X marks the spot.
Sniper defendant Lee Boyd Malvo refused to sign his name on a Miranda rights form — placing an "X" on the form instead — when he met with Fairfax detective June Boyle and FBI agent Brad Garrett on Nov. 7, 2002.
Malvo, then 17, was transferred to Fairfax from Maryland that day, two weeks after he was arrested in connection with sniper attacks that killed 10 people and injured three others in the Washington area in October 2002.
"'There's a reason I can't write it; it's self incriminating,'" Malvo said, according to the defendant's motion to suppress statements filed by his attorney Michael Arif.
When Boyle asked Malvo if he wanted to "sign" it with an "X" instead, Malvo agreed. The "X" was Malvo's way of refusing to say, do or write anything self-incriminating, Arif said.
"The 'X' was clearly intended as indication that he did not wish to waive his rights," according to Arif.
But to Boyle and Garrett, Malvo’s "X" marked the spot that he became willing to talk, the "X" substituting for Malvo's signature.
It doesn't matter, say prosecutors.
"There is no requirement that a defendant's waiver be in writing," wrote Raymond F. Morrogh, deputy commonwealth's attorney, in a response to Arif's motion that was released by Fairfax County Circuit Court on Monday.
Morrogh and commonwealth's attorney Robert F. Horan Jr. will present arguments on Monday, April 28 why they should be permitted to use Malvo's confessions during trial while Arif will make arguments why he believes Malvo's statements to detectives were a violation of Malvo's constitutional rights.
Circuit Court Judge Jane M. Roush is expected to rule early next week whether Malvo's admissions from that interview will be allowed to be used by prosecutors at Malvo's trial, scheduled to begin on Nov. 10, 2003.
While Malvo's attorneys say detectives tricked him into talking, prosecutors portray the teenager as intelligent and in control, "not the least bit intimidated by police."
"During the interview in Fairfax, Malvo spoke calmly and articulately about his crimes," wrote Morrogh.
Boyle met with Malvo for approximately six hours on Nov. 7. Detectives began taping Malvo after he made his mark on the Miranda form. His statements on that day could be an important piece of the prosecution’s case against him.
"It is not so much what he said, but rather, how he said it, that best illustrates who Malvo is," wrote Morrogh, giving an example of Malvo's description of one crime scene where he missed an intended victim.
"Evidently, Malvo found it amusing that as the errant bullet flew past the boy's head he swatted at the air as if a bee had buzzed too close. Malvo actually smiled and chortled as he recounted this event," wrote Morrogh.
BUT THERE ARE SEVERAL other reasons why this and any statements made by Malvo should be suppressed, according to Malvo's attorneys.
Malvo, who had invoked his right to remain silent from the time of his arrest until Nov. 7, twice asked to see his lawyer in his conversation with Boyle after he was moved to Fairfax, Arif said.
Morrogh counters with previous case law that demonstrates that a defendant must clearly request an attorney, something he asserts Malvo did not do.
"Malvo's inquiry, 'Do I get to see my attorneys?' is literally not a request rather it is a question," wrote Morrogh.
The U.S. Supreme Court gives special consideration to juveniles — emphasizing distinctions between juveniles and adults — when considering the validity of confessions, wrote Arif, citing U.S. Supreme Court case Gallegos v. Colorado:
"He [a juvenile] would have no way of knowing what the consequences of his confession were without advice as to his rights … and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself."
Not only did Malvo invoke his right to attorney, he was represented by court-appointed attorneys and a guardian who made every effort to be present and were turned away while he was being interviewed, said Arif.
Judge James K. Bredar, who had overseen Malvo's appearances in Federal court, specifically ordered Malvo's attorneys to continue to represent Malvo in any “ancillary” matters.
Robert Tucker, Malvo's attorney named by Bredar, faxed a letter on Nov. 7 to United States Attorney for the Eastern District of Virginia. He stated that no Federal authorities were to interrogate Malvo, and, in the event that he was being transferred into state custody, no state or local law enforcement authorities were to interrogate Malvo, according to Arif.
Then Federal charges were dropped in Maryland, and Malvo was moved to Virginia to face charges in a jurisdiction that would allow for the execution of juvenile offenders.
But none of the attorneys appointed to Malvo when he was held under Federal charges in Maryland were licensed to practice in Virginia, wrote Morrogh. "Therefore, none of them were eligible to be appointed as counsel on the Virginia charges, especially not by a Maryland Magistrate Judge."
So, as far as detectives and prosecutors knew, Malvo had no counsel on Nov. 7 and could be questioned as if it were the beginning of the case against him.
Prosecutors also say the charges against Malvo in Fairfax were different than those charged against him when he was held in Baltimore, Md. For example, the killing of Arlington resident Linda Franklin was not part of the original charges filed against him.
ARIF MAINTAINS that Malvo's fifth and sixth amendment rights were still violated.
Malvo had remained silent and was represented by attorneys through every stage of his two weeks in custody before Nov. 7, Arif wrote.
A defendant who invokes his Fifth Amendment right to counsel should not be subject to further interrogation until counsel has been made available, unless the accused himself initiates contact, Arif wrote.
But prosecutors maintain the best evidence that Malvo knew the charges he faced in Fairfax were the fact that he "freely discussed the murder of Linda Franklin."
"After Malvo had eaten and small talk was finished, he got right down to discussing the killings," wrote Morrogh. "He laughed as he described shooting the woman at Home Depot in the head."