital murder and using a firearm in the commission of a felony in the shooting death of FBI analyst Linda Franklin. The crime took place when Malvo was 17, but he will be tried as an adult.

Roush tossed out only some incidental statements made by Malvo before he signed a document with an “X” waiving his right to remain silent and right to a lawyer. Police had characterized that prior information as chitchat, although it included some discussion of Malvo’s relationship to Muhammad, in which Malvo said he learned “everything” from his friend and said he occasionally gave orders to Muhammad.

More crucial sections of Malvo’s statements can be used in court, including parts where Malvo laughed about some of the shootings and chuckled as he recalled a boy’s reaction to a missed shot, recalling that the boy swatted at his face as though a bee buzzed by him.

Malvo’s lawyers had argued that police and prosecutors essentially conspired to keep him away from his lawyers on Nov. 7, when federal charges against Malvo were dropped and he was transferred to Virginia custody. He had been incarcerated in Maryland.

Malvo’s federally appointed lawyers on that day testified that they scrambled to find their client and prevent him from talking to police, but were unsuccessful.

But Roush wrote that “there is no evidence that Fairfax police or prosecutors colluded with federal authorities to spirit Malvo away to Virginia without the knowledge of his Maryland attorneys.”

The judge also ruled that Malvo had no right to counsel on Nov. 7 because the federal charges against him had been dropped and the Virginia charges were not formalized until Nov. 8, when he made his initial court appearance. She explained in her ruling that the Sixth Amendment right to counsel is “offense specific” and only goes into effect once someone is charged with an offense.

Roush also determined that even if Malvo had the right to a lawyer, he knowingly waived it during his questioning with police.

Prosecutors say they have other evidence linking Malvo to the crimes, including ballistics, fingerprints and DNA evidence, but they said before the ruling their case would be much easier to prove if the confession was allowed.